THE STATE OF WESTERN AUSTRALIA -v- QUARTERMAINE [No 3] [2023] WASC 50 (23 February 2023)

1. Part 4 div 5 of the HRSO Act deals with the contravention of a supervision order.
2. Pursuant to s 51, a police officer or community corrections officer who reasonably suspects that an offender who is subject to a supervision order is likely to contravene, is contravening, or has contravened, a condition of the order may apply to a magistrate for a warrant. A person applying for a warrant must advise the State as soon as practicable that the application has been made.[5]
3. If the magistrate is satisfied that there are reasonable grounds for the suspicion, and the application is supported by evidence on oath, the magistrate must issue a warrant for the offender to be arrested and brought before the Supreme Court for the court to consider the suspected or anticipated contravention.
4. Section 53 provides:

(a) an offender who is brought before the Supreme Court under a warrant issued under section 51(3) or 56(7)(d); and

(b) an offender who is charged with an offence under section 80(1).

(2) In relation to the offender, the State may apply for -

(a) an order under section 55; and

(b) an order for the offender to be detained in custody while proceedings on the application for an order under section 55 are pending.

(3) The application must state what order is sought under section 55.

1. Sections 54 and 55 provide for orders that the court may make 'where an application is made under section 53', and 'on the hearing of an application under section 53'.
2. Finally, s 80 enacts the offence of contravening a supervision order. By s 80(4), a police officer who suspects on reasonable grounds that an offender has committed an offence under s 80(1) may arrest the offender without a warrant. A police officer who charges an offender with an offence against s 80 must inform the State as soon as practicable.[6]
3. Section 81(4) and (5) provide for the prosecution of an offence to be commenced in the Supreme Court, or transferred to the Supreme Court, where contravention proceedings have been commenced under pt 4 div 5 in respect of the offender in relation to the same conduct as that constituting the offence, and the contravention proceedings have not been concluded.

Reasoning of Allanson J in The State of Western Australia v ACW

1. Allanson J stated that the critical question was the proper construction of s 53(1) of the HRSO Act. In that case, the respondent had not been brought before the Court on a warrant, so the question was whether s 53 applied on the basis that he was 'an offender who is charged with an offence'. Allanson J considered whether the intended meaning of those words, in the context of the HRSO Act, extended to a person who had been charged but also convicted before the contravention proceedings were commenced.
2. The State contended that, notwithstanding his conviction, the offender remained someone who could be regarded as 'an offender who is charged with an offence'.
3. Allanson J determined that s 53 of the HRSO Act did not have the meaning for which the State contended for the following reasons. [7]

First, s 53 provides the circumstances in which an application may be made under s 55 to either rescind a supervision order and make a continuing detention order, or to amend or affirm the supervision order. Section 53(1) has two limbs. The first limb would permit the respondent to be brought before the court on warrant under s 51; the second limb, without warrant, where a person is charged and is thus subject to the court's jurisdiction pursuant to s 81(4) and (5). If no charge is pending, and there is no warrant, there is no order or other process by which the respondent may be brought before the court.

Second, in requiring the State to be notified as soon as practicable on an application for a warrant under s 51, or where an offender has been arrested under s 80, the Act provides for the State to be able to act quickly in relation to an offender reasonably suspected of breach.

Third, the fact that a person may have the charge for an offence under s 80 dealt with quickly on a plea of guilty does not, in some way, impair the safety of the community if s 53(1)(b) does not apply. An offender may be brought before the court on warrant where the requirements of s 51 are met.

Fourth, the State's construction would apply s 53 for an indeterminate time after a person has been convicted of an offence, and perhaps even after charges have been dismissed.

Fifth, on an offender being convicted of an offence, the criminal liability for the conduct that contravened the Act merges with the conviction.[8] The offender is, no longer, properly described as a person who is charged with an offence.

Accordingly, my opinion is that, on the proper construction of the Act, s 53 did not apply to the respondent.

