#7313 - Judicial Power And Detention - Federal Constitutional Law

Chu Keung Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

Brennan, Deane and Dawson JJ stated the relevant principle:

• The exclusive entrusting of CH III courts with adjudging and punishing criminal guilt under CTH laws is a matter of substance and not form – e.g. it would beyond legislative power to vest the Executive with an arbitrary power to detain citizens in custody (even if it had nothing to do with criminal guilt)

  • The reason is that “the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt”

  • BUT there are qualifications:

    • Arresting people to ensure that they are available to be dealt with by court – but even so this is subject to the supervisory jurisdiction of the court when such a power is vested in the Executive to order that the person be let out on bail

    • Involuntary detention on the basis of mental illness or infectious disease is also a non-punitive measure and does not involve exercise of judicial power

• This immunity doesn’t assist aliens because their status, rights and immunities under law differ from those of Australian citizens – the most important aspect of which is the vulnerability of the alien to exclusion and deportation. One can be detained as an incident to this (Koon Wing Lau v Calwell)

  • Hence detention for the purpose of expulsion or deportation constitutes an incident of the executive power

  • And by analogy, authority to detain an alien, conferred in the context of executive powers, to receive/investigate/determine an application for an entry permit and to admit or deport them constitutes an incident of such a power

    • This can be conferred to the Executive without offence to Ch III because authority to detain in custody for such a purpose is neither punitive nor a part of the judicial power of the CTH

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

Facts: The Community Protection Act 1994 (NSW) (‘the Act’) empowered the NSWSC to make preventive detention orders.

S 5(1) provided that on application, the Court can order a specified person be detained if satisfied on reasonable grounds that they were more likely than not to commit a serious act of violence and it is necessary to protect a person in the community that they be held in Custody.

S 14 and 15 provided for a civil standard of proof and that the proceedings under it were “civil”

S 3, despite the general operation of the Act, confined it solely to Gregory Wayne Kable

Kable was in gaol for manslaughter of his wife and he had written letters apparently threatening the safety of his children and wife’s sister with whom they were living. One of the arguments was based on the separation of powers (that the section was a ‘legislative usurpation of judicial power’) which has been held not to operate at the State level. Instead the “incompatibility” doctrine was invoked – it was held that the Act was ‘incompatible’ with the exercise of federal judicial power (not that the power was an inappropriate exercise of State legislative power).

Only Brennan CJ and Dawson J dissented. Toohey J began by making the point that most of the other judges appeared not to regard as necessary, was that federal jurisdiction was invoked in this case.

Toohey J remarked that the NSWSC was exercising federal jurisdiction under s 39 of the Judiciary Act because it concerned an implication to be drawn from the CTH Constitution that legislation, federal or State, directed against or discriminating against an individual is invalid.

• But the argument was not about the fact when Parliament invests judicial power in the States it must take State Courts as they find them – rather it was that a State Court exercising federal jurisdiction could not be the recipient of powers and functions incompatible with the very nature of the power

• In Grollo it was held that “no function can be conferred that is incompatible...with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power” – this holds good whenever Ch III is operative (not only in the context of conferring non-judicial functions on judges)

• The appellant’s chief argument was that the Act, in allowing the SC to make an order of imprisonment without being adjudged guilty of a criminal offence, requires the SC to participate in a process designed to bring about detention for an assessment of what that person might do rather than what they have done:

  • The Act requires a ‘likelihood’ to commit a serious offence

    • The Act is distinct from those cases where an indeterminate sentence is imposed by a statute since they require prior conduct in the form of a commission of an offence

    • But here, even though prior conduct may bring their attention to the authorities, no such conduct is identified as the basis for making an order under s 5

    • No prior conduct has any part to play – even though it is relevant to the power that he was charged with murder or with 17 other things – the Act did not require a determination as a result of the offence or proof of the charges

• Preventive detention under the Act is an end itself – it is not an incident of the judicial function of adjudging and punishing criminal guilt, or preventive detention with safeguards, consequent or ancillary to adjudicating guilt. The Act requires the SC to exercise judicial power in a manner inconsistent with the judicial process

  • It’s extraordinary character is furthered by the fact that it is directed to (with no consequences for anyone else) a single person rather than a ‘specified person’ by reference to a class

• The Act is incompatible under the rule in Grollo v Palmer in requiring the performance of non-judicial functions. It offends Ch III by requiring the SC to make a preventive detention order where no breach of the criminal law is alleged and where there is no determination of guilt.

• It is impossible to sever it

Gaudron J noted that although it has been said that CH III in the Constitution draws a clear distinction between federal and State Courts – the sections do not draw any such distinction. She went on:

• Gaudron J remarked that together s 72 and s 77 show that CH III recognizes that all federal courts are creatures of the CTH and State courts are creatures of the State

  • Thus it is for States alone to determine the things under s 72 (appointment, remuneration etc.)

• It is also correct to say that when conferring Federal jurisdiction, the CTH takes the Court as it finds it, with all its limitations as to jurisdiction, unless otherwise declared – this isn’t an unqualified proposition that the CTH takes the court as it finds it

• But neither of these features obviate from the fact that the Constitution provides for an integrated Australian judicial system for the exercise of CTH judicial power. And neither does it mean that State Parliaments can enact whatever laws they want to with respect to State Courts.

• The question as to whether the Constitution requires that state courts not have particular powers depends on an understanding of the integrated system for which Ch-III provides (the ‘autochthonous expedient’). Three significant matters arise:

  • That States must maintain a court for the exercise of CTH judicial power (abolishing the expedient would frustrate CH-III)

  • State courts are as worthy and are not ‘substitutes’ for Federal Courts

  • When exercising federal jurisdiction, State courts have “a role and existence which transcends their status as courts of the State’s”

• These limits on State power are much more confined than the Boilermaker’s doctrine as they apply to Federal courts

Is the power conferred by s 5(1) repugnant or incompatible with the exercise of the judicial power of the CTH

• Despite the fact that they are dressed up (words like ‘defendant’ and ‘civil proceedings’) as legal proceedings, proceedings under s 5(1) in no way resemble legal proceedings – they do not involve a resolution of a dispute or determinations of...