Confronting Race, Chapter III and Preventive (In)justice: Garlett v Western Australia
Tamara Tulich and Sarah Murray
04.11.2022
On 7 September 2022, the High Court handed down its decision in Garlett v Western Australia [2022] HCA 30 (Garlett) upholding, by a 5:2 majority, the validity of item 34 of Sch 1 of Div 1 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) on the basis that it did not infringe the principle established in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 (Kable). The constitutional reasoning of the High Court in Garlett follows the pattern of Vella v Commissioner of Police (NSW) [2019] HCA 38 (Vella) and Minister for Home Affairs v Benbrika [2021] HCA 4 (Benbrika) with Gageler J and Gordon J dissenting from the rest of the Court in relation to the constitutionality of the risk assessment role being conferred on ‘courts of a State’. However, the case also provides important new insights on Chapter III of the Commonwealth Constitution (Ch III) in that a minority of the Court identified a role for the principle established in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] 176 CLR 1 (Lim) beyond the federal court context to state courts and, relatedly, new strands of convergence in Ch III jurisprudence.
We also see the Court, building on Vella and Benbrika, continue to grapple with the exigencies of 'preventive justice' in Australia, while confronting the very real challenge facing the legal system of reconciling race, law and sovereignty in Australia. On the one hand, members of the High Court continue the conscious fashioning of Australian preventive justice through Ch III jurisprudence – with Gageler J, Gordon J and Edelman J providing heightened scrutiny of preventive ‘justice’ and its limits in relation to post-sentence detention and supervision regimes. However, at the same time, Garlett highlights the inadequacy of the Constitution, as a colonial instrument, to address race, which the High Court has recognised as central to understandings of preventive justice and injustice in Australia (see NAAJA v Northern Territory (2015) 256 CLR 569 (NAAJA); Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 94 ALJR 198) (Love).
In making these observations, we wish to acknowledge our positionality as white legal academics commenting both on a case involving an Aboriginal man as well as on the complicity of settler law in racial oppression and inequality. We are conscious of about what and for whom we may speak, and we recognise that we remain beneficiaries of our privileged position within the colonial matrix of power, and that our experiences of privilege indelibly shape our standpoint.
Background Facts
In June 2020, Western Australia, in keeping with other states (such as New South Wales, South Australia, Tasmania and Victoria), expanded its post-sentence preventive detention and supervision regime in place for serious sex offenders to other 'high risk offenders' including 'offenders who commit serious violent offences and who present an unacceptable risk of reoffending in a like manner'. The HRSO Act empowers the Supreme Court of Western Australia to make two types of restriction order against a high risk serious offender: a continuing detention order requiring the offender to remain in custody at the end of his or her term of imprisonment, or a supervision order imposing conditions upon a person upon their release from prison.
When the HRSO Act was enacted, Noongar man, Mr Garlett, was serving, inter alia, a sentence of 3 years and 6 months’ imprisonment for robbery offences committed in 2017 that involved the theft, in company, of a pendant necklace and $20 cash while pretending to be armed. Mr Garlett was due to be released on 19 October 2021 subject to a two year post-sentence supervision order under Part 5A of the Sentence Administration Act 2003 (WA). However in July 2021, three months prior to his release, the State applied to the Supreme Court of Western Australia for a restriction order over Mr Garlett under s 48 of the HRSO Act.
At the preliminary hearing, Mr Garlett argued that the HRSO Act contravened the principles contained in Ch III of the Constitution, regarding, in part, the maintenance of the institutional integrity of state Supreme Courts as repositories of federal jurisdiction. According to Mr Garlett, the HRSO Act was therefore invalid in so far as it applied to a serious offender under custodial sentence who had been convicted of the serious offences of robbery or assault with the intention to rob in items 34 and 35 of Schedule 1 Division 1. In WA v Garlett (2021) 362 FLR 284, Corboy J upheld the validity of the impugned provisions and ordered that Mr Garlett be subject to an interim detention order, pending the final hearing of the restriction order application. Mr Garlett appealed to the Court of Appeal, and applied to remove a cause to the High Court. On 21 December 2021, Gordon J ordered the cause be removed pursuant to s 40 of the Judiciary Act 1903 (Cth).
Ch III as a vehicle to fashion limits on preventive justice
In Garlett, we see a split across the Court in terms of the willingness to interrogate preventive justice and its limits, and in so doing, seeking to avoid extreme deference to Parliament in the preventive space.
Ultimately, for the majority of Kiefel CJ, Keane and Steward JJ and Gleeson J, the HRSO Act was a protective rather than punitive scheme that did not compromise the institutional integrity of the Western Australian Supreme Court [55]. In their Honours' view, the HRSO Act retained an independent role for the Court in the making of a ‘substantial evaluative judgment’ of the risk an offender posed to the community and required that this be made in accordance with the judicial process [97]. For the majority, the inclusion of a wider array of offences within the Act, including robbery, was a matter for legislative judgement based on the legislature’s assessment of severity [80].
