BELL, KEANE, NETTLE AND EDELMAN JJ.
Introduction
This special case concerns the validity of s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) ("the SCPO Act"). That section, read with s 6, empowers the District Court of New South Wales or the Supreme Court of New South Wales to make "preventive orders" that can restrain the liberty of an individual including without proof of the commission of a crime by that person. The plaintiffs challenge the validity of that legislation on the ground that the legislation is incompatible with the institutional integrity of those State courts, relying upon the doctrine developed from the decision of this Court in Kable v Director of Public Prosecutions (NSW).
This Court has previously dismissed Kable challenges in decisions concerning preventive order legislation involving terrorism, organised criminal activity, and sexual offenders. None of those decisions was challenged by the plaintiffs. The SCPO Act, and the challenge in this case, involve preventive orders concerning "serious crime related activity". The terms and operation of the SCPO Act are similar in important respects to each of the other regimes. Much of the reasoning of principle underlying the decisions that concluded that those legislative regimes were not incompatible with the institutional integrity of State courts applies also to the SCPO Act.
Even if the unchallenged precedent of this Court could be put to one side, the core submission of the plaintiffs should not be accepted. The SCPO Act does not involve the exercise of non-judicial power, nor is it incompatible with the institutional integrity of the District Court or the Supreme Court, because it deploys open-textured phrases which, properly interpreted, give rise to rules requiring the court to conduct an assessment of future risk and to balance criteria within a wide degree of judicial evaluation before making a preventive order. In an area necessarily involving considerable uncertainty it is not antithetical to the judicial process for Parliament to require the courts to interpret and to apply open-textured norms rather than "striving for a greater degree of definition than the subject is capable of yielding".
Ultimately, the plaintiffs' objections to the SCPO Act reduce to an objection to the legislative policy involving a regime of preventive orders that can deprive individuals of liberty even in circumstances where they have not committed any offence in the past and might not be expected to do so in the future. Yet, as Gleeson CJ observed in Fardon v Attorney-General (Qld), "nothing would be more likely to damage public confidence in the integrity and impartiality of courts than judicial refusal to implement the provisions of a statute upon the ground of an objection to legislative policy".
Background
On 5 October 2018, the Commissioner of Police commenced proceedings by summons in the Supreme Court against the plaintiffs in this proceeding, respectively Damien Charles Vella, Johnny Lee Vella, and Michael Fetui. The Commissioner alleged that the first plaintiff is the National President (or, if not, a National Office Bearer), and the other plaintiffs are members, of an organisation known as the Rebels. That organisation was described in the summons, in misleading vernacular, as an "Outlaw Motor Cycle Gang".
By a further amended summons the Commissioner sought orders under the SCPO Act to restrain and prohibit the plaintiffs, for two years, from various activities. The activities described in the summons include, in broad summary and with limited exceptions, the following: (i) approaching, contacting or associating directly or indirectly with persons associated with any Outlaw Motorcycle Gang (a phrase left undefined in the further amended summons) and producing to the police on demand any electronic device and password to ensure compliance with that prohibition; (ii) travelling in any vehicle between the hours of 9 pm and 6 am except in the case of a genuine medical emergency; (iii) attending or approaching specified types of premises associated with the Rebels Outlaw Motorcycle Gang or any other Outlaw Motorcycle Gang; (iv) possessing or having access to an encrypted communications device or possessing an encrypted application/media application; (v) possessing more than one mobile telephone; (vi) possessing any weapon; and (vii) wearing, possessing or displaying any Rebels insignia or any other Outlaw Motorcycle Gang insignia.
In the summons, the Commissioner asserted that each of the plaintiffs had been convicted of serious criminal offences. In relation to the first two plaintiffs the alleged convictions included offences of robbery in company, firing a firearm in a manner likely to injure persons or property, and obtaining money by deception. The alleged convictions of the third plaintiff included offences of assault occasioning actual bodily harm, resisting an officer in the execution of duty, and affray. The Commissioner also relied upon allegations that each of the plaintiffs had been involved in serious crime related activity for which he had not been convicted, or was acquitted. Few particulars of each matter of alleged involvement in serious crime related activity were provided. Further, by an assertion unsupported by any particulars, the Commissioner alleged that there were reasonable grounds to believe that the making of an order in relation to each plaintiff would protect the public by preventing, restricting or disrupting involvement by each of the plaintiffs in serious crime related activities.
In the special case, the plaintiffs admitted the facts of the convictions and sentences alleged by the Commissioner, and the facts of the charges, withdrawal of charges, acquittals, and charges not proceeded with as alleged by the Commissioner. Despite the breadth of the summons and the lack of clarity in many respects relating to the six steps discussed below, the plaintiffs did not submit that the summons was defective. Rather, the central issue in this proceeding is whether s 5(1) of the SCPO Act is invalid because it is inconsistent with and prohibited by Ch III of the Constitution.
Background to the SCPO Act
The SCPO Act is concerned with a type of order that has been described as a civil "preventive order". Such orders have long antecedents including, as early as the fourteenth century, in binding-over orders, by which justices of the peace and judges could bind over a person without proof of any offence, requiring payment of a sum of money as a pledge, if there were sufficient apprehension that the person's activities could breach the peace. The Court of Chancery granted writs of supplicavit to restrain anticipated breaches of peace involving bodily harm by taking a person into custody, subject to release only upon security for good behaviour. The severity of the apprehended harm that might attract Chancery's intervention increased over time. The Court of Chancery also ordered injunctions to restrain the anticipated commission of criminal acts or public wrongs, particularly in cases of "public health or comfort or safety", by "balancing the magnitude of the evil against the chances of its occurrence"; in modern times that power has been substantially confined to situations dealing with statutory duties, on the general principle that it is not for a court to remedy "what it regards as the defective machinery of a statute".
