FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ.
The issue
A State Act empowered the State's Supreme Court to order the preventive detention of Gregory Wayne Kable if satisfied that otherwise he would probably commit a serious act of violence. The Supreme Court ordered Mr Kable's detention for six months. After the six months had elapsed, the detention order was set aside on appeal to this Court and the State Act held invalid. Did the detention order provide lawful authority for Mr Kable's detention?
Procedural history
The Community Protection Act 1994 (NSW) ("the CP Act") provided for "the preventive detention (by order of the Supreme Court [of New South Wales] made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable". On 23 February 1995, on the application of the Director of Public Prosecutions, Levine J made an order pursuant to s 9 of the CP Act that Mr Kable be detained in custody for a period of six months.
Mr Kable appealed against this order to the Court of Appeal but his appeal was dismissed.
By special leave, Mr Kable appealed to this Court. After the grant of special leave, but before the appeal to this Court was heard, the six month period fixed by the order of Levine J expired and Mr Kable was released from detention. In September 1996, this Court held that the CP Act was invalid. This Court allowed Mr Kable's appeal, set aside the order which the Court of Appeal had made, and, in its place, ordered that the appeal to that Court be allowed with costs, the order of Levine J be set aside and, in its place, order that the application of the Director of Public Prosecutions be dismissed with costs. It will be convenient to refer to this decision as Kable (No 1).
After this Court decided Kable (No 1), Mr Kable commenced proceedings in the Supreme Court of New South Wales, claiming damages for false imprisonment. Initially the proceedings were brought against the State of New South Wales ("the State"). Later, the Director of Public Prosecutions ("the DPP") was joined as a defendant. Ultimately three causes of action were pleaded: abuse of process, malicious prosecution and false imprisonment. Before the action was tried, the DPP was dismissed from the proceedings by consent.
The primary judge (Hoeben J) determined a number of issues as preliminary questions. Those issues were decided against Mr Kable and judgment entered for the State. In particular, the primary judge rejected Mr Kable's argument that the detention order made by Levine J was a nullity when made and held that the order was valid until it was set aside.
Mr Kable appealed to the Court of Appeal. That Court (Allsop P, Basten, Campbell and Meagher JJA and McClellan CJ at CL) allowed the appeal in part. The Court of Appeal held that the primary judge had been right to dismiss Mr Kable's claims for collateral abuse of process and malicious prosecution but that Mr Kable should have judgment against the State for damages to be assessed on his claim for false imprisonment. All members of the Court of Appeal held that the order of Levine J was no answer to Mr Kable's claim for false imprisonment.
Allsop P held that the reasons given by this Court in Kable (No 1) required the conclusion that, in making the detention order, "the Supreme Court was not exercising judicial power or authority and was not acting, institutionally, as a superior court but was acting, effectively, in an executive function (beyond that which is permissibly ancillary to the exercise of judicial power), as an instrument of the executive".
Basten JA also held that the detention order made by Levine J "did not constitute a judicial order" and that "[a]ny contrary conclusion would contradict the findings" of this Court in Kable (No 1). Basten JA noted that, because constitutional questions had been raised in the proceedings before Levine J, the Supreme Court had exercised federal jurisdiction, but concluded that the detention order was none the less "an invalid non‑judicial order".
By special leave, the State appealed to this Court against the orders made by the Court of Appeal. The Attorneys‑General of the Commonwealth, Queensland, Victoria and Western Australia intervened in support of the State's appeal.
These reasons will show that the detention order made by Levine J provided lawful authority for Mr Kable's detention and that the State's appeal should be allowed.
The competing arguments
The central question in the appeal to this Court was whether the order made by Levine J, until it was set aside, had provided lawful authority for Mr Kable's detention. There was (and could be) no dispute that the Supreme Court of New South Wales is a "superior court of record". There was (and could be) no dispute that the CP Act was invalid. On its face, the detention order was made by the Supreme Court in the exercise of a jurisdiction given to it by a New South Wales Act. The order was expressed to require Mr Kable's detention in the manner and for the time specified. In the course of deciding whether to grant the order sought, Levine J had been asked to hold that the CP Act was constitutionally invalid but had rejected that submission.
