Can Charters of Rights Limit Penal Populism? Irreducible Life Sentences, Disproportionate Sentences and Preventive Detention in Australia and under the Human Rights Act 1998 (UK) & the European Convention on Human Rights
Andrew Ronald Dyer
A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy
University of Sydney Law School
2021
1
Statement of Originality
I certify that I have not submitted this thesis for any degree or other purposes.
I also certify that this thesis is my own work and that I have acknowledged all sources on which I have relied. I have received no assistance with the actual writing of this thesis; and I have done all of my own proofreading and editing.
Andrew Dyer
2
Abstract In this thesis, I argue that human rights charters can improve protections for criminal offenders against penal populist laws that objectify and exclude them. In cases where such laws have been challenged on separation of powers or other grounds in Australia, the Courts have frequently used highly formalistic and unpersuasive reasoning when declining to intervene. On the other hand, in cases where prisoners have alleged that were being punished incompatibly with the European Convention on Human Rights, the UK judges and the judges of the European Court of Human Rights (‘ECtHR’) – particularly the latter – have adopted a more assertive approach. In so doing, they have interpreted Convention rights as they should: they have sought to place liberal constraints on democratic action, while also being careful not to move too far ahead of the popular will. However, recent charter overrides in the Australian State of Victoria – and Westminster’s hostility to the ECtHR’s decisions in the prisoner voting case of Hirst (No 2) v United Kingdom [2005] IX Eur Court HR and the irreducible life sentence case of Vinter v United Kingdom [2013] III Eur Court HR 317 – do show that ‘weak-form’ charters will not necessarily grant prisoners all of the benefits that the judiciary would confer on them. Nor would ‘strong-form’ charters certainly do a better job. This does not make human rights charters futile. It simply means that, while such charters can improve the position of prisoners, the extent to which they will do so depends on all the circumstances – including charter design and the political culture in the relevant jurisdiction.
3
Author Attribution Statement
Chapter One of this thesis contains material published in: Andrew Dyer, ‘Irreducible Life Sentences: What Difference Have the European Convention on Human Rights and the United Kingdom Human Rights Act Made?’ (2016) 16(3) Human Rights Law Review 541
This material appears on pages 20-1 and 26 of that chapter. I was the sole author.
It also contains material published in: Andrew Dyer, ‘Irreducible Life Sentences, Craig Minogue and the Capacity of Human Rights Charters to Make a Difference’ (2020) 43(2) UNSW Law Journal 484
This material appears on page 20 of that chapter. I was the sole author.
It also contains material published in: Andrew Dyer, ‘The “Australian Position” Concerning Criminal Complicity: Principle, Policy or Politics?’ (2018) 40(2) Sydney Law Review 291
This material appears on page 23 of that chapter. I was the sole author.
Finally, it contains material published in: Andrew Dyer, ‘Can Charters of Rights Limit Penal Populism?: The Case of Preventive Detention’ (2018) 44(3) Monash University Law Review 520
This material appears on pages 21, 25-7 and 32-3 of that chapter. I was the sole author.
Chapter Two of this thesis contains material published in: Andrew Dyer, ‘Irreducible Life Sentences, Craig Minogue and the Capacity of Human Rights Charters to Make a Difference’ (2020) 43(2) UNSW Law Journal 484
This material appears on pages 39, 40, 42, 46, 47, 48, 49, 50-1, 54-9, 62-3, 65-70 and 85-91 of that chapter. I was the sole author.
It also contains material published in: Andrew Dyer, ‘Irreducible Life Sentences: What Difference Have the European Convention on Human Rights and the United Kingdom Human Rights Act Made?’ (2016) 16(3) Human Rights Law Review 541
This material appears on pages 41, 43-5, 46, 51-3, 59-61, 71-7 and 82-4 of that chapter. I was the sole author.
Chapter Three of this thesis contains material published in: Andrew Dyer, ‘(Grossly) Disproportionate Sentences: Can Charters of Rights Make a Difference?’ (2017) 43(1) Monash University Law Review 195
This material appears on pages 95-7, 99-101 and 103-141 of that chapter. I was the sole author.
Chapter Four of this thesis contains material published in: Andrew Dyer, ‘Can Charters of Rights Limit Penal Populism?: The Case of Preventive Detention’ (2018) 44(3) Monash University Law Review 520
This material appears on pages 145-161, 163-5 and 167-195 of that chapter. I was the sole author.
4
Acknowledgement
You get a lot of bad advice when you’re writing a thesis. People will tell you how things must be done. If you’re like me and you really don’t want to be told how to do things, it’s all a little bit annoying. So I disregarded a fair amount of the advice that I was given. I thought that I was probably not taking too much of a risk by doing so – although, because I had never written a thesis before, I wasn’t sure – and that, even if the bad advice turned out to be good advice – which it didn’t – I would nevertheless be glad that I ignored it. Academic freedom is much more important than following the rules – or ‘playing the game’ – even if it results in ‘failure.’
It is with this in mind that I thank the supervisors of this thesis, Thomas Crofts and Peter Gerangelos. I thank them both very much for leaving me alone when I was writing it. That’s what I wanted them to do and I am grateful for them for trusting me to get the job done. I also thank Thomas for reading my work when I wanted him to – and especially for reading and commenting on the thesis once I finally managed to get a full draft to him in August 2020. His comments – in effect, ‘this is ready to submit, but I would re-write chapter one’ – were right. I had drafted chapter one a couple of years before, and the thesis had developed a bit since then. I had hoped to avoid a re-write, but that was lazy. Thank you, too, to Peter for agreeing to step into the breach when I needed a public law expert to supervise me.
I also thank my parents, Ron and Dorothy, whose passivity and permissiveness would go some way to explaining my dislike of authority; my sister, Elspeth, and uncle, Max (both of whose distaste for convention is possibly even greater than my own); and my (de facto) wife, Naomi, and our three children, Simon, Julius and Susannah. At first, with the advent of covid-19, I wondered whether I would be able to complete this thesis surrounded by screams and tantrums; but in the end, they made the writing process a lot more fun than it might otherwise have been. I thank Naomi and her mother, Paula, for their reflectiveness and for their willingness to say and hear things that some might consider to be ‘inappropriate’ or ‘unacceptable.’
Finally, I thank those whose work I have cited in this thesis, many of whom I have never met – indeed, some of whom are no longer with us. As will become clear, I do not agree with all these authors all of the time – in fact, I profoundly disagree with some of them most of the time – but each has produced stimulating and well-argued work that I found useful when formulating my ideas.
One of those individuals, Conor Gearty, lectured me when I was completing the LLM at the London School of Economics. Before the year started, he said that he wanted students to remember his courses, not the mark they had been awarded for those courses. That has certainly been true of me. Prof Gearty is perhaps the only teacher I’ve ever had who fully understood that a good lecture involves not only knowledge and clarity but also theatre. I will never forget his clear, incisive, dynamic presentations. I am also immensely grateful to both Conor and Dirk van Zyl Smit for examining this thesis so thoroughly, and for their generous comments about it.
5
Contents Abstract...... 3
CHAPTER ONE: INTRODUCTION ...... 9 A. Can human rights charters limit the effects of penal populism? ...... 9 B. The ECtHR, the HRA and human rights protections in Australia ...... 12 C. The human dignity argument against irreducible life sentences, disproportionate sentences and certain forms of preventive detention ...... 19 D. The judicial law-making function in jurisdictions with, and those without, a charter of rights ...... 22 E. The more interventionist approach of the UK and Strasbourg Courts, as compared with the Australian courts, where penal populist laws have been challenged ...... 27 (i) The Australian approach ...... 27 (ii) The UK and Strasbourg approach ...... 30 F. Limitations ...... 34 G. Conclusions ...... 36
CHAPTER TWO: IRREDUCIBLE LIFE SENTENCES ...... 38 A. Introduction ...... 38 B. Why Irreducible Life Sentences Are Human Rights Breaches ...... 42 C. The Australian Position...... 52 (i) The Various Australian Jurisdictions ...... 52 (ii) Problems in NSW and Victoria ...... 54 a. Introductory ...... 54 b. The 1997 NSW legislation and the HCA’s response in Baker ...... 55 c. The 2001 NSW legislation and the HCA’s response in Elliott and Crump ...... 59 d. Victorian immodesty ...... 64 (iii) Conclusions about the Australian Position ...... 69 D. The UK Position ...... 71 (i) Introductory remarks ...... 71 (ii) Juvenile offenders...... 72 (iii) Adult offenders ...... 75 (iv) Complications ...... 81 a. Two qualifications ...... 81 b. The ECtHR’s failure in Vinter to require a judicial review procedure ...... 82 c. The UK’s response to Vinter; and the Strasbourg Court’s response to McLoughlin ...... 85 d. The weaknesses of ‘weak-form’ charters ...... 88 E. Conclusion ...... 93
CHAPTER THREE: (GROSSLY) DISPROPORTIONATE SENTENCES ...... 95 A. Introduction ...... 95 B. Why Disproportionate Sentences Are Human Rights Breaches ...... 99 C. The Australian Position...... 104 (i) Introductory remarks ...... 104 (ii) Commonwealth Law ...... 105
6
a. The Separation of Powers Doctrine ...... 105 b. A Legislative Usurpation of or Interference with Judicial Power? ...... 105 c. An Executive Usurpation of or Interference with Judicial Power? ...... 107 (iii) The Position in the States and Territories ...... 111 (iv) Why the Dubious Reasoning and Inconsistencies? ...... 113 D. The UK Position ...... 120 (i) ‘The Domestic Context’ ...... 120 (ii) Extradition and Prisoner Transfer Cases ...... 125 (iii) The Capacity of Charters of Rights to Make a Difference ...... 129 a. Some Conclusions about the UK and Strasbourg Jurisprudence ...... 129 b. The USSC’s Jurisprudence ...... 130 c. The CSC’s Jurisprudence ...... 133 E. Conclusion ...... 145
CHAPTER FOUR: PREVENTIVE DETENTION ...... 147 A. Introduction ...... 147 B. Is Preventive Detention Ever Compatible with Human Rights? ...... 151 C. The Australian Position...... 161 (i) Australian Preventive Detention Laws ...... 161 (ii) Post-Sentence Preventive Detention ...... 162 (iii) Indefinite Detention ...... 173 (iv) Conclusions about the Australian position ...... 178 D. The Position in the UK and Europe ...... 180 (i) Indefinite detention ...... 180 (ii) Post-Sentence Preventive Detention ...... 185 a. The ECtHR’s Decisions in M and Haidn ...... 185 b. The ECtHR’s Use of Art 5(1)(e) ECHR to Undermine M and Haidn ...... 189 c. Conclusions about the ECtHR’s Approach to Post-Sentence Preventive Detention ...... 196 E. Conclusion ...... 197
CHAPTER FIVE: CONCLUSION ...... 199 A. The Judicial Law-Breaking Function in Australia ...... 199 B. Judicial Law-Making in the UK and Europe ...... 207 C. ‘Weak-form’ charters and penal populism ...... 211 D. ‘Strong-form’ charters and penal populism ...... 215 E. Conclusion ...... 229
BIBLIOGRAPHY ...... 231 A. Articles, Book Chapters and Books ...... 231 B. Speeches ...... 243 C. Reports ...... 243 D. Cases ...... 244 E. Court Transcripts and parties’ submissions ...... 251
7
F. Legislation ...... 252 G. Treaties and Committee of Ministers Recommendations ...... 254 H. Parliamentary Debates ...... 254 I. Media ...... 254 J. Online material ...... 255
8
CHAPTER ONE: INTRODUCTION
A. Can human rights charters limit the effects of penal populism? On 25 July 2018, the then Victorian Minister for Corrections, Gayle Tierney, delivered the second reading speech1 for the Corrections Amendment (Parole) Bill 2018 (Vic). ‘The main purpose of the bill’, the Minister explained, ‘is to enhance community safety by clarifying the application of the strict parole laws for prisoners convicted of murdering a police officer, including the prisoner Dr Craig Minogue.’2 The bill sought to achieve this purpose by amending the Corrections Act 1986 (Vic) in two main ways. First, it substituted for the previous s 74AAA of that Act a new s 74AAA. The new section applies to certain persons convicted of murdering a police officer, whether before or after its coming into force. It states that, wherever a police murderer has been sentenced to a term of imprisonment with a non-parole period3 and the Adult Parole Board is satisfied that, at the time of the murderous conduct, the prisoner: (i) intended to kill or cause really serious injury to a police officer;4 (ii) knew that the deceased was a police officer;5 or (iii) realised that the conduct would probably kill or cause really serious injury to a police officer6
the Board must not make a parole order … unless [it] … (a) is satisfied … that the prisoner … (i) is in imminent danger of dying, or is seriously incapacitated and, as a result, the prisoner no longer has the physical ability to do harm to any person; and (ii) has demonstrated that the prisoner does not pose a risk to the community; and (b) is further satisfied that, because of those circumstances, the making of the parole order is justified7.
Secondly, it inserted new section s 74AB into the Corrections Act. This provision applies only to ‘the Craig William Minogue who was sentenced by the Supreme Court on 24 August 1988 to life imprisonment’,8 with a minimum term of 28 years,9 for the murder of a police officer named Angela Taylor. It provides that Minogue is only to be granted parole if he satisfies the conditions that the police murderers caught by s 74AAA must satisfy.10
1 Victoria, Parliamentary Debates, Legislative Council, 25 July 2018, 3276-8. 2 Ibid 3276. 3 Corrections Act 1986 (Vic) s 74AAA(1)(a)-(b). 4 Corrections Act 1986 (Vic) s 74AAA(1)(c)(i). 5 Corrections Act 1986 (Vic) s 74AAA(1)(c)(ii). 6 Corrections Act 1986 (Vic) s 74AAA(1)(c)(iii). 7 Corrections Act 1986 (Vic) s 74AAA(1)(c)(ii). 8 Corrections Act 1986 (Vic) s 74AAA(5). 9 R v Taylor (Unreported, Supreme Court of Victoria, Vincent J, 24 August 1988) (‘Taylor’). 10 Corrections Act 1986 (Vic) s 74AB(3).
9
The ensuing parliamentary debate was typical of those in modern western democracies concerning criminal justice policy. According to Mr Bourman, while ‘[a]ll murderers should get life without parole’, there was a special need for such a sentence to be imposed on those responsible for the ‘deliberate murder of a police officer.’11 Such conduct, he said, is an ‘attack on the uniform’ and ‘an attack on the state.’12 And he expressed the hope that, as a result of the bill under debate, ‘Minogue dies in prison and gets carried out in a box.’13 Mr Finn was perhaps even less forgiving. ‘I have my own views on what should have happened to Minogue’, he said, ‘but certainly he should stay in jail for the rest of his days.’14 ‘He is the lowest form of life’,15 the member continued, and ‘should be vilified across the state and indeed across the nation.’16 ‘He is a filthy, vile scumbag’, he concluded, ‘and … I send him a message: I hope you rot in hell.’17
This thesis is about penal populist18 laws like ss 74AAA and 74AB of the Corrections Act – laws, that is, that treat criminal offenders not as ‘agent[s] … capable of moral deliberation’,19 but rather as ‘a different species of threatening, violent individuals’,20 who have forfeited their right ‘to be [dealt with as] … citizens entitled to equitable treatment.’21 More particularly, it is about whether charters of rights can limit the effects of such laws and deliver greater protections to those to whom they apply – especially prisoners – than would otherwise have been so. As a prominent opponent of human rights charters has noted, ‘[m]any have thought that the main function’ of such instruments ‘is to protect minorities’ against tyrannical state action.22 But there is surprisingly little literature that considers whether, in jurisdictions where
11 Victoria, Parliamentary Debates, Legislative Council, 26 July 2018, 3300. 12 Ibid. 13 Ibid. 14 Ibid 3302. 15 Ibid. 16 Ibid 3303. 17 Ibid. 18 For some leading analyses of penal populism, see David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford University Press, 2001) 131-7; Julian V Roberts et al, Penal Populism and Public Opinion: Lessons from Five Countries (Oxford University Press, 2003); John Pratt, Penal Populism (Routledge, 2007); Nicola Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies (Cambridge University Press, 2008). 19 Andrew von Hirsch and Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (Oxford University Press, 2005) 17. 20 Garland, The Culture of Control, supra, 136. 21 von Hirsch and Ashworth, Proportionate Sentencing, supra, 86. 22 JD Heydon, ‘Are Bills of Rights Necessary in Common Law Systems?’ (2014) 130 Law Quarterly Review 392, 392.
10
they have been enacted, such charters actually have defended despised groups against the excesses of majoritarian democracy.23 The aim here24 is to start filling this gap.
The focus in this thesis is on laws that authorise the imposition of (or themselves impose), respectively: (i) irreducible life sentences; (ii) disproportionate sentences;25 and (iii) preventive detention orders on offenders who are considered to be dangerous. The comparison, at least primarily, is between Australian judicial decisions, and those of the United Kingdom (‘UK’) courts and European Court of Human Rights (‘ECtHR’). In cases where prisoners have challenged harshly punitive laws, has the existence of the European Convention on Human Rights (‘ECHR’)26 and the Human Rights Act 1998 (UK) (‘HRA’)27 led to different judicial reasoning from that deployed by those Australian courts that lack the authority28 to apply such a charter? 29 If so, has such reasoning actually then caused the rights of those affected by such laws to be better protected than they would have been without the charter? That is what I am interested in discovering.
As we shall see, the answer to both of these questions is ‘yes’, showing that human rights charters do have the capacity to improve the position of prisoners and others affected by penal populist laws. That said, as we shall also see, the extent to which this capacity is in fact realised in any particular jurisdiction in which a human rights charter is in force, depends on a number of circumstances. One such circumstance is the judiciary’s willingness to reason as the UK and Strasbourg judges have. Another seems to be the precise design of the relevant charter. But the
23 Though see, eg, Conor Gearty, On Fantasy Island: Britain, Europe and Human Rights (Oxford University Press, 2016), especially chapter 9; Conor Gearty, ‘The Human Rights Act – An Academic Sceptic Changes His Mind but Not His Heart’ (2010) 6 European Human Rights Law Review 582, especially 584-6. 24 See also Andrew Dyer, ‘Irreducible Life Sentences: What Difference Have the European Convention on Human Rights and the United Kingdom Human Rights Act Made?’ (2016) 16(3) Human Rights Law Review 541; Andrew Dyer, ‘(Grossly) Disproportionate Sentences: Can Charters of Rights Make a Difference?’ (2017) 43(1) Monash University Law Review 195; Andrew Dyer, ‘Can Charters of Rights Limit Penal Populism?: The Case of Preventive Detention’ (2018) 44(3) Monash University Law Review 520; Andrew Dyer, ‘Irreducible Life Sentences, Craig Minogue and the Capacity of Human Rights Charters to Make a Difference’ (2020) 43(2) UNSW Law Journal 484. 25 I refer to ‘disproportionate’, rather than ‘grossly disproportionate’, sentences because, contrary to what various courts have held, but consistently with the analysis in chapter 3 of this thesis, all disproportionate sentences are human rights breaches. 26 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953). 27 The HRA has been in force since 2 October 2000: Human Rights Act 1998 (Commencement No 2) Order 2000 (UK) SI 2000/1851. 28 Either generally or when deciding particular controversies. In the latter regard, see, eg, Corrections Act 1986 (Vic) ss 74AA(4) and 74AB(4). 29 I treat both the HRA and the ECtHR as human rights charters.
11
culture in the jurisdiction will also be very important; and this culture might in turn lead to the appointment of judges who are minded to interpret the charter more narrowly than the UK and Strasbourg Courts have done. Before expanding upon these points, however, we must deal with two preliminary issues. How exactly are human rights protected in the jurisdictions with which we are primarily concerned? And why is it that the punishments and practices considered here are, or at least can be, contrary to human rights?
B. The ECtHR, the HRA and human rights protections in Australia The ECHR opened for signature on 4 November 1950 and entered into force on 3 September 1953. But while from that time onwards the Convention was binding on the UK at international law,30 and while in 1966 the UK government accepted its citizens’ right of individual petition to, and the jurisdiction of, the ECtHR,31 the UK judiciary had no power directly to protect Convention rights. Where a UK citizen alleged that primary or subordinate legislation, or a public authority, had breached one or more of the rights guaranteed by the ECHR, s/he ‘had to go to Strasbourg to make a claim – a lengthy and sometimes expensive process.’32 Certainly, the UK government had, and has, a strong record of implementing adverse Strasbourg judgments.33 But, as Kavanagh has noted, when the Blair Labour government was elected in 1997, it34
wanted to ‘bring rights home’ by making Convention rights directly enforceable in domestic courts. In this way, [it] … could give UK citizens effective remedies for possible breaches and obviate unnecessary (and politically embarrassing) applications to Strasbourg. However, [it] … had to find a way of achieving these aims, whilst simultaneously reassuring MPs that Parliament would remain supreme. The result was the Human Rights Act 1998.
For the purposes of this thesis, the most noteworthy aspect of the HRA is the manner in which it incorporates Convention rights into UK law while, on one view anyway,35 simultaneously preserving parliamentary sovereignty. ‘The Government has reached the conclusion that courts
30 The UK was among the first signatories (Bernadette Rainey et al, The European Convention on Human Rights (Oxford University Press, 7th ed, 2017) 2) and ratified the Convention on 18 March 1951: Alice Donald et al, The UK and the European Court of Human Rights (Research Report No 83, Equality and Human Rights Commission, 2012) 9
12
should not have the power to set aside primary legislation, past or future’, the relevant White Paper announced, ‘on the ground of incompatibility with the Convention.’36 This, the government continued, was because, ‘[i]n enacting legislation, Parliament is making decisions about important matters of public policy’, in accordance with its ‘democratic mandate.’37 Judges, who are neither ‘elected [nor] accountable … [nor] representative’38 (it was suggested), should not have a ‘general power’ to strike down laws enacted by a Parliament that is all of these things.39 The government nevertheless did grant the courts more extensive powers of statutory interpretation than they had hitherto enjoyed. Under s 3(1) of the Act, judges must read and give effect to legislation in a way that is compatible with Convention rights,40 ‘so far as it is possible to do so.’41 And the government granted the higher courts42 a further relevant power. If such a court decides that it is not possible to read and give effect to primary legislation compatibly with Convention rights, s 4(2) of the Act provides it with the power to issue a declaration of incompatibility.
The most important thing to note about the s 4(2) power is that such a declaration does not affect ‘the validity, continuing operation or enforcement of the provision’43 to which it relates. Because of this, s 4(2) has been said to create a ‘dialogue’ between the courts and the other arms of government about whether the impugned provision is indeed incompatible with rights.44 It is true that this ‘dialogue’ metaphor probably provides us with a misleading idea of the relationship between the courts and Parliament under the HRA.45 For, as Kavanagh has observed, 46 once a court issues a declaration of incompatibility, there will usually be significant
36 Secretary of State for the Home Department, Rights Brought Home: The Human Rights Bill (Cm 3782, 1997) 2.13. 37 Ibid. 38 Ibid. 39 Ibid. 40 ‘Convention rights’ are defined in HRA s 1(1). 41 The leading case on the limits of the ‘possible’ is Ghaidan v Godin-Mendoza [2004] 2 AC 557 (‘Ghaidan’). There, the House of Lords held that the s 3(1) power is a strong one, which in some circumstances even allows courts to add words to an unambiguous statutory provision to make it Convention-compliant: at 571-2 [32] (Lord Nicholls), 577 [51] (Lord Steyn), 585 [67] (Lord Millett), 602 [124] (Lord Rodger), 609 [145] (Baroness Hale). But a court may not use s 3(1) to achieve Convention compatibility, where, as Lord Nicholls put it, this would give ‘the section a meaning inconsistent with an important feature’ of the legislation, ‘expressed clearly’ in it; or would have ‘far-reaching practical repercussions’ that courts are ill-equipped to evaluate: at 572 [34]. 42 HRA s 4(5). 43 HRA s 4(6)(a). 44 See, eg, Francesca Klug, ‘The Human Rights Act – A ‘Third Way’ or ‘Third Wave’ Bill of Rights’ (2001) 4 European Human Rights Law Review 361, 370. 45 See, eg, Aileen Kavanagh, ‘The Lure and Limits of Dialogue’ (2016) 66 University of Toronto Law Journal 83. 46 Kavanagh, Constitutional Review, supra, 410.
13
political and legal47 pressure on the government to comply with the judicial view and amend the impugned law. Parliament, in other words, does not usually see such declarations as merely the beginning of a ‘conversation’ about what Convention rights require.48 Nevertheless, Parliament certainly has the power to ignore a declaration of incompatibility;49 and, as I shall argue more fully elsewhere in this thesis, this power of the ‘final word’50 cannot always be dismissed as a mere formality.
In contrast to the UK position, in most Australian jurisdictions there is no charter of rights. About a year after taking office in 2007, a Federal Labor government did cause the National Human Rights Consultation Committee to consider, among other matters, ‘whether human rights are sufficiently protected’51 in Australia. But while that Committee then recommended that the government enact a statutory ‘dialogue’ charter similar to the HRA,52 the government ultimately decided that ‘the issue was not worth the potential political cost.’53 It instead enacted the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). That Act creates54 a Parliamentary Joint Committee on Human Rights (‘PJCHR’), whose functions include reporting to both Houses of Parliament about the human rights compatibility of Commonwealth bills.55 The Act also provides that, upon introducing a bill to Parliament, a member must56 present to the House a statement that contains an assessment of whether the bill is compatible with human rights.57 However, as Williams and Reynolds have concluded,58 neither ministerial statements of
47 The legal pressure comes from Strasbourg: see, eg, ibid 284. If Parliament were to ignore a declaration of incompatibility, the aggrieved litigant would very probably be able to persuade the ECtHR that the UK courts were right to hold as they did. If Westminster were then not to implement the Strasbourg judgment, it would place itself in breach of its international law obligations: see ECHR art 46. 48 Kavanagh, Constitutional Review, supra, 410. 49 As Gardbaum notes, it is also open to Parliament to legislate inconsistently with s 3(1) interpretations of its laws (Stephen Gardbaum, ‘How Successful and Distinctive is the Human Rights Act? An Expatriate Comparatist’s Assessment’ (2011) 74(2) Modern Law Review 195, 206) – though, as with Parliament’s ability to ignore declarations of incompatibility, this is often not politically possible. 50 See, eg, Stephen Gardbaum, ‘Reassessing the New Commonwealth Model of Constitutionalism’ (2010) 8 International Journal of Constitutional Law 167, 169. 51 National Human Rights Consultation Committee Report (September 2009) xiii
14
compatibility nor (for various reasons) the PJCHR’s work has had much of an effect on rights- infringing Federal laws.
What about those three Australian jurisdictions – the Australian Capital Territory (‘ACT’), Victoria and Queensland – in which a charter is in force? In that Territory and those States, the relevant charter is similar to the HRA. As well as requiring both Ministerial compatibility statements59 and parliamentary committee scrutiny of bills,60 the Human Rights Act 2004 (ACT) (‘the ACT Charter’), the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Victorian Charter’) and the Human Rights Act 2019 (Qld) (‘the Queensland Charter’) all provide that statutory provisions must, ‘so far as … possible … consistently with their purpose, be interpreted in a way that is compatible with [charter] … rights.’61 If a court cannot use this interpretative power to achieve such compatibility,62 then, as in the UK, it may make a declaration of incompatibility63 (or, in Victoria, a declaration of inconsistent interpretation64). Because such a declaration does not affect the validity of the statutory provision, the Australian charters are, like the HRA, and to use Tushnet’s language,65 ‘weak-form’ instruments. They ‘self-consciously depart … from the American model’66 of ‘strong-form’ review by ensuring that the judiciary has no power authoritatively to pass on the human rights compatibility of primary legislation. Again, if Parliament is dissatisfied with a judicial determination that its legislation is incompatible with human rights, it can ignore that determination. The aim is to combine the best aspects of judicial supremacy and legislative supremacy:67 ‘liberal rights’
59 ACT Charter s 37; Victorian Charter s 28; Queensland Charter s 38. 60 ACT Charter s 38; Victorian Charter s 30; Queensland Charter s 39. It must be noted that HRA s 19, too, requires Ministerial compatibility statements, and that the parliamentary Joint Committee on Human Rights, established soon after the HRA came into force, ‘monitors the operation of section 19 and reports to each House of Parliament on the Convention-[in]compatibility … of legislative proposals’: Kavanagh, Constitutional Review, supra, 12. 61 Victorian Charter s 32(1). See also ACT Charter s 30; Queensland Charter s 48(1). 62 The ‘possible’ is more limited in the ACT, Victoria and Queensland than in the UK. The courts may not ‘read words in’ to an unambiguous statutory provision to render it compatible with human rights. They are restricted to acting on a presumption that, unless there is a clear legislative intention to breach human rights, Parliament intended to legislate consistently with them: Momcilovic v The Queen (2011) 245 CLR 1, 50 [50]-[51] (French CJ), 85-6 [146], 87-93 [148]-[171] (Gummow J), 123 [280] (Hayne J), 217 [565]-[566] (Crennan and Kiefel JJ), 250 [684] (Bell J) (‘Momcilovic’). 63 ACT Charter s 32(2); Queensland Charter s 53(2). 64 Victorian Charter s 36(2). 65 See, eg, Mark Tushnet, ‘New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries’ (2003) 38 Wake Forest Law Review 813, 814. 66 Stephen Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49(4) American Journal of Comparative Law 707, 709. 67 Ibid 741.