With further antecedents in preventive order regimes consequent upon the curial sentencing process, from the late 1990s the United Kingdom Parliament legislated for civil preventive orders in a wide variety of different contexts including sexual harm, molestation, anti-social behaviour, and disruptive and unlawful behaviour at football matches. As Lord Steyn explained in relation to anti-social behaviour orders, "[t]here is no doubt that Parliament intended to adopt the model of a civil remedy of an injunction, backed up by criminal penalties".
With similar early twentieth century antecedents, legislative regimes involving the making of preventive orders by courts have also been enacted in Australia in areas including domestic and personal violence, problem gambling that is ancillary to domestic violence, public safety and breaches of the peace, sexual and other dangerous offenders, groups associated with criminal activity, and terrorism. In 2016, the New South Wales Parliament enacted the SCPO Act, relying heavily upon the model of the Serious Crime Act 2007 (UK).
The operation of the SCPO Act
The SCPO Act creates a regime for the making of serious crime prevention orders by the Supreme Court or the District Court of New South Wales. A serious crime prevention order must not exceed a duration of five years. This special case is concerned only with natural persons, as to whom a breach of the order has a maximum penalty of $33,000 and imprisonment for five years.
Proceedings for serious crime prevention orders are not criminal proceedings. Other than in relation to an offence against the SCPO Act, the civil burden of proof and rules of evidence apply and any rules of interpretation or evidence that are unique to criminal law do not apply. At the hearing of the application, a person against whom a serious crime prevention order is sought can appear and make submissions. The applicant and the person against whom the order is sought have a right of appeal on any question of law and, with leave, on a question of fact. The applicant and the person against whom the order is sought can also apply to the same court to vary or revoke the order if there has been a substantial change in the relevant circumstances.
The terms of ss 5 and 6 of the SCPO Act
Section 5(1) of the SCPO Act provides:
"An appropriate court may, on the application of an eligible applicant, make an order (a serious crime prevention order) against a specified person if:
(a) in the case of a natural person - the person is 18 years old or older, and
(b) the court is satisfied that:
(i) the person has been convicted of a serious criminal offence, or
(ii) the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence), and
(c) the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities."
Section 6(1) of the SCPO Act provides:
"A serious crime prevention order may contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities."
Serious crime related activity is, in short, anything done by a person, whether or not the person was charged or convicted, that is, or was at the time, a serious criminal offence. What is a serious criminal offence is defined in wide terms. It includes: drug trafficking offences; offences involving imprisonment for five years or more involving a wide variety of offences such as theft, fraud, money laundering, extortion, violence, blackmail, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery, or homicide; and offences involving the destruction of or damage to property having a value of more than $500. It also extends to offences outside New South Wales, or outside Australia, if the offence there would have been a serious criminal offence if committed within New South Wales.
The phrase "involved in serious crime related activity" is defined in s 4(1) of the SCPO Act essentially to require the person to engage in serious crime related activity or to engage in conduct that facilitates, or is likely to facilitate, serious crime related activity. Like the United Kingdom legislation upon which it was modelled, s 4(1) of the SCPO Act draws from the ordinary meaning of "facilitates", which is "to make easier".
However, the ordinary meaning of "facilitates" is restricted by s 4(2) of the SCPO Act, which provides that when determining whether the conduct of a person has facilitated another to engage in serious crime related activity a court may take into account whether the conduct was reasonable in all the circumstances. The concept of facilitating serious crime related activity in s 4(1) is thus narrower than merely conduct that makes the commission of a crime easier. Conduct will be very likely to be reasonable, and not facilitating conduct, if it was done without the intention of assisting the commission of serious crime related activity and without recklessness or reasonable means of knowing that the conduct would assist the commission of serious crime related activity.
The balancing process required by ss 5 and 6 of the SCPO Act
Sections 5 and 6 of the SCPO Act, when read together, create a power for the court to make a serious crime prevention order. There are six required steps before the court can exercise the power in relation to natural persons.
The first step, in s 5(1)(a), requires the natural person to be at least 18 years old.
The second step, in s 5(1)(b), requires proof that the person against whom the order is sought has been convicted of or been involved in serious criminal offending. This step is backward looking, focusing upon the person's past conviction for a serious criminal offence or past involvement in "serious crime related activity", the definition of which can be described broadly as the commission of a serious criminal offence.
The proof of past conviction for a serious criminal offence might require only the tender of a criminal record certificate. Either the District Court or the Supreme Court can make a serious crime prevention order based upon such past conviction for a serious criminal offence. In contrast, an order based upon the proof of past involvement in the commission of a serious criminal offence can only be made in the Supreme Court. A hearing for an order based on such past involvement might give rise to disputed questions of fact. In resolving those disputes the Supreme Court can admit and consider hearsay evidence if "(a) the court is satisfied that the evidence is from a reliable source and is otherwise relevant and of probative value, and (b) the person against whom the order is sought to be made has been notified of, and served with a copy of, the evidence before its admission". However, and conformably with the requirement in s 13(2) that only "civil" rules of evidence apply, the Supreme Court will also take into account the usual principle, in deciding whether a fact has been proved, that without more, the more serious the alleged involvement in unlawful conduct, and the greater the magnitude of the alleged illegality, the more unlikely it will be that a person has acted or will act in the way alleged.
