Friday 26 September 2014

When can State courts be given functions that are a precursor to a controversial executive function?

On 14 August 2014 the High Court handed down judgment in Pollentine v Bleijie. The Court unanimously rejected the plaintiffs' challenge to the constitutional validity of s 18 of the Criminal Law Amendment Act 1945 (Qld) (the Act), which provides for the indefinite detention of certain convicted sex offenders.

The Act

Section 18 provides that where a person has been convicted of a sexual offence against a child under the age of 17 years, a judge of the District Court of Queensland may, if two medical practitioners certify that the offender is incapable of exercising proper control over his or her sexual instincts, order that the person be detained in an institution at Her Majesty's pleasure. An order under s 18 may be made in addition to or in substitution for any other sentence imposed by the District Court. A person detained in accordance with s 18 is liable to be detained until such time as the Governor in Council, acting on the advice of two medical practitioners, determines that it is expedient for the person to be released.

While it is convenient to refer to the provisions of the Act in the present tense, it should be noted that, as a practical matter, the Act has largely been superseded by the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). [1]

Factual Background

In 1984, each of the plaintiffs pleaded guilty in the District Court to multiple sexual offences against children. Each plaintiff was found to be incapable of controlling his sexual instincts and was ordered by the District Court to be detained at Her Majesty's pleasure. Thus at the date the Court handed down judgment, each of the plaintiffs had spent a period in excess of thirty years in detention pursuant to s 18 of the Act.

Grounds of Constitutional Challenge

The plaintiffs contended that s 18 of the Act undermines the institutional integrity of the Queensland court system contrary to the principles identified by the High Court in Kable v Director of Public Prosecutions (NSW). They submitted that the Act breaches the Kable principles in three ways:
  • Firstly, the plaintiffs submitted that s 18 impermissibly delegates to the executive government of Queensland the task of sentencing criminal offenders;
  • Secondly, they submitted that an order of the District Court under s 18 is merely a cloak used to give a neutral, apolitical and judicial colour to what is in reality punitive detention by the executive branch of government; and
  • Finally, the plaintiffs submitted that as the Act contains no provision empowering the District Court to revoke or vary an order made by it under s 18, it does not contain sufficient 'safeguards' to protect the integrity of the District Court.

The Court's Decision

In dismissing the plaintiffs' challenge to the validity of the Act, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ reiterated that the Kable doctrine does not imply into the constitutions of the States a rigid separation of judicial and political power. In addition, the majority noted that the Act does not purport to require the District Court to undertake the tasks of statutory construction and fact finding in a manner that is inconsistent with the ordinary processes of the criminal law; the Act merely confers upon the Court a discretion to make an order under s 18 if it is satisfied on the evidence before it that the criteria for making such an order are met. Finally, the majority observed that indeterminate detention by the executive government of persons found in judicial proceedings to be incapable of controlling their impulses has a lengthy history in Anglo-Australian law.[2] For these reasons, the majority held that the plaintiffs' challenge to the validity of the Act must fail.

Gageler J delivered a separate concurring judgment. His Honour emphasised that the Act does not provide for the detention of persons by the executive government as punishment for the commission of an offence; rather it authorises indefinite detention for a purpose that 'is properly characterised as wholly protective.' Gageler J rejected the plaintiffs' submission that the power of detention conferred upon the executive government by the Act is 'unconstrained', noting that any determination made by the Governor in Council with respect to the continued detention of a person pursuant to the Act is subject to the constitutionally entrenched jurisdiction of the Supreme Court of Queensland to review executive action for jurisdictional error. His Honour therefore held that the Act did not undermine the integrity of the Queensland court system.

What Does the Decision Mean?

The judgments delivered by the Court in Pollentine contribute to the ongoing process of precisely defining the constitutional principle that was first enunciated in a somewhat impenetrable form in Kable. The judgments of the majority and of Gageler J confirm that Chapter III of the Commonwealth Constitution protects the integrity of State judicial systems by rendering invalid State laws which interfere improperly in the process of judicial decision making.
Thus the Kable principle has been applied to invalidate legislative action which has had the effect of requiring a court of a State to proceed in an unfair or arbitrary manner or to apply findings of fact foisted upon it by the executive branch. The Kable principle does not entrench in the constitutions of the States a rigid separation of powers of the kind embodied in the Commonwealth Constitution. Rather, to adopt the words of Blackmun J in Mistretta v United States, the Kable principle exists to ensure that the reputation of a State court 'may not be borrowed by the political branches to cloak their work in the neutral colors of judicial action.' The principle is directed towards laws which, even if facially neutral, compel a State court to reach a conclusion which has been pre-ordained by one or other of the political branches of government.

The judgments in Pollentine confirm that the Kable principle does not detract from the power of a legislature to confer upon a State court an impartial function of a genuinely judicial nature that serves as a precursor to the exercise by the executive government of some other function. The exercise by the Executive of a function that is contingent on the completion of a judicial process is not at all equivalent to the co-option for political ends of a nominally judicial process.

For more information about the limits the Kable principle places on State governments, please contact:

Jonathan Bayly
Principal Solicitor
03 8684 0223

[1] The validity of that Act was upheld by the High Court in Fardon v Attorney-General (Qld).
[2] The majority referred to the provisions of the Criminal Lunatics Act 1800 (UK), which was enacted in response to the case of James Hadfield, who on 15 May 1800 attempted to assassinate George III as the King entered the royal box at Drury Lane Theatre. At the suggestion of Lord Kenyon CJ, who presided over Hadfield's trial, the jury in Hadfield's case returned a verdict of 'not guilty, it appearing to us that he was under the influence of insanity when the act was committed.' Hadfield was subsequently detained in custody, notwithstanding that at the time he was convicted, there was no lawful basis on which to imprison a person who had been acquitted of an offence. The Criminal Lunatics Act was introduced in response to the lacuna in British criminal law exposed by Hadfield's case: see Sir Owen Dixon, 'A Legacy of Hadfield, M'Naghten and Mclean', (1957) 31 Australian Law Journal 255.