1. The contention of the State is that I should find that Allanson J is plainly wrong.
2. Both parties agreed that, on the question of the proper construction of s 53 of the HRSO Act, I must follow The State of Western Australia v ACW unless I conclude that the reasoning of Allanson J in that case was plainly wrong.[9]
3. In BHP Billiton Iron Ore Pty Ltd v National Competition Council,[10] the Full Federal Court considered the difference between a previous decision that it considered to be wrong and one that may be classed as plainly wrong.
4. In BHP Billiton Greenwood J, with whom Sunberg J agreed, stated:[11]

The circumstances in which a judge in the exercise of the Court's original jurisdiction might find a decision of a single judge of the Court to be 'plainly wrong' should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry.

That minds might differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument, is plainly wrong.

The difficulty however lies in preserving that degree of important flexibility necessary to enable a judge to do justice between the parties to a controversy inherent in a dispositive adjudication of that controversy when a judge is persuaded that an earlier authority is wrong (apart from illustrations of the kind above) balanced with the importance of consistency and certainty in the administration of the law. The question is always a matter of careful judgment.

The circumstances which might properly lead to a departure from an earlier authority will necessarily vary according to the content of the case and the issues and therefore no prescriptive rules ought to be formulated. However, the point of equilibrium in that balance might be reached by recognising the required emphasis necessary in concluding that an earlier authority is 'plainly wrong' or 'clearly wrong'. In cases where a party advised and represented by experienced senior counsel properly discharging the duty owed to the Court urges upon the Court the merits of the reasoning of the authority in the resolution of the immediate case, it would be difficult to conclude that the authority is 'plainly wrong' notwithstanding that a judge might reach an entirely different view of the proper construction of the provision against the background of the facts found and thus conclude that the early authority is wrongly decided. There is a distinction between concluding a decision is wrongly decided and a conclusion that an earlier authority is 'plainly wrong' and thus ought not to be applied and followed.

1. In SSZEEU v Minister for Immigration and Multicultural and Indigenous Affairs,[12] Weinberg J, with whom Allsop J agreed in his reasons,[13] stated that the word 'plainly' does more than simply add emphasis; it suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. His Honour said:[14]

In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable.

1. In Gett v Tabet,[15] Allsop J, Beazley and Basten JJA observed that on a number of occasions the expressions 'plainly' or 'clearly' wrong have been used, and stated that those adverbs do not limit the circumstances of departure to those in which error is patent or obvious or easily perceived; rather they bespeak the quality of the error or the level of conviction of error that must be perceived. Their Honours said that in order for an intermediate appellate court to depart from a previous decision, the later court must have a strong conviction that the earlier judgment was erroneous, not merely that the earlier court exercised an approach which was open to it but was no longer to be preferred, and the nature of the error can be clearly demonstrated.[16]
2. The State contended that there is an alternative construction reasonably open, being that s 53(1) sets out the criteria that have to be met in relation to an offender before the State can bring or proceed with an application under s 53(2). That is, an offender need not meet the criteria in s 53(1)(a) or (b) at the precise time when the State's application is made under s 53(2). Rather, the offender must have met that criteria at some point before the State's application is made or heard. The State relied upon a number of considerations that are contended to support that alternative reasonable construction.