The third step, in s 5(1)(c), requires the court to assess whether there is a real likelihood, in other words a real or significant risk, that the person against whom the order is sought will be involved in serious crime related activity. This step might also involve disputed facts. It is a forward-looking requirement.
The requirement in s 5(1)(c) as to the matters that the court must be satisfied that there are "reasonable grounds to believe" is essentially a requirement of "the existence of facts which are sufficient to induce that state of mind in a reasonable person". The court must have reasonable grounds to believe that the making of the order "would" prevent, restrict or disrupt involvement by the person in serious crime related activities and thus "protect the public" from these public wrongs. The conditional verb, "would", is the language of probability or likelihood in assessing the effect of the order. Without a real likelihood that the person against whom the order is sought will be involved in serious crime related activities, there is no basis for the order because there could not be any likelihood that the order would prevent, restrict or disrupt such involvement in serious crime related activities. The Court of Appeal of England and Wales has thus correctly, and repeatedly, concluded that the making of a serious crime prevention order under the Serious Crime Act regime, upon which ss 5 and 6 of the SCPO Act were based, requires a real or significant risk that the person will be involved in serious offences.
The need for the court to conclude that there is a real or significant risk that the person will commit serious offences is thus supported by the text of s 5(1)(c) of the SCPO Act and the preceding judicial interpretation of the United Kingdom legislation upon which ss 5 and 6 were based.
The third step provides a simple answer to the submission by the plaintiffs that a preventive order could be made against a person who had an historical conviction for an offence of stealing clothing from a department store. Without more, a single historical conviction for such a theft would not be sufficient to give rise to a real or significant risk that the person would commit the same offence, or any other serious offence, in the future. In any event, the fourth and fifth steps below are clear reasons to reject the plaintiffs' submission that a preventive order could be made against such a person in terms that require the person to reside at, and not to leave, their home or not to enter department stores.
The fourth step is also required by s 5(1)(c). It may again involve disputed questions of fact. The court must consider whether the facts establish reasonable grounds to believe that the potential order would have the effect of preventing, restricting, or disrupting the person's involvement in serious crime related activities. This step requires the court to survey the range of possible orders and to consider whether there is a real likelihood that the order will prevent, restrict, or disrupt the person's likely involvement in the serious crime related activities. The verbs - prevent, restrict, or disrupt - are not defined and bear their ordinary meaning including a result that is short of entire prevention but which limits the extent of the person's likely involvement in the serious crime related activities.
An example where the fourth step was not satisfied is one of the orders sought in Commissioner of Police v Cole, which was to restrict the defendants' internet access to the use of a single nominated computer with additional requirements including providing information to a nominated police officer concerning each defendant's internet service provider, username, and passwords. That order was not made, with Davies J observing that there was "no evidence to suggest that computers have been or are likely to be used in any manner that contributes to serious crime related activities".
The fifth step, from s 6(1) of the SCPO Act, further constrains the orders that can be made. The "prohibitions, restrictions, requirements and other provisions" ordered are required to be such "as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities". Although s 6(1) provides that the court "may" impose the restrictions that it considers appropriate, this is an enabling word with "compulsory force" when what is sought is "in advancement of public justice".
The constraint that the court must consider the order to be appropriate for its purpose is a familiar one. "Appropriate", in the sense of "suitable or fitting for a particular purpose", embodies the requirements that the order be reasonable and adapted to its purpose. It is particularly a common constraint expressed upon orders, such as civil preventive orders, that require an assessment of future possibilities. In Mitchell v The Queen, in the context of a provision that empowered a court to impose a sentence of "strict security life imprisonment" without, if the court considered it appropriate, a non-parole period, this Court said that "[t]he phrase 'considers ... appropriate' indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper". And speaking of the power to make "such order or orders as [the court] thinks appropriate" in s 87 of the Trade Practices Act 1974 (Cth), Mason P said that it allowed "the defendant's as well as the plaintiff's interests to be taken into account in moulding a just response".
The balancing process operates as follows. On the one hand, the court will consider the likelihood that an order will prevent, restrict, or disrupt serious criminal activities, and the magnitude of the activity that will be so affected. On the other hand, the court will consider the extent to which an order will intrude upon the defendant's liberty, including the scope of the order and the length of its term. In balancing these matters, if there is a less intrusive order that will achieve broadly the same effect as a significantly more intrusive order then the latter will not be appropriate. For instance, in Commissioner of Police v Bowtell [No 2] a condition that prohibited the defendants from attending any licensed hotels, pubs, clubs, and bars was not appropriate as it would add little, if anything, to the disruptive effect of other conditions which prohibited the defendants associating with, or contacting, members of any Outlaw Motorcycle Gang.
