Common(wealth) Knowledge #14: Indefinite Detention and the Rule of Law
A look at a new ruling from Australia's High Court.
The High Court of Australia handed down its ruling on September 7th on the constitutional validity of the High Risk Serious Offenders Act 2020 (WA), ruling 5:2 that the law was valid. In this case, Garlett v Western Australia , the High Court accepted that man convicted of aggravated robbery could be detained after his sentence had expired, as he posed an ‘unacceptable risk’ to the community. This involved questions about the rule of law, and specifically the separation of powers, in a relatively new and controversial area of constitutional law.
The challenge to WA’s law was brought by 28-year-old Noongar man Peter Garlett, who had been sentenced to three years and six months behind bars for aggravated robbery, and a further five months for criminal damage. He was due to be released in October 2021, but the Western Australian Supreme Court, at the request of the state government, placed an indefinite detention order on Garlett. Although Garlett was eventually released in April 2022, he remained subject to a supervision order and a curfew.
The government argued that Garlett, who had been convicted of stealing a necklace and $20 in cash while making threats and pretending to have a gun, was a ‘high risk offender’ who posed an unacceptable risk to the community, and so needed to be indefinitely detained under the HRSO Act.
In contrast, Garlett’s case was based on the ‘Kable Doctrine.’ Originating in Kable v DPP (NSW) (1996), this doctrine focused on the rule of law and separation of powers, preventing courts that exercised federal jurisdiction from exercising executive authority.
Although Australia prides itself on the separation of powers, we do not have a strict separation. The Westminster system of responsible government means that the Executive branch is drawn from Parliament. Only in the judiciary is there a strict separation. The Executive government and Parliament cannot exercise judicial power, and vice versa.
The separation of powers means that no branch of government can exercise absolute power, as the three branches share power and limit the power of one another. A famous quote that explains this comes from Dixon J in his judgment in the Communist Party Case, at page 187, paragraph :
“History, and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected.”
However, there is no separation of powers at the State/Territory level. This is why it is quite common for the Chief Justices of State Supreme Courts to serve as the Lieutenant-Governor. There has been some debate over this practice post-Kable.
In Kable, the High Court was faced with a New South Wales law that granted the Supreme Court the discretionary authority to impose a preventative detention order on Kable, if the government applied for one to be imposed. Kable was imprisoned for murder, and his behaviour while in prison indicated that he might become a repeat offender if released. On the ground of ‘community safety’ a preventative detention order was imposed, meaning that Kable could be kept in prison after his sentence expired.
If there was a separation of powers, then the law was invalid. However, there was no separation in NSW. This meant that the High Court had to turn to the Australian Constitution, where they found a loophole. ‘Loopholes’ are the third favourite term of lawyers and judges, right behind ‘reasonable’ and ‘it depends.’
Okay, make that fourth favourite.
There is an implied separation of powers that is derived from the structure of the Constitution, including the three separate chapters for each branch of government, styled after the US Constitution. Chapter III deals with the judiciary. Sections 71 and 77(iii) allow Parliament to grant State courts federal jurisdiction.
State Supreme Courts were granted some jurisdiction relating to federal laws under Section 39(2) of the Judiciary Act 1903 (Cth), meaning that they could hear some matters relating to federal legislation. This loophole meant that, as Toohey J said, at paragraph  of his judgment, when State Supreme Courts are exercising their federal jurisdiction, they cannot operate in a manner that is contrary to Chapter III, so are bound to comply with the separation of powers.
As a side note, it is often argued that there is a loophole to that loophole, which allows State Chief Justices to continue serving as Lieutenant-Governors (at least in States where that role exists). This loophole is the persona designata doctrine, which says that because the power to be Lieutenant-Governor is granted to the judge personally, not the judiciary, it doesn’t violate Kable.
I’m a Queenslander, so I can make this joke. Anyway, back to the topic at hand.
