HIGH COURT OF AUSTRALIA
BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, AND GUMMOW JJ
KABLE v.THE DIRECTOR OF PUBLIC PROSECUTIONS FOR NEW SOUTH WALES
(1996) 189 CLR 51
12 September 1996
Commonwealth Constitution—Judicial power of the Commonwealth—Exercise of Commonwealth judicial power by State courts—Vesting of federal jurisdiction in State courts—Whether constitutional prohibition on State Parliament conferring on State courts a power incompatible with the exercise by State courts of Commonwealth judicial power—Consideration of integrated Australian court system established by Ch III of the Constitution—Incompatibility with Commonwealth judicial power—Operation of Act in relation to one person only—Whether public confidence in the integrity or impartiality of the judiciary as an institution properly discharging its responsibilities is undermined—Consistency with judicial process—Bills of attainder. State Constitution—New South Wales—Supremacy of Parliament—Whether entrenched doctrine of separation of powers—Whether exercise of judicial power by State Parliament—Whether a 'law'. Constitution Act 1902 (NSW). Community Protection Act 1994 (NSW).
Headnote
Hearing
CANBERRA, 7 - 8 December 1995
#DATE 12:9:1996
Counsel for the Appellant: Sir M. Byers QC, G.D. Woods QC
and P.J. Little
Solicitors for the Appellant: Brezniak Neil-Smith and Co
Counsel for the Respondent: K. Mason QC Solicitor-General
for NSW, P. Menzies QC and
C.L. Lonergan
Solicitor for the Respondent: I.V. Knight, Crown Solicitor for New
South Wales
Interveners:
D. Graham QC Solicitor-General for Victoria, P.M. Tate, for the Attorney-General for the State of Vic, instructed by R C Beazley, Victorian Government Solicitor
B.M. Selway QC Solicitor-General for S.A., J.P. Gill, for the Attorney-General for S.A., instructed by M.D. Walter, Crown Solicitor for South Australia
R.J. Meadows Solicitor-General for the State of W.A., D.N. Jones for the Attorney-General for W.A., instructed by P A Panegyres, Crown Solicitor for Western Australia
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Orders
1. Appeal allowed with costs.
2. Set aside the order of the New South Wales Court of Appeal and in lieu thereof order:
(a) Appeal to the Court of Appeal allowed with costs.
(b) Set aside the order of Levine J and in lieu thereof order that
the application of the respondent be dismissed with costs.
Decisions
BRENNAN CJ. The Bill for the Community Protection Act 1994 (NSW) ("the Act") was duly passed by the Houses of the Parliament of New South Wales. Assent was given and the Act was proclaimed to come into force on 9 December 1994. Therefore at all material times the Act was on the statute book of the State.
2. The key provision of the Act is s 5 which reads as follows:
"(1) On an application made in accordance with this Act, the
Court may order that a specified person be detained in prison for a specified period if it is satisfied, on reasonable grounds:
(a) that the person is more likely than not to commit a
serious act of violence; and
(b) that it is appropriate, for the protection of a
particular person or persons or the community generally, that the person be held in custody.
(2) The maximum period to be specified in an order under
this section is 6 months.
(3) An order under this section may be made against a
person:
(a) whether or not the person is in lawful custody, as a
detainee or otherwise; and
(b) whether or not there are grounds on which the person may
be held in lawful custody otherwise than as a detainee.
(4) More than one application under this section may be made
in relation to the same person."
3. A "serious act of violence" in s 5(1)(a) is defined in s 4 to mean an act of violence, committed by one person against another, that has a real likelihood of causing death or serious injury to the other person or that involves sexual assault in the nature of certain offences under the Crimes Act 1900 (NSW). The reference to "the Court" in s 5(1) is to the Supreme Court of New South Wales (1) the jurisdiction of which under the Act is exercisable by a single Judge (2). A detention order may be made subject to such conditions as the Court may determine (3). Under the Act proceedings for detention orders are civil proceedings (4) determined according to the balance of probabilities (5). Only the Director of Public Prosecutions may apply for a preventive detention order under s 5 or an interim detention order under s 7 (6).
4. The generality of these provisions was restricted in the course of the passage of the Bill through the Parliament. The liability to suffer the consequences of a detention order was limited so that the only person against whom a detention order might be made was the appellant, Gregory Wayne Kable. Section 3 of the Act reads as follows:
"(1) The object of this Act is to protect the community by
providing for the preventive detention (by order of the Supreme Court made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable.
(2) In the construction of this Act, the need to protect the
community is to be given paramount consideration.
(3) This Act authorises the making of a detention order
against Gregory Wayne Kable and does not authorise the making of a detention order against any other person.
(4) For the purposes of this section, Gregory Wayne Kable is
the person of that name who was convicted in New South Wales on 1 August 1990 of the manslaughter of his wife, Hilary Kable."
The appellant was originally charged with the murder of his wife but the Crown accepted his plea of diminished responsibility to manslaughter for which he was sentenced to imprisonment for a minimum term of four years with an additional term of one year and four months. The imminent release of the appellant from custody under this sentence was the occasion for both the enactment of the Act and the making of an application for a detention order against the appellant pursuant to the Act. The acts of the appellant relied upon to support the application were the sending of threatening letters through the mail. At the time when the application was made, the appellant was in custody pending the hearing of seventeen charges (7) arising from his sending threatening letters through the mail.
5. On 23 February 1995, Levine J issued a detention order for a period of six months in respect of the appellant but Grove J refused on 21 August 1995 to issue a further order. This appeal is brought in respect of the order issued by Levine J. The grounds argued on the appeal do not relate to the appropriateness of the making of the order if Levine J had jurisdiction to make it. The argument challenges the very existence of the Act as a law of the State of New South Wales.
1. Is the Act a Law?
6. This question is to be distinguished from the question whether the Act is beyond the power of the Parliament of New South Wales. This question is whether the instrument that stands on the statute book as the Community Protection Act 1994 has the character of a law. The instrument, enacted in due form and by due process, purports to create a power to make a detention order and it prescribes the procedure by which the order may be made and the consequences of the order when made. True it is that it singles out the appellant as the sole subject of a detention order, but a purported law has never been held to lack the character of a law simply because it affects the liberty or property of only a single individual. Acts of Attainder were nonetheless laws, as Sir Edward Coke accepted, albeit protesting that, in the procedure of imposing the attaint, the high court of Parliament ought to give example of justice to inferior courts (8). The Act may be a law which, by reason of its specificity, is enacted in exercise of a power that is not purely legislative, but it is nonetheless a law. Specificity does not deny the character of law to an enactment that is otherwise within power. Private Acts of Parliament were a familiar form of laws in the 19th Century English Parliament and were not open to question on that account (9). Private Acts have been enacted at times by the Parliaments of this country. The next question is whether the Parliament had power to enact the Act.
2. Was there power under the Constitution of New South Wales to enact the Act?
7. It is submitted that the Act is in substance an exercise of judicial power rather than legislative power. On the assumption that the New South Wales Parliament cannot exercise judicial power or interfere in the judicial process (10), it is submitted that the Act is beyond the powers of that Parliament.
8. There is something to be said for the view that, consistently with s 3, any application made within a short time of the enactment of the Act left the Supreme Court with no discretion. The general provisions of s 5 must yield to the provisions of s 3(1) and (2), so that the Court is commanded to protect the community by making a detention order against the appellant.
9. Assuming, without deciding, that the Act left nothing for the Supreme Court to decide but merely commanded the making of the formal detention order, the appellant submits that the Act is an exercise of judicial power or an interference in the judicial process and, on that account, is beyond the powers of the New South Wales Parliament. The submission is based on the proposition that the doctrine of separation of judicial power, an essential element of the Constitution of the Commonwealth, is part of the constitutional law of the State. That proposition has been rejected by the Supreme Court of New South Wales (11), as it has by the Supreme Court of other States in respect of their Constitutions (12). For the reasons stated by Dawson J, I too would hold that that safeguard of liberty is not to be found in the Constitution of New South Wales despite the introduction in 1992 and the entrenchment in 1995 of Pt 9 of the Constitution Act 1902.
10. I am in general agreement also with his Honour's reasons for holding that, subject to the Commonwealth of Australia Constitution Act 1900 (Imp), the Statute of Westminster Adoption Act 1942 (Cth) and the Australia Act 1986, the powers of the Parliament of New South Wales are not limited as to subject matter.
11. However, I would add a qualification and a comment to what his Honour has written, neither of which is material to the present case. First, there is the conundrum of the grant of general legislative power conferred by the "peace, order and good government" formula on a Parliament which might legislate itself or its powers out of existence. In my opinion, this conundrum is resolved by ss 106 and 107 of the Commonwealth Constitution. These are the sections which continue to sustain the Constitutions of the States and confirm their respective powers, including the power to amend their own Constitutions (13). As s 107 continues the powers of the States, no power can be annihilated by State legislative action. If Parliament, as the repository of a power, were legislatively to deny itself that power, the denial would be inconsistent with s 107 and would be invalid.
12. Secondly, I would add a further comment to Dawson J's conclusion that "no non-territorial restraints upon parliamentary supremacy arise from the nature of a power to make laws for peace, order (or welfare), and good government or from the notion that there are fundamental rights which must prevail against the will of the legislature". If there were any restraints on the exercise of the powers of the Parliament, they would arise from entrenched provisions of the particular State Constitution (14). Such restraints would be immune from modification unless the conditions expressed in the entrenching provisions were satisfied. When a submission is made that a particular measure is ultra vires because a restraint on legislative power is implied by an entrenching provision, the implication must clearly appear (15). If the connection between the text and the propounded implication is tenuous or obscure, it would be wrong for a court by declaration to withdraw from public debate the matters to which the submitted restraint applies. If the constitutional text does not clearly support an implication of restraint, the court declaring the restraint is plunged into political controversy in which it is ill-fitted to engage and from which it is hard put to withdraw (16).
3. Does Ch III of the Commonwealth Constitution preclude the vesting of jurisdiction under the Act in the Supreme Court of New South Wales?
13. Chapter III of the Constitution of the Commonwealth both limits the repositories of the judicial power of the Commonwealth and, in context, prescribes a separation of the function of the High Court and of other federal courts from the functions of the political branches of government. The separation of functions is derived from the structure of the Constitution and, in particular, from the distribution of legislative power to the Federal Parliament (s 1), of executive power to the Queen for exercise by the Governor-General (s 61) and of judicial power to the courts referred to in s 71.
14. In like manner, no functions that are not judicial can be conferred by the Commonwealth Parliament on a State court (17), and thus the separation of State courts from the Legislative and the Executive branches of the Commonwealth Government is secured. But that separation does not purport to effect a separation of the courts of a State or Territory from the Legislature or Executive of the State or Territory. Nor does the Constitution purport to preclude State Parliaments from conferring a non-judicial power on a State court. It would be surprising if it did. Such a provision would have destroyed the State laws investing mining warden's courts, licensing courts and planning courts - to take only some instances - with extensive administrative powers.
15. However, it is submitted that, as ss 71 and 77(iii) authorise the investing of the judicial power of the Commonwealth in State courts, those courts must be capable of accepting and exercising the federal jurisdiction invested in them and that that capacity is dependent on their not being repositories of non-judicial power the exercise of which is incompatible with the exercise of federal judicial power. It has been accepted constitutional doctrine that, when the Commonwealth invests the judicial power of the Commonwealth in a State court, it must take that court constituted and organised as it is from time to time (18). The autochthonous expedient contained in Ch III of providing for the vesting of federal jurisdiction in State courts left to the Commonwealth Parliament the selection of the courts in which federal jurisdiction should be invested. The submission that a State court cannot be a repository of both State non-judicial power and federal judicial power if the exercise of the former would be incompatible with the exercise of the latter attributes to Ch III a novel operation. On one approach Ch III would limit the power of the Parliament of a State to invest the courts of the State with incompatible non-judicial powers. On another approach, Ch III would limit the power of the federal Parliament to invest some State courts with federal jurisdiction. And on a third approach, the investing by the Commonwealth Parliament of federal jurisdiction in a State court would preclude the State Parliament from investing an incompatible non-judicial power in that State court.