15
will be protected more fully than they are under the latter, it is hoped, without the ‘risk of wrongful interference with democratic self-governance’68 that accompanies the former.
Indeed, it is not only because of the declaration of incompatibility/inconsistent interpretation mechanism that we can describe the Victorian and Queensland Charters as ‘weak-form’ instruments. The solution adopted by the Canadian Charter of Rights and Freedoms 198269 (‘the Canadian Charter’) to the ‘democratic deficit’70 problem that afflicts ‘American-style judicial review’,71 is contained in s 33 of that instrument. As Gardbaum explains72
the [Canadian] Charter has all of the essential features of the model of constitutional supremacy: (1) a bill of rights with the status of supreme law, (2) entrenched against amendment or repeal by ordinary legislative majority, and (3) enforced by courts with the power to strike down inconsistent statutes. [But] … section 33 of the Charter … rejects the … [fourth] feature of this model, which is that the judiciary always has the legal power of the final word on the validity of any statute challenged in the courts, against whose decisions the legislature is powerless to act by ordinary majority. It does this by providing that the Canadian Parliament and provincial legislatures may ‘expressly declare’ in an Act that, for a renewable73 five-year period,74 ‘the Act or a provision thereof shall operate notwithstanding’ one or more of the rights guaranteed by ss 2 and 7-15 of the Charter.75 Unlike in Canada, but as in the UK, the Queensland and Victorian Charters are statutory: they lack the status of supreme law, and they are not entrenched against repeal by an ordinary Act of Parliament. Nor, as we have seen, does Parliament in either jurisdiction have the power to strike down primary legislation on human rights grounds. But, as in Canada, in Victoria and Queensland, Parliament can legislate notwithstanding rights. For, despite Parliament’s stated intention that an ‘override declaration will only be made in exceptional circumstances’,76 s 31(1) of the Victorian Charter and s 43(1) of the Queensland Charter do both provide that, to use the Queensland language,
68 Tushnet, ‘New Forms of Judicial Review’, supra, 814. 69 Canada Act 1982 (UK) cl 11, sch B pt 1. 70 To use Lord Judge’s language: Lord Judge, ‘Constitutional Change: Unfinished Business’ (Speech delivered at University College London, 4 December 2013) [47]. 71 To use Kavanagh’s description: Aileen Kavanagh, ‘Participation and Judicial Review: A Reply to Jeremy Waldron’ (2003) 22(5) Law and Philosophy 451, 454. 72 Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013) 101. 73 Canadian Charter s 33(4). 74 Canadian Charter s 33(3). 75 Canadian Charter s 33(1). 76 Victorian Charter s 31(4); Queensland Charter s 43(4).
16
Parliament may expressly declare in an Act that the Act or another Act, or a provision of the Act or another Act, has effect despite being incompatible with 1 or more human rights or despite anything else in this Act. Similarly to the Canadian position, if such a declaration is to remain in force, it must – in the absence of a legislative statement to the contrary77 – be renewed every five years.78 But for so long as the declaration is in force, the relevant Charter does not apply to the provision or Act in respect of which the declaration has been made.79 As we shall see, the Victorian government has recently demonstrated a willingness to rely on the s 31(1) power and disapply its Charter. That discussion will take us back to one of the laws with which we started, s 74AB of the Corrections Act 1986 (Vic), which takes the possibility of parole from one named prisoner, Craig Minogue.
First, however, we must briefly consider one further way in which human rights are, indirectly, protected at the Commonwealth level in Australia, and in the Australian State and Territory jurisdictions – including, of course, in those jurisdictions where no charter of rights is in force. According to Heydon, ‘[t]he separation of powers is [a] … safeguard for human rights’, though an ‘underrated’ one, ‘because it diffuses and weakens governmental power.’80 And it will be seen that, in Australian cases where prisoners have challenged the penal populist laws with which this thesis is concerned, the challenge has usually been based on ch III of the Commonwealth Constitution, which, among other things, prevents: (i) the Commonwealth Parliament or Executive from exercising the judicial power of the Commonwealth; and (ii) the courts listed in s 71 of the Constitution from exercising anything other than the judicial power of the Commonwealth (and functions incidental or ancillary thereto).81
Because there is no separation of powers in the States and Territories,82 State and Territory Parliaments do not have to observe the same limitations as the Commonwealth Parliament does. They may, for instance, confer certain non-judicial functions on their courts.83 But, in Kable v Director of Public Prosecutions (NSW), a majority of the High Court of Australia
77 See Corrections Act 1986 (Vic) ss 74AAA(10), 74AA(5) and 74AB(5). 78 Victorian Charter s 31(7)-(8); Queensland Charter ss 45(2) and 46(1). 79 Victorian Charter s 31(6); Queensland Charter ss 45(1), 48(5) and 53(3). 80 Heydon, ‘Are Bills of Rights Necessary’, supra, 407. 81 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 271-2, 275-6 (Dixon CJ, McTiernan, Fullagar and Kitto JJ); A-G (Cth) v The Queen [1957] AC 288, 311-4 (Viscount Simonds for the Privy Council). 82 See, eg, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 65 (Brennan CJ), 78-80 (Dawson J), 92-4 (Toohey J), 109 (McHugh J) (‘Kable’), referring primarily to the position in NSW. 83 Ibid 96 (Toohey J), 106 (Gaudron J), 109-10 (McHugh J), 132 (Gummow J).
17
(‘HCA’) held that, contrary to what had hitherto been supposed,84 ch III does not merely require that State courts remain ‘courts’ within the meaning of s 77(iii) of the Constitution; it also prevents State85 Parliaments from reposing in such courts non-judicial functions that are ‘incompatible with the[ir] exercise … of federal jurisdiction conferred pursuant to s 77(iii) of the Constitution.’86 ‘State courts’, McHugh J explained, ‘must be independent and appear to be independent of their own State’s legislature and executive government as well as the federal legislature and government.’87 For, if this were not the case, his Honour continued, ‘[p]ublic confidence in the exercise of federal jurisdiction by the courts of a State could not be retained.’88 ‘It follows’, McHugh J said,89
that, although New South Wales has no entrenched doctrine of the separation of powers and although the Commonwealth doctrine of the separation of powers cannot apply to the State, in some situations the effect of Ch III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers.
For reasons explored more fully below, neither the Commonwealth separation of powers nor ‘the Kable principle’90 has been of much assistance to those who have sought to rely on these ‘safeguard[s] of liberty’91 when challenging harsh sentencing or preventive detention laws. But, for the time being, it is necessary merely to note that, in the face of their failure to persuade the courts that such laws breach ch III of the Constitution, such persons will usually have only one further legal option available to them. In such cases, they might argue before the United Nations Human Rights Committee (‘UNHRC’) that the relevant law breaches the International Covenant on Civil and Political Rights (‘ICCPR’),92 to which Australia is a party. Indeed, the UNHRC has found that Australia has contravened the ICCPR in cases in which prisoners have attacked constitutionally valid Australian laws that imposed irreducible life sentences on
84 Ibid 67 (Brennan CJ), 83 (Dawson J). 85 Territory Parliaments, too, may not confer such functions on courts that can exercise federal judicial power: North Australian Legal Aid Service v Bradley (2004) 218 CLR 146, 163 [28]-[29] (‘Bradley’). 86 Kable (1996) 189 CLR 51, 132 (Gummow J. See also at 96 (Toohey J), 103-4, 106 (Gaudron J), 116 (McHugh J). 87 Ibid 116. 88 Ibid 117. 89 Ibid 118. 90 Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236, 1251 [56] (Bell, Keane, Nettle and Edelman JJ) (‘Vella’). 91 Kable (1996) 189 CLR 51, 65 (Brennan CJ). 92 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
18
them,93 provided for the imposition of mandatory minimum sentences,94 or caused them to be detained indefinitely for preventive reasons.95 Unfortunately, however, this has not achieved much for the successful litigants. As Dixon has observed, ‘Australian governments have been more willing in recent years than many other democratic governments to override the interpretation of international human rights norms by various UN bodies.’96 Certainly, the UNHRC’s findings in the cases just noted failed to persuade the domestic authorities to amend the relevant legislative schemes.97
C. The human dignity argument against irreducible life sentences, disproportionate sentences and certain forms of preventive detention It was noted above that one of the things that this thesis aims to establish is whether, if the ECHR and the HRA have facilitated more expansive judicial reasoning than would otherwise have been deployed in cases where prisoners have challenged penal populist laws, this has actually led to improved human rights protections for those prisoners. This enquiry is predicated on the notion that the forms of detention with which this thesis deals, amount to – or, in the case of preventive detention, can amount to – human rights violations. In chapters 2, 3 and 4, I defend in some detail the view that this is so; but I shall also make some comments here about this matter.
Over the last decade or so, some senior members of the UK judiciary have made remarks that, if they are correct, undermine the claim that all of the practices dealt with here are (or can be) contrary to human rights. According to Lord Sumption, for instance, particular treatment, or a particular punishment, will breach human rights only where there is a societal consensus that
93 Human Rights Committee, Views: Communication No 1968/2010, 112th sess, UN Doc CCPR/C/112/D/1968/2010 (22 October 2014) (‘Blessington v Australia’). 94 Human Rights Committee, Views: Communication No 2229/2012, 116th sess, UN Doc CCPR/C/116/D/2229/2012 (29 March 2016) (‘Nasir v Australia’). Note, however, that Nasir’s claim succeeded on grounds unrelated to the length of the sentence that the Queensland Supreme Court had mandatorily imposed on him. 95 Human Rights Committee, Views: Communication No 1629/2007, 98th sess, UN Doc CCPR/C/98/D/1629/2007 (18 March 2010) (‘Fardon v Australia’); Human Rights Committee, Views: Communication No 1635/2007, 98th sess, UN Doc CCPR/C/98/D/1635/2007 (18 March 2010) (‘Tillman v Australia’). 96 Rosalind Dixon, ‘Weak-Form Judicial Review and American Exceptionalism’ (2012) 32(3) Oxford Journal of Legal Studies 487, 505. 97 See, eg, Australian Government, ‘Response of Australia to the Human Rights Committee in Communication No. 1968/2010 Blessington and Elliot (sic) v Australia’
19
it is oppressive.98 Once ‘one leaves the realm of consensus behind’, he thinks, one ‘enters that of legitimate political debate where issues ought to be resolved politically’ – and not by the courts.99 For his Lordship, a ‘classic example’100 of this is s 3 of the Representation of the People Act 1983 (UK), which prohibits convicted prisoners from voting at any parliamentary or local government election. Reasonable minds might differ, he suggests, about whether prisoners should be permitted to vote. Therefore, it is wrong to say that s 3 contravenes the ECHR.101 Similar reasoning appears in Baroness Hale’s speech in R (Wellington) v Secretary of State for the Home Department.102 The question in that case, which I discuss further in chapter 3, was whether the Home Secretary acted incompatibly with art 3 ECHR103 by ordering the extradition of the appellant to Missouri, where there was a real risk104 that he would be convicted of first degree murder and sentenced to life imprisonment without the possibility of parole. After expressing some sympathy for the view that ‘the denial of the possibility of redeeming oneself in this life by repentance and reform … [is] inhuman’,105 Baroness Hale nevertheless concluded that106
this is not the only tenable view of the matter. There are many people, in and outside prison, who would draw a very sharp distinction between life and death, however restricted that life might be. There are many justifications for subjecting a wrongdoer to life in prison. It is not for us to impose a particular philosophy of punishment upon other countries.
Insofar as these judges107 are saying that there is room for reasonable disagreement about whether (i) prisoners should be granted voting rights and (ii) irreducible life sentences should be imposed, their claims are not as accurate as they might at first appear to be. As I shall argue in chapter 5, just because many reasonable persons support a measure does not make it
98 Lord Sumption, ‘The Limits of Law’ (The 27th Sultan Azlan Shah Lecture, Kuala Lumpur, 20 November 2013) 10. 99 Ibid. 100 R (Chester) v Secretary of State for Justice [2014] AC 271, 337 [137] (‘Chester’). 101 Ibid 337 [137]-[138]. Cf Hirst (No 2) v United Kingdom [2005] IX Eur Court HR (‘Hirst’). 102 [2009] 1 AC 335 (‘Wellington HL’). 103 Article 3 provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ 104 A State will breach art 3 if it extradites a person to a country where there is a real risk that s/he will be subjected to treatment, or be punished in a manner, contrary to that Article: Saadi v Italy [2008] II Eur Court 207; Chalal v United Kingdom [1996] V Eur Court 1831 (‘Chalal’); Soering v United Kingdom (1989) 161 Eur Court HR (ser A) (‘Soering’). 105 Wellington HL [2009] 1 AC 335, 353 [53]. 106 Ibid. 107 See also Judge, ‘Constitutional Change’, supra, [48].
20
reasonable.108 Insofar as they are making the related claim that it is no breach of human rights to deprive all prisoners of the vote or to impose an irreducible life sentence on an offender, I again disagree. My disagreement is founded on the view that human rights are neither value- free nor the hostage of majority views. Rather, they are underpinned and shaped by liberalism; and liberalism requires that individuals are reasoned with and not tyrannised.109 When precisely will an offender be tyrannised? In this thesis, it is argued that this will occur when s/he is treated not as a person, but as an object to be dominated and/or an ‘enemy to be excluded’110 from membership of the community. In these circumstances – to use a term that appeals to some but not others111 – s/he will be treated without respect for his/her human dignity.
It is true that McCrudden, in a seminal article,112 has shown that human dignity is a vague term. Beyond a ‘minimum core’,113 there is little agreement about exactly when a person’s human dignity will be attacked. But, as Carozza has pointed out,114 even that ‘minimum core’ has substantial content. The claims that ‘every human being possesses an intrinsic worth, merely by being human’; that ‘that intrinsic worth should be recognized and respected by others’; and, consequently, that ‘the state should be seen to exist for the sake of the individual human being and not vice versa’,115 are some of the basic contentions of political liberalism. Those liberals who are committed to a communitarian, social democratic conception of human dignity116 might particularly emphasise the claim that an offender subject to an irreducible life or disproportionate sentence – or to preventive detention that is not aimed at resocialising him/her – has been treated as having excluded him/herself from the community and, therefore, as not being entitled to our respect. Those liberals who are committed to an autonomy-based, classical liberal conception of human dignity might place greater emphasis on the state’s prevention of such offenders from taking control of their lives. But, even so, the dispute is one that exists
108 See Matthias Kumm, ‘Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review’ (2008) 1 European Journal of Legal Studies 153, 175-6. 109 See David Luban, ‘Liberalism, Torture and the Ticking Bomb’ (2005) 91 Virginia Law Review 1425, 1430. 110 John Pratt, ‘Sex Crimes and the New Punitiveness’ (2000) 18 Behavioral Sciences and the Law 135, 140. 111 Compare, eg, Jürgen Habermas, ‘The Concept of Human Dignity and the Realistic Utopia of Human Rights (2010) 41(4) Metaphilosophy 464, with Michael Rosen, ‘Dignity: The Case Against’ in Christopher McCrudden, (ed) Understanding Human Dignity (Oxford University Press, 2013) 143. 112 Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655. 113 Ibid 679. 114 Paolo G Carozza, ‘Human Dignity and Judicial Interpretation of Human Rights: A Reply’ (2008) 19(5) European Journal of International Law 931, 936. 115 McCrudden, ‘Human Dignity’, supra, 679. 116 For a discussion of ‘Individualistic Versus Communitarian Conceptions of Dignity’, see ibid 699-701.
21
within liberalism. And, in any case, autonomy-based and social democratic human dignity claims overlap. In those three cases just noted, by treating the offenders as being unable to respond to moral appeals, the state is saying that they have no ability to control their actions; in turn, because they are considered to have no ability to control their actions, they are treated not as rights-bearing members of society, but instead as belonging to a ‘species apart from law- abiding citizens.’117
When discussing Queensland post-sentence preventive detention118 legislation, Keyzer and Blay capture the point that offenders will be treated with respect for their human rights, and compatibly with their human dignity, only if they are dealt with neither as objects nor as enemies.119 ‘Traditionally’, they observe120
as a consequence of his crime, the prisoner … not only forfeited his liberty, but all his personal rights … [But w]e have come a long way since then. The modern view has been articulated by Justice Brennan of the US Supreme Court: … A prisoner remains a member of the human family. Contemporary international human rights standards reinforce this view. With one minor qualification, I agree. That qualification is that it is only partly true that we have come a long way since the days when prisoners were treated as rights-less objects. The very point of penal populism is to return us to those times.121 But certainly such treatment is contrary to ‘contemporary international human rights standards.’
D. The judicial law-making function in jurisdictions with, and those without, a charter of rights We can now return to one of this thesis’s central contentions – namely, that, because of the ECHR and the HRA, the UK and Strasbourg judges have shown a greater willingness and ability than Australian courts without a charter of rights to apply, to challenge penal populism’s claim that the criminal offender is ‘a “beast”, a “predator”, or a “monster” who should “rot in jail” … , … an animal … [that is] beyond rehabilitation’, which must be treated as ‘a mere
117 Andrew von Hirsch, Censure and Sanctions (Clarendon Press, 1993) 5. 118 As noted in chapter 4, by ‘post-sentence preventive detention’, I mean preventive detention that is ordered only once the offender is serving a sentence of imprisonment. 119 See Robert S Gerstein, ‘Capital Punishment – “Cruel and Unusual”? A Retributivist Response’ (1974) 85 Ethics 75, 77. 120 Patrick Keyzer and Sam Blay, ‘Double Punishment? Preventive Detention Schemes Under Australian Australian Legislation and Their Consistency with International Law: The Fardon Communication’ (2006) 7 Melbourne Journal of International Law 407, 423. 121 A point made by Pratt, ‘Sex Crimes’, supra, 137-140, 143-146. See also John Pratt, ‘Emotive and Ostentatious Punishment: Its Decline and Resurgence in Modern Society’ (2000) 2(4) Punishment and Society 417.
22
object of the executive’s power.’122 This has mainly been because of widely-held judicial views about the different boundaries between acceptable and unacceptable judicial law-making in jurisdictions with a charter of rights, on one hand, and those without such an instrument on the other.123
Since at least 1972, when Lord Reid made his well-known remarks about ‘fairy tales’ and ‘Aladdin’s cave’,124 judges have openly acknowledged that they make law and do not just declare it. But what are the proper limits to this judicial law-making function? In three recent speeches,125 Justice Virginia Bell has set out what appears to be the ‘majoritarian’126 judicial approach to this question in jurisdictions without a charter of rights.
In a speech concerning the extent to which the judiciary may develop the common law regarding criminal responsibility,127 her Honour referred to both Woolmington v Director of Public Prosecutions128 and the slightly later Australian case of Mullen v The Queen,129 which, like Woolmington, concerned the burden of proof in a criminal trial. In Woolmington, the trial judge, Swift J, had directed the jury that, once it felt satisfied that the Crown had proved beyond reasonable doubt that Woolmington had killed his wife, it was to find him guilty of murder unless he had satisfied it that ‘what happened was … something which might be reduced to … manslaughter, or … which was accidental, or … which could be justified.’130 His Lordship also said that this had been the ‘law of this country for all time since we had law.’131 In doing so, he was not saying anything eccentric. This had long been the law of England.132 So, why did
122 Öcalan v Turkey (No 2) (European Court of Human Rights, Second Section, Application Nos 24069/03, 197/04, 6201/06 and 10464/07, 18 March 2014) [8] (Judge Pinto de Albuquerque). 123 See, eg, Lord Dyson, ‘Are the Judges Too Powerful?’ (Speech delivered at the Bentham Association, London, 12 March 2014); R (Nicklinson) v Ministry of Justice [2015] AC 657, 789 [101] (Lord Neuberger) (‘Nicklinson’). 124 Lord Reid, ‘The Judge as Law Maker’ (1972) 12 Journal of the Society of Public Teachers of Law 22, 22. 125 Justice Virginia Bell, ‘Keeping the Criminal Law in ‘Serviceable Condition’: A Task for the Courts or the Parliament?’ (2016) 27(3) Current Issues in Criminal Justice 335; Justice Virginia Bell, ‘Judicial Activists or Champions of Self-Restraint: What Counts for Leadership in the Judiciary?’ (The General Sir John Monash Leadership Oration, 4 August 2016); Justice Virginia Bell, ‘Examining the Judge’ (Speech delivered at the Launch of Issue 40(2) UNSW Law Journal, 29 May 2017). 126 Tom Bingham, ‘The Judge as Lawmaker: An English Perspective’ in Tom Bingham, The Business of Judging (Oxford University Press, 2000) 31. 127 Bell, ‘Keeping the Criminal Law in ‘Serviceable Condition’’, supra. 128 [1935] AC 462 (‘Woolmington’). 129 (1938) 59 CLR 124 (‘Mullen’). 130 Woolmington [1935] AC 462, 465, 473. 131 Ibid 465, 472. 132 See, eg, GD Woods, A History of the Criminal Law in New South Wales (Volume Two): The New State 1901- 1955 (Federation Press, 2018) 486-8.
23
the House of Lords unanimously hold that Swift J’s charge amounted to a misdirection? Justice Bell’s answer is that133
by 1935 it no longer accorded with the values of English society that Reginald Woolmington should be hanged following a trial at which the prosecution had not been required to prove that Violet Woolmington’s death was not accidental. Likewise, in Mullen, the HCA dismissed a prosecution submission that s 291 of the Criminal Code Act 1899 (Qld) required the prisoner to prove that the relevant killing was ‘authorised or justified or excused by law.’ Sir Owen Dixon accepted that it had ‘very generally’ been thought that the accused was required to prove such matters.134 He also noted that, in the Code’s text, ‘there may be traced a belief on the part of the framers’ that this was so.135 Nevertheless, the Court unanimously held that, in fact, the Crown bore the burden of proof. As Bell J puts it:136
The creativity of the judiciary … permitted values that had come to be fundamental over the course of the last century to be read into the Griffith Code.
According to her Honour, then, judges clearly do develop and change the law. They might even be entitled, she suggests, to use dubious reasoning when doing so. But it is important to understand when, for Bell J, the judiciary may take such action. In the above quotations, her Honour hints at this too; and she makes the point explicitly shortly afterwards. Referring to Brennan J’s remarks in Dietrich v The Queen137 about when judges may modify the law, Bell J says that his Honour ‘had in mind’ circumstances where the decision accords with the ‘relatively permanent values of the Australian community.’138 In other words, according to Bell J, the courts may alter or develop the law only where they are acting consistently with community values. And before they will do so, they will check – insofar as this is possible – that what they perceive to be the ‘relatively permanent’ ‘values of ... society’139 really do have
133 Bell, ‘Keeping the Criminal Law in ‘Serviceable Condition’’, supra, 339. 134 Mullen (1938) 59 CLR 124, 136. 135 Ibid. 136 Bell, ‘Keeping the Criminal Law in ‘Serviceable Condition’’, supra, 340. 137 (1992) 177 CLR 292, 319 (‘Dietrich’). 138 Bell, ‘Keeping the Criminal Law in ‘Serviceable Condition’’, supra, 340. 139 Ibid 339.
24
this status.140 Such values, her Honour assures us elsewhere, are usually not too difficult to ‘divine.’141 Moreover142
the development of the common law would have been most unsatisfactory if judges did not have an eye to [them] … in deciding … cases …
Justice Bell has been at pains, however, to distinguish ‘community values’ from values that are personal to the judge. ‘[T]o acknowledge that judges are involved in making law,’ she has said, ‘is not to accept that they have a free hand to mould the law according to their personal views.’143 Such an approach seems largely to accord with remarks made by Lord Devlin over forty years ago concerning the proper limits of judicial law-making. It is perfectly democratic for the judges to make law, his Lordship thought, so long as the public will either greet the change with indifference or unanimously approve of it.144 If, on the other hand, the alteration would be controversial – that is, would not be supported by a consensus within the community – it would be wrong for the judges to make it. More recently, McHugh J has expressed similar views. While not requiring a complete consensus in the community concerning the relevant issue, his Honour thought that:145
Nonetheless the acceptability of judge-made common law must depend upon its compatibility with contemporary views. If a change in the common law would be rejected by the community, it should not be made, however much the judge thinks that the change is in the community’s interest. Likewise, for Lord Bingham – in common, he thought, with ‘most modern common law judges’146 – where the question before a court concerns an ‘issue of current social policy’ upon which the community is ‘sharply divided’,147 that court should not impose on that community its views of how that issue should be resolved.148
140 Ibid 340. 141 Bell, ‘Judicial Activists or Champions of Self-Restraint’, supra, 15. Cf Justice Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2004) 10(4) Otago Law Review 493, 513. 142 Bell, ‘Judicial Activists or Champions of Self-Restraint’, supra, 16. 143 Bell, ‘Examining the Judge’, supra, 7. 144 Lord Devlin, ‘Judges and Lawmakers’ (1976) 39(1) Modern Law Review 1, 9. 145 Justice Michael McHugh, ‘The Law-Making Function of the Judicial Process – Part II’ (1988) 62 Australian Law Journal 116, 122. 146 Bingham, ‘The Judge as Lawmaker’, supra, 27. 147 Ibid 31, quoting Reid, ‘The Judge as Law Maker’, supra, 23. 148 Bingham, ‘The Judge as Lawmaker’, supra, 31.
25
Why have these senior judges been so emphatic about the need for the judiciary to make law only where the public will accept the change? Lord Devlin suggests the answer to this question when he notes that judges must be and appear to be impartial, and that:149
In truth, … the appearance is the more important of the two. The judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven, but on earth he is no use at all. So long as a judge acts only in a way that is consistent with the community’s sense of justice, few will accuse him/her of lacking the necessary impartiality. This is so even if the changes that s/he wreaks are significant, and even if the reasoning that s/he deploys to justify those changes is not entirely plausible.150 But once judges impose changes that are more controversial, they are very likely to be seen as ‘rapacious’151 ‘judicial activists’ who are deciding cases not ‘on legal merit’ but because of their own ‘political or ideological sympathies.’152 Indeed, as Bell J observes, such a perception has arisen regarding some decisions of the United States Supreme Court (‘USSC’) – and it is ‘one no doubt that the Court regrets.’153 For, once the courts are perceived in this way, there is no longer the ‘public confidence in the constitutional institutions of Government’ that Sir Gerard Brennan rightly considered to be ‘critical to the stability of our society.’154
In jurisdictions with a charter of rights, however, the position is different. In such jurisdictions, as Lord Dyson has explained, judges are not restricted to ‘making changes incrementally only where these are considered to be necessary to respond to changing social conditions, values and ideas.’155 The whole point of having a human rights charter is to provide the courts with greater powers than this. Judges who have been granted such powers may sometimes leap ahead of – indeed, they may thwart – ‘community values’, when such values, however widely- held, have resulted in legislation that tyrannises an unpopular minority.156 Nevertheless, as we
149 Devlin, ‘Judges and Lawmakers’, supra, 3 (Emphasis added). 150 An example of this is surely the HCA’s decision in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (‘Kirk’), which I discuss in chapter 3. 151 Bell, ‘Keeping the Criminal Law in ‘Serviceable Condition’’, supra, 342. 152 Bell, ‘Examining the Judge’, supra, 6. 153 Ibid 5. 154 Fiona Wheeler and John Williams, ‘‘Restrained Activism’ in the High Court of Australia’ in Brice Dickson (ed), Judicial Activism in Common Law Supreme Courts (Oxford University Press, 2007) 19, 44. 155 Dyson, ‘Are the Judges Too Powerful?’’, supra. 156 As Lord Mance has put it, ‘[t]he fundamental rights chapters of constitutions are there for the very purpose of constraining the activities of majorities. History contains some sobering reminders of the ability of elected majorities to perpetrate unfairness and injustice’: Lord Mance, ‘Destruction or Metamorphosis of the Legal Order?’ (Speech delivered at the World Policy Conference, Monaco, 14 December 2013). See also Lord Bingham of Cornhill, ‘The Judges: Active or Passive’ (2006) 139 The Proceedings of the British Academy 55, 71.