As earlier explained, ss 5 and 6 of the SCPO Act are modelled on the United Kingdom legislation. The drafter may be taken to have been aware of the interpretation placed by the English courts on the requirement that an order be "appropriate". Indeed, at the date of its enactment it is evident that members of the New South Wales Parliament were aware of the leading decision of the Court of Appeal of England and Wales in R v Hancox. In that case, the Court of Appeal held that the requirement that the court consider the serious crime prevention order to be "appropriate" involved the same approach as that which applies to anti-social behaviour orders and travel restriction orders under the Criminal Justice and Police Act 2001 (UK): "[s]uch orders can be made only for the purpose for which the power was given by statute. And they must be proportionate." This conclusion was said also to follow from the European Convention for the Protection of Human Rights and Fundamental Freedoms. But the principal reason for the conclusion, independently of any Convention concerns, involved the adoption of the Court of Appeal's earlier reasoning from R v Mee in relation to which travel restriction orders would be appropriate under the Criminal Justice and Police Act. In that case, the Court said of the length of such an order:
"The length should be that which is required to protect the public in the light of the assessment of the degree of risk which is presented by the facts. But, as we have said, it should be tailored to the defendant to such a degree as the court feels able when balanced against the risk."
During oral argument there was dispute about whether an order could ever be appropriate within the terms of ss 5 and 6 of the SCPO Act if the order permitted "detention" of a person. It might be doubted whether the regime contemplates either custodial detention or non-custodial "home detention" rather than, for example, a curfew. But if, as a matter of construction of the sections, an order for custodial detention or "home detention" were possible, and if that construction would make s 5 invalid, then the court could construe s 5 so that it extended only to those orders for which the section might "lawfully be applied". Since no such order is sought against any of the plaintiffs, it is unnecessary to decide this issue.
The sixth step is that the court should consider whether any appropriate order should be made. Despite the risk of the person offending, and even with the prohibitions, restrictions and requirements as are appropriate, s 5(1) empowers, but does not require, the court to make the order. The fulfilment of the statutory conditions described in the five steps above confers a discretion upon the court to make the appropriate order. To adapt an example given in oral submissions by the Solicitor-General of the Commonwealth, the court's discretion might be exercised not to make an order preventing spouses who share a family home with children from having any contact with each other even if the court were to consider the order to be appropriate for the purpose of protecting the public by disrupting a criminal enterprise between the spouses.
No impairment of a court's institutional integrity by other civil preventive order regimes
The plaintiffs submitted that s 5(1) of the SCPO Act is inconsistent with Ch III of the Constitution. They relied upon the principle deriving from the decision of this Court in Kable. The reasons of the Justices in the majority in that case have been synthesised as follows:
"The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid." (footnotes omitted)
Although it is only extreme legislation that will substantially impair the institutional integrity of a State court, the boundaries of the Kable principle are not sharp. The contours of the categories where State legislation will substantially impair a court's institutional integrity will necessarily emerge slowly. But the categories must develop in a principled, coherent, and systematic way rather than as evaluations of specific instances.
Before turning to the particular grounds upon which the plaintiffs submitted that the SCPO Act substantially impairs the institutional integrity of the District Court and the Supreme Court, it is necessary to explain the striking similarities that the SCPO Act has with other preventive order regimes that this Court has previously held not to infringe the Kable principle. Each regime involves criteria that are necessarily imprecise, since the future is not certain, particularly in relation to the assessment of risk (the third step) and the balancing process (the fifth step). As to the question of risk, some legislation requires a court to be satisfied that there is "an unacceptable risk" or "reasonable cause to believe" in the risk. Other legislation uses criteria that the person threatened has "reasonable grounds to fear" the conduct, or that it is "reasonable to suspect" that the conduct will occur, or "likely" that the conduct will occur, or that the person against whom the order is sought has engaged in conduct and is "likely to do so again", or "may again" do so. As to the balancing process in the range of conditions in an order, apart from the common use of "appropriate", other legislation uses a criterion of "necessity", "necessary or desirable", "not inappropriate", or "sufficient grounds".
(1) Preventive orders concerning terrorism
Division 104 of the Criminal Code (Cth), as considered in Thomas v Mowbray, establishes a preventive order regime "for the purpose of protecting the public from a terrorist act". Section 104.4 gives an issuing court - the Federal Court of Australia, the Family Court of Australia, or the then Federal Magistrates Court - the power to issue an interim control order which, when confirmed by the issuing court, can last up to 12 months. Various conditions are required. Two central conditions concern the risk assessment (the third step) and the balancing process (the fifth step).
The risk condition, in s 104.4, is satisfied either by past commission of a criminal offence relating to training with or from a listed terrorist organisation, or by likely future involvement in a terrorist act. It requires the court to be satisfied on the balance of probabilities either "(i) that making the order would substantially assist in preventing a terrorist act; or (ii) that the person has provided training to, or received training from, a listed terrorist organisation". These criteria give considerable latitude to the court. The notion of "substantial assistance" is inherently imprecise. Further, a "terrorist act" is defined in s 100.1 in terms "which may give an area of choice and discretion" and in broadly expressed criteria including action that "creates a serious risk to the health or safety of the public or a section of the public" and action that "seriously interferes with, seriously disrupts, or destroys, an electronic system".
The balancing condition in s 104.4 requires the court to be satisfied on the balance of probabilities that "each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act". In conducting that balancing exercise the court is required to take into account the impact of the order upon the circumstances of the person subject to it (including their financial and personal circumstances). The control order that was considered by the issuing Magistrate to meet the balancing criteria subjected Mr Thomas to significant constraints including the following: to remain at his home (or an address notified to the Australian Federal Police) between midnight and 5 am; to report to police three times a week; not to leave Australia without police permission; not to associate with various individuals; and not to use a variety of communications technology either at all, or without approval.