16. In my opinion, Ch III does not operate in any of those ways. The test of incompatibility advanced by the submission is taken from the majority judgment in Grollo v Palmer (19), a case which was not concerned with the jurisdiction or powers of a court but with the powers that might be conferred on individuals - personae designatae - who were judges of a Ch III Court. The incompatibility qualification applied to the persona designata doctrine has no counterpart in the context of possible limitations on the power of a State Parliament to invest courts of the State with non-judicial powers or the power of the Commonwealth Parliament to select whichever State courts it sees fit to invest with federal judicial power. No case has hitherto considered whether Ch III has any of the postulated operations. The absence of such a case indicates that the proposition has never before been advanced. Of course, novelty is not necessarily a badge of error but a suggestion that the power to invest State courts with federal judicial power might be limited or that the power of a State to invest the State's courts with non-judicial power might be limited would surely have provoked debate in the Constitutional Conventions. Yet they are as silent on the subject as the law reports. There is no textual or structural foundation for the submission.
17. I would dismiss the appeal.
DAWSON J. The appellant, Gregory Wayne Kable, was charged with the murder of his wife, whom he stabbed to death in the house in which she lived with the two young children of the marriage. The marriage had broken up and there had been considerable acrimony between the appellant and his wife concerning custody of, and access to, the children. Before killing his wife, the appellant had engaged in violent behaviour towards her and had made threats of violence. In satisfaction of the murder charge the prosecution accepted a plea of guilty to manslaughter upon the basis of diminished responsibility. On 1 August 1990, the appellant was sentenced to a minimum term of imprisonment of four years and an additional term of one year and four months.
2. Once in prison, the appellant's behaviour was such as to cause serious concern that, upon his release, there would be a repetition of the same conduct that led to the death of his wife. In particular, he wrote a series of threatening letters, mainly to relatives of his deceased wife.
3. On 2 December 1994, the New South Wales Parliament passed the Community Protection Act 1994 (NSW) ("the Act") which conferred jurisdiction upon the Supreme Court of New South Wales to make an order for the preventive detention of the appellant. The form of the Act was apparently suggested by the Community Protection Act 1990 (Vic). The long title of the Act is "An Act to protect the community by providing for the preventive detention of persons who are, in the opinion of the Supreme Court, more likely than not to commit serious acts of violence." That is a misleading guide to the contents of the Act as it was eventually passed because, whilst the Bill in its original form was for an Act of general application, an amendment made during its passage through Parliament confined its application to the appellant (20). Notwithstanding this, s 5, which is headed "Preventive detention orders", is in general terms and provides:
"(1) On an application made in accordance with this Act, the
Court may order that a specified person be detained in prison for a specified period if it is satisfied, on reasonable grounds:
(a) that the person is more likely than not to commit a
serious act of violence; and
(b) that it is appropriate, for the protection of a
particular person or persons or the community generally, that the person be held in custody.
(2) The maximum period to be specified in an order under
this section is 6 months.
(3) An order under this section may be made against a
person:
(a) whether or not the person is in lawful custody, as a
detainee or otherwise; and
(b) whether or not there are grounds on which the person may
be held in lawful custody otherwise than as a detainee.
(4) More than one application may be made in relation to the
same person."
4. The object of the Act is "to protect the community by providing for the preventive detention ... of Gregory Wayne Kable" (21) and in construing its provisions "the need to protect the community is to be given paramount consideration" (22). Thus, notwithstanding that the Act provides for the appellant's imprisonment, ambiguities in it are not to be construed strictly in his favour but against him. Despite the fact that detention under the Act is based upon community protection, it does not provide for detention in other than an ordinary gaol. A detainee under the Act is taken to be a prisoner within the meaning of the Prisons Act 1952 (NSW) (23).
5. Whilst s 17(1)(a) of the Act provides that the court is bound by the rules of evidence (24), the remaining paragraphs of that subsection, in combination with s 17(3), allow the court to have regard to material such as medical or prison records or reports, including hearsay, which would not otherwise be admissible in evidence. Proceedings are instituted by the Director of Public Prosecutions (25) but are civil proceedings (26) and the case against the appellant need only be proved on the balance of probabilities (27).
6. Section 11 requires the court after making a preventive detention order to appoint assessors, being qualified medical practitioners, psychiatrists or psychologists, to observe and report upon the appellant during the period for which the order is in force. Section 12 empowers the court to make orders for medical, psychiatric or psychological treatment to be made available to the appellant and s 21(1) requires reports to be furnished by the assessors and the Commissioner of Corrective Services on the appellant's condition and progress. Reports are to be prepared at least once while the order is in force and at any time the Director of Public Prosecutions so requires (28). The reports are to contain particulars with respect to the appellant's general behaviour, the likelihood that he will commit a serious act of violence, the appropriateness of his continuing to be held in custody and the appropriateness of his continued detention in the same institution (29). Also, reports prepared by an assessor are to describe the current state of the appellant's medical, psychiatric and psychological condition, the nature of any treatment made available to or undergone by the appellant during the period to which the report relates and an opinion as to any appropriate future treatment of the appellant (30). On the application of the Director of Public Prosecutions or the appellant, the court may revoke a preventive detention order or amend it by reducing the period for which it is in force (31). In determining an application for revocation or amendment, the court must have regard to the most recent reports by the assessors and the Commissioner for Corrective Services (32). More than one such application may be made in relation to the same order (33).
7. Shortly after the Act came into force, the Director of Public Prosecutions commenced proceedings against the appellant in the Supreme Court of New South Wales before Spender AJ. On 19 December 1994, his Honour made an order under s 17(1)(c) that the appellant be psychiatrically examined. On 30 December 1994, Hunter J made an interim detention order pursuant to s 7 of the Act. On 23 February 1995, Levine J ordered pursuant to s 5 that the appellant be detained in custody for a period of six months. An appeal was dismissed by the Court of Appeal on 9 May 1995 (34). It is from that decision that this appeal is brought.
8. The appellant applied unsuccessfully on three occasions for revocation of the order made against him by Levine J. However, on 21 August 1995 (the day before the order of Levine J was due to expire), Grove J refused an application by the Director of Public Prosecutions for a second preventive detention order against the appellant who has now been released from custody. Nevertheless, the appellant remains liable at any time to be the subject of a further application that he be detained in custody.
9. The appellant confined his argument before us to an attack on the validity of the Act. The submissions which he made tended to overlap, and some of the grounds raised by the notice of appeal were not pursued. Whilst the appellant identified a number of features of the Act which he contended were obnoxious, in the end his argument was founded upon two of them, namely, the fact that the Act contemplates the imprisonment of the appellant for reasons other than the commission of a crime and the fact that it applies to the appellant alone. He contended first that the Act is invalid because it infringes common law rights which are so fundamental that they cannot be overturned by any legislature. Next, he said that the Act is beyond the power of the New South Wales Parliament to make laws for the peace, welfare, and good government of New South Wales pursuant to s 5 of the Constitution Act 1902 (NSW) because it is not a law within the meaning of that section. He then argued that the New South Wales Constitution embodies a separation of powers which the Act infringes. In addition he said that the Act is inconsistent with the requirements of Ch III of the Commonwealth Constitution. An argument based upon a constitutional requirement of equality under the law and before the courts was abandoned before us.
Parliamentary supremacy and fundamental rights
10. The New South Wales Parliament derives its legislative power from s 5 of the Constitution Act 1902 which provides that "(t)he Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever ...". It is unnecessary at this point to trace the history which lies behind this provision (35) because it is firmly established that its words confer a plenary power "and it was so recognised, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies" (36). That was clear before the passage of the Australia Acts (37) but it is put beyond question by s 2 of those Acts. The legislative power of the New South Wales legislature is no less than the legislative power of the Parliament of the United Kingdom within the scope of the grant of its power. As s 5 of the Constitution Act 1902 itself recognises, the power is subject to the Commonwealth of Australia Constitution Act 1900 (Imp). Section 106 of the Commonwealth Constitution makes it clear that the Constitution of each State is subject to the Commonwealth Constitution, and under s 5 of the Australia Acts the powers of the States do not extend to legislation affecting the Commonwealth Constitution, the Commonwealth of Australia Constitution Act, the Statute of Westminster 1931 (Imp) or the Australia Acts themselves. And under s 6 of the Australia Acts the States are bound to observe any manner and form requirements for laws respecting the constitution, powers or procedures of their parliaments. In addition, the words "peace, welfare, and good government of New South Wales" may be the source of whatever territorial restrictions upon the State's legislative powers are made necessary by the federal structure (38).
11. But the important thing is that for present purposes the words "peace, welfare, and good government" are not words of limitation. As this Court observed in Union Steamship Co of Australia Pty Ltd v King (39):
"They did not confer on the courts of a colony, just as they
do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony (40). Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score."
Up to that point, that passage would appear to be a complete answer to any suggestion that there are common law rights which are so fundamental that they cannot be overturned by legislation, but the Court added (41):
"Whether the exercise of that legislative power is subject
to some restraints by reference to rights deeply rooted in our democratic system of government and the common law (see Drivers v Road Carriers (42); Fraser v State Services Commission (43); Taylor v New Zealand Poultry Board (44)), a view which Lord Reid firmly rejected in Pickin v British Railways Board (45), is another question which we need not explore."
Those words were prompted by remarks of Cooke J in the New Zealand Court of Appeal to the effect that "some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them" (46). As this Court observed, that view was rejected by Lord Reid in Pickin v British Railways Board (47). There he said:
"The idea that a court is entitled to disregard a provision
in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution ...
I must make it plain that there has been no attempt to
question the general supremacy of Parliament. In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete."
12. Lord Reid's reference to earlier times would appear to hark back to the view expressed by Coke CJ in Bonham's Case (48). He said:
"And it appears in our books, that in many cases, the common
law will ... control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void".
Academic debate over the meaning of those words continues to the present time. It is unclear whether Coke CJ was intending to say that Acts of Parliament which are repugnant to the common law are void or whether he was merely laying down a rule of statutory interpretation. If he was intending the former, he appears to have had second thoughts, because in his Fourth Institute he described parliament's power as "transcendent and absolute", not confined "either for causes or persons within any bounds". He there contemplated the enactment of bills of attainder without trial and statutes contrary to Magna Carta without any suggestion of their invalidity (49).
13. However, Coke was not alone and there were other early expressions of opinion which appear to suggest that courts might invalidate Acts of Parliament which conflict with natural law or natural equity (50). But they are of academic or historical interest only for such views did not survive the Revolution of 1688 or, at the least, did not survive for very long after it. Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and cannot be questioned by reference to principles of a more fundamental kind. Indeed, it is a principle of the common law itself "that a court may not question the validity of a statute but, once having construed it, must give effect to it according to its tenor" (51). There is more academic writing on the subject but it tends to dwell upon the apparent riddle posed by the question whether parliament can relinquish its powers by exercising them in order to do so. The answer to that riddle appears to lie in that area where law and political reality coincide. The same may be said of examples of extreme laws which would offend the fundamental values of our society which are sometimes suggested in disproof of parliamentary supremacy. It may be observed that a legislature wishing to enact a statute ordering that all blue-eyed babies be killed would hardly be perturbed by a principle of law which purported to deny it that power. Whether one speaks as Salmond does of "ultimate legal principles" (52), or as Kelsen does of a grundnorm (53), or as Hart does of the "ultimate rule of recognition" (54), there can be no doubt that parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom.