26
shall see, and as Bell J’s remarks about the USSC might suggest, judges with the power to apply a charter of rights have no unlimited ability to defy the popular will.
E. The more interventionist approach of the UK and Strasbourg Courts, as compared with the Australian courts, where penal populist laws have been challenged (i) The Australian approach
At first glance, the HCA’s decision in Kable157 appears to call into question the argument just presented, namely, that courts in jurisdictions without a charter of rights are loath to develop the law inconsistently with public opinion. After all, here was the HCA using implausible158 – or, at best, ‘barely plausible’159 – reasoning, not to reach the kind of popular result produced in a case such as Mullen, but rather to procure a far more controversial outcome. The impugned law in that case, the Community Protection Act 1994 (NSW),160 was ‘directed at one person only’161 – the high-profile New South Wales (‘NSW’) prisoner, Gregory Wayne Kable. By authorising the Supreme Court of NSW (‘NSWSC’) to imprison Kable without trial162 and after a process that deviated substantially from a traditional judicial one,163 the majority held, that law purported to repose in it a function that was ‘repugnant to or incompatible with their exercise of the judicial power of the Commonwealth.’164 It was therefore invalid.
This, however, was not the sort of decision that a court without a charter of rights to interpret would normally reach; and the reaction to Kable – and to other decisions like it, delivered around the same time – explains why Australian judges over the last two decades have adopted a more conventional approach to the judicial law-making function in cases where they have no
157 See text accompanying nn 84-9. 158 Jeffrey Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (2014) 40(1) Monash University Law Review 75, 75; Greg Taylor, ‘Conceived in Sin, Shaped in Iniquity – The Kable Principle as Breach of the Rule of Law’ (2015) 34 University of Queensland Law Journal 265, 266. For example, assuming the majority’s reasoning about ‘public confidence’ to be sound – and that reasoning has been de-emphasised in subsequent cases (see, eg, North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, 595 [40] (French CJ, Kiefel and Bell JJ) (‘NAAJA’)) – it is difficult to see why there would be a reduction in public confidence in the impartiality of State courts when exercising Federal jurisdiction just because, occasionally, they appear to be used as an instrument of the executive government when exercising State jurisdiction: Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ at 80; Public Service Association and Professional Officers’ Association Amalgamated (NSW) v Director of Public Employment (2012) 250 CLR 343, 370 [62] (Heydon J). 159 George Winterton, ‘Justice Kirby’s Coda in Durham’ (2002) 13 Public Law Review 165, 168. 160 Repealed by Statute Law (Miscellaneous Provisions) Act 2015 (NSW) sch 6 item 1. 161 Kable (1996) 189 CLR 51, 89 (Toohey J). 162 Ibid 97-8 (Toohey J), 107 (Gaudron J), 122 (McHugh J), 131-2 (Gummow J). 163 Ibid 98 (Toohey J), 106 (Gaudron J), 122 (McHugh J), 134 (Gummow J). 164 Ibid 103 (Gaudron J). See also 95-6 (Toohey J), 116 (McHugh J), 132 (Gummow J).
27
charter to apply. For, Kable was controversial165 – and it was around this time that the HCA’s legitimacy came under threat. The ‘Mason Court’ had been criticised for its occasional willingness to develop the law in a manner not obviously compatible with community values.166 The slightly later decision in Wik Peoples v Queensland167 also led to claims that their Honours were willing to resolve questions that it was not for the judges to resolve, and to demands that a ‘capital C conservative’ be appointed to the Court.168 Accordingly, from at least 1998, the Court appears to have been anxious to restore the perception that it was willing only to adjudicate and never to legislate.169 How was this achieved? The answer is not that the Court abandoned its law-making role. The law certainly did not stand still while either Gleeson CJ170 or French CJ171 was Chief Justice. Nor has it done so under Kiefel CJ’s leadership.172 Rather, when the Court has developed the law, it has usually done so consistently with ‘contemporary values.’173
In chapters 2 and 4, respectively, I shall discuss in some detail the HCA’s decisions in Baker v The Queen174 (a life sentence case) and Fardon v Attorney-General (Queensland)175 (a preventive detention case). The important point for present purposes is that, in those cases, HCA majorities dismissed Kable challenges to penal populist State legislation that was only
165 See, eg, Patrick Keyzer, ‘Preserving Due Process or Warehousing the Undesirables: To What End the Separation of Judicial Power of the Commonwealth?’ (2008) 30 Sydney Law Review 101, 108. 166 See, eg, Heydon, ‘Judicial Activism’, supra. 167 (1996) 187 CLR 1. 168 Wheeler and Williams, ‘‘Restrained Activism’’, supra, 44. 169 See, eg, Chief Justice Murray Gleeson, ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4. 170 Anne Twomey, ‘Book Review: Inside the Mason Court Revolution: The High Court of Australia Transformed by Jason L Pierce (Durham: Carolina Academic Press, 2006)’ (2007) 31 Melbourne University Law Review 1161, 1183-4. 171 Harry Hobbs, Andrew Lynch and George Williams, ‘The High Court under Chief Justice Robert French’ (2017) 91 Australian Law Journal 53. 172 See, eg, Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007; Re Director of Public Prosecutions Reference No 1 of 2017 (2019) 364 ALR 407. 173 Dietrich (1992) 177 CLR 292, 319 (Brennan J). Cf, however, Love v Commonwealth of Australia (2020) 94 ALJR 198, where the majority held that Aboriginal non-citizens ‘are not within the reach of the “aliens” power conferred by s 51(xix) of the [Commonwealth] Constitution’: at 218 [81] (Bell J). The Federal government’s and the media’s largely negative response to this ‘activist’ decision – see, eg, Olivia Caisley and Nicola Berkovic, ‘‘Activism’ Puts Focus on High Court Vacancies’, The Australian (online) 21 February 2020
28
barely distinguishable from the Community Protection Act.176 In so doing, they applied the earlier authority in so ‘narrow [a] manner as to render … [it] largely ineffectual.’177 They declined to develop Kable in such a way as to benefit the highly unpopular appellants in the cases before it.
This is not to say that the Court was wrong to adopt such an approach. As I argue in chapters 2 and 4, while the decisions in Baker and Fardon were far from inevitable, the law does seem to have left it open to their Honours to dispose of those cases as they did. And as I argue in chapters 4 and 5, there is much to be said for the view that, without a charter of rights, the courts should generally decide cases where the law is unclear in a way that does not shock the public’s sensibilities. That said, the position seems different where it is only by deploying ‘implausible legal reasoning’178 that the judiciary can uphold a penal populist law that obviously breaches the human rights of those to whom it applies. Throughout this thesis, we shall encounter cases179 in which Australian judges without the authority to apply a human rights charter have relied upon highly formalistic and unpersuasive reasoning to reject challenges to draconian legislation. In chapters 4 and 5, I shall argue that such reasoning is unjustifiable – especially where those using it know of its implausibility. For now, however, the point is a different one. As noted throughout this thesis, in Australian cases where the courts have considered challenges to penal populist laws, those courts have usually declined to intervene. Sometimes, they have relied on highly dubious reasoning when doing so. And sometimes judges in these cases have indicated that, underlying their self-effacement, might well be a desire to use their powers in a manner that does not defy community sentiment.180
176 See, eg, Jeremy Gans, ‘Current Experiments in Australian Constitutional Criminal Law’ (Australian Association of Constitutional Law, 9 September 2014) 1. 177 To use the words of Scott Stephenson, writing in a related context: Scott Stephenson, From Dialogue to Disagreement in Comparative Rights Constitutionalism (Federation Press, 2016) 86. 178 Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’, supra, 76. 179 Namely, Crump v The Queen (2012) 247 CLR 1 (‘Crump’); Magaming v The Queen (2013) 252 CLR 381 (‘Magaming’); Knight v Victoria (2017) 261 CLR 306 (‘Knight’); and Minogue (No 2) v Victoria (2019) 93 ALJR 1031 (‘Minogue No 2’). 180 See, eg, Baker (2004) 223 CLR 513, 519-20 [6] (Gleeson CJ); Fardon (2004) 223 CLR 575, 593 [23] (Gleeson CJ).
29
(ii) The UK and Strasbourg approach
Such an approach differs from that of the UK and Strasbourg Courts – armed, as they are, with charters that explicitly empower them to counteract oppressive state action, however popular it is.
It is true that certain members of the UK judiciary have resisted the idea that the ECHR and HRA should be interpreted in such a way as to protect those affected by penal populist legislation. As we have seen, in R (Chester) v Secretary of State for Justice,181 Lord Sumption stated that the denial of the franchise to prisoners amounts to no breach of such prisoners’ human rights. While conceding that ‘the protection of minorities is a necessary concern of any democratic constitution,’ his Lordship considered that182
the present issue has nothing whatever to do with the protection of minorities. Prisoners belong to a minority only in the banal and legally irrelevant sense that most people do not do the things which warrant imprisonment by due process of law. But this reasoning is obviously flawed. A person might be part of a minority for any number of reasons. Whatever that reason is, s/he is still part of a minority.183 Perhaps what Lord Sumption is really saying is that we need not be excessively concerned about prisoners’ welfare, given that they have only themselves to blame for their marginal position. If so, his views are inconsistent with those that both the Strasbourg and UK courts have frequently expressed – including in the three areas of law that are the focus of this thesis.
As van Zyl Smit and Snacken have recognised,184 Golder v United Kingdom185 represented a ‘first important step towards the development of European prison law.’ In that case, the applicant, who was a prisoner at the relevant time, claimed that there had been a violation of arts 6(1) and 8 ECHR due to the State’s refusal to allow him to consult a solicitor for the purposes of initiating libel proceedings against a prison officer. In response to his claim that there had been a breach of his art 8 right to respect for his correspondence, the UK government
181 Chester [2014] 1 AC 271. 182 Ibid 327 [112]. 183 As King has observed, ‘contrary to Lord Sumption’s claim, there are good reasons to think prisoners are a politically marginalised group’: Jeff King, ‘Lord Sumption’s Conception of Law and Democracy’ in Richard Ekins et al (eds), Lord Sumption and the Limits of the Law (Bloomsbury Publishing, 2016) 141, 149. 184 Dirk van Zyl Smit and Sonja Snacken, Principles of European Prison Law and Policy: Penology and Human Rights (Oxford University Press, 2009) 10. 185 (1979-1980) 1 EHRR 524 (‘Golder’).
30
argued that this right was subject not only to the limitations enumerated in art 8(2),186 but also to ‘implied limitations … : a sentence of imprisonment … inevitably entails consequences affecting the other Articles of the Convention, including Article 8.’187 But the ECtHR dismissed this submission,188 and its insistence that prisoners are merely deprived of their liberty and forfeit none of their other rights simply because they have been imprisoned, is now a well-established principle of Convention law.189
Moreover, the Court has recently often emphasised the importance of ensuring that ‘all detention … [is] managed so as to facilitate the reintegration’190 of detainees into the community.191 That is, it has repeatedly insisted that detention must be compatible with prisoners’ human dignity, and it has rejected penal populism’s characterisation of such prisoners as ‘human waste’192 and ‘members of an inferior breed.’193 In Khoroshenko v Russia,194 for example, the ECtHR Grand Chamber found that there had been a breach of the applicant’s art 8 right to respect for his private and family life, in circumstances where the state had prevented him from seeing his family at all during the first five years of his incarceration195 and then, for the next ten years, had permitted him only to have one short, supervised visit from his relatives every six months.196 In response to the government’s submission that ‘the aim of social reintegration was not expected to be achieved in respect of life-sentence prisoners’ and
186 Article 8(2) provides that a public authority may interfere with the art 8(1) right if such interference is ‘in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ 187 Golder (1979-1980) 1 EHRR 524, [44]. 188 Ibid. 189 See, eg, Hirst [2005] IX Eur Court HR 187, 211-12 [69]-[70]. 190 Vinter v United Kingdom [2013] III Eur Court HR 317, 347 [115] (‘Vinter GC’), quoting Recommendation Rec(2006)2 of the Committee of Ministers to Member States on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies) r 6. As van Zyl Smit and Snacken have observed, the Committee of Ministers, the Committee for the Prevention of Torture and the ECtHR have worked together to require states’ penal policies to aim at resocialising prisoners: van Zyl Smit and Snacken, Principles of European Prison Law and Policy, supra, 375-6. 191 See, eg, Khoroshenko v Russia [2015] IV Eur Court HR 337, 373-4 [121]-[122], 379-80 [144]-[145] (‘Khoroshenko’); Harakchiev v Bulgaria [2014] III Eur Court 317, 445-6 [264]-[265]; Vinter GC [2013] III Eur Court HR 317, 346-7 [112]-[115]; Dickson v United Kingdom [2007] V Eur Court 99, 127 [75] (‘Dickson’). See also Sonja Snacken, ‘Resisting Punitiveness in Europe?’ (2010) 14(3) Theoretical Criminology 273, 283-5. 192 Murray v The Netherlands (2017) 64 EHRR 3, [OII-21] (Judge Pinto de Albuquerque) (‘Murray’) quoting Leger v France (European Court of Human Rights, Second Section, Application No 19324/02, 11 April 2006, [13] (Judge Costa)) (‘Leger’). 193 Svinarenko v Russia [2014] V Eur Court HR 181, 216 (Judge Silvis) (‘Svinarenko’). 194 Khoroshenko [2015] IV Eur Court HR 337. 195 Apart from one visit from his wife, who divorced him soon afterwards: ibid 340 [20]-[21]. 196 Ibid 340 [20], [23].
31
that ‘isolating persons such as the applicant was the only aim of the relevant prison regime’,197 the Court noted198
the general evolution in European penal policy towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence, and … that the emphasis on rehabilitation and reintegration has become a mandatory factor … [for] member States … to take into account in designing their penal policies.
The regime and conditions of a life prisoner’s incarceration cannot be regarded as a matter of indifference in that context. They need to … make it possible for the life prisoner to reform himself, with a view to being able one day to seek an adjustment of his or her sentence …
This brings us to two of the areas of law dealt with by this thesis. The ECtHR’s insistence that detention must have a reintegrative focus, and that it is contrary to an offender’s human dignity to treat him/her as the Russian government had treated Khoroshenko – that is, as being ‘unfit for or beyond rehabilitation’199 and therefore as a ‘mere object of the executive’s power’200 – has led it to hold that: (i) life sentences that are either de facto or de jure irreducible cannot be imposed compatibly with art 3 ECHR;201 (ii) the state must provide prisoners with a ‘real opportunity for rehabilitation’202 during the post-tariff part of a sentence of indefinite detention if such detention is not to breach art 5 ECHR;203 and (iii) post-sentence preventive detention will be compatible with the Convention only if the detention occurs in a place other than a prison and there is ‘adequate treatment of … [detainees] with a view to reducing their dangerousness.’204 In the third area of law considered here – the law relating to disproportionate sentences – the Strasbourg and UK judges have, similarly, applied a human dignity approach when concluding that ‘a grossly disproportionate sentence would violate Article 3 of the
197 Ibid 369 [99]. 198 Ibid 373 [121]. 199 Ibid 385 [5] (Judges Pinto du Albuquerque and Turković). 200 Ibid. 201 Vinter GC [2013] III Eur Court HR 317. See also Murray (2017) 64 EHRR 3. 202 James v United Kingdom (2013) 56 EHRR 12, [209] (‘James’). See also Brown v Parole Board of Scotland [2018] AC 1, 11 [8] (‘Brown’). 203 Article 5(1) provides that a person may be deprived of his or her liberty only in six circumstances, including – relevantly to indefinite detention – where this is ‘the lawful detention of a person after conviction by a competent court.’ 204 Bergmann v Germany (2016) 63 EHRR 21, [174] (‘Bergmann’). See also Ilnseher v Germany (European Court of Human Rights, Grand Chamber, Application Nos 10211/12, 27505/14, 4 December 2018) [164]-[168], [219]- [223] (‘Ilnseher GC’).
32
Convention’205 and that mandatory sentencing schemes are liable to produce such sentencing excess.206
A noticeable feature of the Strasbourg and UK jurisprudence concerning irreducible life sentences, disproportionate sentences and preventive detention is that the relevant courts have been less willing than their Australian counterparts to deploy narrow and formalistic reasoning;207 and they have been more inclined to subject to critical scrutiny, and reject, dubious government arguments. The Privy Council’s decision in Reyes v The Queen,208 discussed in some detail in chapter 3, is one example of the European and UK courts’ willingness to reason more expansively than the Australian judiciary has where offenders have challenged harshly punitive laws. In that case, Lord Bingham, who delivered the Board’s reasons, also made it clear why those courts have been willing to adopt such a stance.
In holding that Belize’s mandatory death penalty for murder by shooting was an ‘inhuman or degrading punishment’, his Lordship noted that:209
As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the Constitution. But it does not treat the language of the Constitution as if it were found in a will or a deed or a charterparty. A generous or purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the Constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society … In carrying out its task of constitutional interpretation the court is not concerned to give effect to public opinion … In other words, courts that have been empowered to interpret a charter of rights must remember that they have been given the responsibility of protecting human rights. Relatedly, they must also understand that they should not always act consistently with public opinion. For, if they were always to decide cases in accordance with such opinion, they would be ignoring the fact that ‘the very reason’ for implementing a charter of rights is to ‘protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.’210 They
205 Vinter GC [2013] III Eur Court HR 317, 344 [102]. 206 Vinter v United Kingdom (2012) 55 EHRR 34, [93] (‘Vinter Chamber’); R v Lichniak [2003] 1 AC 903, 911 [13] (‘Lichniak’). See also Reyes v The Queen [2002] 2 AC 235, 256 [43] (‘Reyes’). 207 See, eg, the discussion in chapter 4 of the Strasbourg Court’s finding in M v Germany [2009] VI Eur Court HR 169 (‘M’) – in contrast to the views expressed by some judges who heard Fardon – that individuals serving preventive detention in prison are being punished. This finding was crucial to the Court’s decision that the applicant had had a ‘heavier penalty imposed [upon him] than the one that was applicable at the time … [his] criminal offence was committed’, contrary to art 7(1) ECHR. 208 [2002] 2 AC 235. 209 Ibid 246 [26]. 210 Ibid, quoting S v Makwanyane [1995] 3 SA 391, 431 [88] (Chaskalson P).
33
would be acting in the same way as courts without the powers granted by such charters. They would be rendering their charter nugatory and inefficacious.
F. Limitations There are, however, two other points that must be emphasised. Both concern, in different ways, the capacity of charters of rights to deliver protections to prisoners and others against penal populism.
The first such point arises from the passage from Reyes that I have just set out. It is Lord Bingham’s insistence that, although charters give the courts greater powers than they would otherwise possess, those powers nevertheless have their limits. ‘The court has no licence to read its own predilections and moral values into the Constitution’, his Lordship warns, which seems to be another way of saying that courts armed with charters of rights certainly do not have a complete freedom to check the tyranny of the majority. And this, too, has been reflected in the UK and Strasbourg courts’ case law in each of the three areas considered in this thesis. In chapters 2 and 3, in particular, we shall see that those courts have frequently displayed an awareness of the need not too readily to set themselves at variance with the public’s views about how the state should deal with criminal offenders. For example, while, as just noted, a state will breach art 3 ECHR if it imposes an irreducible life or a grossly disproportionate sentence on an individual, the ECtHR has nonethleless: (i) assured governments that ‘matters of appropriate sentencing largely fall outside the scope of the Convention’;211 (ii) stated that it will ‘only be on “rare and unique occasions”’ that the gross disproportionality standard will be met:212 and (iii) declined to grant those serving a whole life order213 or its equivalent the same procedural safeguards as it has granted to all other life prisoners.214
In other words, while the reasoning in the Strasbourg and UK jurisprudence concerning irreducible life sentences, disproportionate sentences and preventive detention is less narrow than that in the corresponding Australian cases, there are limits to what the European and UK judges have felt able to achieve. The boundary between acceptable and unacceptable law-
211 See, eg, Harkins v United Kingdom (2012) 55 EHRR 19, [133] (‘Harkins’). 212 Ibid. 213 Criminal Justice Act 2003 (UK) s 269(4) and sch 21, para 4(1). 214 Vinter GC [2013] III Eur Court HR 317, 349 [120].
34
making in cases where judges have a charter of rights to apply, is not a clear one.215 But there is a boundary nonetheless.
The second point is that, even when the judiciary does decide that a penal populist law is incompatible with human rights, there might be no guarantee that those affected by it will actually gain the protections that the judges would grant them. And this returns us to s 74AB of the Corrections Act 1986 (Vic). For reasons more fully dealt with in chapter 5, if Craig Minogue had been permitted to contend, and had contended, before the Australian courts that that section breached the Victorian Charter, it seems highly likely that his claim would have succeeded.216 But would a declaration of inconsistent interpretation in his case have led the Victorian government to re-consider its decision to take the possibility of parole away from him? The answer to this question seems clearly to be ‘no.’ How can we be so sure? The answer to this question is that the Victorian government, with strong bipartisan support, has made it plain that it wishes s 74AB to remain in force whatever its effect on Craig Minogue’s human rights. It has done this by relying upon the other power that the Victorian Charter grants it to have the ‘final word’ regarding human rights controversies. In accordance with s 31(1) of the Charter, Parliament has provided in s 74AB(4) of the Corrections Act that the Charter ‘has no application to this section.’217 Indeed, more than this, Parliament has manifested an intention never to revisit its decision to override the Charter. For, while, as noted above, an ‘override declaration’ must normally be renewed every five years,218 s 74AB(5) provides that this is not so concerning the s 74AB(4) declaration. That declaration is not subject to revision.
Kavanagh has noted that ‘the most well-known fact about the Canadian notwithstanding clause and the UK declaration of incompatibility is that legislatures have hardly ever used these mechanisms to override or reject judicial decisions on rights.’219 But her conclusion that ‘weak- form’ charters therefore, in practice, do not differ ‘to any significant degree’220 from ‘strong- form’ charters, must be qualified in at least one way. For, as Kavanagh herself suggests, and as s 74AB(4)-(5) of the Corrections Act show, Parliaments have sometimes been more than
215 Nicklinson [2015] AC 657, 789 [101] (Lord Neuberger). 216 See Minogue (No 1) v Victoria (2018) 264 CLR 252, 272-3 [52]-[55] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ), 276 [72], 278 [79] (Gageler J) (‘Minogue (No 1)’). 217 Section 74AB(4) therefore prevents the courts from issuing a declaration of inconsistent operation, which is why the first question in this paragraph is a hypothetical one. 218 Victorian Charter s 31(7). 219 Aileen Kavanagh, ‘A Hard Look at the Last Word’ (2015) 35(4) Oxford Journal of Legal Studies 825, 833. 220 Aileen Kavanagh, ‘What’s So Weak about “Weak-Form Review”? The Case of the UK Human Rights Act 1998’ (2015) International Journal of Constitutional Law 1008, 1037.
35
willing to ‘make an open … statement that they wish to violate rights or reject a court ruling which seems to protect them.’221 As noted in chapters 2 and 5, in certain cases involving the ‘rights of prisoners’,222 Parliaments in ‘weak-form’ jurisdictions have unhesitatingly exercised their power of the ‘final word.’
It follows that, while charters can facilitate judicial reasoning that challenges penal populism, the judiciary’s willingness to deploy such reasoning will not necessarily be enough. If the relevant charter is a ‘weak-form’ instrument, Parliament will quite possibly use its power of the ‘final word’ to ensure that prisoners are denied at least some of the benefits that the courts would confer on them. This makes us wonder whether we should opt instead for ‘strong-form’ review in societies where there is a real risk of such charter overrides. But, as I shall argue in chapter 5, this might not solve the problem. For, while under ‘strong-form’ review, Parliament lacks the power to override by ordinary legislative processes, or ignore, charter decisions with which it disagrees, it is nevertheless able ‘to challenge judicial positions on rights.’223 One well-known way in which governments might do so is by appointing judges whose views about the proper scope of human rights protection aligns with their own.224 And once there has been such a politicisation of the judiciary, then, as the US example shows, marginalised groups are likely to be disadvantaged. Certainly, the USSC’s jurisprudence concerning the limits of punishment – some of which is discussed in chapter 3 – is not characterised by an excessive concern for prisoners’ rights.
G. Conclusions This thesis argues, then, that charters of rights can produce increased protections for those affected by harsh penal laws. Judges who have been empowered to apply such a charter certainly have no untrammelled ability to interfere with or challenge legislative punitiveness. However, as we shall see in chapters 2 (which concerns irreducible life sentences), 3 (which concerns disproportionate sentences) and 4 (which concerns preventive detention), in the three areas considered by this thesis the UK and Strasbourg judges have been able, to some extent, to limit the effects of penal populism. They have certainly been more assertive than the
221 Kavanagh, ‘A Hard Look at the Last Word’, supra, 837. 222 Ibid. See also, eg, Stephen Gardbaum, ‘What’s So Weak about “Weak-Form” Review? A Reply to Aileen Kavanagh’ (2015) 13 International Journal of Constitutional Law 1040, 1043-4. 223 Stephenson, From Dialogue to Disagreement, supra, 87. 224 Ibid 94.
36
Australian judges, whose creativity rarely places them at odds with public opinion, however pernicious such views might be.
Nevertheless, the extent to which any particular charter will combat penal populism depends upon a number of circumstances. One such circumstance is the judiciary’s willingness to accept the responsibility conferred on it to challenge democratic decision-making in some circumstances – interpreting the charter consistently with its spirit, and avoiding any temptation to read it ‘so narrowly as to frustrate or stultify’225 the interests that it seeks to advance. But matters of charter design might be of some relevance, too; and so will be the culture of the society in question. As to charter design, even if, consistently with what I have just argued, the presence in a charter of a parliamentary override or like power, is a relatively unimportant determinant of that charter’s effectiveness,226 a charter will seemingly have a greater chance of being productive if it: (i) is constitutionally entrenched227 (or, like the ECHR, otherwise enjoys ‘higher law status’228); and (ii) is compatible with the ‘surrounding constitutional order.’229 As to cultural factors, it would nevertheless seem that, in many modern Anglophone democracies, views have so hardened against criminal wrongdoers as to mean that prisoners will be denied some of the protections that such charters have the potential to grant them – whatever the charter’s content, and however well it interacts with the ‘surrounding constitutional order.’230 This is not to say that human rights charters are futile.231 It is merely to observe that, while they can mitigate the effects of draconian laws, they provide us with no magical solution to the problem of penal populism.
225 Re BC Motor Vehicle Act [1985] 2 SCR 486, 501 (Lamer J). 226 Rivka Weill, ‘The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial Review and Constitution-Making’ (2014) 62(1) American Journal of Comparative Law 127, especially 162-4, 166-8. 227 Ibid 166-9. 228 Stephenson, From Dialogue to Disagreement, supra, 138. 229 Ibid 11. 230 Ibid. 231 Cf KD Ewing, ‘The Futility of the Human Rights Act’ [2004] Public Law 829; Joo-Cheong Tham and KD Ewing, ‘Limitations of a Charter of Rights in the Age of Counter-Terrorism’ (2007) 31 Melbourne University Law Review 462; KD Ewing and Joo-Cheong Tham, ‘The Continuing Futility of the Human Rights Act’ [2008] Public Law 668.
37
CHAPTER TWO: IRREDUCIBLE LIFE SENTENCES
A. Introduction In this chapter, which concerns irreducible life sentences, I consider four questions. The first is whether such sentences are ever compatible with human rights. The second is whether the Australian courts, in cases where they have no power to apply a charter of rights, have placed any limitations on the state’s ability to impose an irreducible life sentence on a criminal offender. The third is whether, because of the ECHR and/or HRA, the ECtHR and/or the UK courts have taken a different approach from their Australian counterparts. And the fourth and final enquiry is whether prisoners in the UK and Europe have actually benefitted from any such broader and more assertive reasoning.
Part B of this chapter deals with the first of the questions just noted. In that Part, I focus on the three main arguments with which supporters of irreducible life sentences have justified their respective intuitions that such sentences are morally permissible; and I argue that none of these arguments withstands critical scrutiny. Certainly, as some of these commentators observe, in most modern democratic societies many believe that the judiciary should have the power to impose such sentences.1 It can also plausibly be argued, as people often have, that ‘some crimes … are so heinous’2 as to make an irreducible life sentence a proportionate response to them.3 And perhaps, as Lippke and Groves have separately urged, an irreducible life sentence will not ‘entirely vanquish’ a prisoner’s hope.4 But, however true these claims are, they are beside the point.
