BY DANIEL REYNOLDS

On 6 November 2019, by majority, the High Court dismissed a challenge to the constitutionality of s 5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (the Act). The challenge was brought on Kable grounds, that is, on the grounds that the impugned provision was incompatible with, or substantially impaired, the institutional integrity of the Supreme Court and District Court of New South Wales.

The impugned provision avoided constitutional invalidity by virtue of a benign interpretation placed upon it by a majority of the Court. The case is a paradigm example of an observation made by Gageler J in North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569 at 604 [75]:

The arguments divide along battlelines not unfamiliar where questions about the constitutional validity of a law are abstracted from questions about the concrete application of that law to determine the rights and liabilities of the parties. The party seeking to challenge validity advances a literal and draconian construction, even though the construction would be detrimental to that party were the law to be held valid. The party seeking to support validity advances a strained but benign construction, even though the construction is less efficacious from the perspective of that party than the literal construction embraced by the challenger. The constructions advanced reflect forensic choices: one designed to maximise the prospect of constitutional invalidity; the other to sidestep, or at least minimise, the prospect of constitutional invalidity. A court should be wary.

What is striking about this decision is the extent of interpretational creativity demonstrated by the majority in seeking to cure the impugned provision of its alleged defects. That creativity resulted in a reading of the provision that is undoubtedly less troubling than that which its literal terms suggested. But as the dissents of Gageler J and Gordon J draw out, there is a more fundamental question: how far should courts go in seeking to rescue impugned provisions from constitutional demise? At what point does the ‘judicialisation’ of non-judicial functions, in an endeavour to introduce greater fairness and transparency to the exercise of those functions, have the unintended consequence of diluting the very institutional distinctiveness of the judiciary? When does the judicial solution itself become the constitutional vice?

The provisions

To understand the Court’s decision, it is necessary to begin with the statutory text. The relevant provisions of the Act are as follows:

5          Making of serious crime prevention orders

(1)        An appropriate court may, on the application of an eligible applicant, make an order (a serious crime prevention order) against a specified person if:

(a)        in the case of a natural person – the person is 18 years old or older, and

(b)        the court is satisfied that:

(i)         the person has been convicted of a serious criminal offence, or

(ii)        the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence), and

(c)        the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.

6          Content of serious crime prevention order

(1)        A serious crime prevention order may contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.

“Serious criminal offence” has the same meaning as in the Criminal Assets Recovery Act 1990 (NSW): s 3. It is a very broad category, covering most offences in the Crimes Act 1900 (NSW), as well as offences against a law of the Commonwealth or of another State or a Territory or of a place outside of Australia which would amount to serious criminal offences if committed in New South Wales.

“Serious crime related activity” means anything done by a person that is or was at the time a serious criminal offence, whether or not the person has been charged with the offence, or, if charged, has been tried, or, if tried, has been convicted or acquitted or had a conviction quashed or set aside on appeal: s 3.

“Involved in serious crime related activity” has an extended meaning that includes not only engaging in serious crime related activity, but also engaging in conduct that is likely to facilitate serious crime related activity (whether by the person or another person): s 4.

Proceedings on an application for a serious crime prevention order (SCPO) are civil proceedings: s 13(1). The civil standard of proof applies, and the applicable rules of evidence are those that apply in civil proceedings: s 13(2)(b). The rules of construction applicable only in relation to the criminal law generally do not apply to interpretation of provisions of the Act: s 13(1)(a). An SCPO may last for five years (s 7), and contravention of an SCPO is a criminal offence, with a possible five-year term of imprisonment (s 8).

The argument

The plaintiffs argued that s 5 of the Act was invalid for the following three reasons:

  1. Section 5(1) undermines the criminal justice system of the State courts.

a. First, because it allows the State to add further restrictions on a person’s liberty by reference to their past offences for which they have already been punished, or indeed acquitted, undermining finality; and

b. Secondly, because it establishes a regime that would conflict with the criminal justice system by, for example, forcing a defendant to choose whether to give evidence in the SCPO proceedings, with the risk of adverse inferences if evidence is not given and the risk of assisting a later prosecution if evidence is given.

  1. Section 5(1) requires or enlists the relevant courts in administering a different and lesser grade of criminal justice, doing so at the discretion of the Executive.

a. First, because an SCPO may be sought by the Director of Public Prosecutions and the Commissioner of Police, pointing strongly to the regime having a character involving the prosecution of suspected offenders;

b. Secondly, because the Act applies to a very broad range of possible offences, including some relatively trivial offences;

c. Thirdly, because the regime extends to persons who have been acquitted of any offence, or indeed never charged, enabling prosecuting authorities to opt for the easier route of seeking an SCPO rather than a criminal prosecution where, for example, there are no reasonable prospects of conviction or a criminal prosecution is not in the public interest; and

d. Fourthly, because proceedings under the Act lack many of the safeguards of the ordinary system of criminal justice that are protective of the individual against the State (see 3(b) below).

