PREDICTING DANGER: CONSTITUTIONAL LIMITATIONS AND POLICY IMPLICATIONS OF PREVENTIVE DETENTION LEGISLATION
Protection of community safety is becoming increasingly topical in Australia, as the threat of terrorism, with its inherent capacity for wide-scale damage, and the danger posed by violent offenders encroach on the public consciousness. State and Commonwealth legislatures are being challenged to devise strategies for the management and prevention of violent crime. One particularly controversial strategy is the anticipatory detention of persons held to pose a threat of commission of violent acts. This paper will critically examine the constitutional and ethical issues bearing on whether preventive detention should be implemented by State Parliaments. It will first explore the constitutionality of potential State legislation embodying various models of preventive detention; and then discuss the policy considerations relating to this issue. It will argue that while there is potential for a constitutionally valid scheme of preventive detention to be implemented, policy concerns should discourage State Parliaments from taking this path.
II Constitutional Limitations on Preventive Detention Legislation
In this discussion, ‘preventive detention legislation’ is defined as legislation of an Australian State Parliament that provides a legal mechanism by which a person who is held to present an actual threat of criminal harm to another person or to the community can be detained for a limited or indefinite period to prevent the envisioned criminal act being executed. The stated purpose of such legislation is community protection.
Accordingly, preventive detention legislation may be divided into three broad categories. First, legislation stating that a specific, designated person poses a danger, and ordering their incarceration (‘a legislative model’). Second, legislation empowering (or indeed compelling) the judiciary, on finding that a person is dangerous, to order their imprisonment (‘a judicial model’). Third, legislation empowering a member of the executive or an executive body to make a determination of danger and order imprisonment (‘an executive model’). This section will examine whether any of these models might validly be implemented by State Parliaments, and identify particular constitutional limitations that would restrict them.
A Legislative Model
Though, politically, it would seem unlikely for a State Parliament to employ a legislative model and imprison a citizen entirely of its own motion, there are not strong constitutional reasons why such legislation should fail. If enacted by the Commonwealth Parliament, such legislation would probably comprise a bill of pains and penalties — a statute ‘impos[ing], of its own mere force and without the possibility of judicial intervention … penal consequences to the formation of an opinion by the Executive, not judicially examinable’ — and as such would breach the separation of powers entrenched in the Australian Constitution, constituting an invalid usurpation of judicial power by Parliament. However, the New South Wales Court of Appeal has established that the provisions of State Constitutions that found State judicatures do not entrench a separation of powers. Kirby P found that ‘far from providing a constitutional protection, separation, and entrenchment of the judiciary’, the Constitution Act 1902 (NSW) ‘specifically contemplated that … power would be held by the legislature … to impinge on courts and the judicial function’. This was confirmed by the High Court in Kable v DPP (NSW): the Constitution Act 1902 (NSW) ‘cannot be seen as reposing the exercise of judicial power exclusively in the holders of judicial office.’ Therefore, it is constitutionally valid for a State legislature to usurp judicial power.
However, Rees and Fairall have argued that a legislative model could be invalid because in designating a person for detention, it violates a potential obligation that State laws apply equally. In Leeth v Commonwealth, a minority found Commonwealth legislative power is limited by a doctrine of legal equality. Rees and Fairall suggest that like the implied freedom of political communication, legal equality ‘shapes and controls the common law’. They argue that as, in Leeth, the minority held that ‘the notion of the inherent equality of the people’ was implicit in the free agreement of citizens to federate, ‘[t]he same implication must apply at a state level if it is accepted that the conceptual basis of the states … was the free agreement of the people who comprise each State.’ If this were accepted, the legislative model would be invalid, as would any model that authorised the imprisonment of a particular person only. However, this argument is currently speculative, and would require further precedental authority to constrain State Parliaments.
B Judicial Model
Judicially-determined preventive detention is perhaps the most likely model to be implemented; all three preventive detention statutes so far enacted have employed a judicial model. However, it seems likely that the finding in Kable has severely circumscribed the potential scope of such legislation.