A number of cases have built on Kable. The leading judgment in Chu Kheng Lim v Minister for Immigration (1992) was handed down by Brennan, Deane and Dawson JJ, with Mason CJ and Gaudron J concurring in principle, and Toohey and McHugh JJ concurring in part (it’s pretty complicated). At 28 , the three judges upheld the rule of law, saying
“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.”
In Fardon v Attorney-General (Qld) (2004), at , Gummow J said something similar, arguing that “involuntary detention,” meaning detention without a trial, should only be allowed during the judgment process, before the court decides whether they should be convicted. Involuntary detention should therefore only be ordered before judgment and as a sentence. The government giving courts the ability to order involuntary detention for other reasons, as they did in Kable, therefore violates the rule of law and Chapter III of the Constitution.
All of this suggests that Garlett’s indefinite detention should have been unlawful. However, in a shocking twist, there are exceptions to the above principles. Remember when I said that the legal profession loves loopholes?
In Garlett, the leading judgment was the plurality Kiefel CJ, Keane and Steward JJ. At , they quoted Gleeson CJ from Fardon, at 592 , where he said:
“Difficult questions involving the reconciliation of rights of liberty and concern for the protection of the community … typically arise in the case of a small number of unfortunate individuals who suffer disorders which make them dangerous to others.”
The plurality pointed out that Garlett had a “history of offending, associated with his long-term abuse of alcohol and drugs,” so he may fall in that group.
In Fardon, an exception was granted for a “serious sexual offence.” Garlett argued that Fardon should only be interpreted as authority for that being a valid exception. Gordon J generally agreed. At , Her Honour said that exceptions introduced “to address specific fears about particular kinds of crime - terrorism or serious sexual offences - now risk becoming the norm.” At , she had paramount concern for the ability of indefinite detention to violate “individuals’ liberty.”
On the other hand, the plurality gave priority to the community protection side of the rule of law equation. At -, they approached Fardon as more generally affirming that there are exceptions to Kable. Schedule 1 of the HRSO Act listed robbery as a type of offence for which indefinite detention could be ordered. At -, they implicitly referred to the separation of powers, arguing that it is not the place of the courts to sit in the position of Parliament and determine what they should have included in the legislation as types of offences.
Edelman J, another member of the majority, defined. At , the ruling in Kable by a quote from Gummow J, at 51 , where His Honour said that a law should be invalided if it created “incongruity between the discharge of those functions [conferred by the Act in question] and the exercise of the federal judicial power.” At , he affirmed that the power in question was punitive. However, at , he said that “unjust punishment” of the kind that Garlett suffered did not invalidate the Act if it was appropriate and proportionate to concerns for “public protection.”
Ultimately, the discussion in Garlett largely rests on what the role of the courts and Parliament are. For the majority of Kiefel CJ, Keane, Edelman, Steward and Gleeson JJ (the daughter of the former Chief Justice who was quoted by the plurality), Parliament has a duty to protect the public, and the courts should respect that. For the dissenters of Gageler and Gordon JJ, especially the latter, Parliament should prioritise individual liberty, and the courts should invalidate violations of that. At , Gordon quoted John Stuart Mill, who said “the preventive function of government … is far more liable to be abused, to the prejudice of liberty, than the punitory function.”
The High Court’s split shows that the issue of indefinite and involuntary detention is not yet resolved. Many Aboriginal rights and human rights groups, along with many in the legal profession, have expressed their concern over this decision. And with Keane J set to retire next month, the senior Justices on the bench will be both dissenters. So don’t expect this to end any time soon, especially with the court now touching on theories of government.
If you’re interested in finding out more about this case, I personally highly recommend Kieran Pender’s critical analysis of it for the Saturday Paper. He just beat me to this topic.
Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.
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Australian Communist Party v Commonwealth (1951) 83 CLR 1;  HCA 5.
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1;  HCA 64.
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.
Fardon v Attorney General (Queensland) (2004) 223 CLR 575;  HCA 46.
Garlett v Western Australia  HCA 30.
High Risk Serious Offenders Act 2020 (WA).
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51;  HCA 24.