FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ. The long title of the Criminal Law Amendment Act 1945 (Q) ("the CLA Act") described it as an Act to amend the Criminal Code (Q) and the Justices Acts 1886‑1942 (Q) "in certain particulars in respect of, and to make further provision for, the Treatment and Punishment of Offenders convicted of Sexual Offences" and for other purposes. Part IV of the CLA Act (ss 17‑18) was entitled "Indeterminate Detention and Probation of Offenders Convicted of Sexual Offences".
Each of the plaintiffs (Edward Pollentine and Errol George Radan) is detained under the CLA Act "during Her Majesty's pleasure". Each alleges that s 18 of the CLA Act, which purports to authorise his indeterminate detention, is beyond the legislative power of the Parliament of Queensland and invalid.
The plaintiffs' challenge to validity fails.
The CLA Act
In 1984, when each plaintiff was ordered to be detained under the CLA Act, s 18(1)(a) provided that, if a person was found guilty on indictment of "an offence of a sexual nature" committed upon or in relation to a child under the age of 17 years, the judge "may at his discretion" direct that two or more legally qualified medical practitioners (of whom one was to be specially qualified in psychiatry, if the services of such a person were reasonably available) "inquire as to the mental condition of the offender, and in particular whether his mental condition is such that he is incapable of exercising proper control over his sexual instincts". Section 2A of the CLA Act provided that the term "offence of a sexual nature" included "any offence constituted wholly or partly by an act whereby the offender has exhibited a failure to exercise proper control over his sexual instincts and any offence in the circumstances associated with the committal whereof" the offender exhibited a failure of that kind and includes "an assault of a sexual nature".
Section 18(3)(a) provided that, if the medical practitioners "report to the judge that the offender is incapable of exercising proper control over his sexual instincts", the judge may "in addition to or in lieu of imposing any other sentence ... declare that the offender is so incapable and direct that he be detained in an institution during Her Majesty's pleasure". This power was subject to the express proviso to s 18(3)(a) (now found in s 18(3A)) that the offender may cross‑examine the medical practitioners and call evidence in rebuttal of a report, "and no such order shall be made unless the judge shall consider the matters reported to be proved".
These provisions of the CLA Act were not, and are not, confined in their operation to persons found guilty on indictment. Section 18(1)(b) of the CLA Act further provided that, if a person is convicted summarily of an offence of a sexual nature upon or in relation to a child, the court of petty sessions (now Magistrates Court) may order the person to be brought before a judge of the Supreme Court to be dealt with in accordance with s 18(1)(a). In addition, an application for a declaration and direction under s 18(3) could, and may now, be made in a case where an offender is serving a sentence of imprisonment for an offence of a sexual nature (whether or not committed upon or in relation to a child). In this last kind of case, two medical practitioners (of whom one is specially qualified in psychiatry) must report to the Attorney‑General not only that the offender is incapable of exercising proper control over his sexual instincts but also that two further conditions are met: that "such incapacity is capable of being cured by continued treatment" and that "for the purposes of such treatment it is desirable that such person be detained in an institution after the expiration of his sentence of imprisonment".
Every person in respect of whom a direction for detention is given under s 18(3) or s 18(4) must be detained in such institution as the Governor in Council directs. In 1984, an "institution" included not only any institution proclaimed by the Governor in Council for the purposes of s 18 of the CLA Act but also any prison or police gaol. (An "institution" is now defined to mean "a corrective services facility or watch‑house" or other institution prescribed by regulation.) An offender detained under s 18(3) or s 18(4) was not (and is not) to be released "until the Governor in Council is satisfied on the report of two legally qualified medical practitioners that it is expedient to release him".
An offender detained under s 18 of the CLA Act must be examined at least once in every three months by the Director of Mental Health (formerly the Director of Mental Hygiene) or a legally qualified medical practitioner appointed by the Director.
