ABSTRACT
Preventive justice as a field of scholarship emerged in response to the proliferation of preventive measures in the later part of the twentieth Century, and the threat preventive measures pose to individual liberties. Collectively, this scholarship seeks to articulate principled limits on state action to prevent harm. However, preventive justice remains an emergent field of scholarship, with many outstanding questions about its scope, utility and the expediency of its normative project. In the decision in Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236, the High Court, for the first time, engages with preventive justice scholarship. This article examines how the distinctions between the majority and minority treatment of the Kable principle in Vella illuminate many of the debates and challenges raised in the literature on preventive justice, the implications of this division across the Court and what it means more broadly for preventive justice in Australia.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Vella v Commissioner of Police (NSW) (Citation2019) 93 ALJR 1236 (‘Vella’).
2 Crimes (Serious Crime Prevention Orders) Act Citation2016 (NSW) ss 5, 6(1) (‘SCPO Act’).
3 Kable v Director of Public Prosecutions (NSW) (Citation1996) 189 CLR 51 (‘Kable’).
5 242 CLR 1, 31 (‘Totani’) at [34] (French CJ), 93 [240], 142 [371], 144 [376], 146 [380] (Heydon J), [473] (Keifel J).
6 (Citation2007) 233 CLR 307 (‘Thomas’), at 347–348 [79], 356–357 [116]–[121] (Gummow and Crennan JJ).
8 (Citation1977) 137 CLR 293 (‘Griffiths’), at [20]–[35] (Jacobs J).
9 (Citation1951) 83 CLR 1, at 165 (Latham CJ citing Lord Aitkinson in R v Halliday [1917] AC 260, who at 273–275 extensively discussed preventive justice).
10 McKenzie v Picken [Citation2001] WASCA 318 (Scott J); R v McHutchinson (Citation1990) 3 WAR 261; R v Thompson (Citation2012) 115 SASR 80 (Gray J citing Barwick CJ in Griffiths); Paphos Providores Pty Ltd v Constable Ladha (Citation2015) 91 NSWLR 400 (raised by counsel); The Director of Public Prosecutions for the State of South Australia v. the District Court of South Australia and Billy-Jo Jeffrey, the Director of Public Prosecutions for the State of South Australia v. the District Court of South Australia and Steven John Paul Healey Nos. SCCRM 95/1858 and SCCRM 95/1859 (Citation1995) 65 SASR 357 (Matheson K citing Barwick CJ in Griffiths); Mackay Conservation Group Inc v Mackay City Council and East Point Mackay Pty Ltd [Citation2005] QPEC 94; Reid v Eggins (Supreme Court of the Australian Capital Territory, Connor ACJ, 14 January Citation1981) at 11–15; R v Duong To Nguyen (Citation1990) 3 WAR 261.
11 Vella (Citation2019) 93 ALJR 1236, at 1245–6 [29], [30], 1259 [88].
14 Ashworth and Zedner (Citation2014). To our knowledge, the only other references to this work in Australian case law occurred in a decision of the Queensland Supreme Court, Bickle v Attorney-General for the State of Queensland [Citation2015] QSC 64, and the New South Wales Supreme Court in R v A2; R v Magennis; R v Vaziri (No. 23) [Citation2016] NSWSC 282.
16 New South Wales Legislative Assembly (Citation2016), p 60 (Troy Grant, Minister for Justice and Police). See also Angus (Citation2016), p 1.
17 New South Wales Legislative Assembly (Citation2016), p 60 (Troy Grant, Minister for Justice and Police).
18 New South Wales Legislative Assembly (Citation2016), p 60 (Troy Grant, Minister for Justice and Police); see also Elyse Methven and David Carter (Citation2016); Vicki Sentas and Michael Grewcock (Citation2018) p 80.
19 SCPO Act s 3(1) definition of ‘eligible applicant’.
23 Criminal Assets Recovery Act Citation1990 (NSW) ss 22, 27, 28A.
27 Vella (Citation2019) 93 ALJR 1236, 1245 [25]–[26] (Bell, Keane, Nettle and Edelman JJ).
30 Toohey, McHugh, Gaudron and Gummow JJ, all writing separately.
32 See, eg, Fardon v Attorney-General (Qld) (Citation2004) 223 CLR 575 (‘Fardon’), at [25] (Gleeson CJ), [102] (Gummow J), [144] (Kirby J); Totani (Citation2010) 242 CLR 1 at [73] (French CJ).
33 See, eg, Forge v Australian Securities Investments Commission (Citation2006) 228 CLR 45 (‘Forge’), at [63]–[64] (Gummow, Hayne and Crennan JJ); Assistant Commissioner Michael James Condon v Pompano Pty Ltd (Citation2013) 252 CLR 38 (‘Condon’), at [67] (French CJ).
34 (1956) 94 CLR 254 affirmed in A-G (Cth) v The Queen; Ex Parte Boilermakers’ Society of Australia (Citation1957) 95 CLR 529.