The State, and the interveners, submitted that the order made by Levine J was made by a superior court of record and accordingly was effective until it was set aside. Because the order was not set aside until after Mr Kable's release from detention, it followed, so the State submitted, that the order provided lawful authority for Mr Kable's detention.
By contrast, Mr Kable submitted that the bases on which this Court held the CP Act invalid required not only the conclusion that the CP Act was invalid, but also the conclusion that the Supreme Court could not make (and had not made) a "judicial" order requiring his detention. He submitted that it followed that the principle requiring that effect be given to an order of a superior court until it was set aside was not engaged. Either the order made by Levine J was "void ab initio" or, when set aside by order of this Court, the order was "annulled ab initio". On either footing, the argument continued, the order provided no lawful authority for Mr Kable's detention.
Kable (No 1)
Consideration of the competing arguments must begin by identifying what was decided in Kable (No 1). The legislative powers of each of the State Parliaments are necessarily subject to the federal Constitution. The CP Act was held to be beyond the legislative power of the New South Wales Parliament because its enactment was contrary to the requirements of Ch III of the Constitution. The exercise of the jurisdiction which the CP Act purported to give to the Supreme Court was held to be incompatible with the institutional integrity of the Supreme Court.
The incompatibility with institutional integrity which was identified in Kable (No 1) lay in the Supreme Court being required to act as a court in the performance of a function identified as not being a function for the judicial branch of government. The majority in Kable (No 1) described the function which the CP Act required the Supreme Court to undertake in several different ways. All of those descriptions emphasised that the function which the CP Act required the Court to fulfil was not judicial. So, for example, Gaudron J said that the power given by the CP Act "is not a power that is properly characterised as a judicial function, notwithstanding that it is purportedly conferred on a court and its exercise is conditioned in terms usually associated with the judicial process" and that "except to the extent that the [CP] Act attempts to dress them up as legal proceedings ... they do not in any way partake of the nature of legal proceedings". But these and other similar statements made in the reasons of the majority in Kable (No 1) proceeded from the premise that the CP Act required the Supreme Court to act as a court in performing the function prescribed by the CP Act. As Gummow J later said, in Fardon v Attorney‑General (Qld), the "legislative plan" of the CP Act was "to conscript the Supreme Court of New South Wales to procure the imprisonment of [Mr Kable] by a process which departed in serious respects from the usual judicial process".
It is, therefore, to misstate the effect of the decision in Kable (No 1) to hold, as the Court of Appeal did, that in exercising power under the CP Act, "the Supreme Court was not exercising judicial power or authority and was not acting, institutionally, as a superior court". The majority in Kable (No 1) held that the CP Act was invalid because it required the Supreme Court to exercise judicial power and act institutionally as a court, but to perform a task that was inconsistent with the maintenance (which Ch III of the Constitution requires) of the Supreme Court's institutional integrity.
Two further aspects of the proceedings which culminated in this Court's decision in Kable (No 1) should be noted. Those proceedings were conducted on the premises, first, that the proceedings at first instance and in the Court of Appeal engaged the judicial power of the Commonwealth, and second that the order made by the Court of Appeal (and the order made by Levine J) engaged this Court's appellate jurisdiction conferred by s 73 of the Constitution. That the proceedings before Levine J and in the Court of Appeal engaged federal jurisdiction (at least to the extent the proceedings were a matter arising under the Constitution or involving its interpretation) is not open to doubt. And it is equally beyond doubt that the orders of the Court of Appeal, dismissing Mr Kable's appeal to that Court, were within this Court's appellate jurisdiction as a particular example of a species of the genus "all judgments, decrees, orders, and sentences ... of the Supreme Court of any State".
It is then to be observed that in Kable (No 1) this Court ordered that, in place of the order made by the Court of Appeal, the appeal to that Court was allowed and the order of Levine J was set aside, as distinct from quashed, or declared invalid. That is, the order of Levine J was treated in this Court's orders in a manner consistent with it having been valid until set aside.