As suggested in chapter 1, the absence of anything approaching a consensus in the community opposing irreducible life sentences, is irrelevant to whether such sentences breach the human rights of those upon whom they are imposed. The ‘very purpose’ of human rights charters is to check majoritarian decision-making.5 Accordingly, even widespread support for a particular measure cannot establish that it complies with such an instrument’s guarantees. Moreover, the
1 See McLoughlin v The Queen [2014] 1 WLR 3964, 3971 [15] (‘McLoughlin’). 2 Ibid. 3 See, eg, Richard L Lippke, ‘Irreducible Life Sentences and Human Dignity: Some Neglected and Difficult Issues’ (2017) 17 Human Rights Law Review 383, 397; Matthew Groves, ‘A Life Without Hope – The Victorian Charter and Parole’ (2018) 42(6) Criminal Law Journal 353, 371; Paul H Robinson, ‘Life without Parole under Modern Theories of Punishment’ in Charles J Ogletree Jr and Austin Sarat (eds), Life Without Parole: America’s New Death Penalty (2012, New York University Press) 138, 148. 4 Lippke, ‘Irreducible Life Sentences’, supra, 391. See also Groves, ‘A Life Without Hope’, supra, 371. 5 Mance, ‘Destruction or Metamorphosis’, supra.
38
apparent proportionality of an irreducible life sentence in some6 cases, is also not decisive of such sentences’ human rights compatibility. The position would be different if (grossly) disproportionate sentences were the only punishments that were ‘inhuman or degrading.’7 But it is well-established8 that punishments that are ‘barbaric in themselves’9 also qualify.
This leaves us with the third of the arguments just noted, which is an attempt to respond to reasoning of the type deployed by Judge Power-Forde in her widely-quoted10 judgment in Vinter v United Kingdom.11 In finding that the applicants’ life sentences contravened art 3 ECHR, Judge Power-Forde said:12
What tipped the balance for me in voting with the majority was the Court’s confirmation that Article 3 encompasses … “the right to hope.” … Those who commit the most abhorrent and egregious of acts … nevertheless retain their fundamental humanity and carry with themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs that they have committed. They ought not to be deprived of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading. This passage might be ‘eloquen[t].’13 But it does not in fact accurately state why irreducible life sentences are contrary to human rights. And it follows that, however persuasive Lippke’s and Groves’s response to such reasoning is, this response fails to establish that such sentences are justifiable. In other words, contrary to what Judge Power-Forde suggests, when we assess whether a punishment is ‘inhuman or degrading’, any suffering it causes the punished is far from determinative.14 What is instead relevant is whether that punishment respects the
6 Though not necessarily in all cases where they are imposed: see John Anderson, ‘‘Indefinite, Inhumane, Inequitable’ – The Principle of Equal Application of the Law and the Natural Life Sentence for Murder: A Reform Agenda’ (2006) 29(3) UNSW Law Journal 139, 150-1; John Anderson, ‘The Label of Life Imprisonment in Australia’ (2012) 35(3) UNSW Law Journal 747, 754-5. 7 ECHR art 3. 8 See, eg, O’Neil v Vermont 144 US 323, 340-1 (Field J) (1892) (‘O’Neil’); Vinter GC [2013] III Eur Court HR 317, 344 [103]; Natasa Mavronicola, ‘Crime, Punishment and Article 3 ECHR: Puzzles and Prospects of Applying and Absolute Rights in a Penal Context’ (2015) 15 Human Rights Law Review 721, 740. 9 Dirk van Zyl Smit, ‘Life Imprisonment as the Ultimate Penalty in International Law: A Human Rights Perspective’ (1999) 9 Criminal Law Forum 5, 30. 10 See, eg, Dirk van Zyl Smit and Catherine Appleton, Life Imprisonment: A Global Human Rights Analysis (Harvard University Press, 2019) 299; Mary Rogan, ‘Discerning Penal Values and Judicial Decision Making: The Case of Whole Life Sentencing in Europe and the United States of America’ (2018) 57(3) The Howard Journal of Crime and Justice 321, 327; Joshua Kleinfeld, ‘Two Cultures of Punishment’ (2016) 68 Stanford Law Review 933, 954. 11 Vinter GC [2013] III Eur Court HR 317. 12 Ibid 358 (concurring opinion of Judge Power-Forde). 13 Rogan, ‘Discerning Penal Values’, supra, 328. 14 See, eg, Natasa Mavronicola, ‘Is the Prohibition Against Torture and Cruel, Inhuman and Degrading Treatment Absolute in International Human Rights Law? A Reply to Steven Greer’ (2017) 17 Human Rights Law Review 479, 486-7.
39
offender’s human dignity – or, to use different language to express the same idea, whether it complies with the requirements of liberalism. Irreducible life sentences do not comply with these requirements, because, rather than reasoning with offenders, they treat them as ‘wild animals to be leashed.’15 That is, by relying on objectification and exclusion, rather than persuasion, the state that authorises or requires the imposition of such sentences acts inconsistently with liberal principle and, therefore, human rights.16
Part C concerns Australian laws that authorise or impose irreducible life sentences; and it considers whether the Australian courts have been able to curb the effects of such laws. It concludes that they have not been able to do so. I particularly focus on the extraordinary NSW and Victorian laws challenged – either directly or indirectly – in, respectively, Elliott v The Queen,17 Crump v New South Wales,18 Knight v Victoria,19 Minogue v Victoria (No 1)20 and Minogue v Victoria (No 2).21 I argue that the HCA’s decisions in the second, third and fifth22 of those cases tell us much about the limits of judicial power, and the judicial law-making function, where the judiciary lacks the power to apply a charter of rights. While it was undoubtedly legally open to the Court in those cases to strike down the relevant laws on the basis of ch III of the Commonwealth Constitution, their Honours instead deployed highly formalistic reasoning to support a less interventionist stance. Similar remarks apply to the HCA’s decision in Elliott. There was no legal reason compelling the Court to reject the appellants’ claim that s 154A of the Crimes (Administration of Sentences) Act 1999 (NSW) had rendered their sentences manifestly excessive. Nevertheless, their Honours refrained from developing the law in such a way as to allow this claim to succeed. In short, this jurisprudence demonstrates the truth of Freiburg’s and Murray’s observation that, without ‘substantive, effective and entrenched human rights legislation’, neither the Commonwealth Constitution nor
15 Jeremy Waldron, ‘How Law Protects Dignity’ (2012) 71 Cambridge Law Journal 200, 203. 16 Many have observed that harsh punishments are a feature of authoritarian regimes, and/or that resistance to them is based upon the liberal suspicion of state power. See, eg, Leon Sheleff, Ultimate Penalties: Capital Punishment, Life Imprisonment, Physical Torture (1987, The Ohio State University Press) 25-34; Luban, ‘Liberalism, Torture and the Ticking Bomb’, supra, 1430; Weems v United States 217 US 349, 372 (1910). 17 (2007) 234 CLR 38 (‘Elliott HCA’). 18 (2012) 247 CLR 1. 19 (2017) 261 CLR 306. 20 (2018) 264 CLR 252. 21 (2019) 93 ALJR 1031. 22 In Minogue (No 1), the Court did not reach the constitutional issue: Minogue (No 1) (2018) 264 CLR 252, 275 [67] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ), 282 [94] (Gageler J), 284 [101] (Gordon J).
40
the common law are likely to place ‘meaningful limits … on the state’s ability to interfere with individual liberties in the sentencing context.’23
In part D, I argue that the ECtHR’s and the UK courts’ case law concerning irreducible life sentences shows that the position can be different when a human rights charter is in force. Two points warrant particular emphasis. First, while two of those who were ‘cemented in their cells’24 by s 154A of the NSW Act (Bronson Blessington and Matthew Elliott) were under the age of 18 when they committed the relevant offences, the ECtHR has strongly suggested in a series of judgments25 that the state may not impose an irreducible life sentence on a child. Secondly, if passed in the UK, the NSW and Victorian laws just noted would clearly be declared incompatible with human rights. This is not only because of art 3 ECHR, which forbids26 a sentence from which release is possible only if the prisoner is ‘terminally ill or physically incapacitated and other additional criteria can be met.’27 Such legislation would also seemingly be contrary to art 6(1)28 – and, in the case of the NSW legislation, arts 5(1) and 7 as well.29 With that said, however, insofar as adult offenders are concerned, the UK position regarding irreducible life sentences is in some ways not appreciably more human rights compliant than that in Australia. For while the ECtHR was careful in Vinter to ensure that its challenge to the UK government was a limited one – it did not insist on a judicial review of the continuing need for a whole life prisoner to be detained once s/he has served around 25 years of his/her sentence30 – that government has fiercely resisted the challenge that was made.31
23 Arie Freiburg and Sarah Murray, ‘Constitutional Perspectives on Sentencing: Some Challenging Issues’ (2012) 36(6) Criminal Law Journal 335, 355. 24 As the former Premier of NSW, Bob Carr, put it. See, eg, Richard Ackland, ‘When Pure Evil Is No Longer the Correct Label’, Sydney Morning Herald (online, 22 April 2005) < https://www.smh.com.au/national/when-pure- evil-is-no-longer-the-correct-label-20050422-gdl6dl.html>. 25 Weeks v United Kingdom [1987] 114 Eur Court HR (ser A), 25 [47] (‘Weeks’); Hussain v United Kingdom [1996] I Eur Court HR 252, 269 [53] (‘Hussain’); V v United Kingdom [1999] IX Eur Court HR 111, 150 [97] (‘V’). 26 Vinter GC [2013] III Eur Court HR 317, 352 [127]; Hutchinson v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 32541/08 and 43441/08, 17 January 2017) [43] (‘Hutchinson’). See also, eg, Murray (2017) 64 EHRR 3, [100] (‘Murray’); Matiošaitis v Lithuania (European Court of Human Rights, Second Section Chamber, Application Nos 22662/13, 51059/13, 58823/13, 59692/13, 59700/13, 60115/13, 69425/13 and 72824/13, 23 May 2017) [162] (‘Matiošaitis’). 27 Vinter GC [2013] III Eur Court HR 317, 352 [126]. 28 R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 (‘Anderson’) 29 M [2009] VI Eur Court HR 169. 30 Vinter GC [2013] III Eur Court HR 317, 349 [120]. 31 See, eg, Mark Pettigrew, ‘A Vinter Retreat in Europe: Returning to the Issue of Whole Life Sentences in Strasbourg’ (2017) 8(2) New Journal of European Criminal Law 128, 131-2; Mark Pettigrew, ‘Retreating from Vinter in Europe: Sacrificing Whole Life Prisoners to Save the Strasbourg Court?’ (2017) 25 European Journal of Crime, Criminal Law and Criminal Justice 260, 262-3.
41
Perhaps it is going slightly too far to argue, as van Zyl Smit and Appleton have done, that ‘the unfortunate effect’ of the England and Wales Court of Appeal’s (‘EWCA’s’) decision in McLoughlin v The Queen32 and the ECtHR Grand Chamber’s decision in Hutchinson v United Kingdom33 ‘is likely to be that whole life orders will continue to make the life sentences to which they apply irreducible in practice.’34 Nevertheless, those commentators are clearly right to insist that these decisions leave such prisoners with bleak prospects of release.
What does the irreducible life sentences case law from the UK and Europe demonstrate about the capacity of human rights charters to combat penal populism? In part D I shall argue, and in part E I shall conclude, that it demonstrates two things. First, as noted in chapter 1, it shows that, while human rights charters facilitate more expansive reasoning than is widely considered to be acceptable in jurisdictions without such an instrument, judges must still consider public opinion when interpreting them. A classic instance of this is the reasoning in Vinter about there being no need for judicial involvement in decisions about whether to release whole life prisoners. Secondly, it indicates – as do the laws at issue in the Minogue and Knight litigation – that, depending on the society in which it operates, a ‘weak-form’ charter such as the HRA and the three existing Australian charters, might not grant prisoners all of the protections that the judicial interpreters of such charters would confer on them. That said, as noted towards the end of chapter 1, charters that provide for ‘strong-form’ review might carry with them a particular risk that the judiciary will become politicised, however much caution the judges exercise when applying them. In chapter 5, I shall return to these latter two points and deal with them more fully.
B. Why Irreducible Life Sentences Are Human Rights Breaches As suggested in chapter 1, if we are to assess whether charters of rights can render the law concerning irreducible life sentences more compliant with human rights, we must first be clear about why such sentences breach the human rights of those on whom they are imposed. As observed above, the idea that they do breach rights has not won universal acceptance; indeed, such a claim clashes with very widely held intuitions in many modern Anglophone democracies about how the state may deal with the most wicked crimes.35 Such intuitions usually have a
32 [2014] 1 WLR 3964. 33 (European Court of Human Rights, Grand Chamber, Application No 32541/08 and 43441/08, 17 January 2017). 34 van Zyl Smit and Appleton, Life Imprisonment, supra, 47. 35 See, eg, New South Wales Sentencing Council, Consultation Paper: Homicide (October 2019) 94 [6.24].
42
retributive focus.36 According to Groves, for instance, ‘a true or full life sentence is not necessarily incompatible with the Victorian Charter, because in some cases an offence is so grave that a life sentence will not contravene human rights principles.’37 And, for Lippke:38
It might be claimed that some crimes are so horrific that those who commit them deserve to spend the rest of their natural lives in prison, even if in prisons more supportive of human dignity than many existing ones. … Some crimes are truly terrible – think of the slaughter of innocents by Anders Brevik. Is it really implausible to claim that persons like him deserve to spend the rest of their lives in prison? It is possible, however, to respond to such concerns. It is not implausible to claim that lifelong incarceration is proportionate to the seriousness of the crimes of a person such as Brevik. But, contrary to what Lippke proceeds to argue, it is unnecessary for opponents of irreducible life sentences to establish that it is. Soon after the passage just quoted, Lippke contends that, if the opponents of irreducible life sentences are to establish that such sentences are human rights violations, they must persuade ‘us that such sentences are cardinally disproportionate.’39 The problem with this is that it implies that the only sentences that are ‘inhuman or degrading punishments’ within the meaning of guarantees such as art 3 ECHR are (grossly) disproportionate ones. So long as a sentence is proportionate, Lippke suggests, it will be compatible with such provisions.
Certainly, as Field J noted in O’Neil v Vermont, punishments that, ‘by their excessive length or severity, are greatly disproportioned to the offenses charged’,40 are incompatible with human rights. The ECtHR has recognised as much;41 and of course I shall be considering this topic in chapter 3. But, as Field J also observed in O’Neil, it is not just grossly disproportionate sentences that are ‘cruel and unusual’ punishments for the purposes of the Eighth Amendment to the United States Constitution. Indeed, he said, ‘[t]hat designation … is usually applied to punishments which inflict torture, such as the rack, the thumb-screw, the iron boot, the stretching of limbs, and the like.’42 To such punishments, the ECtHR has added the death
36 As noted by Nicholas Cowdery QC, ‘Mandatory Life Sentences in New South Wales’ (1999) 22 UNSW Law Journal 290, 291. 37 Groves, ‘A Life Without Hope’, supra, 371. 38 Lippke, ‘Irreducible Life Sentences’, supra, 396. 39 Ibid 397. 40 O’Neil 144 US 323, 340 (1892). 41 Vinter GC [2013] III Eur Court HR 317, 344 [102]. 42 O’Neil 144 US 323, 339 (1892).
43
penalty,43 corporal punishment44 and the slapping of criminal suspects in police custody:45 these punishments, too, it has said, are incompatible with an offender’s human dignity, and therefore with art 3. Was the Strasbourg Court in Vinter46 right to place irreducible life sentences in this category of punishments that are off limits because of their inherent barbarity, and without regard to considerations of proportionality?
For Lord Sumption, it would seem clear, the ECtHR was not right to make such a finding. This is because of his Lordship’s belief that a law or practice will properly be contrary to the ECHR only if it violates a right that ‘the consensus of our societies recognises as truly fundamental.’47 The Convention, he observes, was a response to Nazism, ‘as well as a growing fear of the new totalitarianism then coming into being in the Soviet-dominated communist block.’48 It was aimed at stating rights that were ‘universally’49 – or, at least, ‘almost universally’50 – considered to be fundamental: ‘no torture, no arbitrary killing or imprisonment, freedom of thought and expression, due process of law and so on.’51 To move beyond this, Lord Sumption believes, is to impose ‘non-consensual [judicial] legislation’52 on a community. In other words, it is to act undemocratically.
To an extent, such reasoning is reminiscent of certain claims made by the United States (‘US’) death penalty retentionist, Ernest van den Haag. The collapse of the literal approach to the lex talionis,53 according to van den Haag, does not mean that the death penalty is impermissible: it demonstrates merely that punishment may be more severe than what is required by ‘eye for an eye’ retributivism.54 Nevertheless, he does acknowledge some limits to the means that the
43 Al-Saadoon v United Kingdom [2010] II Eur Court HR 61. 44 Tyrer v United Kingdom (1980) 2 EHRR 1 (‘Tyrer’). 45 Bouyid v Belgium [2015] V Eur Court HR 457 (‘Bouyid’). 46 Vinter GC [2013] III Eur Court HR 317, 346-9 [110]-[119]. 47 Lord Sumption, ‘The Limits of Law’, supra, 10 (Emphasis added). 48 Ibid 6. 49 Jonathan Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, 2019) 56. 50 Ibid 59. 51 Ibid 56. 52 Ibid 58. 53 Such an approach – which requires the punishment to resemble the crime – is unsustainable in cases of rape, for instance, where reciprocity would lead the offender to be punished inhumanely. Moreover, impossibility obstructs the state that seeks to extend the ‘like for like’ principle to, for example, persons convicted of bestiality: Jeffrie G Murphy, ‘Cruel and Unusual Punishments’ in Jeffrie G Murphy, Retribution, Justice, and Therapy: Essays in the Philosophy of Law (1979) 222, 231. 54 Ernest van den Haag, ‘For Capital Punishment’ (1986) 99 Harvard Law Review 1662, 1667; Ernest van den Haag, ‘The Death Penalty Once More’ in Hugo Bedau (ed), The Death Penalty in America: Current Controversies (1997) 445, 453.
44
state may legitimately use to ‘vindicate the law and the social order undermined by the crime.’55 Torture, he holds, is an impermissible punishment because it is ‘repulsive to us.’56 That is, according to such reasoning – like that of Lord Sumption – the judiciary may hold that a particular punishment is ‘inhuman and degrading’ only if the vast majority of people within the relevant community consider that punishment to be unjustifiable. In such cases, there is ‘real oppression’;57 in other cases, the matter must be dealt with politically.58
Of course, if this is correct, it would not just be irreducible life sentences that would avoid classification as ‘inhuman or degrading’ or ‘cruel and unusual’ punishments. So too would many of the other punishments that the ECtHR has stigmatised59 – including the death penalty. Like van den Haag, Davis has explicitly stated that this is so.60 And like that other commentator, Davis’s focus is on the idea of ‘revulsion’61 (previously ‘shock’62). The inhumanity of a punishment, he argues, is a function of neither its severity63 nor any other objectively discoverable fact; rather, it is determined by the feelings it causes most people to experience. ‘To claim that a certain way of treating people is inhumane (in a particular society)’, he says64
is to claim that its use … [revolts] all or almost all (in that society). Treatment … [revolting] at most a few is not inhumane. Treatment … [revolting] many but far from all is neither clearly inhumane nor clearly not inhumane. Accordingly, whatever Davis’s personal views about the death penalty’s inhumanity, he considers that it cannot yet be said to be clearly inhumane.65 Irreducible life sentences might
55 van den Haag, ‘For Capital Punishment’, supra, 1667. 56 van den Haag, ‘The Death Penalty Once More’, supra, 454. Elsewhere, however, van den Haag announces that he might be able to be persuaded to, ‘overcome [his] … revulsion’: Ernest van den Haag, ‘Refuting Reiman and Nathanson’ (1985) 14 Philosophy and Public Affairs 165, 171. 57 Sumption, ‘The Limits of Law’, supra, 10. 58 Ibid. 59 See text accompanying nn 43-5. 60 Michael Davis, ‘Death, Deterrence and the Method of Common Sense’ (1981) 7 Social Theory and Practice 145, 167-71. 61 Michael Davis, ‘Torture and the Inhumane’ (2007) 26 Criminal Justice Ethics 29, 38. 62 Michael Davis, ‘The Moral Justifiability of Torture and Other Cruel, Inhuman, or Degrading Treatment’ (2005) 19 International Journal of Applied Philosophy 161, 168. 63 As argued below, this is clearly right. ‘Birching’ a person is a less severe but more inhumane penalty than a proportionate term of imprisonment: see Tyrer (1980) 2 EHRR 1. 64 Davis, ‘The Moral Justifiability of Torture’, supra, 168. 65 Michael Davis, ‘A Sound Retributive Argument for the Death Penalty’ (2002) Criminal Justice Ethics 22, 25; Michael Davis, ‘The Death Penalty, Civilisation and Inhumaneness’ (1990) 16 Social Theory and Practice 245, 254-6.
45
fit within the same category; alternatively, they might revolt only a few. In either case, if Davis is right, they too cannot properly be said to be human rights breaches.
It is submitted, however, that Davis is not right. The problem with his argument, and that of Lord Sumption, is that it confuses the requirements of a particular conception of democracy with the scope of human rights protection. As Lord Sumption has in fact suggested, the whole aim of human rights charters is to ‘limit … or dilut[e] … the power of majorities’;66 they place liberal constraints67 on government action. Given that this is so, the fact that a majority of persons in a political community support the imposition of irreducible life sentences in some circumstances, cannot be a serious objection to a finding that such sentences nevertheless breach human rights.68 Of course, one can argue, as Lord Sumption has, that ‘democratic choice’ should not be limited in such a way.69 In chapter 5, I consider this argument against charters of rights. But for as long as such a charter is present in a jurisdiction, the question to ask when assessing whether a particular punishment comports with its requirements is not: ‘is that punishment supported by a majority of voters?’ It is instead: ‘does that punishment comply with the dictates of liberal principle?’
In the case of irreducible life sentences, the answer to this question is ‘no.’ Or, to put the matter differently, courts around the world70 have rightly held that such sentences are contrary to the human dignity of those upon whom they are imposed. We have seen that Lord Sumption has noted, and van den Haag has conceded, that there is seemingly an almost universal consensus concerning the impermissibility of torture as punishment. While, consistently with what I have just argued, such a consensus is not determinative of a punishment’s incompatibility with human rights – and while the evaporation of such a consensus could never legitimise the torture of criminals71 – torture does clearly breach such standards. So, the question arises: what property does such a punishment possess that bears out these common intuitions about its unjustifiability? When we answer that question, we can see that that property is shared by the
66 Sumption, ‘Trials of the State’, supra, 26. 67 See ibid 70. 68 A point made by Murphy, ‘Cruel and Unusual Punishments’, supra, 225. 69 Sumption, ‘Trials of the State’, supra, 82. 70 Vinter GC [2013] III Eur Court HR 317, 347 [113]; Makoni v Commissioner of Prisons [2016] ZWCC 8; Life Imprisonment case 45 BVerfGE 187 (1977). See also Blessington v Australia UN Doc CCPR/C/112/D/1968/2010 (22 October 2014). 71 As Tonry has indicated, ‘common intuitions’ can never be regarded as a ‘principled justification for anything’: Michael Tonry, ‘Punishment and Human Dignity: Sentencing Principles for Twenty-First-Century America’ (2018) 47(1) Crime and Justice 119, 135. Experience shows that such intuitions – about, for example, ‘racial, gender, ethnic, and sexual preference differences’ (at 135) – have frequently led to breaches of human rights.
46
irreducible life sentence – and also by the other punishments that the ECtHR has held to be inherently barbaric.
Murphy gets to the nub of the issue when he observes that torture is inconsistent with human dignity, and thus with liberalism and human rights, because its aim is not to ‘enter into discourse’ with the punished, but rather to ‘reduce him to … a mere thing.’72 Luban makes similar remarks. The liberal horror of torture, he explains, stems from the fact that it ‘tyrannize[s] and dominate[s] the victim’;73 it treats him/her not as ‘our likeness’ but, instead, as ‘the enemy.’74 Two ideas seem to predominate here: objectification and exclusion. By treating such offenders other than as rational agents, and by failing to reason with them, the state has failed to treat these persons as persons.75 Unlike human beings, they are seen as being beyond the reach of persuasion; they are ‘things’ to be controlled. The state has also necessarily treated them as having excluded themselves from membership of the community. Only humans enjoy such membership; those who are incapable of ‘moral deliberation’76 do not.
At the heart of all of this is the idea that, to be valid, a punishment must be an act of ‘moral communication.’77 Once the state abandons such communication, and relies instead on intimidation and force, it uses authoritarian methods that are inimical to the liberty of the individual. We have seen that van den Haag believes that the aim of punishment is to ‘vindicate the … social order.’78 It must, that is, do whatever is necessary to create order and protect the public from criminal violence and irresponsibility (apart, perhaps, from torturing offenders). As Pratt has shown, like views underlie penal populism. ‘Penal populism’, he says79
demands that the rights of victims, the rights of communities, must take precedence over the rights of individual criminals. Furthermore, penal populism also seeks opportunities to turn the punishment of offenders into a symbolic spectacle of reassurance and vengeance for an onlooking public …
72 Murphy, ‘Cruel and Unusual Punishments’, supra, 233 (Original emphasis). 73 David Luban, ‘Liberalism, Torture and the Ticking Bomb’, supra, 1430. 74 David Luban, ‘Human Dignity, Humiliation, and Torture’ (2009) 19 Kennedy Institute of Ethics Journal 211, 226. 75 Murphy, ‘Cruel and Unusual Punishments’, supra, 233. 76 von Hirsch and Andrew Ashworth, Proportionate Sentencing, supra, 77. 77 Ibid 91. 78 See text accompanying n 55. 79 Pratt, Penal Populism, supra, 30.
47
Under such an approach, criminals may be used to achieve some higher good (for example, the reassurance of the community); they need not be treated with either concern or respect.80 Liberals are willing to countenance only a far more limited state than this.
Once we conclude that liberal, rights-respecting punishment requires the state to treat offenders both as persons and citizens, by reasoning with them, it seems ineluctably to follow that the ECtHR has been right to stigmatise the punishments that it has. The death penalty treats those upon whom it is imposed, not as ‘ordinary people who have committed crimes’81 – who, if possible, are to be restored to the community – but as ‘morally deformed people’82 who cannot be communicated with and ‘who must be excluded.’83 And corporal punishment84 – indeed, even the slapping of a criminal suspect in police custody85 – is also a human dignity violation. According to the Strasbourg Court in Tyrer v United Kingdom, the former did not cause the applicant to ‘suffer any severe or long-lasting physical effects’;86 but he was ‘treated as an object in the power of the authorities.’87 According to the same court in Bouyid v Belgium, if the latter caused no physical harm in the instant case, that, again, was irrelevant.88 Rather, ‘any recourse to physical force which has not been made strictly necessary by a person’s conduct’89 is contrary to art 3 ECHR – ‘whatever the impact on the person in question.’90 As Mavronicola has pointed out in a series of articles,91 unlike a proportionate penalty or self-defensive physical force, such violence is not a tailored response to (perceived) wrongdoing. Therefore, it is neither necessary nor an act of persuasion. Rather, it is an attempt to crush; it is an oppressive act aimed at forcing compliance.
80 See Tonry, ‘Punishment and Human Dignity’, supra, 120-1, citing Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977). 81 Kleinfeld, ‘Two Cultures of Punishment’, supra, 941. 82 Ibid. 83 Ibid 949. 84 See, eg, Tyrer (1980) 2 EHRR 1. 85 Bouyid [2015] V Eur Court HR 457. 86 Tyrer (1980) 2 EHRR 1, [33]. 87 Ibid. 88 Bouyid [2015] V Eur Court HR 457, 494 [101]. 89 Ibid 494 [100]. 90 Ibid 494 [101]. 91 Mavronicola, ‘Crime, Punishment and Article 3 ECHR’, supra, 733-6; Natasa Mavronicola, ‘‘Güler and Öngel v Turkey: Article 3 of the European Convention on Human Rights and Strasbourg’s Discourse on the Justified Use of Force’ (2013) 76(2) Modern Law Review 370, 378-9; Mavronicola, ‘Is the Prohibition Against Torture and Cruel, Inhuman and Degrading Treatment Absolute in International Human Rights Law?’, supra, 486-7.