As discussed above, State legislative power is not limited by the separation of powers. Thus, the notion that the Australian Constitution precludes use of federal courts ‘for the discharge of functions which are not in themselves part of judicial power’ does not find a parallel in the State Constitutions. However, by the majority judgments of Toohey, Gaudron, McHugh and Gummow JJ in Kable, the Commonwealth separation of judicial power implied from Ch III of the Australian Constitution restrains State Parliaments from conferring powers on State Supreme courts that are ‘repugnant to or incompatible with’ their ‘integrity, independence and impartiality’ as repositories of federal jurisdiction under s 71.
Kable tested the validity of the CPA, which required the Supreme Court of New South Wales to make preventive detention orders where it was ‘satisfied, on reasonable grounds … that [a] person is more likely than not to commit a serious act of violence’. Procedural provisions set out the projected operation of the courts in reaching a decision. The CPA was clearly intended to apply to one person only: it ‘authorise[d] … a detention order against Gregory Wayne Kable and [did] not authorise … a detention order against any other person’. Kable had been convicted of manslaughter in 1990, and the CPA was passed in response to threats of violence he made from prison.
The Court’s reasoning derived from the incompatibility doctrine established in Grollo v Palmer. There, the doctrine of persona designata — whereby non-judicial power can be conferred on Ch III judges if this power is conferred on the judge not as a member of the court, but in their personal capacity — was limited such that no power ‘can be conferred that is incompatible … with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power’. Having regard to this doctrine, and to the ‘integrated Australian judicial system’, comprising an interlocking ‘system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power’, the Court held that State courts capable of being invested with federal judicial power cannot exercise ‘powers or functions that are repugnant to or incompatible with the exercise of the judicial power of the Commonwealth’.
The majority held the CPA to be legislation whose ‘procedures compromise[d] the institutionality of the Supreme Court’ and accordingly held it to be invalid by operation of the Australian Constitution. The question, therefore, is whether the facets of the CPA that rendered it invalid under the Kable principle are fundamental to the judicial model of preventive detention.
Kable identified elements of the CPA’s determination process that were held to prejudice (in actuality or in the public eye) the integrity of the judicial finding for which it provided. Gaudron J expressed doubts that public confidence in the courts could be maintained where judges were required to form an opinion ‘by reference to material which may or may not be admissible in legal proceedings … on the balance of probabilities’. The unacceptability of the civil standard of proof was similarly raised by McHugh J. Another difficulty was the lack of judicial discretion afforded by the CPA.
These findings would suggest that a judicial model of preventive detention must incorporate the conventions of judicial process. Certainly, the majority judgments in A-G (Qld) v Fardon would support this conclusion. There, the Queensland Court of Appeal held that the Queensland Act, which provides for the preventive detention of sexual offenders where the Supreme Court is satisfied they present ‘a serious danger to the community’, is valid. Notwithstanding that the High Court is yet to decide Fardon’s appeal, it is worthwhile to note that the Court, in upholding the Act, distinguished Kable on these procedural grounds. De Jersey CJ endorsed the trial judge’s finding that the evidentiary requirements of the Act do ‘not relax the usual requirements’; that the Act ‘requires the court to be satisfied of matters preliminary to the making of an order “to a high degree of probability”’; and ‘it confers a discretion … as to whether an order should be made’. Williams JA agreed, and further noted that the Queensland Act provides for a ‘full and fair hearing’, ‘in contrast to the legislation in issue in Kable’.
Kable and Fardon seem to be authority for the constitutional requirement that a judicial model must hold to normal criminal evidentiary standards, make findings beyond reasonable doubt, and allow judicial discretion.