"Void" or "voidable"?
Mr Kable submitted that the detention order of Levine J was void or was later avoided ab initio. In support of these submissions, he pointed to statements made in this Court (referring to earlier English decisions) distinguishing between what is "void" or "voidable" and what is an "irregularity" or a "nullity".
It is necessary to exercise great care in using words like "void", "voidable", "irregularity" and "nullity" in connection with the issues that arise in this matter. Each word was used in Mr Kable's argument in this appeal to state a conclusion about the legal effect of the order of Levine J. More often than not, each word was used in a way which expressly or impliedly sought to convey a meaning identified by its opposition to another word (void versus voidable, nullity versus irregularity). Used in that way, each of the words, void, voidable, nullity and irregularity, suggests that the whole of the relevant universe can be divided between two realms whose borders are sharply defined and completely closed. None is used in a way which admits (or readily appears to admit) of the possibility that the legal effect to be given to an act affected by some want of power may require a more elaborate description which takes account not only of who may complain about the want of power, but also of what remedy may be given in response to the complaint.
The difficulties associated with using words like "void" and "voidable" in connection with administrative actions have long been recognised. Writing in 1967, H W R Wade said that:
"[T]here is no such thing as voidness in an absolute sense, for the whole question is, void against whom? It makes no sense to speak of an act being void unless there is some person to whom the law gives a remedy. If and when that remedy is taken away, what was void must be treated as valid, being now by law unchallengeable. It is fallacious to suppose that an act can be effective in law only if it has always had some element of validity from the beginning. However destitute of legitimacy at its birth, it is legitimated when the law refuses to assist anyone who wants to bastardise it. What cannot be disputed has to be accepted."
Although directed to administrative actions, these statements may find some reflection in connection with the acts of courts and judges. If a curial decision cannot be disputed, it must be accepted. To the extent to which the orders of a superior court are valid until set aside, there seems little point in attempting to classify those orders as void or voidable. But it is not necessary to pursue those analogies to their conclusion. It is enough to notice that the legal system provides (and must provide) the rules which govern what legal effect is to be given to the decisions of, and the orders made by, courts. And, as later explained, those rules are more complex than the central proposition which underpinned Mr Kable's arguments: that want of jurisdiction for constitutional reasons necessarily entails the complete invalidity for all purposes of whatever is done in purported exercise of that jurisdiction.
One further point should be made about the asserted distinction between proceedings that are "irregular" and those that are "null and void" or a "nullity". This distinction has sometimes been made in connection with applying rules of court which provide for the consequences of non‑compliance with the rules, and in that context speak of setting aside proceedings "as irregular" or "for irregularity". The distinction has been made in determining whether and when complaint could be made about a departure from procedural requirements. That is not the question which arises in this matter. There can be no direct application of that kind of distinction to the present matter.
A judicial order?
The point at which analysis must begin in this matter is, as the parties' submissions recognised, with the order that was made for Mr Kable's detention. Was that an order to which effect was to be given unless or until it was set aside? Mr Kable submitted that the order was of no effect because it was not a "judicial order".
The premise for the submission was that the CP Act did not validly authorise the making of the detention order because the power which the CP Act sought to give to the Supreme Court was not a form of judicial power. And, at first sight, the submission that the detention order was not a "judicial order" may be thought to invoke consideration of the principles governing what is judicial power. It is important, however, to recognise the nature of the distinction being drawn in the submission that the detention order was not a "judicial order". The positive proposition which underpinned the submission was that, although made by a judge of the Supreme Court, the detention order was an exercise of administrative power by the Court. Thus, the distinction upon which the submission depended fastened upon how the power which the CP Act purported to give to the Supreme Court was exercised, not upon whether the power was given validly to the Supreme Court.