48
Similar remarks apply to irreducible life sentences. Those who stigmatise this punishment do so because, like the death penalty, it: ‘write[s] off a human being as irredeemable’;92 expresses ‘pessimism’93 about him/her; marks him/her as ‘a morally ruined human being, [who must] … be permanently barred from social membership’;94 and ‘extinguish[es] the goal of rehabilitation.’95 Again, concerns about objectification and exclusion are apparent. And, again, these concerns overlap.
The state is treating a person who is serving an irreducible life sentence as an object in the following sense. Rather than treating him/her as ‘an irreplaceable and unique person’96 who is not defined by the crime(s) that s/he has committed97 and is capable of deliberation – as it would if it treated him/her as being able to reform in response to persuasion – the state instead treats him/her as nothing more than something to be contained. Various scholars have emphasised egalitarianism in this context.98 They have been right to do so. For, as soon as the state denies offenders’ ‘fundamental humanity’– that is, as soon as it disregards their personhood – it necessarily also denies that they enjoy the same status as other humans.99 They do not matter;100 the state can treat them however it considers to be expedient. Certain comments in recent Australian parliamentary debates are eloquent of such a philosophy. For example, in the Victorian Legislative Council in 2018, Ms Crozier objected in strong terms to a Labor member’s decision to refer to Craig Minogue as ‘Dr Minogue.’101 ‘He is an absolute, horrendous criminal,’ she said, ‘and you give him the dignity of that.’102 In other words, however much reform the prisoner might have achieved, s/he must always now have the status
92 van Zyl Smit and Appleton, Life Imprisonment, supra, 300. 93 Rogan, ‘Discerning Penal Values’, supra, 328 94 Kleinfeld, ‘Two Cultures of Punishment’, supra, 955. 95 Mavronicola, ‘Crime, Punishment and Article 3 ECHR’, supra, 737. 96 Jürgen Habermas, ‘The Concept of Human Dignity’, supra, 474. 97 Rogan, ‘Discerning Penal Values’, supra, 333. 98 See, eg, Michael Tonry, ‘Equality and Human Dignity: The Missing Ingredients in American Sentencing’ (2016) 45(1) Crime And Justice 459, 469-70; Habermas, ‘The Concept of Human Dignity’, supra, 467, 469, 478. 99 See Kleinfeld, ‘Two Cultures of Punishment’, 941. 100 See ibid 986. 101 During his lengthy period of imprisonment, Craig Minogue has become literate and obtained a doctorate: Paul Daley, ‘A U-turn on the road to redemption: Craig Minogue and the Russell Street Bombing’, The Guardian, 26 August 2018
49
of an incorrigible ‘criminal’ who lacks the ‘dignity’ attaching to those law-abiding individuals who have not (yet) ‘forfeited their moral humanity.’103
By treating such a person as an object, the state necessarily at the same time excludes him/her from membership of the community. The point can be made briefly. Because the person is not a responsible actor who is amenable to reason and persuasion, but a ‘beast’ that is incapable of self-control and must be ‘caged’,104 s/he is an ‘enemy of the social order’105 and must be ‘banish[ed] … from social life.’106
Two further points must be made. The first concerns the argument, noted above, that an irreducible life sentence is compatible with human rights, because such a sentence in fact does not deprive offenders of all hope. (An allied point is that is kinder to inform certain offenders that they will remain in gaol for life than it is to lead them wrongly to believe that there is a realistic possibility of their being released.107) The difficulty with such arguments is that they assume that a particular punishment’s compatibility with human rights is determined subjectively – that is, by assessing the harm that it causes the individual on whom it is imposed – rather than objectively – that is, by considering whether the state has treated the person without regard for his/her ‘unique worth.’108 As we have seen, that is not so. The police officer who shoots another in the leg ‘as the minimum measure necessary’ to resist an attack from that person, has inflicted severe suffering on him/her.109 The police officer who gratuitously slaps a criminal suspect might inflict no real suffering on that person.110 Yet it is the second act that amounts to ‘inhuman or degrading treatment.’ Why? It is because, as Lord Kerr has explained, conduct that, when ‘examined out of context’, might be thought to be insufficiently severe to engage art 3 ECHR, can in fact be brought within the scope of that Article by the motivations
103 Kleinfeld, ‘Two Cultures of Punishment’, supra, 985. 104 van Zyl Smit and Appleton, Life Imprisonment, supra, 47, quoting Indra Warnes, ‘Triple Murderer Arthur Hutchinson’s Latest Appeal Against UK Whole Life Sentences Dismissed by EU Human Rights Judges’, The Sun, 18 January 2017
50
of s/he who performs it.111 And, contrary to what his Lordship proceeded to suggest,112 such motivations can also take outside the scope of the Article conduct that might at first appear to be of such severity as naturally to enliven its protections. An offender’s right not to have an irreducible life sentence imposed on him/her is not the ‘right to hope.’113 It is the right to have the state respect his/her agency114 and personhood. Accordingly, the ‘life means life’ prisoner is having his/her human rights breached, however optimistic s/he might feel.115
The second point is this. Some might consider the above argument to be excessively idealistic. According to it, we must treat even the worst offenders as possessing the human capacity to reason. But, it might be said, what about those offenders who will not be reasoned with? By treating such offenders as being immune to moral appeals, is not the state merely being realistic?116 There seems to be an easy answer to such objections. To say that irreducible life sentences are morally impermissible is not to say that a life sentence should always be reduced. Indeed, the ECtHR has acknowledged as much. According to it, a reducible life sentence is perfectly compatible with art 3;117 and there will be no breach of that Article if a person upon whom such a sentence has been imposed ends up serving his/her full sentence because s/he remains dangerous.118 However, by punishing a person in the first place, we are treating him/her as a responsible agent who has made a genuine choice to break the law.119 It would be inconsistent with such an approach to treat him/her, once s/he is imprisoned, as having somehow lost the ability to reason and choose. The life prisoner who, in the event, is unpersuaded by the reasons supplied by the prison system for desistance from crime, must
111 Re Northern Ireland Human Rights Commission’s Application for Judicial Review (Reference by the Court of Appeal (Northern Ireland)) [2019] 1 All ER 173, 248 [218]. 112 Ibid. 113 Cf Vinter GC [2013] III Eur Court HR 317, 358 (concurring opinion of Judge Power-Forde). 114 Mavronicola, ‘Güler and Öngel v Turkey’, supra, 382. 115 Cf Lippke, ‘Irreducible Life Sentences’, supra, 389-91. 116 Consider the psychopath, for example – do we really have to try to reason with him/her? Jeffrie Murphy, ‘Moral Death: A Kantian Essay on Psychopathy’ (1972) 82(4) Ethics 284 concludes that we do. Because psychopaths are beyond the reach of moral appeals, Murphy agrees that they are ‘from the moral point of view’ not persons: at 294. However, he counsels against allowing the state to identify individuals as psychopaths and then, for example, impose objectifying punishments on them. This is partly because ‘[t]here are obvious and grave dangers, calling to mind Nazi Germany, in creating any political or legal authority to decide who is and who is not to count as a person’: at 296. 117 Vinter GC [2013] III Eur Court HR 317, 345 [106]. 118 Ibid 345-6 [108]. 119 If s/he were non-responsible, but dangerous due to a mental illness, punitive detention would be an inappropriate response. See, eg, Foucha v Louisiana, 504 US 71, 83 (1992) (‘Foucha’); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27 (‘Lim’).
51
serve his/her full sentence. But the life prisoner who achieves reform – as many appear to do120 – should be released if s/he has served the punitive component of his/her sentence.121 There is no illogicality in that.
C. The Australian Position (i) The Various Australian Jurisdictions
The question now arising is whether the Australian courts, in cases where they lack the power to apply a charter of rights, have placed any limitations on the state’s power to impose an irreducible life sentence on an individual. But before we answer that question, we must briefly note the relevant legal position in the various Australian jurisdictions. In which jurisdictions can irreducible life sentences be imposed? And how frequently are they imposed?
Irreducible life sentences can be imposed under Commonwealth law,122 and in NSW,123 Victoria,124 Western Australia125 (‘WA’), Tasmania,126 the Northern Territory127 and the ACT.128 The only jurisdictions in which the courts cannot impose such a sentence, therefore, are Queensland129 and South Australia130 (‘SA’) – although, with that said, the position in SA has its complexities. In R v Miller, Doyle CJ held131 that, when a court considers an application132 for a non-parole period by a life sentence prisoner who was not granted such a
120 As noted by Allen J in R v Crump (Unreported, NSW Court of Criminal Appeal, 30 May 1994). 121 As suggested above, and noted below, the European Court has indicated that the very worst offenders should be eligible for release after they have served 25 years of their respective sentences: Vinter GC [2013] III Eur Court HR 317, 349-50 [120]. 122 Crimes Act 1914 (Cth) s 19AB(3) empowers judges not to fix a non-parole period for federal offences, some of which carry maximum terms of life imprisonment: see, eg, Criminal Code Act 1995 (Cth) s 307.1(1). 123 See, eg, Crimes Act 1900 (NSW) ss 19A(1) and (2). 124 Sentencing Act 1991 (Vic) s 11(1). 125 Sentencing Act 1995 (WA) s 90(1)(b), (3) and (4). 126 Sentencing Act 1997 (Tas) s 18(1)(a), (2) and (4). 127 Sentencing Act 2003 (NT) ss 53(1), 53A(5); Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) ss 17-18, 19(1)(a)(ii) and (5). 128 Crimes (Sentencing) Act 2005 (ACT) s 65(5) provides that, if a life sentence is imposed, ‘the court must not set a nonparole period’ (although see s 68); and under Crimes (Sentence Administration) Act 2005 (ACT) s 290(1), only the Attorney-General, and not the offender, may (but is not required to) initiate an inquiry by the Sentence Administration Board into whether a recommendation should be made to the Executive that the offender be released on licence: see Eastman v ACT (2014) 285 FLR 325, 332 [28]. 129 Corrective Services Act 2006 (Qld) s 181. 130 Sentencing Act 2017 (SA) s 47(3) and 5(e). 131 (2000) 76 SASR 151, 160 [41]. 132 Sentencing Act 2017 (SA) s 47(3) permits such an application to be made.
52
term by his/her sentencing judge,133 it must decline to do so if the ‘gravity of the offences and the community sense of justice’ warrant this. The implication is that, in reality, irreducible life sentences are possible in that jurisdiction. The offender who has committed an offence of extreme gravity may apply for a non-parole period, while s/he is serving his/her sentence; but such an application will certainly not succeed.134
Certainly, in all Australian jurisdictions, judges have exercised restraint when deciding whether such a sentence is warranted. The NSW Court of Criminal Appeal (‘NSWCCA’) has acknowledged the ‘terrible significance of a sentence of life imprisonment [without the possibility of parole]’ and that such a sentence should be reserved for ‘the worst type of case.’135 Similar language has been used,136 and a similar reluctance to impose irreducible life sentences, has been evident in Victoria.137 Moreover, it appears that only one such sentence is being served in Tasmania;138 Doyle CJ’s actual decision in Miller – to fix a non-parole period of 35 years for an offender who participated in six murders139 – demonstrates that it is unusual that punitive considerations are thought to require an offender to remain in gaol for life in SA; and irreducible life sentences are imposed only rarely for Commonwealth offences140 and in
133 Sentencing Act 2017 (SA) s 47(5)(e) empowers the sentencing judge not to set a non-parole period. 134 The notorious Snowtown ‘bodies in the barrel’ murderers, John Bunting and Robert Wagner, appear to be in this position: see R v Wagner [2019] SASC 70, especially [91]-[103]. 135 R v Garforth (Unreported, NSW Court of Criminal Appeal, 23 May 1994). 136 R v Camilleri [1999] VSC 184, [37]. See also R v Coulston [1997] 2 VR 446, 463 (‘Coulston’). 137 See R v Denyer [1995] 1 VR 186, especially2 192-3 (Crockett J). Cf Coulston [1997] 2 VR 446, 462-3. 138 R v Bryant (Unreported, Supreme Court of Tasmania, Cox CJ, 22 November 1996). 139 (2000) 76 SASR 151, 161 [46]. 140 See, eg, R v Lee [2007] NSWCCA 234, [36], where McClellan CJ at CL provided a summary of sentences imposed where offenders had been convicted of Commonwealth drug importation offences. Of the fifty-two offenders mentioned there, only two, Wei Ming Chen and Khong Hoi Lau, had had irreducible life sentences imposed on them: see Chen v R (2002) 130 A Crim R 300, 381-2 [279]-[285].
53
the Northern Territory,141 WA142 and the ACT.143 Nevertheless, in most Australian jurisdictions, there are prisoners serving irreducible life sentences. Moreover – and this returns us to the question noted at the beginning of this Part – in those jurisdictions where there is no charter of rights in force, the affected prisoners lack any domestic legal remedy for this breach of their human rights. In Victoria and the ACT, the position is more complex; but I shall deal with that issue later in this chapter.
(ii) Problems in NSW and Victoria
a. Introductory
This brings us to recent NSW and Victorian laws that have taken the possibility of parole away from certain high-profile life sentence prisoners in those States. I have just indicated that, if a judge imposes an irreducible life sentence on an Australian offender, then, in the absence of a charter of rights in the relevant jurisdiction, the prisoner ordinarily must serve the sentence. Of course, s/he may appeal against it;144 but if such an appeal is unsuccessful, s/he will be unable plausibly to argue that the provision authorising the sentence is constitutionally invalid. But what about if a judge sentences a prisoner to life imprisonment with the possibility of parole, only for Parliament to pass a law that purports to remove that possibility? Even without a charter of rights, might such a law be unconstitutional? Alternatively, might the prisoner be able successfully to challenge it on some other basis?
141 Leach v The Queen (2007) 230 CLR 1 (‘Leach HCA’) is a Northern Territory case in which an irreducible life sentence was imposed. Nevertheless, it seems to demonstrate that the Northern Territory courts will only unusually impose such a sentence. The Director of Public Prosecutions there argued that an irreducible life sentence should be substituted for the 25-year period that had automatically been imposed on the prisoner by the relevant transitional provisions of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT). At first instance, Martin CJ found that, in exercising its discretion under s 19(5) of the Act – which provides that the Court ‘may refuse to fix a non-parole period if satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his natural life without the possibility of release on parole’ – the Court may consider the offender’s prospects of rehabilitation and the progress towards rehabilitation that s/he has already made: R v Leach (2005) 145 NTR 1, 45 [220]. See also R v Crabbe (2004) 150 A Crim R 523, 538 [76] (Martin CJ). In the HCA, Gleeson CJ approved this interpretation – as, seemingly, did the other members of the Court: Leach HCA (2007) 230 CLR 1, 11 [18]-[19], 18 [39]. 142 Only in 2019 was the first irreducible life sentence imposed in that State: David Weber and Joanna Menagh, ‘Bedford Mass Killer Anthony Harvey Gets Historic Life Sentence for Stabbing His Family to Death’, ABC (online)
54
As we shall see, the Australian courts have returned negative responses to these questions. In a number of recent cases, the prisoners targeted by the NSW and Victorian laws to which I have just referred – laws, that is, that do purport to remove the possibility of parole from them – have challenged those laws on constitutional and other grounds. But while, in each of these cases, the prisoners’ legal arguments were strong, the judiciary invariably declined to uphold them. This appears to have been for the reasons outlined in chapter 1. Without a charter of rights expressly authorising the judiciary to protect human rights against populist legislative manoeuvres, the courts will ordinarily only develop the law consistently with prevailing ‘social values.’145
b. The 1997 NSW legislation and the HCA’s response in Baker
On 20 April 1974, Taylor J, sitting in the NSWSC, sentenced Kevin Crump and Allan Baker to life imprisonment for the murder of Ian Lamb and conspiracy to murder Virginia Morse.146 As French CJ later noted in the HCA, ‘[t]he killings were callous, and in the case of Mrs Morse, preceded by pitiless and degrading abuse.’147 In declining to set a non-parole period, Taylor J told the offenders:148
I believe that you should spend the rest of your lives in gaol and there you should die. If ever there was a case where life imprisonment should mean what it says – imprisonment for the whole of your lives – this is it.
At the time, this ‘non-release recommendation’149 had no legal effect.150 Accordingly, on 24 April 1997, McInerney J, acting pursuant to s 13A of the Sentencing Act 1989 (NSW), re- determined Cump’s sentence, imposing upon the offender a minimum term of 30 years and a maximum sentence of life imprisonment.151 A fortnight later, amid public furore, the NSW Parliament passed legislation that purported152 greatly to restrict judges’ ability to grant a non-
145 Chief Justice Susan Kiefel, ‘Social Values and the Criminal Law’s Adaptability to Change’ (Speech delivered at the International Criminal Law Congress Byron Bay, 6 October 2018) 8. 146 The actual murder of Mrs Morse occurred in Queensland, so the NSWSC had no jurisdiction concerning it. 147 Crump (2012) 247 CLR 1, 7 [1]. 148 R v Crump (Unreported, Supreme Court of NSW, Taylor J, 20 April 1974). 149 As described by Crimes Administration of Sentences Act 1999 (NSW) s 154A. 150 Crump (2012) 247 CLR 1, 8 [2] (French CJ); Jamieson v R (1992) A Crim R 68, 80 (Gleeson CJ, with whom Lee AJ and Hope AJA agreed) (‘Jamieson’). In Jamieson, the Chief Justice stated that he did not support such recommendations: at 80. 151 R v Crump (Unreported, Supreme Court of NSW, McInerney J, 24 April 1997). 152 The law in fact did not apply to one of those prisoners, Bronson Blessington. It applied only to applications brought after the day on which the relevant Bill had been introduced into Parliament, and Blessington had already by that stage applied for a sentence redetermination: R v Elliott (2006) 68 NSWLR 1, 9 [23] (Spigelman CJ) (‘Elliott NSWCCA’). Only in 2005, with the passage of Crimes (Sentencing Procedure) Amendment (Existing Life
55
parole period to the remaining nine NSW prisoners whose sentencing judge had recommended should never be released. From now on, ‘non-release recommendation prisoners’ could bring a re-determination application only after 20 years, and had to establish ‘special reasons’ if they were to succeed.153
A majority of the HCA in Baker154 found that legislation to be constitutionally valid. In that case, Baker argued that, as in Kable,155 the NSW Parliament was using the NSWSC to implement a legislative decision that the relevant prisoners never be released,156 and had thus conferred on it a function that was ‘incompatible with its role as a repository of federal jurisdiction.’157 But, in response to this, Gleeson CJ noted that the ‘special reasons’ requirement was not impossible to satisfy.158 And while the plurality accepted that McInerney J had ‘alter[ed] … or var[ied] the order of the sentencing judge’,159 their Honours did not accept that Parliament had altered McInerney J’s sentence. The legislation at issue had merely altered the conditions that the prisoners had to satisfy if they were to be released.160 It had not made their sentences of life imprisonment ‘more punitive or burdensome to liberty.’161
Four things must be noted. First, the majority’s conclusion was not the only one that was legally open to it.162 As Kable itself showed, and contrary to what Gleeson CJ stated,163 it was unnecessary for the applicant to demonstrate that it was impossible for him to satisfy the ‘special reasons’ standard. This is because the majority struck down the law at issue in that earlier case even though the NSWSC retained some discretion concerning whether to order
Sentences) Bill 2005 (NSW), did the NSW Parliament finally succeed in placing Blessington in the same position as the other non-release recommendation prisoners. 153 Baker (2004) 223 CLR 513, 519 [2]-[3] (Gleeson CJ). 154 Ibid. 155 (1996) 189 CLR 51. 156 Baker (2004) 223 CLR 513, 522 [11] (Gleeson CJ). 157 Ibid 519 [5] (Gleeson CJ). 158 Ibid 525 [17]-[19]. 159 Ibid 529 [33] (McHugh, Gummow, Hayne and Heydon JJ). 160 Ibid 528 [29]. 161 Ibid. 162 Other commentators, too, have noted that the decisions in Baker – and/or Fardon – were not legally inevitable. See, eg, Oscar Roos, ‘Baker v The Queen and Fardon v Attorney-General for the State of Queensland’ (2005) 10 Deakin Law Review 271, 279-82; Dan Meagher, ‘The Status of the Kable Principle in Australian Constitutional Law’ (2005) 16 Public Law Review 182, 185; Fiona Wheeler, ‘The Kable Doctrine and State Legislative Power over State Courts’ (2005) 20(2) Australasian Parliamentary Review 15, 26. 163 Baker (2004) 223 CLR 513, 525 [19].
56
Kable’s preventive detention.164 Moreover, the fact that the Baker law’s clear aim and effect was to ‘ensure, as far as legislation can do it’,165 that a small, identifiable group166 of unpopular offenders would be imprisoned for life, did tend to strengthen the inference that, as in Kable, Parliament was ‘making the Supreme Court a party to and responsible for implementing a political decision of the executive.’167
Secondly, it is not only Gleeson CJ who deployed questionable168 reasoning. There is force in Kirby J’s contention169 that there was some formalism in the plurality’s conclusion that the relevant offenders’ sentences had not been ‘made heavier’ or ‘more punitive.’170 Admittedly, such reasoning is not nearly as implausible as that favoured in subsequent cases (discussed later in this chapter): on one view, Parliament had merely changed – albeit significantly – the conditions that these prisoners needed to satisfy if they were to be released. Nevertheless, it was perhaps arguable that, as Kirby J found,171 the new conditions were so stringent as to make the sentence more ‘burdensome.’172 At the very least, the plurality’s reasoning was a precursor of the undoubtedly extremely unpersuasive and formalistic reasoning that the Court deployed in Crump, Knight and Minogue (No 2).
Thirdly, such formalistic and/or highly contestable reasoning is surely evidence of a judicial ‘desire … to reach a particular conclusion.’173 In his judgment in Baker, Gleeson CJ indicated
164 Indeed, as McHugh J noted in Kable, Grove J had ultimately decided not to make an order renewing such detention: Kable (1996) 189 CLR 51, 123. 165 Ibid 122 (McHugh J). 166 As Kirby J noted, although this was not a one-person law, its application only to ten persons meant that it was to this extent ‘ad hominem in nature’: Baker (2004) 223 CLR 513, 547 [94]. 167 Kable (1996) 189 CLR 51, 124 (McHugh J). 168 This is not to say that his Honour’s reasoning was wrong, or that he should not have used it. Indeed, I adhere to the view (see Dyer, ‘Irreducible Life Sentences: What Difference Have the European Convention on Human Rights and the United Kingdom Human Rights Act Made?’, supra, 563-4) that the Baker majority was probably right to act as it did. 169 Baker (2004) 223 CLR 513, 549 [104]. 170 Ibid 528 [29] (McHugh, Gummow, Hayne and Heydon JJ). 171 Ibid 549 [104]. 172 Justice Kirby thought that the law converted the prisoners’ sentences from reducible life sentences into irreducible life sentences: ibid 559 [137]. But, especially in the case of the two targeted offenders who were juveniles when they offended, there seemingly remained some prospect of release. In this regard, Gleeson CJ considered that a judge could treat an offender’s extreme youth at the time of offending as a ‘special reason’: 525 [17]. And Callinan J held that matters such as ‘improved prospects of rehabilitation … [and] genuine contrition’ (574 [176]), either alone or in combination with other factors (573-4 [175]), might be capable of qualifying. On the other hand, some of the other factors that his Honour referred to – ‘senility, disability … [or] an act of heroism in prison’ (574 [176]) – would not by themselves prevent a sentence from being regarded as irreducible: see, eg, Murray (2017) 64 EHRR 3, [100], concerning the first two of these factors. And, on any view, the impugned law did seem to make it practically impossible for at least most of the prisoners ever to be released. 173 Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’, supra, 109.
57
why the majority might have been unwilling to uphold the Kable challenge in that case. The Kable principle, he said174
was not an invention of a method by which judges may wash their hands of responsibility of applying laws of which they disapprove. In some of the judgments in Kable, references were made to public confidence in the courts. Confidence is not something that exists in the abstract. It is related to some quality or qualities which one person believes to exist in another. The most basic quality of courts in which the public should have confidence is that they will administer justice according to law. These remarks were not made in a vacuum. As noted in chapter 1, in the years before Gleeson CJ was appointed Chief Justice of the HCA in 1998, a perception had arisen in some quarters that, in certain cases, the Court had not ‘administer[ed] justice according to law’,175 and had ‘washed [its] hands’176 of applying laws of which it disapproved. That is, some thought that, in cases such as Australian Capital Television Pty Ltd v Commonwealth,177 Dietrich,178 Mabo v Queensland (No 2),179 Wik180 and Kable itself, the Court had arrived at its decisions on ideological rather than legal grounds.181 It was in this context that the ‘Gleeson Court’ drew the ‘subtle distinctions’182 it did in Baker – and in Fardon,183 which it decided on the same day. Underlying such an approach seems to have been a desire to restore confidence in the Court,184 as well as a realisation that, if it had instead used the controversial Kable principle to strike down legislation that targeted widely reviled murderers and sex offenders, further claims of ‘judicial activism’ were only too likely to result.
Fourthly, and relatedly, there were indications in the judgments of both Gleeson CJ and McHugh J in Fardon that, once a charter of rights is enacted in a jurisdiction, the judiciary enjoys greater freedom to intervene in cases involving ‘patently unjust’185 legislation that raises
174 Baker (2004) 223 CLR 513, 519-20 [6]. 175 Ibid (Emphasis added). 176 Ibid. 177 (1992) 177 CLR 106. 178 (1992) 177 CLR 292. 179 (1992) 175 CLR 1. 180 (1996) 187 CLR 1. 181 See, eg, Heydon, ‘Judicial Activism’, supra; Wheeler and Williams, ‘‘Restrained Activism’’, supra, especially 37-50; James Allan and The Hon Michael Kirby AC CMG, ‘A Public Conversation on Constitutionalism and the Judiciary Between Professor James Allan and the Hon Michael Kirby AC CMG’ (2009) 33 Melbourne University Law Review 1032, 1041. 182 Wheeler, ‘The Kable Doctrine’, supra, 26. 183 (2004) 223 CLR 575. I discuss Fardon further in chapter 4. 184 The Gleeson Court seems to have been successful in this undertaking: Wheeler and Williams, ‘‘Restrained Activism’’, supra, 56. 185 Fardon (2004) 223 CLR 575, 601 [41] (McHugh J).
58
‘[s]ubstantial questions of civil liberty.’186 For the Chief Justice, it was significant that, unlike in the US and Canada187
[i]n Australia, the Constitution does not contain any general statement of rights and freedoms. Subject to the Constitution, as a general rule it is for the federal Parliament, and the legislatures of the States and Territories, to consider the protection of the safety of citizens in the light of the rights and freedoms accepted as fundamental in society. Likewise, McHugh J stressed that legislation that ‘could not be countenanced in a society with a Bill of Rights’188 might well survive constitutional challenge in Australia. And he also emphasised, as of course Gleeson CJ had in Baker,189 that he was unwilling to use Kable to strike down legislation simply because he considered it to be ‘foolish [or] unwise.’190 As argued below, these Justices were right to observe that charters of rights facilitate more expansive reasoning, and bolder results, in cases involving the liberty of the subject. Because such charters provide the courts with an explicit mandate to determine whether a law is contrary to human rights, they give the judges greater scope to protect unpopular minorities from legislative tyranny.
c. The 2001 NSW legislation and the HCA’s response in Elliott and Crump
As indicated above, the legislation upheld by the majority of the HCA in Baker applied to the NSW prisoners apart from Kevin Crump in respect of whom sentencing judges had made a ‘non-release recommendation.’ Because McInerney J had already re-determined Crump’s sentence, granting him a non-parole period, Crump was required to persuade no one that he satisfied the ‘special reasons’ requirement in the amended Act. In 2001, however, the NSW Parliament passed legislation that purported to191 remove any prospect that either Crump or any of the other ‘non-release recommendation’ prisoners would be released.192 Under s 154A(3) of the Crimes (Administration of Sentences) Act 1999 (NSW), such release can only occur if the Parole Authority is satisfied that the prisoner is
in imminent danger of dying, or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person, and … has demonstrated that he or she does not pose a risk to the
186 Ibid 586 [3] (Gleeson CJ). 187 Ibid 590 [14] (Gleeson CJ). 188 Ibid 601 [41]. 189 And Fardon: ibid 593 [23] (Gleeson CJ). 190 Ibid. 191 As suggested at n 152, this law did not achieve its object insofar as Bronson Blessington was concerned. However, as noted there, Blessington was eventually placed in the same position as the other prisoners. 192 Crimes Legislation Amendment (Existing Life Sentences) Act 2001 (NSW).