A majority of this Court upheld the validity of this terrorism preventive order regime. Mr Thomas submitted that one basis on which the terrorism preventive order regime was invalid was that it was incompatible with the judicial integrity required by Ch III of the Constitution: it involved the conferral of non-judicial power, or in so far as it did confer judicial power, it authorised the exercise of that power in a manner contrary to Ch III. These submissions were rejected by a majority of this Court in reasoning that applies a fortiori to State legislation.
The reasoning of Gummow and Crennan JJ, in the following respects, was the subject of agreement by Callinan J and Heydon J. Gleeson CJ also wrote to similar effect. Their Honours observed that: (i) the regime involved a judicial procedure; (ii) the orders which could be made were "a familiar part of judicial power to make orders restraining the liberty of the subject"; and (iii) the evaluation of broadly expressed criteria, including "oppressive", "unreasonable", "unjust", or "just and equitable", had long been recognised as consistent with judicial power.
The various judgments in the majority in Thomas v Mowbray also recognised that balancing exercises in many areas of the law involve broadly expressed criteria which constrain the liberty of the subject in circumstances other than in consequence of the commission of a criminal act. Whether those exercises concern bail applications, binding a person over to keep the peace, applications for apprehended violence orders, preventive orders for the continued detention of sex offenders, or even injunctions to constrain the likely commission of an offence, the judicial process and method of applying that balancing exercise is one that develops and refines rules and principles whose clarity increases over time.
Like the SCPO Act, the terrorism preventive order regime permits orders to be made against a person who has not committed a crime and is not expected to commit any crime. Nor does s 104.4(1)(c)(i) of the Criminal Code require that any particular act be committed by the person before an order is contemplated. It is enough that the making of the order would "substantially assist" in preventing a terrorist act. In Thomas v Mowbray itself, the orders were based upon allegations that Mr Thomas, whose convictions had been quashed, had admitted training with a listed terrorist organisation, had links to extremists who might exploit his vulnerabilities, and was an available resource for the commission of, or assistance to commit, terrorist acts.
(2) Preventive orders concerning sexual offenders
In Fardon, this Court considered whether the terms of Queensland legislation that provides for preventive orders for sexual offenders were incompatible with the institutional integrity of the Supreme Court of Queensland. The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("DPSO Act") empowers the Supreme Court of Queensland to make an order against a person serving a period of imprisonment for a sexual offence of a violent nature or against children. The Court can order that the person be detained in custody for an indefinite term for control, care or treatment or that the person be released from custody subject to conditions.
The regime contains risk and balancing criteria. The risk criterion is if the person is "a serious danger to the community", defined as involving an unacceptable risk that the prisoner would commit a serious sexual offence if released from custody or released from custody without a supervision order. The Court might decide that it is "satisfied" only if satisfied to a high degree of probability by acceptable, cogent evidence of sufficient weight to justify the decision. The balancing criterion applies in relation to the Court's choice of three orders (detention in custody, conditional release, or no order) and, in relation to conditional release, the conditions that it "considers appropriate".
The Kable challenge to the validity of the sexual offender preventive order regime in Fardon focused upon a variety of aspects of the legislation including civil detention in prison on the basis of a risk of re-offending in the future in the absence of a crime, a trial, and a conviction, what was alleged to be punishment in a manner inconsistent with the essential character of a court and the nature of judicial power, that the prediction of re-offending was unreliable, and that an "unacceptable" risk was an unclear phrase. However, as the Solicitor-General of the State of Queensland observed, the same phrase had been used in the Bail Act 1980 (Qld) and in the context of denying a parent access to a child.
Six members of this Court dismissed the challenge to the validity of the sexual offender preventive order regime. As Gleeson CJ observed, whilst the legislation conferred "a substantial discretion as to whether an order should be made, and if so, the type of order", the "Queensland Parliament was attempting to ensure that the powers would be exercised independently, impartially, and judicially". Similarly, McHugh J saw the three discretionary choices as to the order that the Supreme Court might make as a strength, tending to validity, rather than a weakness of the regime. Callinan and Heydon JJ observed that the "process of reaching a predictive conclusion about risk is not a novel one". The same reasoning must apply to the risk concept in the third step of the analysis under the SCPO Act, which effectively amounts to a requirement that there is a real and significant risk.
(3) Preventive orders concerning criminal organisations
The Crimes (Criminal Organisations Control) Act 2009 (NSW) ("the CCOC Act") empowered the Supreme Court to make interim and final control orders. There were two criteria. Neither required any unlawful conduct by the person subject to the order, either in the past or the future. The first was the risk criterion. The second criterion was the balancing criterion.
The risk criterion required only that the Supreme Court conclude that the person "is a member of a particular declared organisation", or "is or purports to be a former member of a particular declared organisation but has an on-going involvement with the organisation and its activities". The assessment of the risk presented by the declared organisation was an anterior issue left to the determination of an "eligible judge", in a persona designata capacity, as to whether "members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity" and the "organisation represents a risk to public safety and order" in New South Wales. The risk criterion of a "risk to public safety and order" was highly elastic. It was concerned only with the organisation with which the individual who was subject to the order might have ongoing involvement and not with any specific threat of harm from the individual. As for the balancing criterion, this required only that the Supreme Court conclude that "sufficient grounds exist for making the control order". There was no explanation or definition of the grounds that would be sufficient.