14. In Stockdale v Hansard (55) Lord Denman CJ referred to the supremacy of parliament in terms which indicated his complete acceptance of the principle. And Willes J in Lee v Bude and Torrington Junction Railway Co (56) said: "I would observe, as to these Acts of Parliament, that they are the law of this land; and we do not sit here as a court of appeal from parliament." In Liyanage v The Queen (57) the Privy Council rejected the notion that the power of the Ceylon Parliament to make laws for the peace, order, and good government of the island was limited by an inability to pass laws which offend against fundamental principles. The case was relevantly concerned with the suggestion of Lord Mansfield that there were limitations upon the power of the Crown to make laws for a colony which were contrary to fundamental principles (58), but there can be no doubt that it is implicit in the decision that the Ceylon Parliament inherited the sovereignty exercisable by the United Kingdom Parliament with the consequence that it was not fettered by any limitation of the kind suggested.
15. In Madzimbamuto v Lardner-Burke (59) Lord Reid, speaking for the Privy Council, said:
"It is often said that it would be unconstitutional for the
United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid."
And in Duport Steels Ltd v Sirs (60) Lord Edmund-Davies observed:
"From time to time some judges have been chafed by this
supremacy of Parliament, whose enactments, however questionable, must be applied."
In the same case Lord Scarman said (61):
"But in the field of statute law the judge must be obedient
to the will of Parliament as expressed in its enactments. In this field Parliament makes, and un-makes, the law: the judge's duty is to interpret and to apply the law, not to change it to meet the judge's idea of what justice requires."
16. In the New South Wales Court of Appeal, Kirby P expressed his agreement with Lord Reid in British Railways Board v Pickin (62). In BLF v Minister for Industrial Relations he said (63):
"I agree with Lord Reid's conclusion. I do so in
recognition of years of unbroken constitutional law and tradition in Australia and, beforehand, in the United Kingdom. That unbroken law and tradition has repeatedly reinforced and ultimately respected the democratic will of the people as expressed in Parliament. It has reflected political realities in our society and the distribution of power within it."
17. In Polyukhovich v The Commonwealth (64) I referred to the possibility that a court might in "quite extraordinary circumstances" judge that legislation which otherwise falls within its power is invalid as not being for peace, order, and good government. Similarly, as appears from the passage set out above, in Union Steamship Co of Australia Pty Ltd v King (65) this Court reserved the question whether the exercise of that legislative power is subject to restraints to be found in fundamental principle. This case throws up the question reserved in those cases and it should now be answered by saying that no non-territorial restraints upon parliamentary supremacy arise from the nature of a power to make laws for peace, order (or welfare), and good government or from the notion that there are fundamental rights which must prevail against the will of the legislature. The doctrine of parliamentary supremacy is a doctrine as deeply rooted as any in the common law. It is of its essence that a court, once it has ascertained the true scope and effect of an Act of Parliament, should give unquestioned effect to it accordingly.
The power to make laws
18. The appellant's contention was that the Act is not a law within the meaning of s 5 of the Constitution Act 1902. That is to say, although the New South Wales Parliament has power under s 5 to make laws for the peace, welfare, and good government of the State in all cases whatsoever, the Act is not a law or, at all events, a law of the kind referred to in the section. The argument appears to be based upon the Austinian notion that a law is a command which obliges a person or persons to a course of conduct. The Act, it was said, does not satisfy that definition because it is directed at the preventive detention of the appellant alone.
19. It may be observed that the Act clearly does oblige those persons charged with its administration to a course of conduct and that many statute laws, including private Acts, are particular rather than general in their application. It may also be observed that Austin, in drawing a distinction between general commands and commands of occasional or particular application, recognised that the latter, issued by a sovereign legislature, might be called laws (66).
20. But nothing is to be gained for present purposes by a jurisprudential analysis of what constitutes a law. What is involved is the construction of s 5 of the Constitution Act 1902 and it is readily apparent that in the context of that section the word "laws" is synonymous with the word "statutes". If any limitation is to be found upon the power of the Parliament, it is to be found elsewhere in the Constitution Act 1902 (67) or in the words "peace, welfare, and good government" which, as I have said, impose no non-territorial limitation. Clearly, in my opinion, when s 5 speaks of the making of laws by the legislature it speaks of the making of statute law, that is to say, of the passage of Bills through Parliament which subsequently receive royal assent. The legislature is defined in s 3 as the Crown with the advice and consent of the Legislative Council and Legislative Assembly (68). Section 5 is not seeking to impose a distinction between statutes which embody a law and those which do not, according to a definition of law imported from elsewhere. In an appropriate context (and s 5 is one), a statute may be synonymous with a law because of the manner of its creation. It may be so even if the law lacks validity for it is quite permissible to speak of an invalid law in such a context. The appellant's argument must be rejected.
The New South Wales Constitution
and the separation of powers
21. The appellant contended that the Constitution Act 1902 embodies a separation of powers whereby the judicial power of the State is separated from its legislative and executive powers. As a consequence, he said, judicial power is exercisable only by the judiciary, which is incapable of exercising functions which are not judicial or ancillary thereto. However, there is nothing in the structure of the Constitution Act 1902 to support this contention.
22. That Act vests legislative power in the legislature (69) and leaves unaffected the exercise of executive power through the Governor otherwise than on the advice of the Executive Council (70). There is provision for the continuance of an Executive Council (71) and the Premier and other Ministers of the Crown are to be appointed from its members (72). Whilst Pt 9 of that Act is headed "The Judiciary" nowhere does it provide that the judicial power of the State is vested in the judiciary. Section 53, which is contained in Pt 9, provides that no holder of judicial office may be removed from office save on an address of both Houses of Parliament seeking removal on the ground of proved misbehaviour or incapacity. There are additional provisions relating to the suspension of judicial office and the fixing or changing of retirement age (73). Section 56 provides that Pt 9 does not prevent abolition by legislation of a judicial office whether that be done directly or indirectly by the abolition of a court or part of a court.
23. Whilst these provisions are concerned with the preservation of judicial independence, they cannot be seen as reposing the exercise of judicial power exclusively in the holders of judicial office. Nor can they be seen as precluding the exercise of non-judicial power by persons in their capacity as holders of judicial office. They clearly do not constitute an exhaustive statement of the manner in which the judicial power of the State is or may be vested (74). Had Pt 9 attempted such an exercise it would have cut across a long history of the exercise of non-judicial power by the courts and the exercise of judicial power by bodies exercising non-judicial functions (75).
24. The Constitution Act 1902 may be contrasted with the provisions of the Commonwealth Constitution, in particular ss 1, 61 and 71. Those sections respectively vest the legislative power of the Commonwealth in the Parliament, the executive power in the Executive and the judicial power in the Judicature. Section 1 appears at the commencement of Ch 1, which is headed "The Parliament". Section 61 appears at the commencement of Ch II which is headed "The Executive Government". Section 71 appears at the commencement of Ch III which is headed "The Judicature". In R v Kirby; Ex parte Boilermakers' Society of Australia (76) this Court held that this pattern could not be treated as a "mere draftsman's arrangement" or as "meaningless and of no legal consequence". It is because the judicial power of the Commonwealth is vested by Ch III in those courts which it identifies and is dealt with nowhere else (save for s 51(xxxix)) that this Court was compelled to conclude that no functions other than judicial functions may be reposed in the federal judicature and that no powers which are foreign to the judicial power may be attached to courts created by or under that chapter. Not only that, but it was recognised that the position and constitution of the federal judicature was bound up in the federal structure established by the Constitution, "for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised" (77).
25. The latter consideration has no application to the judicature of a State and the failure of the New South Wales Constitution to vest judicial power exclusively in the judicature must be fatal to any contention that the separation of that power from the other powers of government is a constitutional requirement. Even if it could be said that it was required, it might, in contrast to the requirement imposed by the Commonwealth Constitution, be disregarded by an Act of Parliament, for in that respect the New South Wales Constitution is "uncontrolled" (78). It remains true, therefore, as was said by the New South Wales Court of Appeal in Clyne v East (79), that the structure and provisions of the Constitution Act 1902 provide no ground for importing into it a principle of separation of powers.
26. The appellant placed reliance upon the Privy Council decision of Liyanage v The Queen (80) in which it was held that the Constitution of Ceylon contained a separation of powers notwithstanding that it was silent as to the vesting of judicial power. But the judicature in Ceylon was in existence before the Constitution and was operating under the Courts Ordinance which contained the jurisdiction and procedure of the courts established under the Charter of Justice in 1833. The Charter provided that "the entire administration of justice, civil and criminal therein, shall be vested exclusively in the courts erected and constituted by this Our Charter". There was, for this reason, so the Privy Council found, no need to make specific reference in the Constitution to the vesting of judicial power, but the organisation of that instrument was otherwise such as to manifest "an intention to secure in the judiciary a freedom from political, legislative and executive control". The Constitution's silence as to the vesting of judicial power was, the Privy Council said, "consistent with its remaining, where it had lain for more than a century, in the hands of the judicature". It was, it said, "not consistent with any intention that henceforth it should pass to or be shared by, the executive or the legislature" (81).
27. There is no such background to the New South Wales Constitution which inherited the United Kingdom model under which the extent to which a separation of powers was observed was conventional rather than compelled by any constitutional mandate (82). The New South Wales Court of Appeal was clearly correct in concluding in Clyne v East that, notwithstanding that the Supreme Court of New South Wales also owes its origin to a Charter of Justice, no basis could be found in the provisions of the Constitution Act 1902 for isolating judicial power from the other powers of government (83). To do so would confine the legislative power conferred by s 5 of the Constitution Act 1902. It is clear that it is not so confined and, as I have explained, it extends to the judiciary. As is well established, the ultimate source of the power contained in s 5 is the Imperial Act (18 and 19 Vict c 54), known as the Constitution Statute 1855, and the Act of the Colony of New South Wales which forms the schedule to the statute (17 Vict No 41), which is called the Constitution Act (84). Section 49 of the latter Act recognised the power of the New South Wales legislature to abolish, alter or vary the constitution and functions of the courts of the colony. That power may be traced through to s 5 of the Constitution Act 1902. It is for that reason and because of the structure of that Act (which at one time contained no provision at all dealing with the judicature) that no useful comparison can be made with the Ceylon Constitution which was analysed in Liyanage v The Queen.
28. It is true that Pt 9 of the Constitution Act 1902 is doubly entrenched. Under s 7B(1) of the Constitution Act 1902 specified provisions may not be repealed or altered until the repeal or alteration has been approved by referendum. Those provisions include s 7B itself, so providing a double entrenchment. Part 9 was included in s 7B(1), but that did not occur until after it had been inserted in the Constitution Act 1902 in 1992 (85). The entrenchment of Pt 9 was effected by s 3 of the Constitution (Entrenchment) Amendment Act 1992 (NSW), but that did not come into force until 2 May 1995, that is to say, until after the Act came into force. But, as I have said, Pt 9 deals only with matters relating to judicial independence and does not purport to vest judicial power exclusively in the judiciary or to require the judiciary to exercise only judicial power. Even if the Act amounted to the legislative exercise of a judicial function or required the court to exercise a non-judicial function, it would not fall within the terms of s 7B(1) as repealing or amending Pt 9 of the Constitution Act 1902. It is therefore unnecessary to consider whether, the Act having come into force before the Constitution (Entrenchment) Amendment Act, s 7B(1) would have any application.