59
community, and … is further satisfied that, because of those circumstances, the making of such an order is justified. In Elliott,193 two of these prisoners indirectly challenged s 154A(3). In Crump,194 another directly challenged it on constitutional grounds. As in Baker, the courts could have upheld both challenges: there was certainly no legal bar to their doing so. As in Baker, however, their Honours deployed contestable (Elliott) or highly dubious (Crump) reasoning to justify a less assertive conclusion.
In R v Elliott,195 Matthew Elliott and Bronson Blessington sought to persuade the NSWCCA to re-open their 1992 appeal to that Court.196 Most relevantly, the applicants submitted that, while the 1992 Court had held that the life sentence that the sentencing judge (Newman J) had imposed on them was not manifestly excessive,197 it had since become a manifestly excessive sentence, due to the subsequent NSW legislative activity. The majority, however, refused to grant the applicants leave either to appeal out of time or to re-open the 1992 appeal.198 Chief Justice Spigelman noted the ‘adverse change in the position of the applicants’ caused by the relevant legislation,199 and proceeded on the basis that, if the 1992 Court had known that the sentences of life imprisonment would become natural life sentences, this would have been a consideration favourable to them.200 His Honour also observed that the applicants had not had an opportunity in 1992 to make submissions either about whether life sentences of the type that Parliament had now imposed, should have been imposed, or would be manifestly excessive.201 But this did not mean that leave should be granted to avert a possible miscarriage of justice.202 Again, a concern to avoid any suggestion that the courts were undemocratically claiming for themselves powers that they had not been granted, was evident in Spigelman CJ’s call for judicial restraint:203
193 (2007) 234 CLR 38. 194 (2012) 247 CLR 1. 195 (2006) 68 NSWLR 1. 196 See Jamieson (1992) A Crim R 68. 197 Ibid 80. 198 Elliott NSWCCA (2006) 68 NSWLR 1, 18 [82] (Spigelman CJ), 44 [210] (Howie J). 199 Ibid 17 [69]. 200 Ibid 17 [70]. 201 Ibid 17 [71]. 202 This being the relevant consideration when determining whether there should be such a grant: ibid 12 [48] (Spigelman CJ), 32 [148] and 39 [178] (Kirby J). 203 Ibid 18 [75]. See also 18 [81].
60
[T]o grant leave … would subvert a valid exercise of legislative power. The Court should not exercise a discretion in such a way as to undermine the purpose and object of valid legislation with the effect, indeed for the purpose, that the intention of Parliament will be frustrated. Similarly, for Howie J, while ‘the practical effect’ of the applicants’ current sentences might have been ‘very substantially different from that which pertained [when] … the sentences were imposed’, the Court should not ‘review a course adopted by Parliament to protect the public.’204 A judge’s personal belief that that course was ‘unreasonable or offensive to individual rights’,205 he thought, could not be allowed to ‘obstruct Parliament in the valid exercise of its power to legislate with respect to convicted persons.’206
On appeal, the HCA unanimously upheld this decision, but on different grounds. Their Honours characterised as ‘unusual’207 Spigelman CJ and Howie J’s insistence that the courts should not intervene, for fear of ‘undermin[ing] … the purpose and object of valid legislation.’208 Such reasoning, they thought, was vulnerable to the criticism that ‘it is emphatically the province of the judicial branch to apply the relevant law’209 – whether the result of its doing so ‘would or might disfavour the policies which the legislature had sought to implement by other legislation.’210 But what this tended to obscure and underplay was that the ‘relevant law’ was unclear. All of the judges who heard this matter agreed that leave to re-open should only exceptionally be granted.211 But they could not cite a case that was directly in point, or that was even particularly similar. The NSWCCA majority’s reliance on the ‘unusual’ ground, unsupported by any binding precedent, demonstrated this. And so did the reasoning upon which the HCA relied.
From Mason CJ’s judgment in Autodesk Inc v Dyason (No 2),212 the Court extracted the following principle. The 1992 appeal could only be re-opened if the NSWCCA, when dismissing Elliott’s and Blessington’s appeals against sentence, had213
204 Ibid 43-4 [209]. 205 Ibid 44 [209]. 206 Ibid 44 [210]. 207 Elliott HCA (2007) 234 CLR 38, 49 [39]. 208 Elliott NSWCCA (2006) 68 NSWLR 1, 18 [75] (Spigelman CJ). 209 Elliott HCA (2007) 234 CLR 38, 50 [40]. 210 Ibid. 211 Elliott NSWCCA (2006) 68 NSWLR 1, 17-18 [74] (Spigelman CJ), 33 [151]-[153], 44 [210] (Howie J); Elliott HCA (2007) 234 CLR 38, 48-50 [31]-[42] (implicit). 212 (1993) 176 CLR 300, 302. 213 Elliott HCA (2007) 234 CLR 38, 48 [33].
61
… proceeded according to some misapprehension of the facts or the relevant law and that this state of affairs is not to be attributed solely to the neglect or default of the appellants. But, even then, the Court had some work to do before there could be any refusal to re-open. Might it not be that the 1992 Court did proceed according to a misapprehension of the relevant law? During argument in 1992, Gleeson CJ had made it clear that he considered that a natural life sentence under s 19A of the Crimes Act 1900 (NSW) would have, to use the Chief Justice’s language, ‘far more severe consequences’ than the sentence that Newman J had imposed on the applicants before s 19A’s enactment.214 Might not the 1992 court have misapprehended the applicants’ true legal position – which only became clear after the passage of the subsequent NSW legislation – when it held that their sentences were not manifestly excessive? The answer to this question was ‘no’, according to the HCA. ‘Misapprehension of the relevant law’, their Honours held, meant ‘misapprehension of the relevant law as it stood’ when the 1992 appeal was heard.215 Certainly, the Court conceded, ‘in some areas of litigation even final and perfected orders may, on further application, be suspended to allow for supervening legislative change.’216 But the example of this that their Honours provided – ‘the suspension of the further operation of a final injunction granted to restrain breach of a statutory prohibition which the legislature since has removed’ – was, they thought, ‘far from the present case.’217 And so it was. This did not mean, however, that there was any legal obstacle to the Court’s developing the law in such a way as to allow the, unperfected,218 1992 orders to be altered.
The suspicion is that the same legitimacy concerns that the NSWCCA majority squarely acknowledged, informed the choice that the HCA made in Elliott. The community would not have viewed with philosophical detachment any decision to re-open the 1992 appeal – especially if, after that had happened (and as (David) Kirby J was in favour of doing219), the Court had then passed a lesser sentence. And the idea that their Honours might have been motivated by a desire to operate as unobtrusively as possible gains further support from the HCA’s decision five years later in Crump.
214 See Elliott NSWCCA (2006) 68 NSWLR 1, 23-4 [115] ((David) Kirby J). 215 Elliott HCA (2007) 234 CLR 38, 49 [37]. 216 Ibid 49 [38]. 217 Ibid. 218 Ibid 47 [28]-[29]. 219 Elliott NSWCCA (2006) 68 NSWLR 1, 40-3 [183]-[207].
62
As French CJ noted, the plaintiff’s argument in this later case raised some ‘large questions.’220 The most pertinent of these for present purposes was: if a State law alters a judicial decision of that State’s Supreme Court, would that law be constitutionally infirm due to Kable?221 According to the Chief Justice, it was unnecessary to answer this question.222 For, contrary to the plaintiff’s argument, s 154A(3) merely altered ‘a statutory consequence’ of his sentence;223 it changed the conditions that he had to satisfy if he was to be released.224 It did not alter the sentence itself.225 The plurality agreed.226 But its statement that ‘[a]s a matter neither of form nor substance did the sentencing determination by McInerney J create any right or entitlement in the plaintiff to release on parole’227 is not to the point. What is relevant is that, as French CJ acknowledged, McInerney J’s 1997 sentence did leave open the possibility that Crump would one day be released.228 The NSW Parliament’s concern about that possibility presumably caused it to pass the 2001 law. What is also relevant is the UNHRC’s finding in Blessington v Australia229 that, because the ‘restrictive conditions’230 in s 154A(3) do not offer those to whom that section applies ‘a real possibility of release on parole’,231 those sentences are irreducible.232 As various commentators233 and courts234 have acknowledged, an irreducible life sentence is a different kind of sentence from a life with the possibility of parole sentence. Indeed, interestingly, like the UNHRC in Blessington,235 six High Court Justices in Minogue (No 1)236 appear to have acknowledged as much. According to their Honours, it seems, the former is a ‘cruel, inhuman or degrading’ punishment within the meaning of s 10(b) of the Victorian
220 Crump (2012) 247 CLR 1, 18 [33]. 221 Ibid. 222 Ibid 18 [34]. 223 Ibid 19 [35]. 224 Ibid. 225 Ibid 18-19 [34]. 226 Ibid 26-7 [60] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 227 Ibid 26 [60]. 228 Ibid 14 [17]. 229 UN Doc CCPR/C/112/D/1968/2010 (22 October 2014). 230 Ibid [7.8], [7.12]. 231 Ibid [7.2]. 232 Ibid [7.2], [7.7]-[7.12]. 233 See, eg, the discussion in van Zyl Smit and Appleton, Life Imprisonment, supra, 41-9, 60-9. 234 See, eg, Vinter [2013] III Eur Court HR 317, [106]-[107] and [110]. 235 UN Doc CCPR/C/112/D/1968/2010 (22 October 2014) [7.12]. 236 (2018) 264 CLR 252, 272-3 [52]-[55] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ), 276 [72] (Gageler J).
63
Charter.237 The latter is not. In these circumstances, it is impossible to accept the HCA’s insistence in Crump that McInerney J’s sentence ‘was unaffected’238 by the 2001 law. Justice McInerney’s reducible life sentence was affected: the 2001 law transformed it into an irreducible life sentence.
d. Victorian immodesty
On 10 November 1988, when sentencing Julian Knight, Hampel J told the offender:239
Julian Knight, on 9 August 1987, you were responsible for one of the worst massacres in Australian history as a result of which 7 people died and 17 people were injured. Many more were fortunate to escape death as you indiscriminately fired over 100 rounds of ammunition, from three weapons, at passing motorists and at the police as they tried to apprehend you. His Honour found that, because of ‘the nature and multiplicity of [Knight’s] … crimes’, and ‘the requirement that the sentences … be proportionate’ to those crimes, the only possible sentence was one of life imprisonment.240 However, he continued, the Crown had not argued that the Court should decline to grant Knight a minimum term.241 In these circumstances – and taking into account Knight’s youth242 (he was 19 years of age at the time of offending243), his prospects of rehabilitation,244 his cooperation with authorities,245 his guilty plea,246 his prior good character247 and his ‘abnormal mental state’248 while he offended – Hampel J imposed on the offender a minimum term of 27 years’ imprisonment.249
Justice Hampel’s hope that Knight would achieve rehabilitation has not yet been realised. As Mr Tee observed in the Victorian Legislative Council in March 2014, in the twenty-five years that had intervened between Knight’s sentencing and the present, ‘Julian Knight has kept a high profile. He has shown no contrition and no remorse.’250 In those circumstances, he was
237 This was certainly Gageler J’s conclusion: ibid 276 [72]. See also Minogue (No 2) (2019) 93 ALJR 1031, 1039 [30] (Gageler J). 238 Crump (2012) 247 CLR 1, 29 [71] (Heydon J). 239 R v Knight [1989] VR 705, 705 (‘Knight Sentencing’). 240 Ibid 710. 241 Ibid 711. 242 Ibid 709, 711. 243 Ibid 705. 244 Ibid 711. 245 Ibid 710. See also 705. 246 Ibid 710. 247 Ibid 709. 248 Ibid. 249 Ibid 711. 250 Victoria, Parliamentary Debates, Legislative Council, 11 March 2014, 590.
64
unlikely to be granted parole when he became eligible for it later that year;251 however, the government had resolved to put the matter beyond doubt. As explained by the Minister for Corrections a few weeks previously, it had presented to Parliament a Bill modelled on the NSW laws that the HCA had upheld in Crump.252 Under the proposed scheme, he told the House, ‘Julian Knight will die in jail, or will be in such a condition on release that he will be a threat to no one.’253
One doubt that existed about the constitutional validity of the resulting legislation, despite its striking similarity to the NSW law upheld in Crump, arose because of its ad hominem character. Did it make a difference that the section inserted into the Corrections Act 1986 (NSW) – s 74AA – is entitled ‘Conditions for making a parole order for Julian Knight’ and makes it clear that, alone of all of the prisoners in Victoria, he will only be released if, as the HCA put it:254
the Adult Parole Board [is] … satisfied, amongst other things, that Mr Knight is in imminent danger of dying or is seriously incapacitated and that, as a result, he no longer has the physical ability to do harm to any person[?]
According to their Honours, the answer to this question was ‘no.’255 ‘There are circumstances,’ they conceded, ‘in which the party-specific nature of legislation can be indicative of the tendency of that legislation to interfere with an exercise of judicial power.’256 But this was not so here.257 That was because, as in Crump, which their Honours found to be indistinguishable from the present case,258 the relevant section did not replace a judicial sentence with a legislative one.259 Justice Hampel’s sentence remained intact;260 s 74AA did not contradict the minimum term that his Honour fixed;261 it simply made it ‘more difficult’ for Knight to be granted parole.262
251 As various parliamentarians noted: see, eg, ibid. 252 Victoria, Parliamentary Debates, Legislative Council, 18 February 2014, 305 (Hon EJ O’Donohue). 253 Ibid. 254 Knight (2017) 261 CLR 306, 317 [3] (The Court). 255 Ibid 323 [25]-[26]. 256 Ibid 323 [26]. 257 Ibid. 258 Ibid 323 [25]. 259 Ibid 324 [29]. 260 Ibid 323 [25]. 261 Ibid 323-4 [29]. 262 Ibid 323 [29].
65
For the reasons just given, this reasoning is singularly unpersuasive. Of course, as suggested above when discussing Baker,263 if s 74AA had merely made it ‘more difficult’ for Knight to be granted parole, it might well have been correct for the Court to hold that Hampel J’s sentence was unaffected. But this was not so. As is the case with Crump, the conditions that Knight must satisfy if he is to be released are so stringent as to mean that he is now not serving the life with parole sentence that Hampel J imposed on him. He is instead serving the irreducible life sentence that his Honour deliberately refrained from imposing. Accordingly, it is nothing short of ridiculous for the HCA to hold that s 74AA leaves Knight’s minimum term untouched: the section’s whole purpose, and its effect, was to replace that minimum term with a far harsher one.
It was at this stage that the Victorian Parliament turned its attention to Craig Minogue. On 24 August 1988, Vincent J sentenced Minogue to life imprisonment with a minimum term of 28 years for his participation in ‘one of the most serious criminal actions ever to take place in this community.’264 His Honour was referring to the Russell Street bombing of 27 March 1986, which resulted in the death of Angela Taylor, a police officer, of whose murder Minogue had been convicted.265 In declining to provide Minogue’s co-offender, Stan Taylor, with a minimum term, Vincent J acknowledged the ‘terrible’ nature of the sentence that he was imposing.266 Such a sentence, his Honour held, was not suitable in the case of Minogue. Because of Minogue’s youth (he was 23 years of age when sentenced), his prospects of rehabilitation and Taylor’s dominance over him, Vincent J held that there ‘should be some disparity between the sentence imposed on [him] … and that of … [his] co-offender.’267
The Victorian Parliament has recently decided that it disagrees with such an assessment. In 2016, it inserted s 74AAA into the Corrections Act 1986 (Vic).268 That provision’s effect was to prevent the Adult Parole Board from releasing on parole, except in the circumstances
263 See n 172 and text accompanying nn 168-172. 264 Taylor (Unreported, Supreme Court of Victoria, Vincent J, 24 August 1988). 265 Ibid. 266 Ibid. 267 Ibid. Later in 1988, Minogue was sentenced for the murder of a fellow prisoner at Pentridge Prison; this second murder took place about a month before Vincent J sentenced him. In these second sentencing proceedings, Hampel J thought that he lacked the power to make any part of the sentence that he was imposing ‘cumulative on the present minimum term of 28 years’: R v Minogue (Unreported, Supreme Court of Victoria, Hampel J, 14 December 1988). 268 Justice Legislation Amendment (Parole Reform and Other Matters) Act 2016 (Vic).
66
envisaged by the Crump and Knight legislation,269 any person serving a sentence with a non- parole period for the murder of a person whom s/he knew was, or was probably,270 a police officer.271 Though expressed in general terms, the section’s primary aim was to ‘deal … with Craig Minogue’,272 whose minimum term had recently expired, and who had recently applied for parole.273 ‘The bill does not change the courts’ sentencing’, Mr McGuire assured members during the Legislative Assembly debate.274 ‘What [it] … does’,275 as Mr Pearson put it (much more accurately)276
is basically say to people who have killed sworn officers of Victoria Police that they are to be imprisoned and there is no chance of rehabilitation because they are incapable of being rehabilitated … ‘[S]omeone like Craig Minogue’, he continued, does not ‘deserve … next year … to be in our midst as a member of our community.’277
Unfortunately for the Victorian government, however, the legislation did not apply to Craig Minogue. In Minogue (No 1), the HCA unanimously found that, properly construed, s 74AAA applied only to those prisoners who had been sentenced on the basis that they knew that the victim was a police officer performing duties or exercising powers of a police officer, or were reckless as to this fact.278 Justice Vincent, their Honours continued, had not sentenced Craig Minogue on this basis.279 Therefore, nothing in s 74AAA prevented him from immediately being granted parole.280
Nevertheless, the inconvenience that this caused the government was not too pronounced. Predictably enough, it responded just over one month later, by passing legislation that
269 Corrections Act 1986 (Vic) s 74AAA(4), repealed by Corrections Amendment (Parole) Act 2018 (Vic). 270 Minogue (No 1) (2018) 264 CLR 252, 274 [61] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ). 271 Corrections Act 1986 (Vic) s 74AAA(1), repealed by Corrections Amendment (Parole) Act 2018 (Vic). 272 Victoria, Parliamentary Debates, Legislative Assembly, 7 December 2016, 4850 (Mr Clark). 273 Minogue (No 1) (2018) 264 CLR 252, 259 [4] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ). 274 Victoria, Parliamentary Debates, Legislative Assembly, 7 December 2016, 4855. 275 Ibid 4858 (Emphasis added). 276 Ibid. 277 Ibid. 278 Minogue (No 1) (2018) 264 CLR 252, 269-273 [38]-[57] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ), 280- 1 [87]-[90] (Gageler J), 284[102]-[103] (Gordon J). 279 Ibid 274-5 [63]-[66] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ), 282 [94] (Gageler J), 284 [101] (Gordon J). 280 David King, ‘Russell Street Bomber Craig Minogue Wins Parole Battle’, The Australian (online, 20 June 2018)
67
undoubtedly does apply to Craig Minogue.281 We encountered this legislation in chapter 1. As we saw there, the new Act inserted into the Corrections Act 1986 (Vic), a provision immediately after s 74AA, which of course applies only to Julian Knight. The new provision, s 74AB, is entitled ‘Conditions for making a parole order for Craig Minogue.’ Section 74AB(3) makes it clear that the Adult Parole Board is only to make a parole order in his favour in the highly restrictive circumstances noted above.282 Moreover, as with s 74AA283 – and, again, as noted in chapter 1 – the Victorian Charter is disapplied for the purposes of the section.
In HCA proceedings last year, Craig Minogue challenged the constitutional validity of s 74AB.284 But while, in both his written285 and oral286 submissions, he denied that his primary argument required their Honours to re-open Crump and Knight, that argument was in substance no different from the one that the Court unanimously rejected in those earlier cases.287 According to Minogue’s argument, although it had to be accepted that provisions such as s 74AB do not alter the sentences of those to whom they apply,288 they do impose an additional,289 legislative290 punishment for the relevant offence(s). This is because they ‘lengthen the minimum term imposed by the sentencing court’291 and, by converting the relevant sentences into irreducible life sentences,292 subject the affected prisoners to a ‘qualitatively heavier’293 sentence than that which was judicially fixed.
It follows from the above that, if there is some flaw in arguments of this nature, I am quite unable to see it. Again, the clear effect of provisions such as s 74AB is to substitute for a judicial sentence a harsher legislative one. An irreducible life sentence replaces a life with
281 Corrections Amendment (Parole) Act 2018 (Vic). 282 As we also saw in chapter 1, Corrections Act 1986 (Vic) s 74AAA provides that the same consequences apply to a person convicted of and sentenced for the murder of a police officer – whether before or after the section’s coming into force: see s 74AAA(1). 283 See s 74AA(4). 284 Minogue (No 2) (2019) 93 ALJR 1031. 285 Craig William Minogue, ‘Plaintiff’s Submissions’, Submission in Minogue v Victoria [No 2], M162/2018, 27 February 2019, 19 [65]. 286 Minogue v Victoria [2019] HCA Trans 124 (18 June 2019). 287 Something that the Court recognised: Minogue (No 2) (2019) 93 ALJR 1031, 1035 [9] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), 1039 [32]-[33] (Gageler J). 288 Minogue, ‘Plaintiff’s Submissions’, supra, [4]. 289 Ibid. 290 Ibid [46]-[50]. 291 Ibid [25]. See also [34]. 292 Ibid [39]. 293 Ibid [41].
68
parole sentence. Nevertheless, the HCA predictably unanimously rejected such reasoning. According to a five Justice plurality, s 74AB ‘does not alter or contradict [Minogue’s] … non- parole period’294 or make his punishment more severe.295 Rather, as explained in Knight and Crump, it merely alters the conditions that he must satisfy before the executive may grant him parole.296 Likewise, Gageler J held that Crump and Knight were indistinguishable from the present case, and that both of these authorities demonstrated ‘that the legislative removal of a meaningful prospect of release on parole does not render the life sentence more restrictive of [Minogue’s] … liberty or otherwise impose greater punishment for the offence of which he was convicted.’297 And while Edelman J thought it ‘arguable’ that s 74AB’s practical effect was to remove, and thus alter, Minogue’s non-parole period,298 he also thought it necessary to differentiate between such a law and one that was ‘enacted for the purposes of imposing additional punishment on a particular person, and thus amending their sentence, for the past offence.’299 If Parliament were to pass legislation increasing a particular prisoner’s non-parole period from four to eight years, his Honour continued, that law might be invalid.300 But, for Edelman J, s 74AB was not enacted for the purpose of increasing Minogue’s punishment for a past offence.301 Rather, it is ‘forward looking.’302 Its purpose is to protect the public by changing the conditions that Minogue must satisfy if he is to be granted parole.303
(iii) Conclusions about the Australian Position
Goldsworthy has considered the question of when, if ever, judges are justified in knowingly employing ‘implausible legal reasoning’304 to strengthen judicial independence, the rule of law and human rights.305 He has concluded that the answer to this question is: only in ‘exceptional
294 Minogue (No 2) (2019) 93 ALJR 1031, 1037 [20] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). 295 Ibid 1038 [21]. 296 Ibid 1035 [9]. See also 1038 [21]. 297 Ibid 1039 [32]. 298 Ibid 1040 [40]. 299 Ibid 1040 [41]. 300 Ibid 1040-1 [41]. 301 Ibid 1041 [43]. 302 Ibid 1043 [48]. 303 Ibid 1041 [45]. Given (i) the punitive comments about Minogue’s crime in the relevant Victorian parliamentary debates (see ibid 1041 [42] (Edelman J); (ii) that he will serve the rest of his sentence in the same conditions he was in because of Vincent J’s sentencing order; and (iii) that the relevant legislation does not require the state to prove, or a court to find, that he poses a danger to society in the future (cf the law considered in Kable (1996) 189 CLR 51), this reasoning is impossible to accept. 304 Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’, supra, 76. 305 Ibid 76, 113.
69
and extreme circumstances.’306 A similar question, which seems not to have attracted much attention at all, is when the judges may properly deploy what they know to be implausible reasoning to frustrate a result that would promote human rights. If Baker and Elliott were not examples of this, then, consistently with what I have argued above, Crump, Knight and Minogue (No 2) possibly307 were. And in chapters 4 and 5, I shall argue that there is much to be said for the view that such reasoning was illegitimate and should not have been used.
For now, however, I wish to consider another question. That question is: why did the Court reason as it did in these cases? As we have seen,308 Goldsworthy has also observed that highly formalistic reasoning such as this is usually deployed by results-focussed judges. The reasoning in Crump, Knight and Minogue (No 2) seems to be no exception.
If the Court had found that the impugned legislation had altered or added to the plaintiffs’ respective sentences, then there was a very good argument that this damaged the appearance and reality of the NSW and Victorian Supreme Courts’ independence and impartiality, contrary to Kable.309 Indeed, in Attorney-General (Qld) v Lawrence,310 which I shall discuss further in chapter 4, the Queensland Court of Appeal (‘QCA’) struck down analogous legislation essentially on this basis. The law at issue in Lawrence311 granted the executive government the power to reverse the Supreme Court’s decisions in individual cases to release on supervision sex offenders who had hitherto been in preventive detention pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).312 Attaching particular importance to the fact that the executive’s declaration was ‘equivalent to a reversal of the Court’s order’,313 their Honours appeared to accept the respondents’ argument that the Act undermined the Supreme Court’s ‘decisional independence.’314 It is far from obvious that the legislation considered in Crump,
306 Ibid 114. 307 I say ‘possibly’ for this reason. Did the judges in these cases have what Goldsworthy has elsewhere described as the necessary ‘mens rea’? See Jeffrey Goldsworthy, ‘Tom Campbell on Judicial Activism’ (2017) 42 Australian Journal of Legal Philosophy 247, 248. Did they know that they were using implausible reasoning to avoid what they regarded as an unsatisfactory result – or did they at least realise the possibility that they were doing so? (at 248, 252) 308 See text accompanying n 173. 309 See, eg, Bradley (2004) 218 CLR 146, especially 163 [29] (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 89 [125] (Hayne, Crennan, Kiefel and Bell JJ) (‘Pompano’); NAAJA (2015) 256 CLR 569, 593-4 [39] (French CJ, Kiefel and Bell JJ). 310 (2014) 2 Qd R 504. 311 Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 (Qld). 312 Lawrence [2014] 2 Qd R 504, 528 [35]. 313 Ibid 530 [41]. 314 Ibid 523 [24].
70
Knight and Minogue (No 2) is relevantly distinguishable from this Queensland law.315 On the contrary, by effectively reversing the sentencing orders of, respectively, McInerney, Hampel and Vincent JJ, and by substituting far harsher sentences for the ones that their Honours had seen fit to impose, Parliament has undermined judicial independence as brazenly as did the Queensland legislature. When it deployed extremely suspect reasoning to avoid acknowledging as much, the HCA was seemingly motivated by the same concerns as Gleeson CJ alluded to in Baker316 and the majority of the NSWCCA acknowledged in Elliott.317 Their Honours appear to have been keen to avoid creating a perception that they were willing to ‘wash their hands of the responsibility of applying [these] laws’318 simply because of their personal objection to them.
In other words, it is submitted that all of these cases – Baker, Elliott, Crump, Knight and Minogue (No 2) – are practical applications of the judicial philosophy to which, as we saw in chapter 1, the majority of judges adhere. That philosophy can be summed up as follows. ‘If you have been given no charter of rights to interpret’ – and it can be added that, despite the Victorian Charter’s existence, this was no less the case in Knight and Minogue (No 2) than it was in the NSW cases (a point to which we shall shortly return) – ‘you can still develop the law; but when doing so, you should act consistently with community values.’ If a court fails to heed this advice, then, as Lord Bingham has pointed out, it is in danger of being seen – ‘even if wrongly’ – as having ‘usurp[ed] … authority that more properly belong[s] … to the elected representatives of the people.’319
D. The UK Position (i) Introductory remarks
Has the ECHR’s and the HRA’s exitstence facilitated more interventionist reasoning, and more liberal results, in cases where litigants have challenged on human rights grounds the state’s entitlement to impose an irreducible life sentence on an individual? If we were to take seriously the judicial comments considered in chapter 1 about the capacity of judges armed with charters of rights sometimes to develop the law inconsistently with public opinion, we might expect
315 See Gans, ‘Current Experiments’, supra, 31-4. 316 See text accompanying n 174. 317 See text accompanying nn 203-6. 318 Baker (2004) 223 CLR 513, 519 [6] (Gleeson CJ). 319 Bingham, ‘The Judges: Active or Passive’, supra, 71.
71
that the answer to this question would be ‘yes.’ And so it is. Nevertheless, this answer must be qualified in two ways.