When the plaintiffs were ordered to be detained, an offender detained under s 18 of the CLA Act could be conditionally released on parole or leave of absence. Until the commencement in 2002 of s 547 of the Mental Health Act 2000 (Q), the Mental Health Act 1974 (Q) also provided for detainees under s 18 of the CLA Act to be released on leave of absence. Since 2002, and amendments made chiefly by the Criminal Law Amendment Act 2002 (Q), Pt 3A of the CLA Act (ss 18A-18H) has provided for the conditional release of offenders detained under s 18. Part 3A does this by applying, with some modifications, the general provisions made by Ch 5 of the Corrective Services Act 2006 (Q), which govern the release of prisoners on parole.
Section 18B(1) of the CLA Act applies the parole provisions made by Ch 5 of the Corrective Services Act to a person detained under s 18 of the CLA Act as if that person were a prisoner serving a term of life imprisonment. By the combined operation of s 18B(2) of the CLA Act and s 181(2)(d) of the Corrective Services Act, each plaintiff, having committed the relevant offences before 1 July 1997 and having served more than 13 years' detention, is eligible to apply for parole. But under s 18E of the CLA Act, an offender detained under s 18 may not be granted parole unless the Queensland Parole Board is satisfied not only of any other matter of which the Board must be satisfied under the Corrective Services Act but also that "the detainee does not represent an unacceptable risk to the safety of others". The material before this Court does not suggest that either plaintiff has ever applied for parole but, as will later be explained, the first plaintiff, Mr Pollentine, has twice challenged decisions by the Governor in Council that his detention should not be terminated.
The plaintiffs pointed to a number of issues about how some of the relevant provisions of the CLA Act are to be construed. Before noticing those issues, it is desirable to describe how each plaintiff came to be made subject to an order under s 18.
The making of detention orders and subsequent proceedings
In July 1984, Mr Pollentine pleaded guilty in the District Court of Queensland to 14 counts of sexual offences committed against four different children at various times between January and April of that year. During the sentencing proceedings, the prosecution called two medical practitioners, each a specialist psychiatrist, to give evidence about whether Mr Pollentine was incapable of exercising proper control over his sexual instincts. Each witness expressed the opinion that Mr Pollentine was not capable of exercising proper control. There was no cross‑examination challenging the opinion the witnesses expressed. No question was put to either witness, whether by the sentencing judge or by counsel for the prosecution or prisoner, about what the witness meant when he said that Mr Pollentine was "incapable of exercising proper control over his sexual instincts".
The sentencing judge declared that Mr Pollentine "is incapable of exercising proper control over his sexual instincts" and directed that he be detained in an institution during Her Majesty's pleasure. No other sentence was passed. Mr Pollentine did not appeal against the orders made by the sentencing judge.
In the 30 years that have passed since these orders were made, Mr Pollentine has twice sought judicial review of decisions made by the Governor in Council that he not be released from detention. In 1994, Thomas J set aside a decision not to release Mr Pollentine on the ground that Mr Pollentine had been denied procedural fairness. On reconsideration, however, the Governor in Council again decided that Mr Pollentine should not be released.
In 1996, Mr Pollentine sought judicial review of a further decision that he not be released. The application failed, both at first instance and on appeal to the Court of Appeal.
In May 1984, the second plaintiff, Mr Radan, pleaded guilty in the District Court of Queensland to eight counts of sexual offences committed against two children between February 1982 and October 1983. Mr Radan actively sought the making of a declaration under s 18 of the CLA Act so that he might "be given treatment that would be available in a mental institution". One of the specialist psychiatrists required to report on Mr Radan's capacity to control his sexual instincts initially gave evidence to the effect that she considered that he was able to exercise proper control. Upon further examination, however, the doctor concluded that it was "highly likely that without some form of intervention [Mr Radan] would re‑offend" and that he was "unable to control his sexual impulses".
The sentencing judge sentenced Mr Radan to a total effective sentence of 12 years' imprisonment, made the declaration required by s 18(3) and directed that, at the expiration of the sentence of imprisonment, Mr Radan be detained in an institution during Her Majesty's pleasure. Mr Radan appealed to the Court of Criminal Appeal against the sentences imposed. He alleged that, if indefinite detention was directed, only "a light" sentence should be imposed for the offences. The Court of Criminal Appeal concluded that, because the period of indefinite detention has "a reformatory purpose", it should begin as soon as practicable. To that end, the Court varied the sentence to a total effective sentence of three years' imprisonment but left the declaration and direction made under s 18 undisturbed.