Chapter III of the Commonwealth Constitution
29. Under s 71 of the Commonwealth Constitution, which is the first section of Ch III, the judicial power of the Commonwealth is vested in the High Court "and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction". Whilst the nature of the judicial power so vested is not stated, the matters over which it may be exercised are set out with some particularity in ss 75 and 76. Under s 77(iii) the Parliament may make laws "(i)nvesting any court of a State with federal jurisdiction". In s 39(2) of the Judiciary Act 1903 (Cth) Parliament has exercised that power by conferring federal jurisdiction (with certain exceptions and qualifications) upon "(t)he several Courts of the States" in the matters specified in ss 75 and 76.
30. In providing for the vesting of federal jurisdiction in State courts, s 77(iii) plainly contemplated that jurisdiction might be vested in a court which did not have the characteristics required of a federal court under Ch III. As has been said, Ch III requires those courts created by or under it to exercise the judicial power vested in them separately from the other powers of Government. In the interests of judicial independence s 72 also requires that the judges of those courts be appointed until a specified age, be not removable except upon an address of both Houses of Parliament praying for their removal on the ground of proved misbehaviour or incapacity, and be not subject to diminution of their remuneration during their continuance in office (86).
31. Plainly those requirements do not extend to State courts which may be invested with federal jurisdiction under s 77(iii). Section 77(iii) speaks of existing institutions the characteristics of which did not necessarily and did not in fact satisfy those requirements. Indeed, in South Australia at federation an appeal lay from the Supreme Court to the Court of Appeals which comprised the Governor in Executive Council. Special provision had to be made in s 73 of the Constitution to include the Court of Appeals (87). As I have said, in New South Wales there has never been a constitutional requirement of separation of powers and Pt 9 of the Constitution Act 1902, which guarantees a measure of judicial independence, was inserted only in 1992. But as Isaacs J said in R v Murray and Cormie; Ex parte The Commonwealth (88):
"The Constitution, by Chapter III, draws the clearest
distinction between federal Courts and State Courts, and while enabling the Commonwealth Parliament to utilise the judicial services of State Courts recognises in the most pronounced and unequivocal way that they remain 'State Courts.'"
And as Knox CJ, Rich and Dixon JJ pointed out in Le Mesurier v Connor (89):
"The Parliament may create Federal Courts, and over them and
their organisation it has ample power. But the Courts of a State are the judicial organs of another Government. They are created by State law; their existence depends upon State law; that law, primarily at least, determines the constitution of the Court itself, and the organisation through which its powers and jurisdictions are exercised."
Considerations such as those were in the mind of Griffith CJ when he said in Federated Sawmill, Timberyard and General Woodworkers' Employes' Association (Adelaide Branch) v Alexander (90) that "when the Federal Parliament confers a new jurisdiction upon an existing State Court it takes the Court as it finds it, with all its limitations as to jurisdiction, unless otherwise expressly declared". They were in the mind of Latham CJ when he said in Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (91) that "(t)he Commonwealth Parliament cannot, by virtue of s 77(iii) of the Constitution, under the guise of conferring jurisdiction upon a State court, in effect create a new Federal court, possibly without observing the conditions imposed upon such creation by sec 72 of the Constitution" (92).
32. The suggestion that the Constitution does not permit of two grades of judiciary exercising the judicial power of the Commonwealth, or that Ch III does not draw the clear distinction between State and federal courts which it has hitherto been thought to, simply ignores the fact that the Constitution ensures security of tenure and of remuneration in respect of judges of courts created by or under Ch III but does not do so in respect of judges of State courts invested with federal jurisdiction. It equally ignores the fact that the Constitution does not require that State courts only exercise judicial power. The suggestion that the Act is invalid because it compromises the institutional impartiality of the Supreme Court of New South Wales ignores the fact that the mechanisms for ensuring judicial impartiality and independence - security of tenure and remuneration, and separation from the other arms of government - are not constitutionally prescribed for State courts notwithstanding that they are prescribed for courts created by or under Ch III. It is difficult to conceive of a clearer distinction.
33. It is true that some qualifications must be placed upon the statement that the federal Parliament must, in exercising its power under s 77(iii), take a State court as it finds it. Under s 79 Parliament may prescribe the number of judges to exercise federal jurisdiction. And clearly Parliament may extend the jurisdiction of the court because that is precisely what s 77(iii) envisages. Also it may regulate the practice and procedure which the State court is to follow in exercising the invested jurisdiction. But it may go no further than is necessary for that purpose; it may not legislate with respect to the court itself (93). That is to say, it may not alter the character or constitution of the court. And just as the Parliament cannot do that under s 77(iii), it is clear that there is nothing in Ch III itself which does so.
34. And yet the appellant's argument, as I understand it, is that the Commonwealth Constitution, and Ch III in particular, precludes a State court, as the potential or actual repository of federal jurisdiction, from having functions conferred upon it by the State legislature which are incompatible with Ch III. Either that or, so the appellant's argument goes, a law, such as s 39(2) of the Judiciary Act 1903 (Cth), which invests a State court with federal jurisdiction, is inconsistent with a State law conferring a function upon that court which is incompatible with Ch III and must, for that reason, prevail over the State law under s 109 of the Constitution.
35. It may be said at the outset that such an argument simply denies the proposition, hitherto accepted without question, that Ch III, and s 77(iii) in particular, treats State courts as existing institutions. The result is that, so long as they are in fact courts, Ch III is unconcerned with whether they comply with the requirements of Ch III for courts created by or under that chapter. State courts are not created by or under Ch III and, provided they are courts within the meaning of s 77(iii), it matters not for the purposes of Ch III what functions they perform in exercising the jurisdiction vested in them by State legislation. That is for the State legislature to determine. As Mason J said in The Commonwealth v Hospital Contribution Fund (94):
"Generally speaking, the Parliament of a State may in the
exercise of its plenary legislative power alter the composition, structure, and organisation of its Supreme Court for the purposes of the exercise of State jurisdiction. ... Chapter III of the Constitution contains no provision which restricts the legislative competence of the States in this respect. Nor does it make any discernible attempt to regulate the composition, structure or organisation of the Supreme Courts as appropriate vehicles for the exercise of invested federal jurisdiction. It is therefore sensible and natural to read the expression 'any Court of a State' in s 77(iii) as referring to State courts in the sense explained by Gibbs J in Kotsis.
36. His Honour there observed that the exercise of federal jurisdiction did not call for a curial organisation different in kind from that established for the exercise of State jurisdiction (95). IN THIS SITUATION THERE IS EVERY REASON FOR SUPPOSING THAT THE FRAMERS OF THE CONSTITUTION INTENDED TO ARM THE PARLIAMENT OF THE COMMONWEALTH WITH A POWER TO INVEST FEDERAL JURISDICTION IN A STATE COURT AS IT HAPPENED TO BE ORGANISED UNDER STATE LAW FROM TIME TO TIME. Although the Commonwealth Parliament has no power to alter the structure or organisation of State courts, its freedom of action is completely preserved. It has the choice of investing State courts with federal jurisdiction or of establishing appropriate federal courts." (emphasis added)
37. Whether State courts invested with federal jurisdiction are part of the federal judicature or not is a question of little practical significance, save perhaps in considering the application of the incidental power conferred by s 51(xxxix). They remain State courts even though, when exercising federal jurisdiction, they may be regarded as a component of the federal judicature. There is no one court system in Australia (96). Each of the States has its own hierarchy which is governed by State legislation. The federal courts created under s 71 of the Constitution constitute a different system. Of course, the whole can be regarded as an entirety. After all, the different parts have a common origin in law and the common law precedes the emergence of the different jurisdictions and applies in them all. Not only that, but the creation of the High Court as a court of appeal - now the final court of appeal - from the courts of all jurisdictions, federal and state, has a unifying influence upon both the common law and also in a more general way. But our legal system, though integrated, is not a unitary system. The States are distinct jurisdictions and the enactments of each of their legislatures are confined in their operation so that in other States their recognition is governed by common law principles and such requirements as flow from the full faith and credit required by s 118 of the Constitution. Federal law, of course, is binding on all courts whether exercising federal jurisdiction or not (97). The system is a federal system and, whilst the framers of the Constitution might have established a judicial system which was neither State nor federal but simply Australian, they did not do so (98). It is therefore dangerous to attempt to draw conclusions from the fact that the Australian legal system may be regarded as a whole. It may be, but as a matter of legal analysis that is to stop short of an appreciation of its different parts.
38. Clearly, a State court may exercise executive or legislative as well as judicial functions, where, as in the case of New South Wales, the State constitution does not require judicial power to be separated from executive and legislative power. In so doing the State court is exercising a function which may not be exercised by a federal court under Ch III. That chapter does not allow a combination of judicial and executive or legislative power in federal courts. As the majority said in the Boilermakers' Case (99):
"The basal reason why such a combination is constitutionally
inadmissible is that Chap III does not allow powers which are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Commonwealth."
That passage is careful to omit any reference to State courts invested with federal jurisdiction under s 77(iii) and that is because under State constitutions the combination which is impermissible under Ch III is permissible.
39. Once it is recognised that there is no requirement in the New South Wales Constitution that courts in that State perform solely judicial functions and that, notwithstanding that characteristic, they are nevertheless courts which may be invested with federal jurisdiction under s 77(iii) of the Commonwealth Constitution, any question of incompatibility with Ch III upon the ground that the State court is required to perform executive or legislative functions must disappear. Certainly those functions may not be performed by a federal court created by or under Ch III. That is because the federal court is precluded by the separation of judicial power from performing them. But as far as State courts are concerned there is no incompatibility with Ch III because that chapter accepts those courts as existing institutions which may be invested with federal jurisdiction notwithstanding that they are not subject to any doctrine of separation of powers.
40. It may be that, in referring to incompatibility, the appellant used the word in the sense in which it was used by the majority in Grollo v Palmer (100) where it was said that the ability of parliament to confer a non-judicial function on a judge of a Ch III court as a designated person rather than as a judge is subject to the limitation that the non-judicial function must not be incompatible either with the judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. So much, it was said in that case, was to be "implied from the separation of powers mandated by Chs I, II and III of the Constitution and from the conditions necessary for the valid and effective exercise of judicial power" (101).