1. The State relied upon two textual considerations which are contended to support the alternative construction. First, the State submitted that under s 27 of the HRSO Act the term 'supervision order' in relation to an offender is an order that the offender, when not in custody, is to be subject to the conditions the court considers appropriate, in accordance with s 30. The State submits that if an offender is charged and convicted it would not be able to obtain a warrant to bring the offender to the court under s 53(1)(a) because a warrant under s 51 may only be obtained in relation to an offender who is subject to a supervision order, and an offender who has been convicted and incarcerated is no longer subject to a supervision order.
2. I do not accept the State's contention. Section 27(3) provides that a supervision order has effect in accordance with its terms from a date stated in the order and for a period stated in the order. Section 57(2) of the HRSO Act provides that 'the period for which the supervision order applies is extended by any period after the order is made during which the offender is in custody serving the sentence of imprisonment'. That section makes clear that a supervision order does not come to an end simply because an offender serves a term of imprisonment after the supervision order is made.
3. The second textual consideration relied upon by the State contends that s 53(1), whilst not in the standard form of a definition, operates, in effect, as a definition to define what the term 'offender' means for the purposes of s 53(2). The State submits that a definition has no substantive operation of itself, rather its function is to aid the construction of those substantive enactments that contain the defined term.[17] The meaning of a definition in any particular case depends on the context and object of the substantive enactment.[18]
4. The State submits that when the words of s 53(1)(b) are read into s 53(2) (in the place of the words 'the offender'), the preferred construction of the State 'emerges', particularly in light of the phrase 'in relation to' in the opening words of s 53(2). The State says that the phrase 'in relation to' is of very broad import. It generally requires no more than a relationship, whether direct or indirect, between two subject matters, namely in this case the State's power to make a contravention application and the offender having the status of being charged with an offence under s 80(1). The State submits that there is nothing in the present case to suggest that the phrase 'in relation to', when used in s 53(2), was intended to have a narrow operation or that an indirect, but relevant, connection (in this case, a temporal connection) would not be a sufficient relationship for the purposes of that section.
5. I do not accept the State's submissions. The words in s 53(1) mean what is conveyed by their ordinary and natural meaning. The key operative provision in s 53 - that is s 53(2) - applies only to the two kinds of offenders described in s 53(1). The words 'in relation to', when viewed in the context of the section as a whole, and the entirety of pt 4 div 5 of the HRSO Act, do not extend to the offenders for whom orders may be sought. Rather, in s 53(2), the words 'in relation to' simply convey that orders may be sought 'about', or so as to operate 'with respect to', an offender of the kind described in s 53(1) of the HRSO Act.

1. The State also relies upon a number of contextual considerations.
2. The State submitted that whilst a police officer or community corrections officer may apply for a warrant to bring to court a person who has been convicted of an offence (whilst on a supervision order) it is nevertheless ill- fitting and difficult to see why the legislature would have intended that process to apply to an offender convicted of an offence under s 80. I do not accept that the application of s 53(1)(a) to an offender convicted of an offence under s 80(1) is ill-fitting. The State accepts that s 53(1)(a) may be applied by the State if it wishes to commence contravention proceedings against an offender who has been convicted of an offence under s 80(1). If an offender is charged but not convicted then the State may proceed under s 53(1)(b). The State is also able to proceed by way of warrant under s 51(1)(a).
3. With respect to Allanson J's observation that the State's construction would apply for an indeterminate time after a person has been convicted of an offence, the State submits that there is a time limit, namely the period of the supervision order. That is correct. However, the fact remains (as Allanson J made clear) that the State could await until the offender has completed almost the entire period of the supervision order before commencing the contravention proceedings. Further, the State's construction would permit it to commence the contravention proceedings even if the offender was acquitted of the s 80 charge on the basis that the offender had been charged months, if not years, previously.
4. In short, the State could delay for an inordinate period notwithstanding that the HRSO Act contemplates that the State will commence proceedings as soon as practicable. As Allanson J observed, in requiring the State to be notified as soon as practicable on an application for a warrant under s 51, or where an offender has been arrested under s 80, the HRSO Act provides for the State to be able to act quickly to bring proceedings to review the supervision order.
5. The State submits that 'at the level of statutory construction, discretionary powers should not be construed on the basis, and against the possibility, that those powers might be abused'.[19] However, the question properly put is whether the legislature would have intended under s 53(1)(b) that the State has the power to bring to court a person charged and acquitted of an offence under s 80 of the HRSO Act many years after the acquittal.
6. In the present case, the respondent was charged with the offences on 3 and 4 March 2022 and was sentenced to a term of immediate imprisonment on 14 May 2022. The term of imprisonment was due to be completed on 3 October 2022. The State commenced the contravention proceedings on 29 September 2022. The court provided the earliest possible listing, namely the next day.
7. The consequence of the State's delay in commencing the contravention proceedings is that the respondent was made subject to an interim detention order, commencing 30 September 2022, three days before he was to be released. The respondent has remained incarcerated. The time the applicant has spent in custody awaiting the determination of the contravention proceedings is time for which the respondent will never receive credit nor recompense. The delay in the State commencing the contravention proceedings has never been explained. There was a significant period of delay between 4 March and 14 May 2022. The case that the State brings against the respondent was known to the State on or about 4 March 2022. The construction that the State prefers serves only to permit the State to delay contravention proceedings with the consequence that offenders spend months or longer awaiting the hearing of contravention proceedings.