More fundamental than these procedural concerns, however, is the question whether Kable stands for the proposition that arbitrary detention without criminal conviction for preventive purposes is itself a repugnant exercise of judicial power. The CPA breached the Kable principle because it required the Court ‘to participate in the making of a preventive detention order where no breach of the criminal law [was] alleged and where there has been no determination of guilt.’ This is because the Court accepted the principle that, with some exceptions, ‘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’. Thus the CPA requirement that the Court exercise this judicial power in a manner divorced from adjudging guilt — ‘the antithesis of the judicial process’ — breached the Kable principle.
The question is thus whether, first, preventive detention could be characterised as ‘reasonably capable of being seen as necessary for a legitimate non-punitive object’, and as such, comprise an executive power (remembering that ‘there is nothing to prevent the [State] Parliaments … from conferring powers on their courts that are wholly non-judicial’) exceptional to the Lim rule (like ‘[i]nvoluntary detention in cases of mental illness or infectious disease’); and second, whether such an executive power, so vested, would nonetheless be incompatible with receipt of federal jurisdiction. The Kable majority seemed to hold that preventive detention cannot comprise a new category of exception. Toohey J distinguished the CPA from the legislation at issue in Lim, suggesting that ‘[p]reventive detention under the CPA is an end in itself’, though the stated object is community protection, and as such, does not ‘fall within the “exceptional cases” mentioned in Lim, directly or by analogy’. However, the disparity of judgments — McHugh J suggested ‘there is no reason to doubt the authority of the State to make general laws for preventive detention where those laws operate in accordance with … ordinary judicial processes’ — leave the question unclear.
In this vein, the Court in Fardon thus concluded that the Queensland Act is valid because it provides for involuntary detention, determined according to ‘normal judicial processes’, for community safety purposes, ‘which should be characterised as non-punitive’, ‘fall[ing] naturally into the exceptional category recognised in Lim’. However, in characterising a statute, ‘it is the operation and effect of the law in question which defines its constitutional character’, not ‘the purposes, motive or intentions’ of Parliament, and as McMurdo P found in his Fardon dissent, ‘[d]espite the stated objects of the Act, (to protect the public and to rehabilitate the prisoner), the effect of the Act [was] punitive and not within the exceptions referred to in Lim’.
Moreover, even if preventive detention were a Lim exception, it is likely that investiture of this therefore ‘purely executive’ power in State courts would nevertheless breach the Kable principle, as insofar as this executive power requires the body exercising it to impose detention without criminal conviction, directly contradicting normal judicial process, is highly likely to prejudice public confidence in the judicial system. To this extent, it would seem Fardon was wrongly decided.
C Executive Model
The most solid model of preventive detention, constitutionally, is probably executive. Whether executive or judicial in nature, the power to imprison preventively can, in the absence of an entrenched separation of powers, be invested in executive bodies. State legislatures could either create specialised administrative tribunals (like the Mental Health Review Board), or authorise an executive member to make determinations and order detention.
Thus, the constitutional position regarding preventive detention legislation is as follows. The Kable principle will probably invalidate any attempt to implement a judicial model, as it seems preventive detention itself is incompatible with judicial office. In contrast, there are only speculative difficulties with a legislative model, and no apparent constitutional limitations on the power of State Parliaments to implement an executive model.
III Policy Considerations
There are many well-documented difficulties with preventive detention. First, numerous commentators have argued that freedom from imprisonment is a fundamental right and thus preventive detention ‘create[s] the danger of infringement of basic human rights which should underlie the laws of a modern democratic society’. As Grove J noted, criticisms of the CPA on this ground ‘have fallen from almost every judge who has had to exercise some aspect of jurisdiction’ under it, including that it represents ‘a radical departure from our rule of law principles’. Second, ‘there are serious practical problems (and hence potential injustice) in relying … on the prediction of future violent behaviour’. There are significant evidentiary and medical difficulties with laws requiring a determining body to delve into psychological, psychiatric, and neurological methods and conclusions. It has been suggested that the dangerous offender ‘with a career of seriously injuring others is … virtually impossible to identify in advance’ and the concept of dangerous itself ‘so insidious that it should never be introduced in penal legislation’. Third, it is an ever-potential hazard that, as Levine J noted, that ‘which is intended to be a shield [might be] converted into a weapon in the hands of the mischievous, the spiteful, the vindictive, the jealous, the revengeful or similarly motivated individual or individuals to use by way of actual or threatened false allegation against an innocent person’.