The challenge to validity
The plaintiffs have brought proceedings in the original jurisdiction of this Court claiming relief including a declaration that s 18 of the CLA Act is invalid and orders setting aside the District Court orders directing the indeterminate detention of the plaintiffs. The parties have joined in stating questions of law for the opinion of the Full Court. The principal question is:
"Is s 18 of the Criminal Law Amendment Act 1945 (Qld) invalid on the ground that it is contrary to Chapter III of the Constitution, by way of infringing the principle identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, or otherwise?"
They also ask who should pay the costs of the special case.
Some preliminary considerations
Two points should be made before considering the substantive issues.
First, because the plaintiffs' challenge to validity fails, it will not be necessary to consider whether a decision that s 18 is invalid would permit or require the grant of relief quashing the relevant orders requiring continued detention of the plaintiffs. In particular, it will not be necessary to examine what consequences, if any, follow from Mr Radan's appeal to the Supreme Court of Queensland against sentence, or whether he is now to be regarded as detained in accordance with an order of the District Court or an order of the Supreme Court (a superior court of record).
Second, lying behind the plaintiffs' submissions in this case can be seen two propositions, both of which were recorded by Gummow J in Fardon v Attorney‑General (Qld). One, made by Professor Norval Morris in 1951, is that, in the absence of legal control of punishments (especially indeterminate punishments), there is the risk of administrative arbitrariness. The other, related, point was made by Sir Leon Radzinowicz in 1945, the same year the CLA Act was passed:
"Unless indeterminate sentences are awarded with great care, there is a grave risk that this measure, designed to ensure the better protection of society, may become an instrument of social aggression and weaken the basic principle of individual liberty."
This Court has said that great care must be exercised in seeking and considering the making of an order for indefinite imprisonment. But it is notions of the kind identified by Professor Morris and the consequences that follow from lack of care in awarding indeterminate sentences which may be seen as animating the plaintiffs' challenge to validity. Whether, or to what extent, the CLA Act lawfully admits of "administrative arbitrariness" depends first and foremost upon its proper construction.
Some construction questions
The expression "incapable of exercising proper control over ... sexual instincts" is used in s 18 to identify the question to be answered by medical practitioners appointed to report to a court and to identify the content of the declaration a court must make if indeterminate detention is to be directed. It is the statutory criterion critical to the operation of s 18. The expression is cast in terms suggesting an inquiry about the present existence of some objective fact: about whether the offender can or cannot now exercise "proper control". But the inquiry required by s 18(3) of the CLA Act is more complex than that binary description suggests.
First, the inquiry is about future human behaviour: about the offender's (future) control of sexual instincts. Second, it is an inquiry about the exercise of "proper control", and some content must be given to the adjective "proper". Third, the Act's requirements that medical practitioners report their opinion about the question, and that the court may direct indefinite detention only if two medical practitioners report that the offender is incapable of exercising proper control, suggest that the provisions assume that "capacity to control" is connected with matters discernible principally, perhaps even only, by a medical practitioner. And if that is so, what those underlying matters are, as well as what consequences follow from them, appear to be matters of opinion rather than objectively demonstrable fact.
Whether, as was suggested in argument, these considerations point to the conclusion that the statutory criterion for directing indeterminate detention requires a court to make some assessment of whether the risk that the offender will reoffend is "acceptable" or "unacceptable" need not be decided. There are evident dangers in attempting to capture the whole of the operation of any statutory criterion by choosing some different collocation of words. And in this case, using notions of "risk" and what is "acceptable" or "unacceptable" to describe the content given to the statutory criterion may be thought to do no more than shift debate about the meaning of the statutory language to a debate about the meaning of the substituted expressions. But because the decision whether a person is "incapable of exercising proper control over his sexual instincts" requires consideration of what that person would do if not detained, predictions must be made. It is unsurprising, then, that the result of the inquiry can be described in terms of "risk" and "likelihood".
It remains important, however, to emphasise two points about the statutory criterion. First, the consequences for an offender of a court making a direction for detention under s 18 are very large. Second, the use of the word "incapable" suggests that, absent some intervening fact or circumstance, reoffending is well‑nigh inevitable.
