Another domino falls? The High Court dismisses the latest Kable challenge
Vella v Commissioner of Police (NSW)  HCA 38 was yet another challenge to legislation on the basis it breached the principle established in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable). That principle holds that state legislatures cannot confer a function on a state court that would substantially impair its institutional integrity, because doing so would be inconsistent with that court exercising federal judicial power.
Like many challenges before it, this one failed. This was despite the extraordinarily broad power the legislation gives to courts, on the application of the executive, to interfere with personal liberty.
Background and legislation
The plaintiffs, Damien Charles Vella, Johnny Lee Vella and Michael Fetui are members of a bikie gang called the Rebels. The Commissioner of Police (NSW) applied to the Supreme Court of New South Wales to have orders made against them under s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (SCPO Act).
Section 5 allows a court to make “preventive orders” to restrain a person’s liberty. That person need not have committed a crime – the Court need only be satisfied (on a civil standard of proof) that:
- the person is over 18;
- the person has either been convicted of a “serious criminal offence” or “been involved in serious crime related activity”. “Serious crime related activity” is defined very broadly; and
- “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”.
Section 6 provides that an order can contain effectively anything that “the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious criminal activities”.
There are other relevant provisions – significantly, s 5(5) provides that the hearsay rule does not apply. The legislation was based on near-identical United Kingdom legislation passed in 2007.
Justices Bell, Keane, Nettle and Edelman wrote a joint judgment dismissing the challenge. Chief Justice Kiefel separately agreed; Justice Gageler and Justice Gordon wrote separate dissenting judgments.
The core of the plaintiffs’ case was that s 5(1) of the SCPO Act required a court to exercise a power that was not judicial, contravening the Kable principle. The majority divided their analysis between history, authority and principle. At the risk of simplification, it is convenient to adopt that structure here, before addressing an issue of statutory interpretation that formed the basis of Chief Justice Kiefel’s separate judgment.
For the plurality, the character of the court’s power under the SCPO Act was no different to many other exercises of judicial power that had been uncontroversial since the fourteenth century: . There were many examples of courts making orders and injunctions to prevent anticipated future criminal acts. There also remained considerable preventive order regimes “consequent upon the curial sentencing process”. In that context, there was nothing new about courts being asked to make a preventive order of the sort contemplated by the SCPO Act.
For Justice Gageler, the SCPO Act had a fundamentally different character. His Honour surveyed various powers exercised by courts over the centuries to make orders that anticipated future activities: -. He accepted that doing so was not fundamentally incompatible with judicial power, although noted that the power was usually linked to an anterior criminal process (including in the analogous UK legislation): . Rather, the issue was that previous conferrals of powers were conditioned by a clear test or standard to guide the power’s exercise: -. There was no such standard here. The absence of such a standard set the SCPO Act apart from historical antecedents.
Justice Gordon generally agreed with Justice Gageler and did not directly engage in a historical analysis.
In recent years there have been Kable challenges to legislation that introduced “preventive orders” in the case of terrorist activities, sexual offenders and criminal organisations.
The difficulty of drawing coherent principles from the High Court’s Kable jurisprudence has been discussed elsewhere. The plurality noted that attempting to draw rules from these cases, which dismissed challenges “from different perspectives”, led the plaintiffs to frame their case “as a scattergun approach”: .
For the plurality, a survey of recent Kable cases showed that “sharp distinctions” should not, and cannot, be drawn between different open-textured criteria used to frame judicial decision-making: . In that context, given the sorts of phrases the Court had found valid previously, the Court could hardly find the criteria in the SCPO Act were invalid.
The plurality placed particular emphasis on the impugned legislation in Thomas v Mowbray (2007) 233 CLR 307, which they considered was not relevantly different to the SCPO Act: . They noted broad similarities in the legislation, including that a subject’s liberty was affected, that the subject need not be the person who might themselves commit an offence and the use of broad criteria, like the need for a “serious risk” and the idea of activities being “disrupt[ed]”.
Justice Gageler and Justice Gordon disagreed, describing the difference between the SCPO Act and the legislation in Thomas v Mowbray as “stark”  and “plain” . For them, it was significant that a court under the legislation in Thomas v Mowbray had to consider the specific likelihood of whether the order would substantially assist in preventing terrorist activities. This applied to a “narrow class in exceptional circumstances with stringent standards to be met”, while the SCPO Act applied to “a broad class with exceedingly low thresholds”: .