39 Vella (Citation2019) 93 ALJR 1236, at 1251 [56], 1258–9 [85]–[86].
50 Vella (Citation2019) 93 ALJR 1236, at 1257 [80]. See, also, Fardon (Citation2004) 223 CLR 575 at [25] (Gleeson CJ), [102] (Gummow J), [144] (Kirby J); Baker v The Queen (Citation2004) 223 CLR 513, at [79] (Kirby J); Forge (Citation2006) 228 CLR 45, at [194] (Kirby J); Totani (Citation2010) 242 CLR 1 at [73] (French CJ).
55 SPCO Act s 5(1)(c); Vella (Citation2019) 93 ALJR 1236, at 1242 [9].
58 International Finance Trust Co Ltd v New South Wales Crime Commission (Citation2009) 240 CLR 319 (‘International Finance Trust’), at [57].
60 Vella (Citation2019) 93 ALJR 1236, at 1269 [146] (Gageler J).
69 Vella (Citation2019) 93 ALJR 1236, at 1277 [185], 1279 [196].
83 Vella (Citation2019) 93 ALJR 1236, at 1245–6 [29], [30], 1259 [88].
117 Vella (Citation2019) 93 ALJR 1236, at 1258 [84] (footnotes omitted).
118 Vella (Citation2019) 93 ALJR 1236, at 1258 [85] (footnotes omitted).
119 Vella (Citation2019) 93 ALJR 1236, at 1251–1255 [58]–[73].
127 Criminal Code Act Citation1995 (Cth), s 104.4(1)(d) (interim proceedings), s 104.14 (confirmation proceedings).
128 As Gleeson CJ made clear: ‘The level of risk of the occurrence of a terrorist act, and the level of danger to the public from an apprehended terrorist act, will vary according to international or local circumstances’: Thomas (Citation2007) 233 CLR 307, at 326 [9].
129 Thomas (Citation2007) 233 CLR 307, at 469 [476]. Hayne J, as noted, was in dissent in Thomas. However, his Honour’s comments regarding the adjudicative task undertaken pursuant to the provisions are relevant, despite his disagreement with the majority regarding the constitutional validity of the regime. As Bret Walker QC has remarked in relation to the judgment of Hayne J: ‘[t]he fact that his Honour was in dissent on what may be called the constitutional evaluative assessment that decided this issue as a matter of law detracts in no way from the force of those observations’ regarding his Honour’s conclusions about, characterisation of and implications of the control order legislation: Walker (Citation2012), p 36.
130 Thomas (Citation2007) 233 CLR 307, at 474 [502]. Bret Walker QC has argued, in relation to lines 3–7 of this quote, that ‘it is no objection to the persuasive force of these observations that a majority of the court regarded them as appropriate for—even, better done by— the exercise of judicial power. Excepting that outcome of the constitutional legal argument, in terms of policy, the following observations by Hayne J have continued resonance’: Walker (Citation2012), p 130.
131 Intelligence may be understood as material gathered by intelligence agencies and, increasingly, police, whether by covert or other means, ‘to provide background information and advance warning about people who are thought to be a risk to commit acts of terrorism or other threats to national security’: Roach (Citation2010), p 52. Intelligence is characteristically secret so as to maintain the confidentiality of intelligence gathering methods, sources, international relationships and ongoing operations. Secrecy, however, is not a defining characteristic of intelligence. As Roach points out, ‘[a]lthough some forms of intelligence are public, the traditional essence of intelligence has been that it is secret’: Roach (Citation2012b), p 180.
138 Vella (Citation2019) 93 ALJR 1236, at 1276–7 [179] (Gageler J).
146 Transcript of Proceedings, Vella v Commissioner of Police (NSW) [Citation2019] HCATrans 148, 1812–13 (JK Kirk QC).
148 Vella (Citation2019) 93 ALJR 1236, at 1263 [110] (Gageler J).
150 Transcript of Proceedings, Vella v Commissioner of Police (NSW) [Citation2019] HCATrans 148, 1766–71 (JK Kirk QC).
151 Vella (Citation2019) 93 ALJR 1236, at 1256 [78] (footnotes omitted).
154 SCPO Act s 5(5). See Vella (Citation2019) 93 ALJR 1236, at 1248 [42] (Bell, Keane, Nettle and Edelman JJ).
155 SCPO Act s 5(b)(ii). See also s 3(1)(b) as to ‘appropriate court’.
161 While these remarks were made in respect to another species of civil preventive order in the United Kingdom, the Anti-Social Behaviour Order, they are of equal relevance to control orders: Ashworth and Zedner (Citation2010) pp 59, 74–75.
165 Senate, Legal and Constitutional Affairs Legislation Committee (Citation2009), para [6.4].
166 Senate, Legal and Constitutional Affairs Legislation Committee (Citation2009), para [2.59].
169 Commissioner of Australian Federal Police v Zhao (Citation2015) 255 CLR 46, at 58 [34].
170 Transcript of Proceedings, Vella v Commissioner of Police (NSW) [Citation2019] HCATrans 148, 1810, 1818–21 (JK Kirk QC).