41. But the judicial power of which the majority were there speaking was the judicial power exercised by a federal court created by or under Ch III - a Ch III court. The nature of that judicial power is, as was acknowledged in Grollo, very much determined by the separation of powers which the Constitution requires to be observed in relation to such a court. As the Privy Council observed in the Boilermakers' Case (102), the separation of powers is, in a federal system, a guarantee of the absolute independence of the judiciary which is "the bulwark of the constitution against encroachment whether by the legislature or by the executive" (103). What is incompatible with the exercise of the judicial power of the Commonwealth by a Ch III court may not be incompatible with the exercise of the judicial power of the Commonwealth by a court which is not restricted by any separation of powers. As Grollo makes clear, the concept of incompatibility is derived from the separation of powers and does not have a life of its own independent of that doctrine. Five members of the Court recognised that very point in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (104) where they said that "Grollo was concerned with constitutional incompatibility, derived from the constitutional separation of the functions of the Judiciary from the functions of the Parliament and the Executive." (emphasis added)
42. In any event, no question of incompatibility in the sense in which the concept was used in Grollo arises in this case. In that case, the persona designata doctrine was held to justify the giving of an executive function to a judge of a Ch III court. Incompatibility was raised only to demonstrate that the persona designata doctrine has its limits. In this case, where the New South Wales court is not affected by any separation of powers, there is no call for the invocation of the persona designata doctrine and no question of incompatibility arises from the vesting in the court (105) of an executive function. Nor can it be said in these circumstances that a particular type of executive function is incompatible with the exercise of judicial power any more than it can be said that a particular type of judicial function is inconsistent with the exercise of executive or legislative power. The reasons, which are readily apparent, for the adoption of a separation of powers in a federal structure do not have the same force in a unitary state. Be that as it may, New South Wales has not adopted that doctrine so that there can be no incompatibility between the exercise of judicial power and the exercise of executive or legislative power by a court of that State. And there can be no incompatibility with Ch III arising from that situation because it was within the contemplation of those who framed that chapter that federal jurisdiction might be vested in State courts exercising executive or legislative functions as well as judicial powers. If the position is that the conferral of some non-judicial functions on a State court by a State parliament is so undesirable as to be unconstitutional, a quasi-separation of powers will be established in the States, totally contrary to the position which had hitherto been unquestioned and without the virtue of that separation being able to be determined by any criterion other than undesirability. Of course, only judicial functions may be vested by the federal Parliament in State courts pursuant to s 77(iii) (106), but that is an entirely different thing.
43. Because Ch III contemplates that federal judicial power will be exercised by a State court which is not otherwise confined to the exercise of judicial power, it makes no difference that in this case the Supreme Court of New South Wales may have been exercising federal jurisdiction in making orders against the appellant because he raised in his defence the question of the invalidity of the Act under the Commonwealth Constitution. It was the appellant's contention that this made the case a matter arising under the Constitution or involving its interpretation within the meaning of s 76(1) of the Constitution and thus within the ambit of the federal jurisdiction vested in the court under s 39(2) of the Judiciary Act. I am aware of the views expressed in Felton v Mulligan (107) to the effect that once federal jurisdiction is attracted, even by a point raised in a defence, the jurisdiction exercised throughout the case will remain federal jurisdiction. For the purpose of determining the available avenues of appeal that may be the only practical approach, but I would observe that it may lead to a very artificial result in a case such as this, namely, that the Supreme Court of New South Wales was exercising federal jurisdiction in ordering the preventive detention of the appellant under a New South Wales Act. Perhaps the answer may lie in the suggestion by Barwick CJ in Felton v Mulligan (108) that separate and discrete questions may arise, the determination of which will constitute separate proceedings. But there is no need to pursue that matter here.
44. It also follows from what I have said that a federal law, such as s 39(2) of the Judiciary Act, which invests a State court with federal jurisdiction, is not inconsistent with a State law which confers functions upon that court of a type which could not be conferred upon a Ch III court. Such a federal law may be passed pursuant to s 77(iii) of the Constitution, which, as has been said again and again, envisages the vesting of federal jurisdiction in State courts as existing institutions possessing characteristics which are not and cannot be possessed by a Ch III court, such as the capacity to exercise executive or legislative power as well as judicial power. Section 39(2) of the Judiciary Act does not and could not require a State court which it invests with federal jurisdiction to exercise judicial power separately and it is thus not inconsistent with a State law which confers upon the court a function which is other than judicial.
Conclusion
45. For these reasons, the Act is in my opinion valid. In reaching this conclusion I have not found it necessary to examine the view advanced by the appellant that the Act authorises the court to impose punishment upon him by way of an executive or legislative act for reasons other than his commission of a crime. However, in Chu Kheng Lim v Minister for Immigration (109) it was recognised that "(i)nvoluntary detention in cases of mental illness or infectious disease can also legitimately be seen as non-punitive in character". It is apparent from the Act that the New South Wales legislature perceived that there was a gap in the law arising from the fact that there may exist in the community persons with personality disorders which strongly dispose them to commit acts of violence but who are not mentally ill and thus are unable to be detained under mental health legislation (110). The need for legislation in that situation was foreseen by Deane J in Veen v The Queen (No 2) (111) when he said:
"(T)he protection of the community obviously warrants the
introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence".
The detention which the Act authorises the court to impose upon the appellant is, the respondent contends, preventive rather than punitive, although the appellant understandably points to the fact that the detention is in a prison, a place of punishment, rather than some other institution. Moreover, it is not apparent that an order that the appellant be detained represents the exercise of executive or legislative power rather than of judicial power (112). On an application made in accordance with the Act, the court is required to be satisfied that the criteria laid down by s 5(1) are met before making a detention order. The issues raised are not predetermined by the legislation, as the refusal by Grove J to grant a second preventive detention order demonstrates. Clearly the Act does not amount to a bill of attainder or of pains and penalties. It does not involve a legislative judgment of criminal guilt and, in any event, does not have an ex post facto operation.
46. In the light of the conclusions which I have reached, these considerations raise matters which go to the desirability of the Act rather than to its validity. Notwithstanding that the wisdom of the policy adopted by the legislature is open to question, the policy is a matter for the legislature rather than for this Court.
47. I would dismiss the appeal.
TOOHEY J. The Court of Appeal of New South Wales dismissed an appeal by the appellant against orders made by Levine J under the Community Protection Act 1994 (NSW) ("the Act") (113).
The Community Protection Act
2. Section 5(1) of the Act empowers the Supreme Court, on application made in accordance with the Act, to order that "a specified person be detained in prison for a specified period" (a "preventive detention order") if the Court is satisfied on reasonable grounds:
"(a) that the person is more likely than not to commit a
serious act of violence; and
(b) that it is appropriate, for the protection of a
particular person or persons or the community generally, that the person be held in custody."
3. While the Act gives rise to some important questions, it also has some odd features. Undoubtedly these are the result of amendments made while the Bill was in progress through Parliament, without sufficient attention being paid to their impact on other provisions of the Act. For instance, the long title refers to "An Act to protect the community by providing for the preventive detention of persons who are, in the opinion of the Supreme Court, more likely than not to commit serious acts of violence." On its face then, the Act is of application to that class of persons whom it identifies. Yet s 3(1) expresses the object of the Act to be "to protect the community by providing for the preventive detention ... of Gregory Wayne Kable" while s 3(3) "authorises the making of a detention order against Gregory Wayne Kable and does not authorise the making of a detention order against any other person". There is no definition as such of the expression "a specified person" as it appears in s 5(1) but the provision must be read as if "Gregory Wayne Kable" were substituted for "a specified person". This produces further anomalies. For instance, s 10 prohibits the making of a detention order "against a person who is under the age of 16 years" though there can be no such person on whom the Act may operate. Clearly enough, the original intention of the legislature was to enact a statute of more general application; what emerged was legislation directed at one person only.
4. The maximum period of detention to be specified in an order under s 5 is six months (114). The Act does permit the making of further orders pursuant to s 5. On 21 August 1995 Grove J refused to make a further order under the Act. However, that does not preclude the making of a further application against the appellant (115).
5. Curiously, proceedings under the Act are identified as "civil proceedings" (116) and the standard of proof is "on the balance of probabilities" (117). In any proceedings under the Act the Court is bound by the rules of evidence (118) but it may order the production of medical records and reports and other documents (119) in which event, it would seem, their contents may constitute evidence which ordinarily would be inadmissible (120). The jurisdiction of the Court is exercisable by a single Judge, with a right of appeal against the making of or refusing to make a preventive detention order to the Court of Appeal on a question of law, or fact, or mixed law and fact (121).
The attack on the Community Protection Act
6. The appellant's attack on the validity of the legislation took several forms, not all of which were entirely discrete from or independent of each other. At the forefront of the attack was an argument that wore two faces. One was that the Act constituted an exercise of judicial power by the Parliament of New South Wales. The other was that the Act invests in the Supreme Court of New South Wales a non-judicial power which is incompatible with Ch III of the Commonwealth Constitution. Counsel for the appellant said that this latter argument was not concerned with any doctrine of the separation of powers, as was the former argument, but only with the consequences of conferring upon a State court a jurisdiction which is incompatible with the exercise of federal judicial power. The argument of incompatibility has its foundation in the judicial power of the Commonwealth as identified by Ch III.
7. The appellant further argued that the Act is beyond the legislative power of the Parliament of New South Wales because it authorises the detention of the appellant without prescribing a rule of conduct by which he is to be judged. It was said, therefore, not to constitute a law. There were other attacks on the Act on the footing that it treats the appellant differently from all other persons and that it is a bill of attainder or of pains and penalties.
Legislative power
8. The power of the legislature of New South Wales is, by reason of the Constitution Act 1902 (NSW), s 5, "subject to the provisions of the Commonwealth of Australia Constitution Act ... to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever". In Union Steamship Co of Australia Pty Ltd v King (122) this Court said that such a power is indistinguishable from the power to make laws "for the peace, order and good government" of a territory and that (123):
"(T)he words 'for the peace, order and good government' are
not words of limitation ... (T)hey do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the (State). ... Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law ... is another question which we need not explore."
9. It follows that no attack may be made on the Act simply on the ground that it does not secure the peace, welfare, and good government of New South Wales unless, perhaps, it falls within the category tentatively identified in the passage last quoted. It does not appear that the appellant seeks to bring his case directly within that category. But he does argue for a limitation on legislative power in the sense that the Parliament of New South Wales, not being a recipient of judicial power or function, may not itself exercise such a power or function.
10. In Fencott v Muller (124) Mason, Murphy, Brennan and Deane JJ referred to judicial power as the power of a sovereign authority to decide controversies between its subjects or between itself and its subjects. Their Honours continued:
"The unique and essential function of the judicial power is
the quelling of such controversies (that is, controversies between the subjects of a sovereign authority or between the authority and its subjects) by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion."
The appellant's contention was that an application to the Supreme Court under the Act is in truth a formality, the outcome of which is dictated by the legislation. Although s 5(1) provides that the Court "may" order detention, if satisfied as to the criteria in pars (a) and (b), the appellant submitted that when the Act is read as a whole not only must the Court exercise the power once the criteria have been met (125) but that it is left with no determinative function. Thus the Act was said to be an exercise by the legislature of judicial power by directing the Court to find the criteria satisfied and in consequence to make a preventive detention order.
11. The respondent challenged the proposition that the Act is an exercise of judicial power by the legislature. On the respondent's argument there is nothing in the Act which dictates the outcome of an application under s 5. It remains for the Supreme Court to be satisfied (albeit on the balance of probabilities) on reasonable grounds that the appellant is more likely than not to commit a "serious act of violence" (126) and that it is appropriate for the protection of a particular person or persons or the community generally, that the appellant be held in custody.
12. In my view, s 5(1) does require a consideration by the Court of the criteria in pars (a) and (b) and accordingly it obliges the Court to be satisfied, on reasonable grounds, that it is appropriate that a preventive detention order be made. It is true that s 3(2) reads: "In the construction of this Act, the need to protect the community is to be given paramount consideration." But the requirement is related to the construction of the provisions of the Act rather than the assessment of the evidence necessary to satisfy the criteria. That the Court may consider an order not to be appropriate in the circumstances is borne out by the refusal of Grove J to make an order under the section. Nevertheless, if the Court is satisfied in terms of pars (a) and (b), it can hardly do other than make a preventive detention order.
Separation of powers
13. In any event the appellant has not demonstrated that the doctrine of separation of powers operates in a constitutional sense in New South Wales so as to preclude the Parliament enacting a statute which ensures a particular result in what might be regarded as an exercise of judicial power. In Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations ("the BLF Case") (127) the Court of Appeal held that the courts could not declare invalid the Builders Labourers Federation (Special Provisions) Act 1986 (NSW) even though the Act was, in directing the outcome of pending litigation, an exercise of judicial power. In the course of his judgment, Street CJ said (128):
"Parliament in this State has power to adjudicate between
parties by an exercise of judicial power ...