In Wainohu v New South Wales, the plaintiff challenged the validity of this preventive order regime for criminal organisations on a number of grounds, including that it impermissibly undermined or impaired the institutional integrity of the Supreme Court. Six members of this Court rejected that submission. In a joint judgment, Gummow, Hayne, Crennan and Bell JJ held that although the risk criterion was required to be considered by an eligible judge, Commonwealth legislation would have been valid if the power had been conferred upon a Ch III court. It followed that a State court could have exercised the same judicial power. As for the balancing criterion, despite the elasticity of "sufficient grounds", their Honours, with whom French CJ and Kiefel J agreed on this point, held that it was sufficient for validity that the limits to the curial power could be ascertained "by regard to the subject, scope and purpose of the Act including the consequences of the making of an interim control order or control order".
It is notable that although the preventive order regime for criminal organisations in the CCOC Act contained generally broader and more elastic provisions than the preventive order regime for terrorist acts in the Criminal Code, the joint judgment of Gummow, Hayne, Crennan and Bell JJ in Wainohu v New South Wales supported the validity of the scheme by reference to the judgments of Gleeson CJ, Gummow and Crennan JJ, and Callinan J in Thomas v Mowbray, discussed above. Despite the different formulations, the principles underlying the two preventive order regimes were relevantly alike and it would be incoherent to conclude that one preventive order regime did not undermine the institutional integrity of the court but that the other did.
Less than two years later, a challenge was brought against the Queensland preventive order legislation, namely the Criminal Organisation Act 2009 (Qld). One purpose of the legislation was to "disrupt" and "restrict" the activities of members and associates of organisations involved in serious criminal activity. Section 18 of the Criminal Organisation Act authorised the Supreme Court of Queensland to make a control order against a person, which remained in force until revoked. The risk conditions that enabled an order to be made included if the Court was "satisfied" that (i) the person had engaged in serious criminal activity, and (ii) the person "associates with any member of a criminal organisation for the purpose of engaging in, or conspiring to engage in, serious criminal activity". Serious criminal activity was defined in terms of similar breadth to the SCPO Act, including an indictable offence punishable by at least seven years' imprisonment. And the criteria for a criminal organisation included that it was "an unacceptable risk to the safety, welfare or order of the community". As for the balancing criterion, s 19 of the Criminal Organisation Act provided, in broader terms than s 6 of the SCPO Act, that the Court could impose conditions that it considered "appropriate".
In Condon v Pompano Pty Ltd this Court considered, and unanimously rejected, a Kable challenge to this Queensland preventive order regime. The respondents submitted that the regime departed "to a significant degree from the methods and standards which have historically characterised the exercise of judicial power". The respondents further submitted that the question of whether an organisation presented "an unacceptable risk to the safety, welfare or order of the community" was not suitable for judicial determination and asserted that "the risk assessment which the Court is required to undertake is an executive, rather than judicial, function". Hayne, Crennan, Kiefel and Bell JJ rejected these submissions, concluding that the legislation was "not different in any relevant way from the tasks held to be validly assigned to courts" by the legislation in issue in Thomas v Mowbray and Fardon. Their Honours emphasised that "[c]ourts are often called on to make predictions about dangers to the public".
An underlying premise of the decisions of this Court upholding the criminal organisation preventive order regimes in New South Wales and Queensland was that fine distinctions could not be drawn to distinguish the terrorism and sexual offender preventive order regimes that were upheld in Thomas v Mowbray and Fardon from these criminal organisation preventive order regimes. The material features were the risk assessment and the balancing exercise. The validity turned upon the risk and balancing criteria, with a focus upon the conduct of an organisation in the criminal organisation context, as well as a focus on the conduct of an individual in the terrorism preventive order legislation and the sexual offender preventive order legislation upheld in Thomas v Mowbray and Fardon.
The validity of s 5(1) of the SCPO Act
Faced with the decisions discussed above, all of which dismissed Kable challenges to preventive order regimes from different perspectives, the plaintiffs framed their challenge as a scattergun approach occasionally involving submissions in direct opposition to each other. For instance, in written submissions in chief, in written submissions in reply, and in oral submissions, the plaintiffs submitted that the SCPO Act "enlisted" the court to do the bidding of the executive. On this view, as the majority of this Court held in South Australia v Totani, the legislation would be invalid because the court would be deprived of any real opportunity for evaluation. In contrast, the plaintiffs also submitted that s 6 of the SCPO Act imposed an "evaluative criterion of the broadest kind". It suffices to divide the plaintiffs' submissions into three strands.
The first strand of the plaintiffs' submissions was that the SCPO Act undermines the criminal justice system of State courts. The reasons given for this reduce to two. First, it was said that the SCPO Act undermines the finality of the criminal justice system. It was submitted that this occurs where an order is made imposing further restrictions on the liberty of a person who has previously been convicted and punished for a serious offence or where an order is made imposing restrictions on a person's liberty despite the person's acquittal of a serious offence, including after a trial by jury where guaranteed by s 80 of the Constitution. Secondly, it was said that the SCPO Act establishes a regime that would conflict with the criminal justice system. One example of this conflict was said to be the need for a defendant to elect whether to give evidence in the civil preventive order proceedings, with the risk of adverse inferences if evidence is not given and the risk of assisting a later prosecution if evidence is given. Another example was said to be the ability of prosecuting authorities to elect to use the "easier" route of the SCPO Act rather than a criminal prosecution where there are no reasonable prospects of conviction or a criminal prosecution is not in the public interest.