First, as indicated in chapter 1, the UK and Strasbourg case law concerning irreducible life sentences bears testimony to Lord Neuberger’s observation in R (Nicklinson) v Ministry of Justice320 that there are limits to the law-making capabilities of judges who have been empowered to apply a charter of rights. Certainly, this case law shows that those courts will not always give effect to public opinion. Nevertheless, when assessing whether ‘it is legitimate for the courts to step in and rule that a statutory provision … infringes the Convention’,321 they have ensured not to deviate too greatly from how the community wishes them to act. For, despite his/her charter powers, the judge who acted without any regard for community sentiment would risk exposing him/herself to the same claims of illegitimacy that the Australian courts have been so keen to avoid.
Secondly, as also indicated in chapter 1, recent UK case law in this area – and I refer in particular to the EWCA’s decision in McLoughlin322 – lends some weight to the view that the capacity of human rights charters to protect individuals against penal populism might partly hinge on how precisely those charters are designed. So might the Knight and Minogue litigation. In short, for reasons to be developed in this chapter and in chapter 5, McLoughlin, Knight, Minogue (No 1) and Minogue (No 2) call into question whether, in societies such as the UK and Australia, ‘weak-form’ human rights protection can now constitute an effective bulwark against harshly punitive laws. That said, ‘strong-form’ charters will not necessarily produce better outcomes.
(ii) Juvenile offenders
One way in which the presence of a human rights charter in the UK has improved the law in this area, however, concerns juvenile offenders: the ECtHR has thrice strongly suggested that, if an irreducible life sentence were imposed on such a person, this would amount to an ‘inhuman or degrading … punishment’ within the meaning of art 3 ECHR.323 In V v United Kingdom – a case involving one of the two boys who, as 10-year-olds, committed the notorious
320 [2015] AC 657, 789 [101]. 321 Ibid. 322 [2014] 1 WLR 3964. 323 Weeks [1987] 114 Eur Court HR (ser A), 25 [47]. See also Hussain [1996] I Eur Court HR 252, [53]; V [1999] IX Eur Court HR 111, 150 [97].
72
murder of 2-year-old James Bulger – a Grand Chamber majority specifically referred to art 37 of the Convention on the Rights of the Child’s324 proscription of life imprisonment without the possibility of release for persons below the age of 18.325 When this is read with the Court’s earlier statements in Weeks v United Kingdom and Hussain v United Kingdom that an irreducible life sentence imposed on a juvenile ‘might give rise to questions under Article 3’,326 it is tolerably clear that had such a sentence been imposed on the applicant, the Court would have found an art 3 breach established.
Indeed, it is as well to compare the case of V with that of Messrs Blessington and Elliott. In both cases, very young offenders had committed extremely serious murder offences that had attracted much public comment and condemnation; the sentencing judge had imposed an indeterminate sentence (V was serving an Her Majesty’s pleasure (‘HMP’) sentence pursuant to s 53(1) of the Children and Young Persons Act 1933 (UK)327); the public had placed much pressure on the government to ensure that the sentences that the offenders actually served were very severe; and the government had yielded to these demands. At the time of V’s conviction, the Home Secretary was responsible for setting offenders’ ‘tariffs’ – that is, the minimum period that they were to remain imprisoned before becoming eligible for parole. He did so after considering the trial judge’s and the Lord Chief Justice’s views. In V and his co-offender, T’s, case, the trial judge recommended that the tariff be set at 8 years; the Lord Chief Justice thought 10 years to be the suitable period.328 The Home Secretary, however, declined to follow these recommendations. After having regard to ‘public concern about the case’,329 he set a tariff of 15 years.330 The English courts held this tariff to be unlawful,331 but the Home Secretary had not set a new tariff by the time of the Strasbourg proceedings.
But the cases of V and T, and Blessington and Elliott differ from one another in many ways, too. This was partly because of the ECHR guarantees protecting the former pair. First, the
324 United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 37. 325 V [1999] IX Eur Court HR 111, 150 [97]. 326 Hussain [1996] I Eur Court HR 252, [53]. See also Weeks [1987] 114 Eur Court HR (ser A), [47]. 327 Repealed by Powers of Criminal Courts (Sentencing) Act 2000 (UK) sch 12. 328 V [1999] IX Eur Court HR 111, 125-6 [20]-[21]. 329 Ibid 126 [23]. Such concern was evidenced by (among other things) the 21,281 coupons he had received from those demanding a whole life tariff. These had been sent to him by people whom the Sun newspaper had given the opportunity so to contribute to the functioning of the criminal justice system: ibid 126 [22]. 330 Ibid 126 [23]. 331 R v Secretary of State for the Home Department, ex parte Venables and Thompson [1998] AC 407.
73
Grand Chamber held that, because: (i) art 6(1) provides that ‘in the determination of a criminal charge against him, everyone is entitled to a fair and public hearing by an independent and impartial tribunal’; (ii) sentencing is part of the ‘determination of a criminal charge’;332 and (iii) the fixing of the tariff amounted to a sentencing exercise,333 tariff-setting could no longer be the Home Secretary’s responsibility (he was not an ‘independent and impartial tribunal’) but instead was the courts’ task.334 Secondly, the Court noted that the applicants could insist on procedural protections once their respective tariffs had expired.335 Article 5(4) provides that ‘everybody who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court.’ In Hussain, it had been held that, because HMP sentences comprise a punitive period (the period up until the expiry of the tariff) and a period in which the offender’s continued detention can only be justified if s/he remains dangerous (the period after the expiry of the tariff), HMP prisoners were entitled, upon the expiry of the tariff, to have a ‘court’ determine whether their detention continued to be justified by their ‘dangerousness to society.’336 Thirdly, of course, the Grand Chamber made the suggestions noted above about the impermissibility under art 3 of imposing an irreducible life sentence on a juvenile. Indeed, this was why the Court had held in Hussain that the HMP sentence was part-punitive, part-preventive: if this were not so, ‘young persons detained under s 53(1) would be treated as having forfeited their liberty for the rest of their days’,337 which would give rise to art 3 concerns of the nature that have been identified.
There are a couple of points to be made here. The first is that it had already been held, before V was decided, that this part-punitive, part-preventive structure applies to the discretionary life sentence too. As the word ‘discretionary’ suggests, such a sentence is, unlike the life sentence for murder in the UK,338 not mandatory. Rather, it may be passed for an offence other than murder for which the maximum penalty is life imprisonment.339 At the time of Weeks340 and Thynne v United Kingdom,341 such a sentence was held to be suitable only very exceptionally;
332 V [1999] IX Eur Court HR 111, 153 [109]. 333 Ibid 153 [111]. 334 Ibid 154 [114]. 335 Ibid 155 [119]. 336 Hussain [1996] I Eur Court HR 252, [53]. 337 Ibid. 338 Murder (Abolition of Death Penalty) Act 1965 (UK) s 1(1). 339 See Criminal Justice Act 2003 (UK) s 225(1) and (2) for the current position. 340 [1987] 114 Eur Court HR (ser A). 341 (1991) 13 EHRR 666.
74
that is, where the offender was ‘in a mental state which [made him/her] … dangerous to the life or limb of members of the public.’342 In those two cases, the ECtHR held that, even where the offence was a ‘grave’ one,343 the punitive part of a discretionary life sentence is spent upon the expiry of the offender’s tariff.344 Accordingly, art 5(4) requires that, if the offender is to remain in detention, this is because a court determines that such detention is necessary to protect the public.345
The second point is that, when one examines why irreducible life sentences should never be imposed on children, it becomes difficult to defend the imposition of such sentences on adults, too. It seems possible to imagine a child committing a crime exhibiting sufficient culpability to justify this sanction.346 Accordingly, surely the reason why such sentences may in no circumstances be imposed on children is that they are an affront to human dignity in the sense described above:347 rather than being reasoned with, such children are excluded and objectified.348
(iii) Adult offenders
Over the last eighteen years, the ECtHR has gradually accepted the force of this logic. The first noteworthy development was the collapse of the long-lived distinction between mandatory and discretionary life sentences. For while Wynne v United Kingdom349 held that the mandatory life sentence cannot be reduced to punitive and preventive components, but rather is imposed purely to punish, the Grand Chamber in Stafford v United Kingdom350 rejected this analysis. The mandatory and discretionary life sentences are structured in the same way, the Court held,351 which means that ‘[a]fter the expiry of the tariff, continued detention depends on
342 R v Wilkinson (1983) 5 Cr App R (S), 108-9. 343 Thynne (1991) 13 EHRR 666, [70]. 344 Ibid [73]; Weeks [1987] 114 Eur Court HR (ser A), [58]. 345 Thynne (1991) 13 EHRR 666, [78]. 346 A point made by Dirk van Zyl Smit, Taking Life Imprisonment Seriously in National and International Law (Kluwer Law International, 2002) 212. Indeed, in Graham v Florida 560 US 48, 93-4 (2010) (‘Graham’), Roberts CJ purported to provide two examples of this – although not to demonstrate the impermissibility of irreducible life sentences. 347 Another point made by van Zyl Smit: ibid. 348 As argued in chapter 3, in an individual child’s case the sentence might additionally be grossly disproportionate. 349 (1995) 19 EHRR 333. 350 Stafford v United Kingdom [2002] IV Eur Court HR 115 (‘Stafford’). 351 Ibid 141 [79].
75
elements of dangerousness and risk.’352 In other words, as with HMP sentences and discretionary life sentences, art 5(4) provides mandatory life sentence prisoners with the right to have a judge assess whether their dangerousness warrants detention beyond the expiry of their punitive period of imprisonment.353
Moreover, and most significantly for the purposes of the present discussion, attention began to be given to whether irreducible life sentences may be imposed on adults. The ECtHR often suggested that such sentences might amount to art 3 breaches;354 but such suggestions were phrased reasonably tentatively. As the Grand Chamber majority put it in Kafkaris v Cyprus, ‘the imposition of an irreducible life sentence on an adult may raise an issue under Article 3’355 – and only five judges356 were willing to associate themselves with Judge Bratza’s contention357 that ‘the time has come when the Court should clearly affirm that the imposition of an irreducible life sentence, even on an adult offender, is in principle inconsistent with Article 3.’
Further, even if an irreducible life sentence is an art 3 breach, when is a sentence irreducible? The Kafkaris sentence looked to fit this description – as the minority noted, the prisoner would be released only if he received a Presidential pardon, in circumstances where the President was not required to publish reasons for his decision and there was no published criteria governing this exercise of power358 – and yet the majority denied this.359 It was because of this uncertainty – both concerning whether an irreducible life sentence breaches art 3 and when a life sentence is irreducible – that the English courts were able to maintain that: (i) irreducible life sentences are not always prohibited;360 and (ii) the ‘whole life orders’ for which English law provides361
352 Ibid 144 [87]. If this were not so, and the life sentence were imposed for the purposes of pure punishment, the sentence would apparently violate art 3 because of its gross disproportionality: Lichniak [2003] 1 AC 903, 909 [8]. 353 Stafford [2002] IV Eur Court HR 115, 144 [87]. 354 See, eg, Einhorn v France [2001] XI Eur Court HR 275, 296 [27]; Nivette v France [2001] VII Eur Court HR 491, 500-1; Kafkaris v Cyprus [2008] I Eur Court HR 223, 269 [97] (‘Kafkaris’). 355 Kafkaris [2008] I Eur Court HR 223, 269 [97] (Emphasis added). 356 Ibid 299-300 (Judges Tulkens, Cabral Barreto, Fura-Sandström, Spielmann and Jebens). 357 Ibid 293. 358 Ibid 296-7. 359 Ibid 271 [103]. For criticism of this approach, see Seema Kandelia, ‘Life Meaning Life: Is there any Hope of Release for Prisoners Serving Whole Life Orders?’ (2011) 75 Journal of Criminal Law 70, 81-2. 360 R v Bieber [2009] 1 WLR 223, 236-7 [39]-[42], 238 [45] (‘Bieber’); R (Wellington) v Secretary of State for the Home Department [2008] 3 All ER 248, 268-8 [39] (Laws LJ) and 270 [43] (Davis J); Wellington HL [2009] 1 AC 335, 343 [12] (Lord Hoffmann), 351 [44], 351 [46] (Lord Scott), 352 [49], 353-4 [52]-[53] (Baroness Hale), 356-7 [60] (Lord Carswell), 363 [80]-[81] (Lord Brown); R v Oakes [2013] QB 979, 990 [21]-[22] (‘Oakes’). 361 Criminal Justice Act 2003 (UK) s 269(4) and sch 21, para 4.
76
are not, in any case, irreducible life sentences.362 And they additionally held that: (iii) any breach of art 3 would occur not when the relevant sentence was imposed, but only once a stage of the sentence is reached where all of the objects of imprisonment (punishment, deterrence, rehabilitation and protection of the public) have been achieved.363
The Grand Chamber’s decision in Vinter exploded all three of these ideas – although only temporarily in the case of the second.364 The Grand Chamber held that there is no art 3 breach just because a life sentence is imposed or, in fact, served in full: ‘[n]o issue arises under Article 3’, the Court observed,365 ‘if a life sentence is de jure and de facto reducible.’366 But an irreducible life sentence does violate art 3.367 The Court’s reasoning on this point was consistent with the argument above concerning the impermissibility of such sentences. Unless a life prisoner has the ‘prospect of release’,368 it held, and unless national law provides that prisoner with a review procedure that369
allows the domestic authorities to consider whether any changes to [him/her] … are so significant, and such progress towards rehabilitation has been made … as to mean that continued detention can no longer be justified on legitimate penological grounds s/he will be treated as being unable to atone for his/her offence,370 and without respect for his/her human dignity.371
Further, contrary to the English courts’ approach,372 the Grand Chamber found that the art 3 breach occurs when the irreducible life sentence is imposed.373 Domestic law must therefore, at that time, provide for a procedure under which the offender’s sentence will be reviewed.374
362 Bieber [2009] 1 WLR 223, 238-9 [48]-[49]; Wellington HL [2009] 1 AC 335, 343-4 [18]-[19] (Lord Hoffmann). 363 Bieber [2009] 1 WLR 223, 237 [43]; Wellington HL [2009] 1 AC 335, 343-4 [18]-[19] (Lord Hoffmann), 356- 7 [60] (Lord Carswell), 363 [81]-[82] (Lord Brown). 364 McLoughlin [2014] 1 WLR 3964, 3975-6 [29]-[36]; Hutchinson (European Court of Human Rights, Grand Chamber, Application No 32541/08 and 43441/08, 17 January 2017) [72]. 365 Presumably leaving aside the case where the sentence is grossly disproportionate: Vinter GC [2013] III Eur Court HR 317, 344 [102]. 366 Ibid 345 [108]. 367 Ibid 346 [110], 349 [119]. 368 Ibid 346 [110]. 369 Ibid 349 [119]. 370 Ibid 346 [112]. 371 Ibid 347 [113]. 372 Bieber [2009] 1 WLR 223, 237 [43]; Wellington HL [2009] 1 AC 335, 343-4 [18]-[19] (Lord Hoffmann), 356- 7 [60] (Lord Carswell), 363 [81]-[82] (Lord Brown). 373 Vinter GC [2013] III Eur Court HR 317, 350 [122]. 374 Ibid 349 [119].
77
‘A whole life prisoner,’ the Court stated, ‘is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought.’375
The Grand Chamber found English whole life orders to be irreducible376 essentially because of domestic law’s failure to arm prisoners with the requisite knowledge. Certainly, the Court observed,377 s 30(1) of the Crimes (Sentences) Act 1997 (UK) provides that the Secretary of State may release a life prisoner on licence if ‘he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.’ But it was also necessary to consider his ‘highly restrictive’378 policy for the release of whole life prisoners.’379 This policy makes such release conditional upon terminal illness or physical incapacitation and the prisoner’s satisfaction of other requirements.380 The Court did note381 the EWCA’s contention in R v Bieber382 that, if the time came when there was no longer a ‘legitimate penological ground’383 for the prisoner’s detention, the Secretary of State would be obliged to act compatibly with art 3 and release him/her. But it thought that the government had not made it sufficiently clear whether it would, in such circumstances, follow its policy,384 and it insisted that greater clarity be provided.385
In Murray v The Netherlands386 and Hutchinson,387 the Grand Chamber reaffirmed and – in Murray, anyway – added to the principles that that Court had stated in Vinter. And, importantly, it made it clear, as it had in that earlier case, that considerations of human dignity388 and ‘the
375 Ibid 350 [122]. 376 Ibid 353 [130]. 377 Ibid 351 [125]. See also 334-5 [42]. 378 Ibid 352 [127]. 379 HM Prison and Probation Service, ‘PSO 4700 Indeterminate Sentence Manual’, Justice (Web Page, 11 April 2019) Chapter 12
78
principle of rehabilitation, that is, the reintegration into society of a convicted person’389 underlie the ECtHR’s conviction that ‘to be compatible with Article 3 … a [life] sentence must be reducible de jure and de facto.’390
In Murray, the (deceased391) applicant claimed that his life sentence was de facto irreducible. Even if domestic law created a de jure possibility of conditional release, he submitted, he in fact had had no hope of release, because he had never been provided with the psychiatric treatment that he required if he was to stand any chance of persuading the authorities that he had achieved rehabilitation.392 The Court agreed. After approving the Vinter ruling that a life sentence will breach art 3 unless there is ‘both a prospect of release and a possibility of review, both of which must exist from the imposition of the sentence’,393 it found that the review should allow the authorities to assess whether the prisoner’s ‘progress to rehabilitation’394 meant that his/her detention could no longer be justified.395 The problem in this case, the Court continued, was that, because the authorities had failed to provide Murray with the treatment that he needed if his dangerousness was to be reduced,396 any review was in practice incapable of succeeding.397 He therefore had had no prospect of release,398 and there had accordingly been an art 3 breach.399 To avoid such findings, the Court concluded, Contracting States must detain life sentence prisoners in such conditions, and provide them with such treatment, as to mean that those prisoners have ‘a realistic opportunity to rehabilitate themselves.’400
Such an approach differs significantly from that adopted by the Australian courts in cases such as Crump, Knight and Minogue (No 2). The ECtHR has not sheltered behind formalism to avoid developing the law inconsistently with public opinion. Rather, it has given a ‘generous or
389 Murray (2017) 64 EHRR 3, [102]. See also Hutchinson (European Court of Human Rights, Grand Chamber, Application No 32541/08 and 43441/08, 17 January 2017) [42]-[43]. 390 Hutchinson (European Court of Human Rights, Grand Chamber, Application No 32541/08 and 43441/08, 17 January 2017) [42]. See also Murray (2017) 64 EHRR 3, [99]. 391 Murray (2017) 64 EHRR 3, [8]. 392 Ibid [91]. 393 Ibid [99]. 394 Ibid [101]. See also [100]. 395 Ibid [100]. 396 Ibid [122]-[123]. 397 Ibid [125]. 398 Ibid. See also [114]-[115]. 399 Ibid [125]. 400 Ibid [112].
79
purposive interpretation’401 to art 3 – in the process achieving results that, however much they might clash with community values, give effect to the liberal philosophy that underlies that guarantee. Interesting in this regard are some extra-curial comments of Judge Spano, who was appointed to the Strasbourg Court three weeks before Vinter was decided.402 ‘Let me confess,’ he tells us, ‘my first reaction to that judgment was not positive.’403 Why not? The answer is that Judge Spano was concerned that the Court might have ‘strayed a bit too far in its interpretation of the Convention and, in particular, in restricting legitimate democratic decision-making in the field of penal policy and criminal justice.’404 After ‘considered reflection’, however, the judge’s views changed:405
If one is faithful to the text of Article 3, and its underlying rationale, rooted in a dignitarian and individualistic notion of human rights, it is in my view difficult to argue for a contrary position in the field of penal policy and imprisonment of human beings. … [T]he Court, through Vinter … and other judgments, simply requires that all persons, deprived of their liberty, including those serving life sentences, be treated in accordance with their intrinsic worth and humanity. They must be granted an opportunity for rehabilitation and a realistic possibility of release. They must not be made objects of the State or suffer purely the wrath of the populace. I agree. As Judge Spano implies, the question of whether a democratic decision is compatible with human rights cannot be answered simply by pointing to the fact that it is a democratic decision. Certainly, as we saw when discussing Baker, Elliott, Crump, Knight and Minogue (No 2), courts that have been given no power to assess whether legislation breaches rights will normally ensure that Parliament’s will is not frustrated in cases where penal populist legislation is challenged. But courts with such a power are differently placed. However much a parliamentary decision reflects the will of the people, those courts have the power to stigmatise it if it breaches the ‘dignitarian and individualistic’406 norms that they have been authorised to enforce.
In other words, the ECtHR’s willingness in Vinter, Murray and Hutchinson to hold irreducible life sentences to be contrary to art 3 is a clear example of a human rights charter facilitating reasoning that could not be used – and an outcome that could not be reached – without such an instrument. For, as Judge Spano indicates in the above passage, and elsewhere in his article,407
401 Reyes [2002] 2 AC 235, 246 [26]. 402 Robert Spano, ‘Deprivation of Liberty and Human Dignity in the Case-Law of the European Court of Human Rights’ (2016) 4(2) Bergen Journal of Criminal Law and Criminal Justice 150, 165. 403 Ibid. 404 Ibid. 405 Ibid 166. 406 Ibid. 407 Ibid 150-1.
80
the whole purpose of guarantees such as art 3 is to allow courts to override democratic decision- making in the area of penal policy, where it clashes with the ‘doctrines of liberalism’408 that underpin and are reflected in those guarantees. Indeed, as was noted in chapter 1, the principle that prisoners must not be treated as ‘objects of the State’ who have forfeited their rights, but as rational beings who are to be provided with rehabilitative opportunities and, if possible, reintegrated into the community, appears not just in the Court’s art 3 case law; it can be found throughout its jurisprudence.409
(iv) Complications
a. Two qualifications
Nevertheless, we must resist any temptation to be unduly optimistic about the capacity of charters of rights to combat penal populism. For, while the case law just discussed does demonstrate that charters can lead to more assertive reasoning, and more liberal results, where prisoners challenge draconian laws, two other matters are also clear. The first of these is that charter judges have no unlimited ability to resist such legislation. The second is that prisoners will not necessarily gain even the limited benefits that such judges are willing to grant them.
Concerning the first of these points, while the ECtHR in Vinter leapt ahead of public opinion, it was – as we shall see – careful not to leap too far ahead of it. Concerning the second, while the same Court’s statement of principle in Hutchinson410 is consistent with that in Vinter and Murray, it applied those principles leniently in that case – seemingly because its attempt in Vinter to negotiate with the UK government, media and public had been unsuccessful.411 The upshot is that English whole life prisoners are probably now in only a slightly better position than their Australian counterparts.
In making this second point, I am not arguing that the ECHR and HRA have failed to improve protections for offenders against irreducible life sentences. Because of Strasbourg and domestic
408 Ibid. 409 See, eg, Mastromatteo v Italy [2002] VIII Eur Court HR 151, especially 166-7 [72]-[73]; Dickson [2007] V Eur Court 99, especially 127 [75], 129-30 [82]-[85]). Note, too, the discussion in chapter 1 of Khoroshenko [2015] IV Eur Court HR 337. 410 (European Court of Human Rights, Grand Chamber, Application No 32541/08 and 43441/08, 17 January 2017) [42]-[44]. 411 Lewis Graham, ‘Petukhov v Ukraine No. 2: Life Sentences Incompatible with the Convention, but only in Eastern Europe?’ Strasbourg Observers, 26 March 2019
81
human rights jurisprudence, it is seemingly inconceivable that the UK government would (i) at the moment seek to pass legislation altering the order of a sentencing judge in an individual case to ensure that the offender remained imprisoned for life,412 or (ii) authorise the imposition of irreducible life sentences on children.413 I am merely stating that, whether prisoners receive all of the benefits that ‘weak-form’ charters can confer on them, seems to depend on the type of society in which those charters operate. There is some evidence that UK and Australia are becoming the kinds of societies where, if it has a choice in the matter, Parliament will often refuse to implement court decisions that declare that it has failed to give proper protection to the human rights of such persons, or will prevent those decisions from being made in the first place.
b. The ECtHR’s failure in Vinter to require a judicial review procedure
What is the structure of a life sentence, such as the UK whole life order, that is imposed on the very worst offenders? Is such a sentence, like the HMP sentences considered in V and Hussain, the discretionary life sentences in Weeks and Thynne, and the mandatory life sentence in Stafford, split into punitive and preventive components? Or is it a purely punitive sentence?
In Bieber414 and R v Oakes,415 the English courts had taken the latter view, and so had Strasbourg Chambers in Kafkaris (No 2) v Cyprus416 and Vinter.417 In the first of these Strasbourg authorities, the Court observed that Kafkaris’s sentence had been ‘imposed automatically’ under Cypriot law ‘as the punishment for the offence of premeditated murder irrespective of the considerations pertaining to the [offender’s] dangerousness.’418 Therefore, it said, ‘the determination of the need for the sentence imposed on the applicant did not depend on any elements that were likely to change in time (unlike in Stafford).’419 The Fourth Section upheld this approach in Vinter. Because the applicants’ sentences had been ‘imposed on them to meet the requirements of punishment and deterrence’,420 they were different from the ‘life
412 Cf, eg, Corrections Act 1986 (Vic) ss 74AA(3) and 74AB(3). 413 See Criminal Justice Act 2003 (UK) s 269(4), which allows whole life orders to be imposed only on those who are 21 or older. 414 Bieber [2009] 1 WLR 223, 237 [42]. 415 Oakes [2013] QB 979, 987 [14]-[15], 990 [22]. 416 Kafkaris v Cyprus (No 2) (2011) 53 EHRR SE14, [59] (‘Kafkaris No 2’). 417 (2012) 55 EHRR 34, [103]. 418 Kafkaris (No 2) (2011) 53 EHRR SE14, [59]. 419 Ibid. 420 Vinter Chamber (2012) 55 EHRR 34, [103].
82
sentence considered in Stafford, which … was divided into a tariff period (imposed for the purposes of punishment) and the remainder of the sentence, when continued detention was determined by considerations of risk and dangerousness.’421
The Grand Chamber in Vinter was far less willing to commit itself to such a position. Indeed, there are passages in its judgment that indicate that, contrary to the established view, whole life orders are split into punitive and ‘security’422 periods.
For instance, while the Court did not specify exactly when a whole life prisoner’s first sentence review had to occur, it did ‘observe that the comparative and international law materials before it show[ed] clear support’ for a review ‘no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter.’423 Because the focus of that review must be on whether the offender has achieved rehabilitation – that is, on whether ‘changes in [him/her] … are so significant’ as to justify release424 – the Grand Chamber seems to have implied that, by that stage, punishment is spent.
The same implication appears to arise from the Court’s finding that, when an irreducible life sentence is imposed on a person, the art 3 breach occurs at that stage.425 Bieber’s (and the Vinter Chamber’s426) contrary conclusion427 – namely, that the breach occurs only ‘once the offender has been detained beyond the period that can be justified on the ground of punishment and deterrence’428 – is based on the idea that, after a whole life prisoner has served many years of his/her sentence, it can emerge that his/her detention is no longer justified by punitive considerations. But this does not make sense. It is not as though some new factor could come into existence after the imposition of the sentence, so as to change what retributive concerns require. Rather, the sentence necessitated by punitive considerations must be exactly the same at such a time as it was at the time of sentencing. Accordingly, if the prisoner is to be released,
421 Ibid. 422 Ibid [102]. 423 Vinter GC [2013] III Eur Court HR 317, 349-50 [120]. While States have a margin of appreciation here, the Strasbourg Court has since held that a Hungarian scheme that provided such prisoners with their first review after they had served 40 years of their sentences violated art 3: TP v Hungary (European Court of Human Rights, Fourth Section Chamber, Application Nos 37871/14 and 73986/14, 4 October 2016) [45]. 424 Vinter GC [2013] III Eur Court HR 317, 349 [119]. See also Murray (2017) 64 EHRR 3, [100]-[101]. 425 See text accompanying n 373. 426 (2012) 55 EHRR 34, [92]. 427 Which has rightly been criticised: Dirk van Zyl Smit, ‘Outlawing Irreducible Life Sentences: Europe on the Brink?’ (2010) 23 Federal Sentencing Reporter 39, 44. 428 [2009] 1 WLR 223, 237 [43].
83
surely this is because s/he has achieved rehabilitation and is no longer dangerous. The Grand Chamber’s tacit acceptance of such logic appears to underlie its finding, just noted, that the breach occurs at sentencing. We already know at that stage that punitive considerations justify only a sentence of around 25 years;429 in no circumstances could they justify the whole life order that has been imposed.