For Justice Gageler and Justice Gordon, the specific nature of legislation at the heart of previous unsuccessful Kable challenges was key. When taken together with the principled analysis below, past cases considered legislation that was sufficiently different to allow those cases to be distinguished without questioning their underlying reasoning.
For Justice Gageler and Justice Gordon, the SCPO Act enlists the courts to perform a legislative function. The Act gives the courts an unguided choice as to the form of the order to be made, provided that the restrictions on the person’s liberty are “appropriate”. The key question for Justice Gageler was: “appropriate to what end?”. For him, the absence of a “lodestar” to guide what was appropriate was fatal: -.
Justice Gordon repeated Justice Gageler’s question: -. For the plurality, this question missed the point – broadly expressed criteria would still allow the process of judicial interpretation to develop a set of rules and principles to guide future use: -. They accepted there “remains considerable room for judicial evaluation”, but this did not mean the discretion given to the court was alien to judicial power; rather, it was the same exercise the courts engage in frequently when assessing questions such as whether a duty of care has been breached.
For Justice Gageler and Justice Gordon, it was this analysis that was beside the point. It went without saying that, presented with any legislation, the courts will develop a body of case law about how that legislation applies: , . The true question was whether the task was one appropriate for the courts to start with.
The difficulty is seen in the practical application of the SCPO Act. In each case, the executive would apply to the court to seek a particular order. The legislation does not give the court any guidance on how to evaluate whether such an order is appropriate. In the absence of that guidance, all the court can do is assess the appropriateness of the orders sought by the Commissioner of Police, apparently “upon considerations of general policy […] alien to the judicial method”: . “The judiciary is effectively enlisted […] to perform a personalised legislative function at the behest of the executive”: .
This deficiency was compounded by the breadth of power and lack of safeguards. For Justice Gageler and Justice Gordon the SCPO Act did not present specific protection against a specific threat of harm. Rather, an order under the SCPO Act is designed to make it, in some unspecified way, less likely that a person engage in anything that might fall in a very broad category of potential wrongdoing: . The court need only consider there are “reasonable grounds” that the proposed order would have the desired effect, on a civil standard of proof. The only exception to that standard is the erosion of another protection: the hearsay rule does not apply. As Justice Gordon noted, the SCPO Act does not allow a State to fight fire with fire, but to fight potential fire with fire (), with no legislative guidance on how to do it.
Perhaps the simplest way of finding the legislation breached the Kable principle relied on an exercise of pure statutory interpretation.
Chief Justice Kiefel’s initial concern (which is apparent from her judgment and the transcript of the hearing) was that s 5 and s 6 are “self-fulfilling”. This can be illustrated with a short-hand paraphrasing of the sections. Section 6 allows an order to include any conditions necessary to protect the public by “disrupting” a person’s behaviour on the basis of what the court considers “appropriate”. Section 5(1)(c) allows the court to make the order if satisfied there are reasonable grounds to believe that doing so would protect the public by disrupting the person’s behaviour. It is difficult to conceive of a situation in which orders crafted under s 6 would not meet that threshold. On that construction, the discretion contained in s 5(1)(c) is “illusory”: .
Chief Justice Kiefel would have found the provisions breached Kable on that construction: . However, the equivalent UK provisions had been interpreted in a different way. In the UK, the emphasis was on whether the order “would” have the effect sought, which contemplated a broader evaluative role for the courts. Her Honour noted that where words have been judicially interpreted, they should be assumed to have the same meaning in legislation passed subsequently: -. This view was supported by evidence that the NSW Parliament was apparently aware of the UK interpretation and intended the SCPO to have the same effect.
The plurality adopted the same reasoning regarding interpretation: . Justice Gageler did not directly address this reasoning, but repeatedly observed that the SCPO Act was relevantly different to the UK legislation, including because the UK legislation required a specific connection to a previous conviction: , . Justice Gordon simply noted the “radically different [constitutional] context” in which the UK legislation operated in concluding that it has no bearing on the case .
It is hard to see any reconciliation between the analyses adopted by the majority and minority in this case. Vella joins a long list of failed Kable challenges, and the breadth of the SCPO Act encourages pessimism about the potential success of future ones. Justice Gageler ended his judgment lamenting that, with the passage of legislation like the SCPO Act, “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”: . Only time will tell if that comes to pass.