On the other hand, there are also convincing reasons to allow for a cautious and limited version of preventive detention. Democratically elected governments have obligations to protect the public, and ‘the law does not presently provide a mechanism whereby the community can be protected from a potentially violent individual, who is not mentally ill for the purposes of the mental health legislation, and who has not committed a serious act of violence’. The implementation of preventive detention is not an attempt to create ‘a seamless web of community protection via state action’. Rather, it is a measure of last resort to deal with specific cases where there is an articulated and immediate risk of harm, demonstrated to a very high standard of proof. Neither does it exclude the possibility of utilising other social responses such as modification of existing mental health legislation or improvement of rehabilitation programs for convicted offenders.
While these are valid arguments, to posit preventive detention as a solution to the perceived ‘gap’ between mental health legislation and the criminal justice system is to delve into murky waters. ‘[T]here is no scientific process or basis to form a view about dangerousness … [the question is] highly subjective.’ Preventive detention is an inappropriate solution to the risks posed by violent offenders, open to abuse and involving a significant offence to fundamental human rights.
In Veen v The Queen [No 2] Deane J envisioned ‘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’. Constitutionally, this paper concludes that while Kable has excluded any possibility of a valid judicial model, State Parliaments have scope to implement a legislative or executive scheme to this effect. However, the factual difficulty of determining threat and the potential for abuse of such a scheme mean that nebulous concerns of community safety cannot justify the imposition on a fundamental human right. Preventive detention should not be implemented by States.
Blackshield, Tony, and Williams, George, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed, 2002).
Brender, Rodney, ‘Polluting the Stream of Justice’ (1997) 35(2) Law Society Journal 56.
Fairall, Paul, ‘Before the High Court: Imprisonment Without Conviction Kable v Director of Public Prosecutions’ (1995) 17 Sydney Law Review 573.
Keon-Cohen, Bryan, ‘Can the Victorian Parliament Abolish Fundamental Rights’ (Paper presented at the Australian Institute of Criminology Serious Violent Offenders: Sentencing, Psychiatry and Law Reform Conference, Canberra, 29–31 October 1991).
Kirby, Justice Michael, ‘Intellectual Disability and Community Protection: The Community Protection Bill 1994’ (1994) 1 Australian Journal of Human Rights 398.
Merkel, Ron, ‘“Dangerous Persons”: To Be Gaoled for What They Are, Or What They May Do, Not for What They Have Done’ (Paper presented at the Australian Institute of Criminology Serious Violent Offenders: Sentencing, Psychiatry and Law Reform Conference, Canberra, 29–31 October 1991).
Moens, Gabriël, and Trone, John, Lumb & Moens’ The Constitution of the Commonwealth of Australia Annotated (6th ed, 2001).
Radzinowicz, Leon and Hood, Roger, ‘A Dangerous Direction in Sentencing Reforms’  Criminal Law Review 713.
Rees, Neil and Fairall, Paul, ‘Gregory Wayne Kable v The Director of Public Prosecutions for New South Wales: The Power to Legislate for One’ (1995) 1 High Court Review <http://www.bond.edu.au/law/hcr/articles/104rees.htm>.
Williams, George, Human Rights under the Australian Constitution (2002).
Winterton, George, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 185.
Zdenkowski, George, ‘Community Protection Through Imprisonment Without Conviction: Pragmatism Versus Justice’ (1997) 3 (2) Australian Journal of Human Rights < http://www.austlii.edu.au/au/other/ahric/ajhr/V3N2/ajhr3201.html>.
Zines, Leslie, The High Court and the Constitution (4th ed, 1997).
2 Case Law
A-G (Qld) v Fardon  QCA 416.