I recognise that the New South Wales Parliament has judicial
power".
Priestley JA discussed this aspect, pointing out that the Supreme Court of Judicature Act 1873 (UK) effectively brought to an end the existing superior courts and brought into existence one Supreme Court in which litigation already begun would be continued. His Honour observed (129):
"(T)his alteration in the English judicial system does not
appear to have given rise to any comment relating to the doctrine of the separation of powers".
14. The appellant conceded that the Parliament of New South Wales may confer upon the Supreme Court functions which would be regarded as non-judicial in the context of Ch III (130). Nevertheless, he argued that separation of powers should be inferred from the Constitution of New South Wales, in particular by reason of Pt 9. Part 9 was inserted to secure the independence of the judiciary by providing for the appointment of judges and the circumstances in which they may be removed from office. The appellant contended that this gave rise to a constitutional separation of judicial power from legislative power.
15. The respondent replied, firstly, that the double entrenching of Pt 9 occurred after the events relevant to the appeal. Part 9 of the Constitution Act was inserted by the Constitution (Amendment) Act 1992 (NSW) and commenced on assent (131). It was not at that stage doubly entrenched. It became so on 2 May 1995, following a referendum and the Constitution (Entrenchment) Amendment Act 1992 (NSW). Levine J made his order on 23 February 1995.
61. The Constitution is premised upon the proposition (in covering cl 5) that, of every State (a phrase which includes new States admitted or established pursuant to s 121 (covering cl 6)) there will be "courts" and "judges". Indeed, any other conclusion, to adopt the phrase of Dixon CJ in another context (271), "rather taxes legal credulity".
62. The continuing existence of a system of State courts is recognised not only in covering cl 5 but also in ss 73, 77(iii) and 79. Further, s 51(xxiv) provides for the making of laws with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of "the courts of the States", and s 51(xxv) provides for laws with respect to the recognition throughout the Commonwealth of "the judicial proceedings of the States". Section 118 requires the giving of full faith and credit, throughout the Commonwealth, to "the judicial proceedings of every State".
63. Moreover, allowance is to be made for the operation of s 106 of the Constitution. This states:
"The Constitution of each State of the Commonwealth shall,
subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State." (emphasis added)
64. There may be some uncertainty as to the range of statutes (Imperial and local), instruments, conventions and practices which together, or only in some limited fashion, comprise the Constitution of a State as it existed at the establishment of the Commonwealth (272). It is unnecessary to resolve any such uncertainties at this stage. That is because the Constitution, in the relevant sense, of the colony of New South Wales undoubtedly included the Imperial statute, the New South Wales Constitution Act 1855 (Imp) (273). Section 1 thereof authorised the Crown to assent to the Bill set out in Sched 1 which had been passed by the then New South Wales Legislative Council. Clause 42 of the scheduled Bill stated:
"All the Courts of Civil and Criminal Jurisdiction within
the said Colony and all Charters legal Commissions Powers and Authorities and all Officers judicial administrative or ministerial within the said Colony respectively except in so far as the same may be abolished altered or varied by or may be inconsistent with the provisions of this Act or shall be abolished altered or varied by any Act or Acts of the Legislature of the Colony or other competent authority shall continue to subsist in the same form and with the same effect as if this Act had not been made."
Section 38 preserved the commissions of the present judges of the Supreme Court of the colony. With the coming of federation, the effect of the new Constitution was to render the Supreme Court as it stood at the establishment of the Commonwealth, the Supreme Court of the State of New South Wales. But that transmutation was effected "subject to the Constitution" (274).
65. No doubt the other components of the State court systems may change from time to time, and s 77(iii) is to be read in an ambulatory fashion. But s 73(ii) puts the Supreme Courts in a distinct position. Section 73(ii) states that the High Court "shall have" appellate jurisdiction in appeals from "the Supreme Court of any State". The last paragraph of s 73 rendered applicable on such appeals to the High Court, until the Parliament otherwise provided, the conditions of and restrictions on appeals to the Privy Council from the Supreme Courts of the several States.
66. The meaning of the term "Supreme Court" in s 73 is to be determined in the process of construction of the Constitution and is not to be governed merely by legislation of the relevant State (275). It is, in this sense, a constitutional expression. The phrase identifies the highest court for the time being in the judicial hierarchy of the State and entrenches a right of appeal from that court to this Court (276).
67. In any event, to say of s 77(iii) that it offers to the Commonwealth but a facility, so that the Constitution does not bring the courts of the States necessarily into any relationship with the federal judicial power, does not meet the appellant's case. Section 73(ii) indicates that the functions of the Supreme Courts of the States, at least, are intertwined with the exercise of the judicial power of the Commonwealth. This is because decisions of the State courts, whether or not given in the exercise of invested jurisdiction, yield "matters" which found appeals to this Court under s 73(ii). By this means, the judicial power of the Commonwealth is engaged, at least prospectively, across the range of litigation pursued in the courts of the States.
68. In providing for the appellate jurisdiction of the High Court, s 73 uses the term "any matter". Further, s 74 speaks of "matters". Brennan J pointed out in Mellifont v Attorney-General (Q) (277) that this indicates that appeals lie to this Court under s 73(i) and (ii) from judgments, decrees, orders and sentences in "matters" as that term is understood in Ch III of the Constitution. However, in the absence of any constitutional separation of judicial power in the States, there has always existed the possibility that the Supreme Courts of the States may be entrusted by State law with a jurisdiction which does not involve the exercise of power which has the same character or quality as the judicial power of the Commonwealth (278).
69. This proposition may be tested by consideration of an attempt to appeal to this Court from orders made by the Court of Appeal pursuant to s 25 of the Act in an appeal so framed that there was involved no exercise of federal jurisdiction, because, for example, the Act was wholly valid and ss 76(i) and 77 of the Constitution were not enlivened. In those circumstances, there would have been no exercise of judicial power at the State level so as to found an appeal to this Court.
70. The result, as was accepted in Mellifont, is that (i) if a State court be invested with, in this sense, a non-judicial power, no exercise of that power can found an appeal to this Court because, as Brennan J pointed out (279), this Court has no power to make a non-judicial order in place of any non-judicial order which the State court ought to have made at first instance; (ii) appeals lie to this Court under s 73 from the Supreme Courts of the States only from judgments, decrees, orders and sentences made with respect to a "matter" which was the subject matter of the legal proceeding at first instance (280); and (iii) a Supreme Court may have received by State law jurisdiction which engages and calls for the exercise of judicial power, but nevertheless does not attract s 73 because no "matter" is involved.
71. Thus, as both a practical consideration and as a conclusion drawn from the structure of the Constitution, the submissions for the appellant accurately emphasise that the institutional impairment of the judicial power of the Commonwealth inflicted by a statute such as the Act upon the judicial power of the Commonwealth is not to be confessed and avoided by an attempt at segregation of the courts of the States into a distinct and self-contained stratum within the Australian judicature. Rather, there is an integrated Australian legal system, with, at its apex, the exercise by this Court of the judicial power of the Commonwealth.
Inconsistency - s 109 of the Constitution
72. I have referred to the general investment of federal jurisdiction in the Supreme Court of New South Wales. Particular reference may be made to s 39 and s 68 of the Judiciary Act. Section 109 of the Constitution renders invalid any law of the State of New South Wales to the extent of its inconsistency with those provisions (281).
73. A State law which, during the operation of an investment of federal jurisdiction in this way, would alter or impair the operation of the Judiciary Act by removing a condition or characteristic of a court such as the Supreme Court, which is essential to the investiture, is an attempt to alter or impair the operation of the federal law. Accordingly, the State law is inconsistent with it and invalid (282).
74. However, in my view, the issue in the present case is best resolved by recourse to the proposition that the Constitution itself is rendered, by covering cl 5, binding on the courts, judges and people of every State notwithstanding anything in the laws of any State. The particular characteristics of the Supreme Court against detraction from which, or impairment of which, by the Act the appellant complains, are mandated by the Constitution itself. Of course, the effect of the constitutional mandate is the protection of the Commonwealth judicial power as and when it may be invested. But the vice from which the Act suffers is not removed by the operation of s 109 upon inconsistent laws. It is removed by the operation of the Constitution itself.
Conclusions
75. As indicated earlier in these reasons, I accept the submission for the appellant that his detention was not, and any further purported detention under an order made in reliance upon the Act would not be, supported by a valid law of the State.
76. My conclusion is that the whole of the provisions of Pt 2 of the Act (ss 5-26) are invalid. The provisions of Pt 1 (ss 1-4) are ancillary to Pt 2 and fall with it, save in so far as they may have any valid operation in relation to Pt 3 (ss 27-31).
77. I turn to Pt 3. Sections 27, 29, 30 and 31 are ancillary to Pt 2 and have no operation in respect of other persons, subject matters or circumstances within the meaning of s 31(2) of the Interpretation Act 1987 (NSW), such as to preserve an operation unaffected by the invalidity of the balance of the statute.
78. There remains s 28. This states:
"No action lies against any person (including the State) for
or in respect of any act or omission done or omitted by the person so long as it was done or omitted in good faith for the purposes of, or in connection with the administration or execution of, this Act."
The section operates to confer protection in respect of acts or omissions done or omitted "in good faith". But they must have been done or omitted also for the purposes of, or in connection with the administration or execution of, "this Act". That assumes, contrary to the true situation, the validity of the statute. In truth, there was no law to be administered or executed. I conclude that s 28 falls also (283).
79. The result is that the appeal should be allowed with costs. The orders of the Court of Appeal dismissing the appeal from the primary judge should be set aside. In place thereof the appeal to that Court should be allowed with costs, the orders made by the Supreme Court at first instance, which were entered on 23 February 1995, should be set aside, and the summons filed by the Director on 13 December 1994 should be dismissed with costs.
1 s 4 of the Act.
2 s 24.
3 s 9(1).
4 s 14.
5 s 15.
6 s 8.
7 Under s 85S of the Crimes Act 1914 (Cth).
8 Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England, (1809 ed) at 36-38.
9 See, for example, Edinburgh Railway Co v Wauchope (1842) 8 Cl and F 710 at 725 (8 ER 279 at 285).
10 Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth (1986) 161 CLR 88 at 96; Liyanage v The Queen (1967) 1 AC 259.
11 Clyne v East (1967) 68 SR(NSW) 385 at 395, 400; Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 381, 400, 407, 410, 419-420.
12 J D and W G Nicholas v The State of Western Australia (1972) WAR 168; Gilbertson v South Australia (1976) 15 SASR 66 at 85 affd (1978) AC 772 at 783; Grace Bible Church v Reedman (1984) 36 SASR 376; Collingwood v Victoria (No 2) (1994) 1 VR 652.
13 New South Wales v The Commonwealth (1975) 135 CLR 337 at 372; McGinty v Western Australia (1996) 70 ALJR 200 at 206; 134 ALR 289 at 297-298.
14 Australia Act, s 6.
15 McGinty v Western Australia (1996) 70 ALJR 200 at 204-205; 134 ALR 289 at 295-296.
16 This appears to account for the strong terms in which Scalia J couched his opinion in Webster v Reproductive Health Services (1989) 492 US 490 at 532-533.
17 British Medical Association v The Commonwealth (1949) 79 CLR 201 at 236; Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151-152.