In Love v Attorney‑General (NSW), this Court examined whether a warrant issued by a judge of the Supreme Court of New South Wales, pursuant to a State Act, was issued in exercise of judicial power. This Court concluded that, although the power to issue warrants was conferred upon the Supreme Court rather than the several judges of that Court, "the exercise of the power is essentially administrative in nature". The judge who issued a warrant was under a duty to act judicially, but this Court concluded that:
"the issue of the warrant ... is not a 'judicial act in the same sense as is an adjudication to determine the rights of parties', to use the words of Windeyer J in [Electronic Rentals Pty Ltd v Anderson]. It is not an order inter partes from which a party whose conversations may be overheard has a right of appeal. To adapt the language used in Hilton v Wells, under [the State Act] a judge makes no order and nothing that he or she does is enforced as an order of the court."
Accordingly, a warrant issued under the State Act was "an instrument made pursuant to a circumscribed statutory authority", and its effect depended entirely upon the State Act.
By contrast with the warrant considered in Love, the order made by Levine J was more than an authority granted on the application of a person seeking authority and without notice to the person against whom the authority would be exercised. The order made by Levine J was the result of an adjudication determining the rights of Mr Kable and the order both authorised and required his detention for a fixed term. The order was made following proceedings which were conducted inter partes. Subject to some exceptions, the rules of evidence applied. Witnesses were examined and cross‑examined and the opposing parties made submissions. The order was enforced as a court order. Mr Kable could and did appeal against the order. All of these features of the proceedings and the order that was made disposing of the proceedings point to the order being made by a judge of the Supreme Court in his judicial capacity. None suggests that the order was, like the issue of the warrant considered in Love, "a step in the administrative process and ... thus an administrative function". The order made by Levine J was a judicial order.
The order of a superior court of record
As has already been noticed, there was and could be no dispute that the Supreme Court of New South Wales was and is a "superior court of record". It is necessary, however, to approach what meaning is conveyed by that expression with some fundamental principles at the forefront of consideration.
First, and foremost, there can be no unthinking transplantation to Australia of what has been said in English cases about the consequences of a court being established as a "superior court of record". The constitutional context is altogether different. Due regard must be paid to those differences.
Second, there is no Australian court with unlimited jurisdiction. Hence, although it is sometimes suggested that, in England, the prerogative writs of mandamus, prohibition and certiorari were not available to provide relief against a judgment or orders of a judge of a superior court, that suggestion, even if accurate, could have no direct or immediate application in Australia.
Third, all courts, whether superior or inferior, have the authority to decide whether a claim that is made in the court is within its jurisdiction. That power can be described as a court having jurisdiction to decide its own jurisdiction. But because there is no Australian court with unlimited jurisdiction, a decision that a court does, or does not, have authority to decide a particular claim will be subject to review and correction. Sometimes that will be by the grant of prohibition or certiorari; sometimes, as exemplified by Kable (No 1), it will be by the process of appeal, and ultimately by appeal to this Court. And if it is said that a superior court is presumed to act within its jurisdiction, that is best understood as a statement about the effect that is to be given to its orders unless or until they are set aside.
It is now firmly established by the decisions of this Court that the orders of a federal court which is established as a superior court of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction). It was not submitted that any of these decisions should be reopened and there would be powerful reasons not to disturb such a long‑established stream of authority. Nor was it submitted that these principles did not apply equally to the judicial orders of a State Supreme Court. Rather, as already noted, the principles were said not to apply because the order made by Levine J was not a judicial order. And, for the reasons already given, that submission must be rejected.
The roots of the doctrine, that the orders of a superior court of record are valid until set aside even if made in excess of jurisdiction, lie in the nature of judicial power.
First, any court must decide whether it has authority to decide the claim that is made to it. And, as Gaudron J said in Re Macks; Ex parte Saint:
"In establishing the Federal Court as a 'superior court of record', the Parliament has, at the very least, validly authorised that Court to make a binding determination on the question whether or not it has jurisdiction in a matter, subject only to the parties' right to appeal or to seek relief pursuant to s 75(v) of the Constitution." (emphasis added)
Second, giving the orders of a court created by the Parliament these characteristics is within legislative power, either as incidental to the power to create the court or as an exercise of the legislative powers given by ss 76 and 77 of the Constitution. And giving these characteristics to the orders of a court by designating it to be a superior court of record reflects the distinction between the exercise of judicial power (by the final quelling of controversies according to law) and the exercise of executive power (subject to law). As Gummow J said in Re Macks:
"That does not mean that the stream [of judicial power] has risen above its source. Rather, it is to recognise the relationship between Chs II and III of the Constitution and the reach of s 51(xxxix) in conjunction with ss 71 and 77(i)."