Applying the statutory criterion in any particular case may be difficult. That difficulty may reveal issues about the proper construction of the expression. As has been noted earlier, some issues of this kind were touched on in the course of the proceedings against Mr Radan in the District Court. A court must decide whether to order detention in addition to or in lieu of imposing any other sentence. There may well be room for debate about what matters inform the proper exercise of that discretion. It is not necessary in this case, however, to attempt to identify, let alone resolve, all disputable questions of construction or discretionary considerations in order to decide the validity of s 18. If s 18 does present issues of these kinds in a particular case, they are issues which can and will be resolved in the ordinary way. Observing that the criterion for engagement of s 18 may be difficult to construe and apply, or that the discretion given by s 18 may be difficult to exercise, does not, in this case, bear upon the question of validity. To the extent to which the plaintiffs' arguments assumed or implied the contrary, the submission should not be accepted.
It is to be observed that s 18 can be engaged only in cases where the offender is fit to stand trial and is found criminally responsible for the offences charged. Yet s 18 is directed to an offender whose "mental condition is such that he is incapable of exercising proper control over his sexual instincts". And that "mental condition" may, or may not, be "capable of being cured by continued treatment". And whether or not the offender's "mental condition" can be "cured", s 18 has what McPherson J called a "reformatory purpose". This purpose may be effected by incarceration in a prison rather than a place of treatment; it may be pursued by way of punishment "in addition to or in lieu of imposing any other sentence" (emphasis added).
If a court directs indeterminate detention under s 18, neither the court which makes the direction nor any other court plays any part in deciding where the offender will be detained or whether the offender will be given any "treatment" for his "mental condition". It will be recalled that the stated basis for Mr Radan seeking an order for detention was so that he might be treated. Although s 18(4) speaks of the possibility of curing an incapacity properly to control sexual instincts, opinions about what is meant by "cure", and about how that might be achieved, may differ. And it may be that the CLA Act proceeds from premises about causes and prevention of sexual offending which, if accepted at the time of the passing of the Act, may now be disputed.
Again, however, any differences in opinion or disputes about the validity of the premises for the operation of s 18 do not touch the question of the validity of s 18. If, as there may appear to be, there is some tension between notions, on the one hand, of mental condition, incapacity to control and "cure", and, on the other, of punishment for crime and community protection from crime, those tensions are relevant, if at all, only because they may bear upon the proper construction and application of s 18. Whether and how these apparent tensions in legislative purpose affect the proper construction or application of s 18 need not be decided. The section's validity does not turn upon whether it is a provision for punishment, reform, or both punishment and reform.
It is necessary to say something more about the CLA Act's provisions for release.
Criteria for release
The plaintiffs submitted that the CLA Act provides different criteria for directing detention from those which govern release from detention. In this branch of their argument, the plaintiffs directed chief attention to s 18(5)(b) of the CLA Act and, in particular, what is meant by the phrase "it is expedient to release him". It is important to notice, however, that the provisions governing release from detention must be understood in the context of the Act as a whole. In particular, what is meant by "it is expedient to release him" must be understood in light of not only the Act's provisions authorising a direction for detention but also the provisions made for conditional release of a detainee. All of these considerations inform the meaning that is to be given to the word "expedient".
The Governor in Council must be satisfied on the report of two medical practitioners that "it is expedient to release" the offender. The required state of satisfaction must thus draw upon the reports and, in the context of this Act, those reports must be directed to whether, at the time of the report, the detainee remains a person whose "mental condition is such that he is incapable of exercising proper control over his sexual instincts". Section 18(5) makes no mention of any other source of material which may inform the formation of the required state of satisfaction.
Because s 18(5) provides for the termination of detention, it should not be construed as conferring an unfettered discretion to grant or refuse a detainee's release. On the contrary, by identifying the report of the medical practitioners as the foundation for the decision about what is "expedient", the provision should be read as confining the matters which the decision maker may lawfully take into account to the matter with which those reports should deal: whether the detainee remains a person whose mental condition is such that he is incapable of exercising proper control over his sexual instincts. Whether the decision maker may be informed on that subject by reference to more than the reports provided is a question which need not be decided. But what is "expedient" turns only on whether the detainee remains incapable of exercising proper control.