18 Le Mesurier v Connor (1929) 42 CLR 481 at 496, 498; Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 554-555; Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37; Kotsis v Kotsis (1970) 122 CLR 69 at 109; Russell v Russell (1976) 134 CLR 495 at 516-517, 530, 535, 554; The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 61.
19 (1995) 184 CLR 348 at 364-365.
20 s 3(3). See also s 3(1).
21 s 3(1).
22 s 3(2).
23 s 22(1).
24 See also s 14.
25 s 8.
26 s 14.
27 s 15.
28 s 21(2).
29 s 21(3).
30 s 21(4).
31 s 13(1).
32 s 13(2).
33 s 13(3).
34 See Kable v Director of Public Prosecutions (1995) 36 NSWLR 374.
35 See Lumb, The Constitutions of the Australian States, 5th ed (1991), Ch 1; Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 427-428.
36 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9.
37 Australia Act 1986 (Cth); Australia Act 1986 (UK).
38 See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 12-14.
39 (1988) 166 CLR 1 at 10. See also Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 529, 605-606, 635-636, 695, 714; Riel v The Queen (1885) 10 App Cas 675 at 678.
40 The words "peace, order, and good government" are indistinguishable from the words "peace, welfare, and good government". See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9.
41 (1988) 166 CLR 1 at 10.
42 (1982) 1 NZLR 374 at 390.
43 (1984) 1 NZLR 116 at 121.
44 (1984) 1 NZLR 394 at 398.
45 (1974) AC 765 at 782.
46 Fraser v State Services Commission (1984) 1 NZLR 116 at 121.
47 (1974) AC 765 at 782.
48 (1610) 8 Co Rep 107a at 118a (77 ER 638 at 652).
49 See Coke, The Fourth Part of the Institutes of the Law of England, (1809 ed) at 36.
50 See, for example, Day v Savadge (1614) Hobart 86 at 87 (80 ER 235 at 237); Sheffeild v Ratcliffe (1615) Hobart 334 at 346 (80 ER 475 at 486); R v Love (1651), reported in Cobbett's Complete Collection of State Trials, (1810), vol 5, 43 at 171-172 per Keble J.
51 Dixon, "The Common Law as an Ultimate Constitutional Foundation", Jesting Pilate, (1965) 203 at 206.
52 Salmond, Jurisprudence, 2nd ed (1907) at 125.
53 See Winterton, "The British Grundnorm: Parliamentary Supremacy Re-examined", (1976) 92 Law Quarterly Review 591.
54 Hart, The Concept of Law, (1961) at 145.
55 (1839) 9 Ad and E 1 at 108 (112 ER 1112 at 1153).
56 (1871) LR 6 CP 576 at 582.
57 (1967) 1 AC 259.
58 See Campbell v Hall (1774) 1 Cowp 204 at 209 (98 ER 1045 at 1048).
59 (1969) 1 AC 645 at 723.
60 (1980) 1 WLR 142 at 164; (1980) 1 All ER 529 at 548.
61 (1980) 1 WLR 142 at 168; (1980) 1 All ER 529 at 551.
62 (1974) AC 765 at 782.
63 (1986) 7 NSWLR 372 at 405.
64 (1991) 172 CLR 501 at 636
65 (1988) 166 CLR 1 at 10.
66 See Austin, Lectures on Jurisprudence, 5th ed (1885) at 92-93, 265-267.
67 See, for example, ss 7A, 7B.
68 See also s 8A.
69 s 5.
70 s 35A.
71 s 35B.
72 s 35E.
73 ss 54, 55.
74 cf R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270.
75 See Love v Attorney-General (NSW) (1990) 169 CLR 307 at 318-322; BLF v Minister for Industrial Relations (1986) 7 NSWLR 372 at 381.
76 (1956) 94 CLR 254 at 275.
77 (1956) 94 CLR 254 at 276.
78 McCawley v The King (1920) AC 691 at 704.
79 (1967) 68 SR (NSW) 385 at 395, 400. See also R v Lydon; Ex parte Cessnock Collieries Ltd (1960) 103 CLR 15 at 22; Kotsis v Kotsis (1970) 122 CLR 69 at 76; Love v Attorney-General (NSW) (1990) 169 CLR 307 at 319; cf Collingwood v Victoria (No 2) (1994) 1 VR 652.
80 (1967) 1 AC 259.
81 (1967) 1 AC 259 at 287-288.
82 cf Duport Steels Ltd v Sirs (1980) 1 WLR 142 at 157, 168-169; (1980) 1 All ER 529 at 541-542, 551.
83 See also BLF v Minister for Industrial Relations (1986) 7 NSWLR 372 at 381, 400-401, 407, 411-412, 419-420.
84 See Clayton v Heffron (1960) 105 CLR 214 at 251.
85 See Constitution (Amendment) Act 1992 (NSW).
86 See Waterside Workers' Federation of Australia v JW Alexander (1918) 25 CLR 434 at 469-470 per Isaacs and Rich JJ.
87 See Official Record of the Debates of the Australasian Federal Convention, (Melbourne) 31 January 1898, Vol IV at 332-333.
88 (1916) 22 CLR 437 at 452.
89 (1929) 42 CLR 481 at 495-496.
90 (1912) 15 CLR 308 at 313.
91 (1943) 67 CLR 25 at 37.
92 See also Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 554-555; Russell v Russell (1976) 134 CLR 495 at 516-517, 530, 535, 554; Brown v The Queen (1986) 160 CLR 171 at 198-199.
93 See Russell v Russell (1976) 134 CLR 495 at 519-520 per Gibbs J.
94 (1982) 150 CLR 49 at 61.
95 (1970) 122 CLR 69 at 110.
96 See Leeth v The Commonwealth (1992) 174 CLR 455 at 468-469 per Mason CJ, Dawson and McHugh JJ.
97 See covering cl 5.
98 See Dixon, "Sources of Legal Authority", Jesting Pilate, (1965) 198 at 201.
99 (1956) 94 CLR 254 at 289.
100 (1995) 184 CLR 348 at 365.
101 (1995) 184 CLR 348 at 365.
102 Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 540.
103 See also R v Davison (1954) 90 CLR 353 at 381-382 per Kitto J.
104 Unreported, High Court of Australia, 6 September 1996 at 13 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.
105 It is clear that the powers conferred by the Act are vested in the Supreme Court of New South Wales and not in the judges of that court as personae designatae.
106 See Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144.
107 (1971) 124 CLR 367 at 373, 412-413.
108 (1971) 124 CLR 367 at 373.
109 (1992) 176 CLR 1 at 28.
110 See, eg, Mental Health Act 1990 (NSW), s 9(1). See also Williams, "Psychopathy, Mental Illness and Preventive Detention: Issues Arising from the David Case", (1990) 16 Monash University Law Review 161 at 165-166.
111 (1988) 164 CLR 465 at 495.
112 See Palling v Corfield (1970) 123 CLR 52 at 58-59, 62, 64-65, 68-69.
113 Kable v Director of Public Prosecutions (1995) 36 NSWLR 374.
114 s 5(2). Section 7 authorises the making of an interim detention order for a period not exceeding three months for the purpose of the medical examination of the defendant and also to enable "other proceedings to be brought for the purpose of committing the defendant to custody or other involuntary detention": s 7(2)(c).
115 Section 5(4) provides that more than one application under the section may be made in relation to the same person.
116 s 14.
117 s 15.
118 s 17(1)(a).
119 s 17(1)(b).
120 See s 17(3).
121 ss 24, 25.
122 (1988) 166 CLR 1.
123 (1988) 166 CLR 1 at 10.
124 (1983) 152 CLR 570 at 608.
125 See Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135; Mitchell v The Queen (1996) 184 CLR 333 at 345-346.
126 The expression is defined in s 4 as an act of violence that has a real likelihood of causing death or serious injury or that involves sexual assault in the nature of an offence referred to in various specified sections of the Crimes Act 1900 (NSW).
127 (1986) 7 NSWLR 372.
128 (1986) 7 NSWLR 372 at 381.
129 (1986) 7 NSWLR 372 at 416-417.
130 See for instance Love v Attorney-General (NSW) (1990) 169 CLR 307.
131 8 December 1992.
132 See R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270.
133 (1986) 7 NSWLR 372 at 376.
134 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 26.
135 Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth (1986) 161 CLR 88 at 96.
136 Breavington v Godleman (1988) 169 CLR 41 at 166-167.
137 Felton v Mulligan (1971) 124 CLR 367.
138 Felton v Mulligan (1971) 124 CLR 367 at 373 per Barwick CJ.
139 Lane, The Australian Federal System, 2nd ed (1979) at 446.
140 (1956) 94 CLR 254 at 268.
141 Federated Sawmill, Timberyard and General Woodworkers' Employes' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 at 313; Le Mesurier v Connor (1929) 42 CLR 481 at 495-496; Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37.
142 (1995) 184 CLR 348.
143 (1995) 184 CLR 348 at 365.
144 (1989) 488 US 361 at 404.
145 See for instance Criminal Code (WA), ss 661, 662.
146 (1992) 176 CLR 1 at 27.
147 (1992) 176 CLR 1 at 28.
148 s 22(1).
149 Section 21 requires the making of reports to the Director of Public Prosecutions on the "condition and progress" of the appellant while a preventive detention order is in force.
150 See Nationwide News Pty Ltd v Willis (1992) 177 CLR 1 at 70.
151 The Community Protection Act 1990 (Vic) was enacted to authorise preventive detention for Gary David. See Fairall, "Violent Offenders and Community Protection in Victoria - The Gary David Experience", (1993) 17 Criminal Law Journal 40.
152 (1995) 184 CLR 348 at 365.
153 (1991) 172 CLR 84 at 135.
154 See Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, unreported, High Court of Australia, 6 September 1996.
155 Cummings v The State of Missouri (1866) 71 US 277 at 323. See also Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 535-536, 646, 685-686, 719-721.
156 (1967) 1 AC 259 at 291.
157 (1799) 3 Dallas 386.
158 Polyukhovich (1991) 172 CLR 501 at 647-648.
159 R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 452 per Isaacs J.
160 (1912) 15 CLR 308.
161 (1912) 15 CLR 308 at 313.
162 (1975) 134 CLR 298 at 315.
163 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268.
164 See The Commonwealth v Limerick Steamship Co Ltd and Kidman (1924) 35 CLR 69 at 116.
165 (1992) 174 CLR 455 at 498-499.
166 (1956) 94 CLR 254.
167 (1995) 184 CLR 348.
168 See s 8.
169 Section 5(2) provides that "(t)he maximum period to be specified ... is 6 months".
170 See s 22.
171 See also s 15 which speaks of proof "on the balance of probabilities"; s 16 which provides for proceedings to be "commenced by summons in accordance with rules of court"; and s 17(2) which allows for any party to proceedings under the Act to appear, adduce evidence and make submissions in the normal way.
172 See s 17(3) referred to above.
173 See, for example, R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628; Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 159-160; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 665.
174 See Harris v Caladine (1991) 172 CLR 84 at 147-148.
175 Section 5(1)(a).
176 (1991) 172 CLR 460 at 497.
177 See Grollo v Palmer (1995) 184 CLR 348 at 365, 377, 391-392; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs unreported, High Court of Australia, 6 September 1996.
178 See Leeth v The Commonwealth (1992) 174 CLR 455 at 502.
179 See Wilson v Minister for Aboriginal and Torres Strait Islander Affairs unreported, High Court of Australia, 6 September 1996 at 22-23.
180 Section 3(4) of the Act identifies Gregory Wayne Kable as "the person of that name who was convicted in New South Wales on 1 August 1990 of the manslaughter of his wife, Hilary Kable."
181 s 5(1).