174 Vella (Citation2019) 93 ALJR 1236, at 1256–7 [79]. See also Magaming v The Queen (Citation2013) 252 CLR 381 in relation to prosecutorial choice as to parallel offences with diverse penalties.
176 Ian McCartney v Zainab Abdirahman-Khalif [Citation2019] SASD 245.
179 New South Wales Legislative Council (Citation2016), p 70 (Lynda Voltz).
180 New South Wales Legislative Council (Citation2016), p 62 (Peter Phelps).
186 (2015) 256 CLR 569 (‘NAAJA’).
188 NAAJA (2015) 256 CLR 569, at [89] (Gageler J).
189 NAAJA (2015) 256 CLR 569, at [49]; see also, Hunyor (Citation2015), pp 1, 8, 3.
198 Serious organised crime control orders have been introduced in several Australian jurisdictions: Serious Crime Control Act Citation2009 (NT); Penalties and Sentences Act Citation1992 (Qld); Serious and Organised Crime (Control) Act Citation2008 (SA); Crimes (Criminal Organisations Control) Act Citation2012 (NSW); Criminal Organisations Control Act Citation2012 (Vic); Criminal Organisations Control Act Citation2012 (WA); Crimes (Criminal Organisation Control) Act Citation2017 (ACT).
199 Criminal Code Amendment (High Risk Terrorist Offenders) Act Citation2016 (Cth). There is a Bill currently before the Federal Parliament to introduce post-sentence extended supervision orders for terrorist offenders: Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill Citation2020 (Cth).
200 Three Australian jurisdictions have a general regime of statutory rights protection: the Australian Capital Territory, Queensland and Victoria: Human Rights Act Citation2004 (ACT); Charter of Human Right and Responsibilities Act Citation2006 (Vic); Human Rights Act Citation2019 (Qld). See generally McGarrity and Williams (Citation2010b).
203 See Vella (Citation2019) 93 ALJR 1236, at [206] (Gordon J).
207 NAAJA (2015) 256 CLR 569, at [135].
Additional information
Notes on contributors
Tamara Tulich
Dr Tamara Tulich is a Senior Lecturer at the UWA Law School. Tamara researches in the areas of preventive justice, anti-terror lawmaking and indefinite detention regimes. She is co-editor of Regulating Preventive Justice (Routledge, 2017) (with Rebecca Ananian-Welsh, Simon Bronitt & Sarah Murray), and a co-author of the monograph, Decolonising Justice for Aboriginal Youth with Fetal Alcohol Spectrum Disorders (Routledge, 2021) (with Harry Blagg, Robyn Williams (Noongar), Raewyn Mutch (Ngai Tahu), Suzie May, Dorothy Badry & Michelle Stewart). An article Tamara co-authored with Harry Blagg and Suzie May, ‘Aboriginal youth with foetal alcohol spectrum disorder and enmeshment in the Australian justice system: Can an intercultural form of restorative justice make a difference?’, was awarded the ‘Best Academic Article on Restorative Justice 2020’ by the European Society of Criminology's Restorative Justice Working Group.
Sarah Murray
Dr Sarah Murray is a Professor at the University of Western Australia where she researches in the areas of constitutional law and court innovation. She was awarded the Institute for Advanced Studies Distinguished Early Career Fellowship for her work on Community Justice Centres, is the Western Australian co-Convenor and a Council Member of the Australian Association of Constitutional Law and a Council Member of the Electoral Regulation and Research Network. Her PhD thesis was awarded the 2011 Mollie Holman Doctoral Medal for Law by Monash University and was published as a monograph, The Remaking of the Courts – Less-Adversarial Practice and the Constitutional Role of the Judiciary in Australia (Federation Press, 2014). She is a co-author of The Constitution of the Commonwealth of Australia – History, Principle and Interpretation (CUP, 2015) (with Nicholas Aroney, Peter Gerangelos and James Stellios), has recently co-edited Regulating Preventive Justice – Principle, Policy and Paradox (2017, Routledge) (with Tamara Tulich, Rebecca Ananian-Welsh and Simon Bronitt) and has published across a range of Australian and international journals.
Natalie Skead
Professor Natalie Skead has been Dean of the UWA Law School since 2017. Natalie’s principal research and teaching areas are Property, Land Law and Equity and Trusts. She completed her doctorate on the proprietary implications of Australian proceeds of crime legislation. She is a prolific researcher with an extensive publication record in Property, Confiscation of Proceeds of Crime. Equity, Trusts, Remedies, Natural Resources and Legal Education. Natalie is a Fellow of the Australian Academy of Law, Chair of the Australian Law Academics Association, Associate Editor of the Legal Education Review and a Principal Fellow of the Higher Education Academy. In 2017 she was the recipient of the national award for teaching excellence in law from the Federal Minister of Education and Training. Prior to joining the academy, Natalie practiced as a solicitor for over ten years specialising in Corporate Finance, Commercial Litigation, Property and Securities.
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