1. I do not consider that his Honour's conclusion is plainly wrong. To the contrary, I agree with his Honour's conclusion that in the circumstances of that case, the proceeding did not fall within s 53 and had to be dismissed. My reasons for agreeing with his Honour's construction of s 53 are as follows.
2. First, the words 'is charged' should be given their ordinary and natural meaning that the person is still in the legal situation of being subject to a criminal charge. I do not accept the State's submissions that the textual and contextual considerations support a construction to the contrary. The State postulated the scenario that an offender could be charged with a contravention offence and immediately plead guilty prior to the State commencing contravention proceedings. If that occurs then the State may commence the contravention proceedings by warrant under s 51 of the HRSO Act.
3. Secondly, various provisions in pt 4 div 5 contemplate that contravention proceedings will be dealt with as soon as possible after the suspected or alleged contravention of the supervision order comes to light.[20]
4. Thirdly, the requirement that the State be notified as soon as practicable after an offender is suspected of breaching a condition of a supervision order, or is charged with a contravention offence, strongly supports the construction. It is clear that the legislative policy is that pt 4 div 5 procedure will commence as soon as possible after the State becomes aware of the allegation that the offender has breached the supervision order. In the event that the State determines further information is required prior to determining the commencement of contravention proceedings then, if in the interim period, the offender pleads to the contravention charge, then the State may, subsequently, proceed by way of warrant. That legislative policy is that the State, at the earliest opportunity, asks the Court to consider whether the supervision order should continue.[21] That policy protects the community by requiring the Court to assess as soon as possible whether the offender should continue on a supervision order.
5. Fourthly, in the event that the offender pleads guilty to criminal charges and is thereby convicted, there is no impediment to the State proceeding by warrant in respect of the offender. Counsel for the State has not submitted that the State would be unable to do so.

1. Accordingly, the contravention proceedings are dismissed. However, that does not mean that the State is unable to commence proceedings against the respondent under pt 4 div 5 of the HRSO Act. At the hearing of this matter both counsel for the State and the respondent submitted that the State is not estopped from commencing proceedings and obtaining a warrant to bring the respondent before the court. The State may do so if it obtains a warrant to bring the respondent before this Court to be dealt with in respect of its application for orders under s 55 of the HRSO Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The State of Western Australia v Quartermaine [2021] WASC 68.

[2] The State of Western Australia v Quartermaine [No 2] [2021] WASC 267.

[4] The State of Western Australia v ACW [No 4] [2023] WASC 14.

[7] The State of Western Australia v ACW [No 4] [ 2023] WASC 14, [23]-[28].

[8] R v Unger [1977] NSWLR 990, 995; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73, 106.

[9] Farah Constructions Pty Ltd & Ors v Say-Dee Pty Ltd (2007) 230 CLR [135]; [2007] HCA 22.

[10] BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234.

[11] BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234, [83]-[86].

[12] SSZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214.

[13] SSZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214, [187]-[193].

[14] SSZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214, [148].

[15] Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504.

[16] Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504, [294]-[295].

[17] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, [12]-[13].

[18] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, [12]-[13].

[19] Angas Securities Ltd v Chief Executive Officer, Department of Water and Envrionmental Regulation [2022] WASC 134, [75].

[20] See: HRSO Act, s 56, 81(2), 81(4).