In the course of oral argument, the plaintiffs emphasised some passages from the reasons for judgment of Fitzgerald P in Mr Pollentine's second application for judicial review of a decision that he not be released. These passages, they submitted, suggested that "anticipated adverse community reaction" to release could properly be taken into account in deciding whether it is expedient to release a detainee. If that were so, there would indeed be a marked disparity between the matters which bear upon making a direction for indefinite detention under s 18 and those which bear upon the decision to terminate detention.
It is not profitable to examine whether the reasons of Fitzgerald P are properly to be read as adopting a proposition of the kind suggested. It is enough to say that, for the reasons which have already been stated, neither "anticipated adverse community reaction" nor other forms of political consequence, whether assumed to be well founded or not, are relevant to whether it is expedient to release a person detained under s 18. As has been explained, whether it is expedient to release must depend upon the assessment that is made of the risk of reoffending and the nature of the offences that the detainee might commit if released from detention without conditions or supervision. To take into account "anticipated adverse community reaction" or "public opinion", even if those expressions could be and were given some legally sufficient meaning, would be to fall into legal error.
The conclusions which have been stated follow from construing the expression "it is expedient" in the context in which it appears in s 18(5) and by reference to the subject matter, scope and purpose of the detention provisions made by s 18 and the CLA Act as a whole. They are conclusions which are consistent with, and reinforced by, the conditional release provisions now set out in Pt 3A of the CLA Act. The substance of those provisions has been described earlier in these reasons. For present purposes the observation of central importance is that, as noted earlier, s 18E requires that there be no release on parole unless the Parole Board "is satisfied the detainee does not represent an unacceptable risk to the safety of others".
What is an "unacceptable" risk may, probably will, differ according to the conditions on which a detainee is released into the community. If detention is terminated under s 18(5), the detainee is released without condition. The risks that are to be considered are to be identified by reference to those circumstances. By contrast, if released on parole, a detainee may be released on conditions including, for example, continued compliance with medication or other forms of treatment. The risks to be considered in that case would be considered against a background where the detainee would risk return to detention for breach of those conditions, regardless of whether the detainee had committed any offence.
It is not necessary to explore these aspects of the matter further. For the purposes of this case, the important observation to make is that there is no relevant difference between the basis on which a court will act in ordering indefinite detention under s 18(3) and the basis on which the Executive must act in deciding whether it is expedient to terminate the detention.
Invalidity
The plaintiffs identified three bases for their attack on the validity of s 18. Those bases of attack can be described under the following headings: "Impermissible delegation of the sentencing task?", "Different criteria for directing detention and release?" and "Want of sufficient safeguards?"
Each basis of attack was directed to the ultimate submission that s 18 infringes the principles first stated in Kable v Director of Public Prosecutions (NSW).
As the plurality recorded in Assistant Commissioner Condon v Pompano Pty Ltd, the principles first stated in Kable have since been considered and applied in several cases in this Court. The principles have their roots in Ch III of the Constitution and limit State legislative power. "[T]he Parliaments of the States [may] not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth." And it is now the accepted doctrine of the Court that, as Gummow J said in Fardon, "the essential notion is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system". But, as the plurality in Pompano also pointed out, the repugnancy doctrine "does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III". Hence, "the notions of repugnancy to and incompatibility with the continued institutional integrity of the State courts are not to be treated as if they simply reflect what Ch III requires in relation to the exercise of the judicial power of the Commonwealth".
Impermissible delegation of the sentencing task?
The plaintiffs submitted that an order for indefinite detention made under s 18 "delegates to the Executive the power to determine the period in which an offender will be deprived of his or her liberty". In oral argument, this was described as "outsourcing" sentencing to the Executive. There is, so the plaintiffs submitted, a radical difference between a sentence of life imprisonment (even where subject to release by the Executive on parole or licence) and an order for detention during Her Majesty's pleasure. The duration of the former kind of sentence is, they submitted, fixed by the sentencing court; the duration of the latter order is wholly determined by the Executive.