For their Honours, there was no role for Lim in constraining the state conferral of functions on state courts and that to find such a constraint would be a ‘significant step’ (Gleeson J at [293]). Lim, fashioned as a limit on Commonwealth legislative power, determined that other than in ‘exceptional cases … the involuntary detention of a citizen in custody by the State is penal or punitive in character and … exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt' (Brennan, Deane and Dawson JJ at [24]). However, both majority judgments determined that Lim would not be contravened by the Act in any event.
In contrast, for Gageler J, Gordon J and – although ultimately in the majority – Edelman J, the Lim principle had a wider role to play than solely in the federal domain, reflecting their Honours’ willingness to scrutinise and articulate principled limits on preventive justice.
For example, Gageler J adroitly described the constitutional dictates of Ch III, such as Kable, as ‘derivative … as a matter of 'practical, if not logical necessity' from’ and ‘complementary’ to ‘the Boilermakers restriction’:
The restriction on Commonwealth legislative power associated with Boilermakers and the restriction on State and Territory legislative powers associated with Kable are accordingly complementary implications from Ch III's separation of the judicial power of the Commonwealth. Each is a structural implication implicit in, and directed to the preservation of, the distinctive nature of the separated judicial power of the Commonwealth. Each serves ultimately to maintain the integrity of the exercise of that judicial power. ([119])
Accordingly for Gageler J, the Lim principle’s association with the judiciary as part of the protection of individual liberty and the rule of law, means it has a role to play in the state and territory setting because a violation of it ‘is antithetical to the very conception of justice which it is the responsibility of courts to administer’ ([135]). In his Honour's opinion, this meant that it is only if there is a ‘legitimate non-punitive’ purpose in preventing ‘grave and specific’ harm to the community that preventive detention can be curially conferred. ([145]).
Gordon J found that Lim was ‘not irrelevant’ to a Kable assessment and while the Ch III requirements are not identical for state courts, her Honour emphasised that there was an alignment in the Ch III imperative of ‘courts’ being fit repositories of Commonwealth judicial power. ([184]) The HRSO Act had the difficulty of effectively assigning to the courts the ‘executive function of preventing a wide range of crimes one offender at a time’ ([191]). It was therefore ‘corrosive to … the core constitutional values underpinning and protected by Ch III … the judicial protection of liberty and the protection of the independence and impartiality of the judiciary’ ([199]). For Gordon J, ‘speaking of the HRSO Act as 'protective’ presents a question, not the answer’ ([196]).
For Edelman J, the HRSO Act was clearly punitive when ‘mealy-mouthed euphemisms’ ([251]) were lost on a regime of ‘protective punishment’, which saw offenders at the end of their sentence remain in custody. Building on his Honour’s reasoning in Benbrika, he stated that:
As Kable demonstrates, although legislation that imposes unjust punishment for an objectively serious offence will not be invalid for that reason alone, there will come a point at which the goal of public protection cannot justify the extent of injustice and the consequent sacrifice of the court's institutional integrity. ([257])
For his Honour, the principle in Lim can assist in determining when that line is crossed for both federal and state courts and the powers conferred become too ‘unjust’ to be judicially conferred if they are not sufficiently limited. Edelman J found that although it was ‘perilously close’, ‘the limit of injustice has not been reached’ by the HRSO regime because of the bespoke assessment that it facilitated and the fact that it was only to be applied as a ‘last resort’. ([207])
What we see is an acknowledgement by Gageler J, Gordon J and Edelman J, across their separate judgments, that not all preventive regimes are the same. There was also a shared concern about the potential for domino reasoning in Ch III decision-making to normalise exceptional preventive practices and embolden legislatures.
While Edelman J ultimately comes to a different landing on the facts, finding that the law was saved from invalidity by the fact that preventive detention would only occur ‘as a matter of last resort’ [281], all three judges acknowledge the need for ongoing detention in the absence of conviction to be the exception and to require clear and principled limits.
For both Gageler J and Gordon J it was the breadth of the offences caught by the HRSO Act which was problematic, given that if robbery was sufficiently serious to be caught, it followed that there would be few criminal offences that would not be liable for inclusion. In their Honours' view, the Act moved ‘beyond the exceptional’ ([191]) in preventing recidivism in the context of crimes such as robbery. On this issue, Gordon J doubted the acceptability of the submission that, theoretically, all criminal offences could potentially be made the subject of an HRSO-like order ([195]). For Gageler J, this would do nothing more than see ‘the Lim exception … hollow out the Lim norm’, fundamentally rupturing the ‘the relationship conventionally understood to exist between the individual and the state’ ([150]).