The error in these submissions is that they seek to equate the civil preventive order regime with the regime for prosecution and punishment for past criminal offences. It is not to the point to ask whether the traditional use of the label "punishment" might be extended to describe orders other than for past offences and where the purpose of the order does not include two of the traditional purposes of punishment: retribution and rehabilitation. Nor is it to the point whether a civil preventive order regime might be brought within an extended conception of a "criminal justice system". The relevant point is that the regime is separate and distinct from traditional criminal justice and its outcomes can therefore be different without inconsistency. Prosecutions for criminal offences involve trials for offences based upon past conduct. The civil preventive order regime for serious crime is not a trial of any offence. It anticipates future risk, albeit with the past commission of an offence as "a step in the decision" about future risk. The regimes thus involve different responses to a different subject matter; no conflict and no double jeopardy is involved. Issues of forensic prejudice to a defendant facing future criminal proceedings can be addressed where necessary by an adjournment or temporary stay of the civil proceedings until the conclusion of the criminal proceedings. These are familiar considerations for courts.
The second strand of the plaintiffs' submissions was that the SCPO Act "enlists" the courts to administer a different, and lesser, form of criminal justice. After pointing to the variety of differences between the system of criminal justice concerned with prosecution of persons for past offences and the preventive order regime established by the SCPO Act, the plaintiffs submitted that the effect of the SCPO Act is that the Act empowers applicants for preventive orders - the Commissioner of Police, the Director of Public Prosecutions, and the New South Wales Crime Commission - with a discretion as to which grade of criminal justice would apply to a person. This strand of submissions again incorrectly assumes an identity between the function and purpose of civil preventive orders and the function and purpose of punishment for past offences. The lack of this identity makes the various differences in the regimes readily explicable. Nor is there any enlistment of the court by the executive. The orders are made by the court with substantial judicial discretion as to whether any order should be made as well as the content of the order. In South Australia v Totani, Hayne J identified the vice of the legislation there under challenge. His Honour said:
"It is the Executive which chooses whether to apply for an order, and the Executive which chooses the members of a declared organisation that are to be made subject to a control order. So long as the person named as a defendant falls within the definition of 'member', the Court cannot refuse the Executive's application; the Court must make a control order ... [T]he Court is acting at the behest of the Executive."
The SCPO Act is not affected by this vice.
The third strand of the plaintiffs' submissions relied upon the remarks of Gaudron J in Kable that the legislature had attempted to "dress up" the proceedings as "proceedings involving the judicial process. In so doing, the Act makes a mockery of that process and, inevitably, weakens public confidence in it." Contrary to the plaintiffs' written and oral submissions, the reference by Gaudron J to "public confidence" was not suggesting a licence for the Court to declare legislation invalid based upon its perception of the reaction of the public to the application of that legislation. Rather, public confidence represents "the trust reposed constitutionally in the courts". That construct of trust depends upon integrity. As Brennan CJ said in Nicholas v The Queen:
"Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests. To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court's opinion about its own repute to the level of a constitutional imperative. It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice."
In written submissions, the features of the SCPO Act that the plaintiffs submitted are a departure from established judicial methods and procedures included: (i) the civil standard of proof and rules of evidence; (ii) the admission of hearsay evidence where the evidence is from a "reliable source"; and (iii) the hearing being before a judge alone, without a jury. However, all of these matters are, or are consistent with, long-established judicial methods and procedures albeit usually in civil rather than criminal trials.
In oral submissions, the plaintiffs relied upon remarks of McHugh J in Kable, in what senior counsel for the plaintiffs accepted to be the "core summary" of the plaintiffs' case, that the SCPO Act is "'not directed to any determination or order which resolves an actual or potential controversy as to existing rights or obligations' which is the benchmark of an exercise of judicial power". The plaintiffs focused upon the open-textured nature of the criteria by which the court is to evaluate whether to make an order and the terms of the order. This submission is contrary to history, authority and principle.
As to history, it is a factor in favour of the judicial character of an exercise of power that it is one which has been treated for centuries as an exercise of judicial power. As has been explained above, preventive order regimes have antecedents as judicial power dating from the fourteenth century including binding-over orders, writs of supplicavit, injunctions to restrain the anticipated commission of criminal acts or public wrongs, and preventive order regimes consequent upon the curial sentencing process. The historical consideration is reinforced by the usual judicial methods that have accompanied the conferral of these powers on courts. It is true that the SCPO Act lacks express procedural guarantees of the kind identified by this Court as significant to the validity of the legislation in Fardon. But the absence of express provision of that kind does not mean that such procedures as are necessary to ensure procedural fairness may be avoided. In the absence of a clearly expressed contrary legislative intent, the legislature is taken to intend that express procedures will be supplemented by such requirements for procedural fairness as are necessary to achieve it. For present purposes, it is unnecessary for this Court to pass upon the likely content of the hearing rule on an application for an order under the SCPO Act: suffice it to say that given the seriousness of the consequences for the subject of such an order, it is likely to be considerable. To accept that it were otherwise would be to adopt the kind of "literal and draconian construction" which, as Gageler J cautioned in North Australian Aboriginal Justice Agency Ltd v Northern Territory, is so often advanced by challengers in constitutional litigation who desire "to maximise the prospect of constitutional invalidity".