The delegation submission must be rejected for two related reasons: one concerning how a direction for indeterminate detention is made; the other about how detention is terminated. First, a sentencing court must decide, according to the ordinary processes of the criminal law, applying ordinary principles of statutory construction and judicial decision making, whether s 18 may be engaged in the case of the offender concerned. The court dealing with that offender, if satisfied that s 18 is engaged, then may, but need not, direct indefinite detention in addition to or instead of fixing a determinate sentence. The court is not bound to direct detention terminable only by executive decision. A direction for indefinite detention will serve purposes of punishment and community protection. According to what happens to the offender during the detention, the direction may serve some reformative purpose. None of these features of the matter points in any way to repugnancy to or incompatibility with the institutional integrity of the court that makes the direction or of State courts more generally.
Second, once it is recognised that release is not at the unconfined discretion of the Executive, but dependent upon demonstration by medical opinion of the abatement of the risk of reoffending, the notion that a court has delegated the fixing of the extent of punishment loses most, if not all, of its force. The continuation of detention depends upon danger to the community, not upon retribution for what the offender has done. And because an inquiry under s 18(1)(a) is into whether the offender's "mental condition is such that he is incapable of exercising proper control", there is an evident similarity between a court's power to order indeterminate detention on this account and the powers courts have long had not only to decide whether an offender is fit to stand trial or was criminally responsible for an alleged crime but also, on proof of unfitness or insanity, to direct the indeterminate detention of that offender.
Different criteria for directing detention and release?
The plaintiffs submitted that the criteria a court must apply when determining whether to direct indefinite detention are different from those the Executive must apply in deciding whether a detainee may be released. The consequence, they submitted, is that a political decision to allow detention to continue is cloaked "in the neutral colors of judicial action".
The decision to release a person detained under s 18 is made by the Governor in Council and thus on the advice of the Minister. It is a decision which is, and is seen to be, made by a political branch of government. The decision is not, in any way, made to appear as if it were made by a court. And contrary to the plaintiffs' submissions, despite the decision being made on the advice of a political branch of government, the decision to release a detainee is not properly described as a "political decision". The decision to terminate or not to terminate detention is to be made according to a criterion which admits of judicial review. Indeed Mr Pollentine has twice sought judicial review of such a decision.
And as has been noted, an offender can be released on parole according to a Parole Board determination of whether statutory conditions for release on parole are met, including, in particular, whether the detainee represents an unacceptable risk to the safety of others. Again, this decision is, and is seen to be, made by the Executive. It is a decision which is to be made by reference to stated statutory criteria.
For these reasons, the Mistretta metaphor, which the plaintiffs adopted, of cloaking political decisions "in the neutral colors of judicial action", is wholly inapplicable. It is, therefore, unnecessary to do more than point out that even if the metaphor could be applied to this case (and it cannot), its use could be no substitute for consideration of the principles of repugnancy and incompatibility.
Want of sufficient safeguards?
Finally, the plaintiffs submitted that a State court may form part of a regime for preventive detention only if that regime contains safeguards to preserve the institutional integrity of the court. They submitted that the CLA Act provides safeguards to preserve the institutional integrity of State courts which are different from, and less effective than, those provided by the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q) considered in Fardon.
It is right to say, as the plaintiffs did, that decisions about absolute or conditional release of a person detained under s 18 are made by the Executive and not by a court whereas generally similar decisions under the Dangerous Prisoners (Sexual Offenders) Act (examined in Fardon) are made by the Supreme Court. It by no means follows, however, that the provisions of s 18 are incompatible with or repugnant to the institutional integrity of the State courts. And, in the end, the plaintiffs pointed to no feature of the CLA Act, beyond those already dealt with, which they submitted had that effect. Giving the Executive the power to make decisions about absolute or conditional release of persons detained under s 18 is not shown to be incompatible with or repugnant to the institutional integrity of the State courts.
Conclusion and orders
For these reasons, the plaintiffs' arguments for invalidity must fail. Section 18 of the CLA Act is not repugnant to or incompatible with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system.
The principal question stated in the special case should be answered "No". The plaintiffs should pay the costs of the special case and the second question be answered accordingly.