  1. Section 5(1) departs from traditional judicial functions, methods and procedures to such a degree as to substantially undermine the relevant courts’ institutional integrity.

a. First, because s 5 purports to authorise the making of SCPOs of almost unrestricted scope without specifying any meaningful objective criteria by which the court is to determine what orders are “appropriate” to prevent, disrupt or restrict “serious crime related activities”;

b. Secondly, the Act involves a number of departures from established judicial methods and procedures in making findings of criminal conduct, doing away with the requirement of proof beyond reasonable doubt, the rule against drawing adverse inferences if the defendant chooses not to give evidence, the rules in relation to hearsay evidence, the guarantee of trial by jury for indictable offences, and the rule against double jeopardy; and

c. Thirdly, the consequences of an SCPO are significant, in that they authorise the imposition of far-reaching potential restrictions on liberty for an extended period – up to five years – with very limited scope for an SCPO to be reviewed once made.

The plurality’s reasons

The plurality (Bell, Keane, Nettle and Edelman JJ) devoted six pages of their reasons to expounding a detailed, six-step, interpretation of s 5(1). Chief Justice Kiefel agreed, but only on the narrower basis that the interpretation of s 5(1) was governed by English authority of which the New South Wales Parliament was aware when the Act was enacted (R v Hancox [2010] 1 WLR 1434). Absent that authority, her Honour would have held the law invalid.

The plurality’s six-step interpretation was as follows:

  1. The first step, in s 5(1)(a), requires the natural person to be at least 18 years old.
  2. The second step, in s 5(1)(b), requires proof that the person against whom the order is sought has been convicted of a serious criminal offence, or involved in serious crime related activity. While this latter concept is much broader, and includes “facilitat[ing]” serious crime related activity, the plurality held that conduct “will be very likely to be reasonable, and not facilitating conduct, if it was done without the intention of assisting the commission of serious crime related activity and without recklessness or reasonable means of knowing that the conduct would assist the commission of serious crime related activity” (at [38]).
  3. The third step, in s 5(1)(c), requires the court to assess whether there is a real likelihood, in other words a real or significant risk, that the person against whom the order is sought will be involved in serious crime related activity.
  4. The fourth step, also said to arise from s 5(1)(c), requires the court to consider whether the facts establish reasonable grounds to believe that the potential order would have the effect of preventing, restricting, or disrupting the person’s involvement in serious crime related activities, and in so doing, requires the court to survey the range of possible orders and to consider whether there is a real likelihood that the order will prevent, restrict, or disrupt the person’s likely involvement in the serious crime related activities.
  5. The fifth step, arising from s 6(1), requires the court to undertake a balancing process. On the one hand, the court must consider the likelihood that an order will prevent, restrict, or disrupt serious criminal activities, and the magnitude of the activity that will be so affected. On the other hand, the court must consider the extent to which an order will intrude upon the defendant’s liberty, including the scope of the order and the length of its term. In balancing these matters, if there is a less intrusive order that will achieve broadly the same effect as a significantly more intrusive order then the latter will not be appropriate.
  6. The sixth step is that the court should consider whether any appropriate order should be made.
  7. Additionally, the Court considered that the extent to which procedural fairness would be required on an application for an order under the Act is likely to be considerable.

It may be observed that some aspects of the above reading – especially the third and fifth steps – are not expressly set out in the statute. The plurality’s interpretation followed in part from the earlier English decision of R v Hancox, and in part from what the plurality appeared consciously to recognise as the “judicial development of a statutory standard”, giving “content and more detailed meaning” to “broadly expressed criteria” (at [86]).

By contrast, Kiefel CJ (at [5]–[15]), Gageler J ([102]–[135]) and Gordon J ([184]–[200]), each explained why – with respect, persuasively – they would have read the statute differently, and in a way that did not cure its defects.

The constitutional issue

Having construed the Act in this way, the plurality was then able to conclude that the Kable challenge should fail on the basis that the impugned provisions were sufficiently similar to other statutory regimes previously upheld as valid by the Court.

The contrast between the majority and the dissentients on the Kable question is a stark one. It raises two interesting questions.

First, to what extent is it relevant that a given statutory regime renders superfluous parts of the criminal justice system? A key strand of the plaintiffs’ argument was that, by affording prosecution authorities an easier way of procuring orders approximating those that might be obtained consequent upon a criminal conviction, the Act obviated the need for those authorities to seek a conviction at all. This argument was dismissed by the plurality on the basis that it “incorrectly assumes an identity between the function and purpose of civil preventive orders and the function and purpose of punishment for past offences” (at [79]) (emphasis added).