Contrary to the view expressed by Basten JA in the Court of Appeal, and supported by Mr Kable in argument in this Court, these conclusions present no "logical conundrum". Nor do these conclusions require consideration of whether "where a judicial function and an incompatible non‑judicial function are purportedly exercised in one proceeding, the incompatible non‑judicial function is not thereby incorporated into a single exercise of federal jurisdiction".
The conundrum identified by Basten JA was expressed as being that the law on which the effect of the judicial order depended gave it "an effect extending beyond the constitutional limits of that jurisdiction". But, as has been explained, the effect which is given to the order made beyond jurisdiction comes not from the law which purported to confer the relevant jurisdiction but from the status or nature of the court making the order (as a superior court of record). The effect which is given to the order is for only so long as it remains in force. Once set aside on appeal, the order is spent.
There is then no occasion to attempt to divide the exercise of jurisdiction by Levine J in the manner considered by Basten JA. The division suggested was between the (valid) exercise of jurisdiction conferred by s 39(2) of the Judiciary Act 1903 (Cth) to hear and determine the question about the validity of the CP Act (as a question arising under the Constitution or involving its interpretation) and the (invalid) exercise of jurisdiction to decide whether to make an order under the CP Act. There being no occasion to consider this division, it is neither necessary nor desirable to examine whether the proceedings conducted by Levine J constituted the hearing and determination of one or more than one "matter", or what may have been the boundaries of the relevant matter or matters.
More fundamental considerations
The conclusions reached in these reasons about the effect of the order made by Levine J accord with fundamental considerations about the operation of any developed legal system. There must come a point in any developed legal system where decisions made in the exercise of judicial power are given effect despite the particular decision later being set aside or reversed. That point may be marked in a number of ways. One way in which it is marked, in Australian law, is by treating the orders of a superior court of record as valid until set aside.
Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order.
In this case, if the detention order made by Levine J was not effective until set aside, those apparently bound by the order were obliged to disobey it, lest they be held responsible for false imprisonment. On Mr Kable's argument, the order was without legal effect and should not have been obeyed. The decision to disobey the order would have required both the individual gaoler and the Executive Government of New South Wales to predict whether this Court would accept what were then novel constitutional arguments. More fundamentally, as the legal philosopher Hans Kelsen wrote, "[a] status where everybody is authorized to declare every norm, that is to say, everything which presents itself as a norm, as nul, is almost a status of anarchy".
Finally, it will be recalled that Mr Kable submitted that the effect of this Court's orders in Kable (No 1) was to render the order of Levine J void ab initio. This Court did not declare the order made by Levine J to be void. As a judicial order of a superior court of record, the order of Levine J was valid until set aside. It was not "void ab initio".
Questions not reached
These conclusions make it unnecessary to consider whether, as the State submitted, the common law provides protection from tortious liability by the defence of legal justification to those who execute an order of a court that is valid on its face.
Further, because Mr Kable was detained pursuant to an order that had not been set aside during the period of detention, and remained valid during that time, it is also unnecessary to examine whether, as Mr Kable contended, the Court of Appeal should have held that the State was "directly liable in false imprisonment to [Mr Kable], in addition to being vicariously liable for that tort".
Conclusion and orders
For these reasons the appeal should be allowed, the orders of the Court of Appeal set aside and in their place there should be orders that the appeal to that Court is dismissed with costs. In accordance with the terms on which special leave to appeal to this Court was granted, the State should pay Mr Kable's costs of the application for special leave to appeal and of the appeal to this Court.