As to authority, one point that emerges clearly from the decisions in Thomas v Mowbray, Fardon, Wainohu v New South Wales, and Condon v Pompano Pty Ltd, as we have set out above, is that sharp distinctions should not, and cannot, be drawn between the different open-textured criteria used to shape the judicial evaluative exercise for assessment of risk or the balancing exercise concerning the preventive order to be made. It could hardly be said that this Court could, on the one hand, uphold, as valid exercises of judicial power, criteria such as "an unacceptable risk to the safety, welfare or order of the community", "reasonably necessary", "reasonably appropriate and adapted", "sufficient grounds", and "considers appropriate", but, on the other hand, find invalid the use of criteria in the SCPO Act such as "appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement" or criteria amounting to an assessment of "real likelihood".
In our view, no relevant distinction can be drawn between the regime upheld in Thomas v Mowbray and the SCPO Act. Like the terrorism control order regime, the preventive order regime in the SCPO Act involves a judicial procedure for orders that affect the liberty of the subject. In both regimes the person subject to the order need not be the person who it is suspected might commit an offence in the future. The broadly expressed criteria in Div 104 of the Criminal Code are echoed in the provisions of the SCPO Act. The former uses concepts of whether making the order would "substantially assist" in preventing a "terrorist act", which includes broad criteria such as "serious risk" and "disrupts", and whether the conditions in the order are "reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act". The concepts in the latter involve real risk, as well as notions of appropriateness related to "preventing, restricting or disrupting involvement".
As to principle, the submission that the SCPO Act preventive order regime is not an exercise of judicial power, or is incompatible with the exercise of judicial power, due to its open-textured nature ultimately misconceives the process of judicial development of rules by reference to general conceptions. There is, at best, a fine distinction between the judicial development of a statutory standard and the development of a judicial standard. Both proceed by the development and refinement of rules, often by the creation of categories of case, within the general conception. A statute can pick "up as a criterion for its operation a body of the general law" and "in the absence of a contrary indication in the statute, the statute speaks continuously to the present, and picks up the case law as it stands from time to time". Generally, broadly expressed criteria can be expected to be given content as "the technique of judicial interpretation [gives] content and more detailed meaning on a case to case basis. Rules and principles emerge which guide or direct courts in the application of the standard."
When Lord Atkin created a "general conception" of a duty of care in Donoghue v Stevenson, what he did was to "open up a category of cases giving rise to a special duty. ... The general conception can be used to produce other categories in the same way. An existing category grows as instances of its application multiply until the time comes when the cell divides." General conceptions, whether express or implied, requiring consideration of concepts such as "likelihood", "appropriateness", "disruption", or "interference", might not have the clarity of clear, rigid rules but, as Lord Nicholls of Birkenhead observed in In re Spectrum Plus Ltd (In liq):
"Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity. Far from achieving a constitutionally exemplary result, it can produce a legal system unable to function effectively in changing times."
It may be accepted that there remains considerable room for judicial evaluation despite the general conceptions of ss 5 and 6, as properly interpreted, being deconstructed into the six steps discussed above. For instance, an important issue in crafting the appropriate precautionary response, particularly in relation to the fifth step, will be the "dual axes" of "assessment of the gravity of the harm in prospect ... [and] the degree of probability that it will actually occur". But the process of balancing the magnitude of a risk and its likelihood when determining the burden of alleviating precautions that is reasonable or appropriate is not alien to judicial power. It is the very exercise upon which courts engage every day when assessing whether a duty of care has been breached.
For these reasons, there is nothing antithetical to the judicial process, and nothing that could impair the institutional integrity of a State Supreme Court, in open-textured legislation that establishes broad principles to be developed and applied by courts. The application of these rules to persons by courts is the very nature of the judicial process. It may be that, even after the rules become refined and developed, there will remain considerable latitude for courts to craft orders that relate to the particular person. That is how courts of equity operated for hundreds of years. It remains the case, including by the grant of orders restricting liberty by reference to predictive considerations in numerous areas including bail applications, sentencing hearings, custody and access disputes, and almost every day in applications for interim or interlocutory injunctions.
It is, therefore, unsurprising that it was not suggested in submissions that the power to make a preventive order is more naturally an executive power than a judicial power. There are good reasons why such powers, if they are to exist, should be exercised by the judiciary. A person subject to an exercise of judicial power should have the power to obtain legal representation, the benefit of a hearing with fair process and generally held in public, an entitlement to written reasons for the decision as to the orders made which demonstrate the application of general rules to the facts of the case, and a power of appeal or to seek leave to appeal. "This is not the way that any arm of the Executive conventionally operates." In Thomas v Mowbray, Gleeson CJ observed that the decision by Parliament to confer this power on the judiciary reflected a "parliamentary intention that the power should be exercised judicially, and with the independence and impartiality which should characterise the judicial branch of government". The Chief Justice continued, saying that:
"the exercise of powers, independently, impartially and judicially, especially when such powers affect the liberty of the individual, would ordinarily be regarded as a good thing, not something to be avoided. … To decide that such powers are exclusively within the province of the executive branch of government would be contrary to our legal history, and would not constitute an advance in the protection of human rights."
Section 5(1) of the SCPO Act is valid.
Conclusion
The questions of law referred to this Court in the special case should be answered as follows:
Question 1: Is subsection 5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) invalid (in whole or in part) because it is inconsistent with and prohibited by Chapter III of the Constitution?
Answer: No.
Question 2: If the answer to Question 1 is "Yes":
(a) to what extent is that subsection invalid?
(b) is that part of the subsection severable from the remainder of the Act?
Answer: Unnecessary to answer.
Question 3: Who should pay the costs of the special case?
Answer: The plaintiffs.