However, it is one thing to observe that the “regime is separate and distinct from traditional criminal justice and its outcomes can therefore be different” (at [78]). It is another thing to allow the civil regime, although “separate and distinct” from the criminal one, to eclipse it. To take an extreme example, suppose an SCPO was not limited to five years’ duration, and permitted some or all forms of detention (a question left unresolved in Vella: see [125]). A prosecution authority might well take the view that it is more convenient to seek SCPOs exclusively, rather than taking the more arduous route of seeking criminal convictions. That would compromise the criminal justice system, notwithstanding the lack of “identity” between the two systems. At what point does a “civil” regime so significantly cut across the criminal justice system as to compromise the latter’s integrity? Because of the plurality’s focus on whether the two systems were the same, rather than whether they were inconsistent, this is a question that remains unresolved.

Secondly, to what extent can the judiciary legitimately participate in a regime such as the one at issue without diluting that which sets it apart from the other branches of government? As noted above, one criticism made by the dissentients was that the plurality had strained too far in reaching for an interpretation of the Act that saved it from invalidity. As Gordon J put it, “when approaching legislation whose constitutional validity is challenged, it is important to avoid the temptation to redraft it” (at [194]).

But it was not only in the Court’s role in construing the legislation that the dissentients saw a Kable problem: it was also in the framing of orders. As Gageler J noted, because of the variety of conditions that may be contained in an SCPO, the making of an SCPO amounts to “the promulgation of a personalised code of conduct to which the individual would thereafter be bound for the … period of the SCPO under pain of criminal punishment for contravention” (at [135]). In this way, the Act stood in contradistinction to other regimes previously upheld as valid, which “did not involve the Supreme Court in fashioning any code of behaviour for the person against whom it was made” (at [177]). His Honour was unable to analogise that “personalised legislative function” (at [179]) to any recognised judicial function.

To similar effect, Gordon J noted at [191]:

It is the legislature that has the power, skills and resources to identify what conduct should be unlawful, to legislate to make that conduct unlawful and then to take any other steps the legislature considers necessary to reinforce the fact that, and to explain why, that conduct is now unlawful. It is the legislature that prescribes norms of conduct which govern the manner in which individuals are required to behave. It is the legislature that determines how best to protect the public against criminal behaviour by determining what conduct should be prohibited, how it should be punished, and what powers and resources the police force should have to detect and prevent crime. By contrast, it is for the courts, in that context, to adjudge and punish criminal guilt.

The threat to the integrity of courts perceived by Gageler J and Gordon J was an incremental one. The more that courts are called upon to engage in the relatively novel task of crafting individualised rules of behaviour for the purpose of crime prevention, the more that task will start to be perceived as a judicial, and the murkier the concept of “judicial” power becomes.

The point is well captured by Gageler J in two passages which bookend his Honour’s powerful dissent:

[145] The independence of the judiciary is more likely to be destroyed by the creeping normalisation of piecemeal borrowing of judicial services to do the work of the legislature or the executive than by any single act of outright conscription.

[180] The judiciary can, of course, be expected to perform any function that might be legislatively imposed on it, as best it can, in a judicial manner. The judiciary can therefore be expected to fashion for itself workable and consistent decision-making criteria to guide the individualised assessment that it is obliged to make in each case in which it is asked by the executive to make an SCPO. Appellate processes can be expected to be invoked and, over time, a body of principle can be expected to develop. So the process of making an SCPO will be judicialised; and so with the judicialisation of the process the distinctive character of the judiciary as the constitutional arbiter of disputes about rights between the citizen and the State will become increasingly less distinct. Incrementally but inexorably the judiciary will be drawn ever more deeply into a process in which institutional boundaries are blurred and by which its institutional independence is diminished.

The point is an important one. That the plurality did not engage with it in these terms perhaps reflects the fact that the risk came from an unusual direction – it was not so much a risk of courts doing the work of the executive, but rather, the work of the legislature. However that may be, the threat is one that courts must be careful to guard against, lest their judicial character be warped beyond recognition. There must come a point at which quintessentially legislative functions simply cannot be imposed on courts compatibly with their institutional integrity: imagine, for instance, a regime empowering a court to make a “general conduct order” in relation to a person, or group of people, where the court is satisfied that that order would make that person or those people behave better in society. Could such a function be conferred on a court without fundamentally altering its institutional character? If not, where is the dividing line between those quasi-legislative functions that can be absorbed by courts, and those that cannot? These are large, and still unanswered, questions.

Daniel Reynolds is a barrister at the NSW Bar, reading on Eleven Wentworth, and a Fellow of the Gilbert + Tobin Centre of Public Law.

Suggested citation:  Daniel Reynolds, ‘Creeping Normalisation: Vella v Commissioner of Police (NSW)’ on AUSPUBLAW (27 November 2019) <https://auspublaw.org/2019/11/creeping-normalisation-vella-v-commissioner-of-police-nsw/>