The injustices of prevention
For Gordon J, Edelman J and Gageler J, the potential for injustice occasioned by the prevention measures was apposite. For Gordon J, ‘preventive justice’ was a misnomer when applied to the HRSO Act, as ‘justice’ was demonstrably absent. For her Honour ([200]), the normalisation of ‘exceptional’ post-sentence preventive detention:
… opens the door to a general practice of preventive detention – a parallel system of 'preventive justice', administered by the courts that are repositories of federal jurisdiction – divorced from the administration of the criminal law, where the judiciary is a key player authorising the detention of individuals in custody by the Executive because they are 'criminal types'.
Indeed, for Gordon J, as well as Gageler J and Edelman J, the potential for the abuse of preventive regimes by the legislature and executive mandated heightened scrutiny by the judiciary.
Gageler J ([147]), in referring to his exegesis in Benbrika, noted that this judgment had sought:
to discern and put into words a principled basis for the identification of a legitimate non-punitive legislative objective such as might be capable of justifying the conferral on a court of the extraordinary function of creating a liability to detention in custody in order to prevent a criminal offence from being committed in the future. [emphasis added]
Edelman J observed that the HRSO Act could ‘lead to the imprisonment of one seventh of the entire prison population of Western Australia for offences that they have not committed’ ([205]). His Honour found that a continuing detention order, ‘should be a rare order’ ([233]) but that it could still be constitutionally acceptable, ‘[w]hether or not a continuing detention order for an offence that has not been committed can ever be morally justified’ ([284]).
Garlett draws attention to the individual injustice occasioned by preventive measures and, significantly, to the unjust and discriminatory application of preventive laws to Aboriginal and Torres Strait Islander peoples. Noongar law academic and human rights expert, Associate Professor Hannah McGlade, who was involved in the Garlett challenge, explains that 'although the law doesn't say we're coming after you Aboriginal people, the effect is just that'. The Western Australian government has been informed, as McGlade and Dr Harry Hobbs report, that some 700 ‘Aboriginal adult prisoners’ are likely to be ‘further incarcerat[ed]’ by the HRSO Act.
A string of High Court decisions, including NAAJA and Love, have highlighted the unique centrality of race to understandings of preventive justice and constitutional decision-making in Australia. However, save for Edelman J’s discussion of the practical operation of the law in Garlett and its potentially ‘disproportionate effect … on Indigenous Australians’ ([273]), overt consideration of race is excluded from the judgment. This is perhaps not surprising given the Commonwealth Constitution’s character as a colonial instrument.
In this way, Garlett exposes how the anchoring of the limits of preventive justice to the Constitution serves to silence race and reinscribe privilege. For this reason, the choice of language by the joint judgment, appropriated from an earlier decision, describing Mr Garlett as an ‘unfortunate individual’ and the absence of detailed consideration of Mr Garrett’s personal history (a fact noted by the Chair of the Disability Royal Commission in the Perth hearings in September this year (p8)) becomes a missed opportunity to confront the fiction of equality and reality of privilege within our legal system. What emerges in the judgment of Edelman J, and also those of Gordon J and Gageler J, is an opportunity to develop preventive justice jurisprudence in a way that recognises the context in which these constitutional assessments are made. Such an step is important if we are to meaningfully acknowledge the complicity of the legal system in the ‘dispossession and over-incarceration’ of Aboriginal and Torres Strait Islander peoples.
It is clear that much work remains to be done. The Australian Law Reform Commission, in its December 2021 report on judicial impartiality, recommended that Commonwealth Courts develop ‘a structured and ongoing program of Aboriginal and Torres Strait Islander cross-cultural education for members of the federal judiciary’ that is Aboriginal and Torres Strait Islander-led. This work is, of course, not limited to the judiciary. Rather, as Edelman J acknowledges, this is a broader issue for the institutions of state and for the nation. It is a conversation that we need to confront as a nation, as we prepare to go to a referendum to enshrine the Voice in the Constitution.
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Dr Tamara Tulich is an Associate Professor at the University of Western Australia Law School. Tamara researches in the areas of preventive justice, anti-terror lawmaking and indefinite detention regimes.
Dr Sarah Murray is a Professor at the University of Western Australia where she researches in the areas of constitutional law and court innovation.
Suggested citation: Tamara Tulich and Sarah Murray, ‘Confronting Race, Chapter III and Preventive (In)justice: Garlett v Western Australia' on AUSPUBLAW (4 November 2022)<https://auspublaw.org/blog/2022/11/confronting-race-chapter-iii-and-preventive-injustice-garlett-v-western-australia/>