A-G (Vic) v David  2 VR 46.
Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.
Clyne v East (1967) 68 SR(NSW) 385.
DPP (NSW) v Kable  NSWSC (Unreported, Levine J, 23 February 1995).
DPP (NSW) v Kable  NSWSC (Unreported, Grove J, 21 August 1995).
Grollo v Palmer (1995) 184 CLR 348.
Hilton v Welles (1985) 157 CLR 57
Kable v DPP (NSW) (1995) 36 NSWLR 374.
Kable v DPP (NSW) (1996) 189 CLR 51.
Kruger v Commmonwealth (1996) 190 CLR 1.
Leeth v Commonwealth (1992) 174 CLR 455.
Marcus Clarke & Co Ltd v Commonwealth (1952) 87 CLR 177.
New South Wales v Commonwealth (1915) 20 CLR 54.
Polyukhovich v Commonwealth (1991) 172 CLR 501.
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
Re Wakim; Ex parte McNally (1999) 198 CLR 511.
Theophanous v Herald & Weekly Times Limited (1994) 124 ALR 1.
Veen v The Queen [No 2] (1987) 164 CLR 465.
Community Protection Act 1990 (Vic).
Community Protection Act 1994 (NSW).
Constitution Act 1902 (NSW)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).
4 Other Sources
New South Wales, Dangerous Offenders Legislation: An Overview, Parl Paper No 14/97 (1997) [3.1].
Transcript of Proceedings, Fardon v A-G (Qld) (High Court of Australia, 2 March 2004).
 Subject to the finding that imposition of preventive detention may be characterised as an exercise of judicial power, discussed further below.
 Marcus Clarke & Co Ltd v Commonwealth (1952) 87 CLR 177, 253 (Fullagar J).
 New South Wales v Commonwealth (1915) 20 CLR 54, 88 (Isaacs J).
 Polyukhovich v Commonwealth (1991) 172 CLR 501.
 Clyne v East (1967) 68 SR(NSW) 385; Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372.
 Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372, 401.
 (1996) 189 CLR 51 (‘Kable’).
 Ibid 77 (Dawson J).
 Neil Rees and Paul Fairall, ‘Gregory Wayne Kable v The Director of Public Prosecutions for New South Wales: The Power to Legislate for One’ (1995) 1 High Court Review <http://www.bond.edu.au/law/hcr/articles/104rees.htm>.
 (1992) 174 CLR 455 (‘Leeth’).
 Ibid 492 (Deane and Toohey JJ), 502 (Gaudron J).
 Theophanous v Herald & Weekly Times Limited (1994) 124 ALR 1.
 Leeth (1992) 174 CLR 455, 486 (Deane and Toohey JJ).
 Rees and Fairall, above n 10, .
 As, for example, both the CPA and the Victorian CPA, though using a judicial model, applied only to Gregory Kable and Garry David, respectively.
 See the Community Protection Act 1990 (Vic) s 8(1) (‘the Victorian Act’); the Community Protection Act 1994 (NSW) s 5(1) (‘the CPA’); and the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(1) (‘the Queensland Act’).
 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 271 (Dixon CJ, McTiernan, Fullagar, and Kitto JJ).
 Kable (1996) 189 CLR 51, 103 (Gaudron J).
 Ibid 52 (Toohey, Gaudron, McHugh and Gummow JJ).
 Ibid 98 (Toohey J), 103–4 (Gaudron J), 116 (McHugh J), 132–3 (Gummow J).
 CPA s 5(1).
 CPA s 3(3).
 Kable (1996) 189 CLR 51, 52.
 (1995) 184 CLR 348.
 See Hilton v Welles (1985) 157 CLR 57.
 Grollo v Palmer (1995) 184 CLR 348, 365 (Brennan CJ, Deane, Dawson and Toohey JJ).
 Kable (1996) 189 CLR 51, 102 (Gaudron J).
 Ibid 114 (McHugh J).