182 s 5(2).
183 s 5(4).
184 Clyne v East (1967) 68 SR (NSW) 385 at 395, 396-397, 400-401; Kotsis v Kotsis (1970) 122 CLR 69 at 76; Gilbertson v South Australia (1978) AC 772 at 783; Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 400-401, 418-419; Mabo v Queensland (1988) 166 CLR 186 at 202.
185 Gilbertson (1978) AC 772 at 783.
186 Federated Sawmill, Timberyard and General Woodworkers' Employes' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 at 313; Le Mesurier v Connor (1929) 42 CLR 481 at 495-497; Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37: "But the State court must be taken as it exists. The constitution or structure of the court cannot be changed".
187 See also s 79 of the Constitution: "The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes."
188 The Commonwealth v Limerick Steamship Co Ltd and Kidman (1924) 35 CLR 69 at 90.
189 Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1.
190 In South Australia, a theoretical right of appeal existed from the State Supreme Court to a Local Court of Appeal which comprised the Governor in Executive Council (except the Attorney-General). But this "court" does not seem to have exercised jurisdiction for many years: see Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 742-743.
191 Attorney-General (Cth) v T and G Mutual Life Society Ltd (1978) 144 CLR 161.
192 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 15; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 556.
193 Dixon, "The Common Law as an Ultimate Constitutional Foundation", Jesting Pilate, (1965) 203 at 204.
194 Dixon, "Sources of Legal Authority", Jesting Pilate, (1965) 198 at 199.
195 Dixon, "Sources of Legal Authority", Jesting Pilate, (1965) 198 at 201.
196 (1969) 1 AC 590.
197 (1965) 114 CLR 20. See also Priestley, "A Federal Common Law in Australia?", (1995) 6 Public Law Review 221.
198 See Ryan v Textile Clothing and Footwear Union of Australia and Anor unreported, Victorian Court of Appeal, 13 March 1996 at 3 per Brooking JA:
"In Australia the common law cannot differ from State to State except as a result of statutory modification. This is the result of the constitutional position of the High Court, which has the unifying power to resolve differences between State courts concerning the common law."
See also Mutual Life and Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 563 per Barwick CJ; Cooper v Southern Portland Cement Ltd (1972) 128 CLR 427 at 438 per Barwick CJ; Quick and Groom, The Judicial Power of the Commonwealth, (1904) at 205-207; Lumb and Moens, The Constitution of the Commonwealth of Australia Annotated, 5th ed (1995) at 544; Nygh, Conflict of Laws in Australia, 6th ed (1995) at 9.
199 Section 73 of the Constitution.
200 ss 78, 79 and 80.
201 Bailey, "The Federal Jurisdiction of State Courts", (1940) 2 Res Judicatae 109 at 109.
202 Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144.
203 The Commonwealth v Queensland (1975) 134 CLR 298.
204 (1975) 134 CLR 298 at 314-315.
205 (1975) 134 CLR 298 at 314-315.
206 R v Quinn; Ex Parte Consolidated Food Corporation (1977) 138 CLR 1 at 11; Harris v Caladine (1991) 172 CLR 84 at 135, 159; Grollo v Palmer (1995) 184 CLR 348 at 365, 376-377, 392; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs unreported, High Court of Australia, 6 September 1996.
207 If the State had an entrenched doctrine of separation of powers, the law would fail on this ground also. But even where the State has no entrenched doctrine of separation of powers, some laws conferring jurisdiction on the Supreme Court may so closely identify the Supreme Court with the executive government that they will breach Ch III of the Constitution.
208 I have not overlooked that as late as 1806 Lord Ellenbrough accepted appointment as a member of the English Cabinet while he was Lord Chief Justice of England. But it is unthinkable that, even in a country with an unwritten and uncontrolled constitution, such incompatibility of office would be tolerated today. Indeed, Lord Ellenborough's appointment aroused a storm of protest "and, later, it is said that Ellenborough himself saw that it was hardly defensible": see Holdsworth, A History of English Law, (1952), vol 13 at 503. Nor have I overlooked the fact that the Lord Chancellor of England is the head of the English judicial system and a member of the Government. But this historical anomaly provides no precedent for holding that membership of the executive government of a State is compatible with the discharge of judicial office in a court invested with federal jurisdiction. Nor does the appointment of Sir Frances Forbes, the first Chief Justice of New South Wales, to the Legislative Council in 1824 and the Executive Council in 1825 provide a relevant precedent. Governor Darling protested that "(t)he Chief Justice should, I think, be confined to his own immediate Branch and not be introduced into any other Department of the Government." Forbes resigned his office in the Executive Council in 1829 in compliance with the view that the executive and the judiciary were separate branches of government: see Currey, Sir Frances Forbes, (1968) at 304, 340.
209 s 3(2).
210 s 5(1).
211 Section 5(1) refers to making an order against "a specified person". However, s 3(3) states that the "Act authorises the making of a detention order against Gregory Wayne Kable and does not authorise the making of a detention order against any other person."
212 s 5(2). However more than one application may be made in relation to the same person: s 5(4).
213 s 5(1).
214 s 16(1).
215 s 16(2).
216 cf s 25, which provides for a right of appeal from a determination to make, or to refuse to make, a preventive detention order.
217 On 30 December 1994, Hunter J made an interim order detaining the appellant in custody for a period of three months.
218 s 7(5).
219 Section 14 of the Act makes the proceedings civil proceedings; s 15 of the Act permits the Court to make a detention order if "the Director of Public Prosecutions' case has been proved on the balance of probabilities."
220 When the legislation was first introduced into the Parliament, it was of general application. Amendments during its passage through the Parliament confined it to the appellant. However, it is not open to doubt that the legislation was introduced into the Parliament because of the perceived need to ensure that the appellant was not released from prison.
221 Community Protection Act 1990 (Vic).
222 R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 375.
223 "Psychopathy, Mental Illness and Preventive Detention: Issues Arising from the David Case", (1990) 16 Monash University Law Review 161 at 181, together with supporting references.
224 Wood, "A One Man Dangerous Offenders Statute - The Community Protection Act 1990 (Vic)", (1990) 17 Melbourne University Law Review 497 at 502.
225 Wood, "A One Man Dangerous Offenders Statute - The Community Protection Act 1990 (Vic)", (1990) 17 Melbourne University Law Review 497 at 502.
226 Witham v Holloway (1995) 183 CLR 525.
227 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 261-262.
228 (1995) 36 NSWLR 374.
229 (1956) 94 CLR 254 at 267-268.
230 (1956) 94 CLR 254 at 268.
231 (1989) 166 CLR 518 at 580.
232 Grollo v Palmer (1995) 184 CLR 348 at 362-368, 375-378, 389-395. See also Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, unreported, High Court of Australia, 6 September 1996 at 5-6, 21-25.
233 cf Ex parte Siebold (1879) 100 US 371 at 398.
234 See Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135; Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 64-65, 84-85, 97-98; Mitchell v The Queen (1996) 184 CLR 333 at 345-346.
235 cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 165-166.
236 See ICI v Trade Practices Commission (1992) 38 FCR 248 at 254-257, 263-268.
237 (1992) 176 CLR 1 at 27-28.
238 (1992) 176 CLR 1 at 55.
239 Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 705. See also the remarks of Deane J in Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580, set out earlier in these reasons.
240 (1995) 184 CLR 348. See also Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, unreported, High Court of Australia, 6 September 1996.
241 Hobson v Hansen (1967) 265 F Supp 902 at 923, 931 per J S Wright J dissenting.
242 (1985) 763 F 2d 1191 at 1197-1198 per Fay and Johnson JJ.
243 (1988) 857 F 2d 1245 at 1260-1263. The Supreme Court of the United States granted certiorari, vacated the judgment and remanded this case for further consideration in the light of Mistretta v United States (1989) 488 US 361; see (1989) 488 US 1036. Nothing turns on that circumstance for present purposes.
244 Hobson v Hansen (1967) 265 F Supp 902 at 930 per J S Wright J.
245 Mistretta v United States (1989) 488 US 361 at 407.
246 (1928) 160 NE 655 at 661.
247 See especially Judiciary Act 1903 (Cth), s 68.
248 R v Murphy (1985) 158 CLR 596 at 613-614.
249 Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 554; Russell v Russell (1976) 134 CLR 495 at 519, 535-536, 554-555; Pollack v Commissioner of Taxation (1991) 32 FCR 40 at 46-47, 58-59; Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978) at 184-186.
250 (1912) 15 CLR 308 at 313.
251 Felton v Mulligan (1971) 124 CLR 367 at 373.
252 Felton v Mulligan (1971) 124 CLR 367 at 373.
253 (1982) 150 CLR 49.
254 Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 665-666; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360-361.
255 (1975) 134 CLR 298 at 325.
256 (1921) 29 CLR 257.
257 (1929) 42 CLR 481.
258 (1983) 152 CLR 570 at 607.
259 (1928) 276 US 518 at 533.
260 Sir Owen Dixon, "The Common Law as an Ultimate Constitutional Foundation", (1957) 31 Australian Law Journal 240 at 241.
261 Caltex Oil (Australia) Pty Ltd v XL Petroleum (NSW) Pty Ltd (1984) 155 CLR 72 at 95.
262 (1967) 117 CLR 221 at 231, 235, 238-239, 241; (1969) 1 AC 590 at 633, 637-638, 641, 644.
263 Attorney-General (Cth) v T and G Mutual Life Society Ltd (1978) 144 CLR 161.
264 This confers legislative power upon the Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to:
"The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia".
265 cf Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 13-14.
266 The Commonwealth v Limerick Steamship Co Ltd and Kidman (1924) 35 CLR 69 at 90; Bailey, "The Federal Jurisdiction of State Courts", (1940) 2 Res Judicatae 109(Pt 1), 184(Pt 2).
267 "The Federal Jurisdiction of State Courts", (1940) 2 Res Judicatae 109 at 109.
268 ss 77(i), 77(iii), 73.
269 The Commonwealth v Limerick Steamship Co Ltd and Kidman (1924) 35 CLR 69 at 116.
270 Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1.
271 Lamshed v Lake (1958) 99 CLR 132 at 143.
272 McGinty v Western Australia (1996) 70 ALJR 200 at 256; 134 ALR 289 at 367.
273 18 and 19 Vict c 54.
274 See, generally, Victoria v The Commonwealth (1971) 122 CLR 353 at 371-372 per Barwick CJ; Muldowney v The State of South Australia (1996) 70 ALJR 515 at 524; 136 ALR 18 at 31 per Gaudron J.
275 cf King v Jones (1972) 128 CLR 221 at 243; Tana v Baxter (1986) 160 CLR 572 at 581-582.
276 Kotsis v Kotsis (1970) 122 CLR 69 at 77 per Barwick CJ; see also The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 62-63 per Mason J; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 599 per Gaudron J. The relevant passage of the above judgment of Barwick CJ was criticised by Gibbs CJ and Mason J in The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 56-57, 62-63, but not in any manner presently material.
277 (1991) 173 CLR 289 at 313-314.
278 Mellifont (1991) 173 CLR 289 at 300. See also Re North Ganalanja Corporation; Ex parte Queensland (1996) 70 ALJR 344 at 349-350, 367-368; 135 ALR 225 at 232, 257.
279 (1991) 173 CLR 289 at 312. See also at 300 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ.
280 Mellifont (1991) 173 CLR 289 at 305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ.
281 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 472, 479.
282 Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 136; Williams v Hursey (1959) 103 CLR 30 at 68-69.
283 Section 35 of the DPP Act also purports to confer protection from liability upon certain officers. There was no point taken as to invalidity of that provision in any of its operations.