 Ibid 104 (Gaudron J). This was the conclusion reached by Gaudron, McHugh and Gummow JJ; Toohey J reached the same conclusion only in respect of State courts in the course of proceedings in which federal jurisdiction is actually invoked. As Williams has argued, the conclusion reached by Gaudron, McHugh and Gummow JJ is to be prefered to that of Toohey J; it would indeed be ‘a strange result if the applicability of the incompatibility doctrine were to depend on a plaintiff invoking federal jurisdiction’: George Williams, Human Rights under the Australian Constitution (2002) 212.
 Kable (1996) 189 CLR 51, 121 (McHugh J).
 One category of incompatibility is ‘the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution … is diminished’: Grollo v Palmer (1995) 184 CLR 348, 385 (Brennan CJ, Deane, Dawson and Toohey JJ).
 Ibid 107.
 Ibid 120.
 Ibid 123 (McHugh J).
  QCA 416 (‘Fardon’). De Jersey CJ and Williams JA comprised the majority; McMurdo P delivered a dissenting judgment.
 Queensland Act s 13(1).
 Transcript of Proceedings, Fardon v A-G (Qld) (High Court of Australia, 2 March 2004).
 Fardon  QCA 416, .
 Ibid .
 Ibid .
 Ibid .
 Kable (1996) 189 CLR 51, 98 (Toohey J).
 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ) (‘Lim’). See also similar comments at 55 (Gaudron J).
 Kable (1996) 189 CLR 51, 106 (Gaudron J).
 Kruger v Commonwealth (1997) 190 CLR 1, 161 (Gummow J).
 Kable (1996) 189 CLR 51, 106 (Gaudron J).
 Lim (1992) 176 CLR 1, 28 (Brennan, Deane and Dawson JJ).
 Kable (1996) 189 CLR 51, 98.
 CPA s 3(1), (2).
 Kable (1996) 189 CLR 51, 98.
 Ibid 121.
 Fardon  QCA 416,  (de Jersey CJ).
 Re Wakim; Ex parte McNally (1999) 198 CLR 511, 572 .
 Fardon  QCA 416, .
 Kable (1996) 189 CLR 51, 122 (McHugh J).
 See, eg, George Zdenkowski, ‘Community Protection Through Imprisonment Without Conviction: Pragmatism Versus Justice’ (1997) 3 (2) Australian Journal of Human Rights 8; Ron Merkel, ‘“Dangerous Persons”: To Be Gaoled for What They Are, Or What They May Do, Not for What They Have Done’ (Paper presented at the Australian Institute of Criminology Serious Violent Offenders: Sentencing, Psychiatry and Law Reform Conference, Canberra, 29–31 October 1991); Bryan Keon-Cohen, ‘Can the Victorian Parliament Abolish Fundamental Rights’ (Paper presented at the Australian Institute of Criminology Serious Violent Offenders: Sentencing, Psychiatry and Law Reform Conference, Canberra, 29–31 October 1991).
 Kable v DPP (NSW) (1995) 36 NSWLR 374, 376 (Mahoney J).
 DPP (NSW) v Kable  NSWSC (Unreported, Grove J, 21 August 1995) 3–4.
 Justice Michael Kirby, ‘Intellectual Disability and Community Protection: The Community Protection Bill 1994’ (1994) 1 Australian Journal of Human Rights 398, 399.
 Zdenkowski, above n 62.
 New South Wales, Dangerous Offenders Legislation: An Overview, Parl Paper No 14/97 (1997) [3.1].
 Leon Radzinowicz and Roger Hood, ‘A Dangerous Direction in Sentencing Reforms’  Criminal Law Review 713, 722.
 DPP (NSW) v Kable  NSWSC (Unreported, Levine J, 23 February 1995) 189.
 New South Wales, Parliamentary Debates, Legislative Council, 27 October 1994, 4790 (John Hannaford, Attorney-General).
 Zdenkowski, above n 62.
 Merkel, above n 62, 43.
 (1988) 164 CLR 465.
 Ibid 495.