Nevertheless, insofar as the Grand Chamber did indicate its approval of this analysis, such approval was merely tacit; it never expressly stated that the type of sentence it was considering was structured in the same way as any other life sentence. Why not? The answer seems to lie in what the Court did not instruct the UK to do. As we have just seen, it did not state when precisely the first sentence review had to take place. But, more importantly, it stated that it was for the domestic authorities to decide whether that review should be carried out by the executive or the judiciary.430
The ECtHR has been criticised for not insisting upon a judicial procedure.431 As a matter of principle, such criticism is well-founded. If, after 25 years or thereabouts has elapsed, the whole life prisoner’s continued detention can be justified only by his/her dangerousness, surely there is no reason to deprive him/her of the procedural safeguards accorded to other life sentence prisoners who have served the punitive component of their sentences?432 But pragmatic concerns are relevant here, too. As van Zyl Smit, Weatherby and Creighton observe, the Grand Chamber’s willingness to allow Contracting States to provide whole life prisoners with a mere executive review procedure was, at least partly, ‘politic’: they were seeking to be ‘as accommodating to the UK government as possible.’433
429 This is not to say that a ‘life-means-life’ sentence would be disproportionate in all such cases. Rather, it is to argue that, once we accept that irreducible life sentences breach human rights regardless of their proportionality (see text accompanying nn 35-46), it seemingly follows that all life sentences are split into punitive and preventive components. For, if whole life sentences were instead purely punitive, there would in some cases be no prospect of release (contrary to the ECtHR’s insistence that that is a breach of art 3). For example, it is hard to see how a judge could ever in the future find that, somehow, the crimes of someone like Anders Brevik were no longer objectively serious enough to warrant his continued detention. 430 Vinter GC [2013] III Eur Court HR 317, 349 [120]. 431 Dirk van Zyl Smit, Pete Weatherby and Simon Creighton, ‘Whole Life Sentences and the Tide of European Human Rights Jurisprudence: What is to Be Done?’ (2014) 14 Human Rights Law Review 59, especially 71-9; Mark Pettigrew, ‘Whole of Life Tariffs in the Shadow of Europe: Penological Foundations and Political Popularity’ (2015) 54 The Howard Journal of Criminal Justice 292, 300-3. For similar criticisms of the EWCA’s unwillingness in Bieber to decide whether a judicial procedure is necessary, see Michael Bohlander, ‘The Remains of the Day – Whole Life Sentences after Bieber’ (2009) 73 Journal of Criminal Law 30, 38-9. 432 In Kafkaris v Cyprus [2008] I Eur Court HR 223, 294, Judge Bratza expressed much sympathy for this view. 433 van Zyl Smit, Weatherby and Creighton, supra, 72.
84
This brings us to a possible answer to the question posed above about the ECtHR’s failure unambiguously to state that whole life orders are composed of a punitive followed by a preventive period of imprisonment. This failure might have resulted from the Grand Chamber’s concern not to ask the UK government to do too much. For the Court clearly to state that the whole life order is, like all other life sentences, part-punitive and part-preventive, would have made its refusal to insist upon a judicial procedure very difficult to justify. That is, just as the Australian courts in Baker, Elliott, Crump, Knight and Minogue (No 2) demonstrated an eagerness to maintain their legitimacy, so the ECtHR appears to have been keen to limit accusations that it had exceeded its more considerable powers. Indeed, as the above discussion of Wynne and Stafford shows,434 the pragmatism evident in the Court’s approach has precedents in this area: only in that latter case did the Grand Chamber finally feel able to recognise that the mandatory life sentence for murder was not a purely punitive imposition.
c. The UK’s response to Vinter; and the Strasbourg Court’s response to McLoughlin
If the Grand Chamber’s decision in Vinter constituted an attempt to compromise, however, the UK government quickly showed itself to be uncompromising. The English press and public were not placated by the ECtHR’s willingness to allow the Secretary of State to review whole life prisoners’ sentences once those offenders reached the end of their respective tariffs;435 and the then Prime Minister and some of his colleagues immediately made clear their implacable hostility to the ECtHR’s decision.436 With ‘anti ECHR feeling … already running high after unfavourable decisions regarding the extradition of foreign offenders and prisoner voting rights’, various Conservatives advocated the UK’s withdrawal from the ECHR.437 It was in that context that the EWCA decided McLoughlin.
In that case, the Court had before it one prisoner, McLoughlin, who had been sentenced to life imprisonment for murder with a minimum term of 40 years, and another, Newell, who had had a whole life order imposed on him. McLoughlin’s sentencing judge had only granted him a minimum term because of Vinter.438 If he imposed a whole life term on the prisoner, his
434 See text accompanying nn 349-353. 435 See, eg, Rogan, ‘Discerning Penal Values’, supra, 327; Mark Pettigrew, ‘Public, Politicians and the Law: The Long Shadow and Modern Thrall of Myra Hindley’ (2016) 28(1) Current Issues in Criminal Justice 51, 61. 436 See, eg, Pettigrew, ‘Retreating from Vinter in Europe’, supra, 265-6; Pettigrew, ‘A Vinter Retreat in Europe’, supra, 131-2. 437 Pettigrew, ‘Retreating from Vinter in Europe’, supra, 265. 438 McLoughlin [2014] 1 WLR 3964, 3977 [45], 3978 [47].
85
Lordship thought, he would acting incompatibly with art 3,439 in circumstances where no primary legislation required him to do so.440 The EWCA hastily disabused him of the idea that there was a need for such caution. Contrary to Vinter, their Lordships announced, ‘the domestic law of England and Wales’ was clear about when a whole life prisoner would be released.441 Such release would occur, they continued,442 if ‘exceptional circumstances’443 justified it. ‘We find it difficult to specify in advance what such circumstances might be,’ the Court conceded.444 Nevertheless, ‘the term “exceptional circumstances” is of itself sufficiently certain.’445 Most importantly, the EWCA held that the Strasbourg Court had been wrong to think446 that the Secretary of State might simply follow his policy for the release of whole life prisoners – which, like the ECtHR, their Lordships described as ‘highly restrictive.’447 He ‘could not fetter his discretion’ by considering only the maters set out there;448 rather, as had been stated in Bieber, he had to exercise his release power compatibly with art 3 and the ‘principles of domestic administrative law.’449
What do we make of this decision? Rogan has described it as ‘sensible’,450 I have described it elsewhere as ‘astute’;451 and I continue to believe that this is the correct analysis.452 It is undoubtedly true, as Bild has argued,453 that it is difficult to imagine the precise circumstances in which the Secretary of State will find that there is no longer a penological justification for a whole life prisoner’s detention.454 Nevertheless, s/he does have to provide reasons for his/her
439 See HRA s 6(1). 440 See HRA s 6(2). 441 McLoughlin [2014] 1 WLR 3964, 3975 [29]. 442 Ibid 3975 [31]. 443 See Crimes (Sentencing) Act 1997 (UK) s 30(1). 444 McLoughlin [2014] 1 WLR 3964, 3976 [36]. 445 Ibid 3975 [31]. 446 See text accompanying nn 378-385. 447 McLoughlin [2014] 1 WLR 3964, 3975 [32]. 448 Ibid. 449 Ibid 3975 [29]. 450 Rogan, ‘Discerning Penal Values’, supra, 328. 451 Dyer, ‘Irreducible Life Sentences: What Difference Have the European Convention on Human Rights and the United Kingdom Human Rights Act Made?’, supra, 582; Dyer, ‘Irreducible Life Sentences, Craig Minogue and the Capacity of Human Rights Charters to Make a Difference’, supra, 516. 452 Cf, eg, Steve Foster, ‘Whole Life Sentences and Article 3 of the European Convention on Human Rights: Time for Certainty and a Common Approach’ (2015) 36 Liverpool Law Review 147, 156. 453 Jonathan Bild, ‘Whole of Life Order: Article 3 Compliant After All?’ (2017) 75 Cambridge Law Journal 230, 232. 454 If s/he were ever to do so, or if a court were to make such a finding when reviewing the Secretary of State’s decision, the prisoner would have to be released: Hutchinson (European Court of Human Rights, Grand Chamber, Application No 57592/08, 17 January 2017) [51]-[52].
86
decision,455 which is subject to judicial review.456 Might this not mean that there is some prospect of release for the whole life prisoner who can provide the authorities with compelling evidence that s/he has achieved rehabilitation? Certainly, his/her prospects of release seem higher than they would have been had the EWCA instead acceded to Newell’s request457 to issue a declaration that English whole life orders were incompatible with art 3.458 For, as the Court noted, if it had granted this remedy, this ‘would not [have] … affect[ed] the continuing operation of the statutory scheme.’459 That scheme would have remained in force until Parliament decided to amend it.460 Given the UK government’s strongly adverse response to Vinter – and considering also its failure461 to alter s 3 of the Representation of the People Act in response to the ECtHR’s finding in Hirst (No 2) v United Kingdom462 that that section violated the ECHR – it seems inconceivable that Westminster would have made the requested amendments in the face of such a declaration. It would instead surely have released whole life prisoners only when they were terminally ill or very severely disabled.463 The position of such prisoners under McLoughlin does seem to be an improvement on this.
In any case, in Hutchinson the Grand Chamber fell into line with this approach.464 In doing so, it seems to have taken a more generous approach to the UK than it has to other Contracting States.465 When finding that Lithuanian and Ukrainian life sentences breached art 3, different ECtHR Chambers noted that, in those States: (i) only one ‘lifer’ had been granted a Presidential pardon/466 clemency;467 (ii) prisoners were not provided with the rehabilitative opportunities
455 McLoughlin [2014] 1 WLR 3964, 3975 [34]. 456 Ibid 3975 [32]. 456 Ibid. 457 Ibid 3971 [13]. McLoughlin did not oppose the Attorney-General’s argument that his sentence was unduly lenient, instructing his lawyers that he believed that he ‘deserve[d] the whole life tariff which the AG is seeking’: at 3977 [46]. 458 See HRA s 4(2). 459 McLoughlin [2014] 1 WLR 3964, 3973 [24]. 460 HRA s 4(6)(a). 461 Noted, eg, by Gardbaum, ‘What’s So Weak about “Weak-Form” Review?’ supra, 1043. 462 [2005] IX Eur Court HR 187. 463 See HM Prison and Probation Service, supra. 464 (European Court of Human Rights, Grand Chamber, Application No 32541/08 and 43441/08, 17 January 2017) [46]-[72]. 465 As argued by Graham, ‘From Vinter to Hutchinson’, supra, 265-6; Graham, ‘Petukhov v Ukraine No. 2’, supra. 466 Matiošaitis (European Court of Human Rights, Second Section Chamber, Application Nos 22662/13, 51059/13, 58823/13, 59692/13, 59700/13, 60115/13, 69425/13 and 72824/13, 23 May 2017) [172]. 467 Petukhov (European Court of Human Rights, Fourth Section Chamber, Application No 41216/13, 12 March 2019).
87
that they required if they were to demonstrate that they could safely be released;468 and (iii) prisoners were either not told from the outset what they had to do to be considered for release469 or, even if they were,470 were given no reasons for the executive’s clemency decisions471 (still less, reasons that were subject to judicial review).472 In Hutchinson, by contrast, the Court ignored the Secretary of State’s failure ever to release a whole life prisoner;473 did not consider whether sufficient rehabilitative opportunities are presented to such prisoners;474 and viewed less critically than it could have the EWCA’s vagueness about when ‘exceptional circumstances’475 would exist so as to justify release. That said, the Secretary of State’s obligation to give reasons, and the susceptibility of those reasons to judicial review, is one difference between the English scheme and the impugned Lithuanian and Ukrainian ones. And these features might go some way towards both remedying the lack of clarity surrounding the ‘exceptional circumstances’ requirement,476 and – as just argued – providing whole life prisoners with a prospect, however small, of eventually regaining their freedom.
d. The weaknesses of ‘weak-form’ charters
There is one further point that requires explication. It concerns the capacity of ‘weak-form’ human rights charters to counter penal populism – at least in the types of societies that the UK and Australia are becoming.
468 Ibid [181]-[184]; Matiošaitis (European Court of Human Rights, Second Section Chamber, Application Nos 22662/13, 51059/13, 58823/13, 59692/13, 59700/13, 60115/13, 69425/13 and 72824/13, 23 May 2017) [179]. 469 Petukhov (European Court of Human Rights, Fourth Section Chamber, Application No 41216/13, 12 March 2019) [173]-[174]. 470 Matiošaitis (European Court of Human Rights, Second Section Chamber, Application Nos 22662/13, 51059/13, 58823/13, 59692/13, 59700/13, 60115/13, 69425/13 and 72824/13, 23 May 2017) [78], [171]. 471 Ibid [170]; Petukhov (European Court of Human Rights, Fourth Section Chamber, Application No 41216/13, 12 March 2019) [177]-[178]. 472 Matiošaitis (European Court of Human Rights, Second Section Chamber, Application Nos 22662/13, 51059/13, 58823/13, 59692/13, 59700/13, 60115/13, 69425/13 and 72824/13, 23 May 2017) [170]; Petukhov (European Court of Human Rights, Fourth Section Chamber, Application No 41216/13, 12 March 2019) [179]. 473 See Graham, ‘From Vinter to Hutchinson’, supra, 265. 474 Ibid 266. 475 Contrast this with the Fourth Section’s finding in Petukhov (European Court of Human Rights, Fourth Section Chamber, Application No 41216/13, 12 March 2019) [173]-[174] that it was insufficient that the relevant regulations informed prisoners that clemency would be granted in ‘exceptional cases and subject to extraordinary circumstances.’ This was too vague for prisoners to have any real idea of what they were required to do if they were to be released: at [174]. See also Trabelsi v Belgium [2014] V Eur Court 301, where the ECtHR stigmatised a US imposition as an irreducible life sentence largely because prisoners were not given ‘precise cognisance’ at sentencing of the criteria that they had to satisfy if they were to be released: at [137]. 476 About which commentators have rightly expressed concern: see, eg, Catherine Appleton and Dirk van Zyl Smit, ‘The Paradox of Reform: Life Imprisonment in England and Wales’ in Dirk van Zyl Smit and Catherine Appleton, Life Imprisonment and Human Rights (Hart Publishing, 2016) 217, 229-30.
88
The argument in this chapter has so far been that, when we compare the Australian irreducible life sentences case law with that of the UK and Strasbourg courts, it becomes evident that charters of rights can improve protections for offenders against populist laws that objectify and exclude them. Whereas the Australian courts have failed to prevent the NSW Parliament from itself imposing irreducible life sentences on children,477 Strasbourg authority makes it most unlikely that Westminster would ever even allow judges to do the same. And, as just noted, while McLoughlin and Hutchinson do not give adult whole life prisoners much greater cause for optimism than their Australian counterparts, the English position nonetheless seems marginally preferable to that in Australia. Certainly, Vinter shows the capacity for courts armed with human rights charters to reason more expansively than those without such powers – to the benefit, it seems, of whole life prisoners in States such as Lithuania and Ukraine.478
Furthermore, as stated above, the legislation upheld by the HCA in Crump, Knight and Minogue (No 2) would violate the ECHR – and consequently would be unlikely to be passed in the UK. This is partly because of art 3: Hutchinson maintains that, if release from a whole life order were possible only in the circumstances contemplated by the NSW and Victorian laws, the sentence would be irreducible.479 But art 6(1) would pose perhaps an even more obvious problem.
We have seen480 that, in cases such as V,481 the ECtHR held that that Article requires sentencing to be done only by ‘independent and impartial tribunal[s]’ – that is, courts – and never by the other arms of government. In R (Anderson) v Secretary of State for the Home Department,482
477 For further discussion of the NSW government’s decision to withdraw the possibility of release from Bronson Blessington and Matthew Elliott, see Wendy O’Brien and Kate Fitz-Gibbon, ‘“Cemented in Their Cells”: A Human Rights Analysis of Blessington, Elliott and the Life Imprisonment of Children in New South Wales’ (2016) 22(1) Australian Journal of Human Rights 111; Kate Fitz-Gibbon, ‘Life Without Parole in Australia’ in van Zyl Smit and Appleton, Life Imprisonment and Human Rights, supra, 75, 85-7. 478 The ECtHR has additionally found Turkish (Öcalan v Turkey (No 2) (European Court of Human Rights, Second Section Chamber, Application Nos 24069/03, 197/04, 6201/06 and 10464/07, 18 March 2014) [207]; Kaytan v Turkey (European Court of Human Rights, Second Section Chamber, Application No 27422/05, 15 September 2015) [67]) and Hungarian (Laszlo Magyar v Hungary (European Court of Human Rights, Second Section Chamber, Application No 73593/10, 20 May 2014) 11–12 [58]; TP (European Court of Human Rights, Fourth Section Chamber, Application Nos 37871/14 and 73986/14, 4 October 2016) 14 [50]) whole life sentences to breach art 3. 479 Hutchinson (European Court of Human Rights, Grand Chamber, Application No 32541/08 and 43441/08, 17 January 2017) [43]. 480 See text accompanying nn 332-34. 481 V [1999] IX Eur Court HR 111, 154 [114]. See also Stafford [2002] IV Eur Court HR 115, 141 [79]. 482 [2003] 1 AC 837, 880-2 [20]-[28] (Lord Bingham, Lord Nicholls agreeing at 883 [32], Lord Steyn agreeing at 895 [61], Lord Hutton agreeing at 901 [84], Lord Hobhouse agreeing at 901 [85], Lord Scott agreeing at 902 [86] and Lord Rodger agreeing at 902 [87]).
89
the House of Lords accepted this, and that the Home Secretary could therefore no longer, compatibly with the ECHR, set tariffs for mandatory life sentence prisoners. In so holding, Lord Bingham noted the ‘fundamental’ importance of ‘the complete functional separation of the judiciary from the executive …, since the rule of law depends upon it.’483 Given this result, and such reasoning,484 it seems inconceivable that the UK and/or Strasbourg Courts would hold the Crump, Knight or Minogue laws to be compatible with art 6(1). For while the HCA has of course found that such laws do not alter the sentence imposed on the prisoners to whom they apply,485 no Court that insisted on a ‘complete’ separation of judicial power – or that took seriously the proposition that such matters ‘must be judged as one of substance, not of form or description’486 – could adopt such an approach. Once more, the NSW and Victorian Parliaments have in truth substituted minimum terms of life imprisonment for the lengthy non- parole periods imposed by the judges who sentenced these offenders.
Moreover, the Crump law would seemingly breach art 5(1), because the detention for which it provides is neither detention ‘after’ conviction by a court487 nor covered by any of the other ‘permissible grounds on which persons may be deprived of their liberty.’488 As much is indicated by M v Germany,489 a case that I shall discuss in greater depth in chapter 4. In short, because it was legally impossible for the relevant sentencing judges to impose irreducible life sentences on Crump or the other NSW ‘non-release recommendation’ prisoners, the irreducible life sentences that nine of these men490 are now serving might be held not to have ‘resulted from’491 their convictions. Those sentences instead might be held to have been caused by the
483 Ibid 882 [27]. 484 See also Stafford v United Kingdom [2002] IV Eur Court HR 115, 141 [78]. 485 Minogue (No 2) (2019) 93 ALJR 1031, 1035 [9] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), 1039 [32] (Gageler J), 1043 [49] (Edelman J); Knight (2017) 261 CLR 306, 323 [25], 323-4 [29]; Crump (2012) 247 CLR 1, 18-19 [34] (French CJ), 27 [60 (Gummow, Hayne, Crennan, Kiefel and Bell JJ), 28 [70], 29 [71], 29 [72], 29 [74] (Heydon J). 486 Anderson [2003] 1 AC 837, 876 [13] (Lord Bingham). 487 ECHR art 5(1)(a). 488 Al-Jedda v United Kingdom [2011] IV Eur Court HR 305, 372 [99] (‘Al-Jedda’). See also A v United Kingdom [2009] II Eur Court HR 137, 215 [162] (‘A’); Saadi v United Kingdom [2008] I Eur Court HR 31, 52 [43]. As is made clear in those authorities, ECHR art 5(1)(a)-(f) states an exhaustive list of grounds on which a person may be deprived of his/her liberty compatibly with the Convention. I shall return to this issue in chapter 4, when discussing post-sentence preventive detention. 489 [2009] VI Eur Court HR 169. 490 The tenth ‘non-release recommendation’ prisoner recently died: Laura Chang, ‘Anita Cobby Murderer Gary Murphy Dies in Prison’ Sydney Morning Herald (online, 22 February 2019)
90
‘subsequent change in the law’ effected by the NSW Parliament.492 If so, art 5(1)(a) could not justify such detention. Further, as in M, the UK and Strasbourg Courts would be very likely to hold that, additionally, a heavier sentence had been imposed on these NSW prisoners than was possible when they committed their offences, contrary to art 7(1).493
Nevertheless, it cannot be ignored that, while Victoria is one of three Australian States and Territories with a human rights charter,494 that charter had no effect on the Knight or Minogue legislation. As noted above, ss 74AA(4) and 74AB(4) of the Corrections Act 1986 (Vic) disapply the Victorian Charter for the purposes of those sections. And while there was no such disapplication of the provision495 considered by the HCA in Minogue (No 1), it is noteworthy that, in those proceedings, Craig Minogue declined to seek a declaration of inconsistent interpretation.496 This was not because he conceded that his sentence was compatible with the rights protected by the Victorian Charter. On the contrary, he contended that its incompatibility with them was a further reason why the Court should construe s 74AAA in such a way as to make it inapplicable to him.497 Rather, he took the approach that he did, seemingly because a declaration of inconsistent interpretation would have done him absolutely no good.498 When apprised of the HCA’s view that the section was inconsistent with s 10(b) of the Charter,499 it is most unlikely that the Victorian government would have felt persuaded to deal more humanely with Dr Minogue.500 Certainly, the UNHRC’s finding that the Crump legislation
492 Ibid 205 [100]. 493 Ibid 217 [137]. 494 As noted in chapter 1, the ACT and Queensland are the other two Australian jurisdictions with a charter. 495 Corrections Act 1986 (Vic) s 74AAA(4), repealed by Corrections Amendment (Parole) Act 2018 (Vic). The plurality noted this in Minogue (No 1) (2018) 264 CLR 252, 272 [51]. 496 See Victorian Charter s 36. 497 Minogue (No 1) (2018) 264 CLR 252, 272-3 [50]-[55]. As noted in chapter 1, Victorian Charter s 32(1) states that: ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.’ Dr Minogue’s argument was essentially that, given that the construction of s 74AAA for which he was arguing was ‘possible’, the Court should adopt that construction, because it would render that provision more compatible with human rights than would the state’s preferred construction: it would apply to fewer prisoners. The Court noted the novelty, and ‘apparent logic’, of this submission (at 273 [55]); but it relied on different reasoning when finding that s 74AAA did not apply to Dr Minogue. 498 Perhaps a similar realisation lies behind the failure of any Victorian prisoner to challenge on Victorian Charter grounds Sentencing Act 1991 (Vic) s 11(1). See text accompanying n 124. 499 Minogue (No 1) (2018) 264 CLR 252, 272-3 [52]-[55] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ), 276 [72] (Gageler J). 500 Monique Moffa, Greg Stratton and Michele Ruyters, ‘Parole Populism: The Politicisation of Parole in Victoria’ (2019) 31(1) Current Issues in Criminal Justice 75, 83, note that recent Victorian parliamentary debates have ‘displayed a disdain for the protection of prisoners’ rights.’
91
breaches art 7 ICCPR501 has not caused the NSW Parliament to reconsider the merits of that law.502
This returns us to the above comments503 about its seemingly being inconceivable that, if the EWCA had issued a declaration of incompatibility in McLoughlin, the UK government would have amended the relevant statutory scheme. In short, the Victorian government’s disapplication of its charter for the purposes of ss 74AA and 74AB; Craig Minogue’s tactical decision in Minogue (No 1) not to seek a declaration of inconsistent interpretation; and the UK government’s response to Vinter, provide powerful evidence that, if they are to have the potential to protect prisoners’ rights as thoroughly as charters can, any future Australian human rights charters must be designed differently from those that currently exist. Prisoners will only have a chance of being given the full array of benefits that charters provide for them if governments are not permitted to disapply those charters whenever they consider it to be expedient to do so.504 And McLoughlin and Minogue (No 1) indicate that, without a judicial ‘strike-down’ power,505 prisoners will continue to be exposed to some of penal populism’s worst excesses.
This is not to say that charters allowing for ‘strong-form’ review are necessarily desirable. A charter’s capacity to protect prisoners’ rights is not the only relevant consideration when determining (i) whether such an instrument should be introduced and, if it should, (ii) how it should be designed. Moreover, as noted in chapter 1, and as argued more fully in chapters 3 and 5, there are potential disadvantages involved with such a charter model. For one thing, it possibly creates a greater risk than does ‘weak-form’ review of leading to a politicised judiciary whose decisions end up not being conspicuously liberal506 – as in the US.507
501 Similarly to Victorian Charter s 10(b), ICCPR art 7 provides, relevantly, that ‘[n]o one shall be subjected to … cruel, inhuman or degrading punishment.’ 502 Tom Allard, ‘Janine Balding Killers: NSW Government Rejects UN Finding’, Sydney Morning Herald (online, 25 November 2014)
92
Nor is it to say that ‘weak-form’ charters lack any utility in countries such as the UK and Australia. Gearty has persuasively argued that the HRA has brought about real improvements in the UK – sometimes even to the position of vulnerable minorities.508
It is instead merely to observe that, even if ‘weak-form’ charters can deliver some benefits to prisoners in countries such as Australia and the UK, future such charters in Australian jurisdictions might well be unable to protect them from some of the most serious breaches of their human rights. In these circumstances, it is surely worth considering whether ‘strong-form’ charters should be adopted in those jurisdictions509 (however unlikely it is that they will be).
E. Conclusion In this chapter, I have compared the UK and Strasbourg case law concerning irreducible life sentences with the Australian law in this area. That comparison has demonstrated that charters of rights can provide offenders with increased protections against penal populism. Instead of deploying dubious and/or formalistic reasoning to obstruct human rights-promoting results that would antagonise the public, the Strasbourg and UK judges – especially the former – have interpreted their charters as judges should. They have acknowledged and given effect to the purpose of such instruments – to protect the rights of tyrannised minorities – rather than frustrating that purpose by failing ever to move beyond the democratic consensus. It is true that the judges have been careful not to deviate too far from what the community supports. It also seems true that, as Appleton and van Zyl Smit have argued, we must doubt whether ‘widely reviled [English whole life] prisoners will be treated fairly’ when the executive finally comes to review the continuing need for their detention.510 But Hussain, V and Weeks have improved the position of child offenders; and those decisions and other UK511 and Strasbourg512 authorities make it practically unthinkable that any of the prisoners caught by the NSW and Victorian legislation discussed above would be treated in the UK quite how they have been treated by Australian Parliaments.
508 Gearty, On Fantasy Island, supra, especially chapters 9 and 10. 509 See Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice, supra, 50; Scott Stephenson, ‘Is the Commonwealth’s Approach to Rights Constitutionalism Exportable?’ (2019) 17(3) International Journal of Constitutional Law 884, 892-3. 510 Appleton and van Zyl Smit, ‘The Paradox of Reform’, supra, 236. 511 Anderson [2003] 1 AC 837. 512 M [2009] VI Eur Court HR 169.
93
That said, whether human rights charters will improve the position of offenders targeted by penal populist laws – and, most especially, whether such charters will deliver to prisoners all of the benefits that these instruments have the capacity to confer on them – does depend on the circumstances. As just noted, one of those circumstances might be whether the charter is a ‘strong-form’ or ‘weak-form’ instrument. But, as is demonstrated by the law regarding (grossly) disproportionate sentences, which we will consider in the next chapter, it is not the only one. In that area of the law, too, the Australian courts have used questionable and formalistic reasoning to justify their refusal to interfere with punitive legislative schemes. But, as we shall see, the US Supreme Court has taken no less deferential an approach. This, in turn, must give pause to any suggestion that ‘strong-form’ charters will certainly provide prisoners with every protection that human rights charters can grant them.
94
CHAPTER THREE: (GROSSLY) DISPROPORTIONATE SENTENCES
A. Introduction In this chapter, I consider whether there are sufficient protections against disproportionate sentences in jurisdictions without a charter of rights, and, if not, whether the existence of such a charter can improve the position of those who have had such a sentence imposed on them. I conclude that the answer to these questions is, respectively, ‘no’ and ‘yes.’ It all comes back to the weight that courts must attach to a consideration to which Sarah Cleveland referred in her partly dissenting opinion in Nasir v Australia,1 a case in which an impoverished Indonesian fisherman alleged that his three-year mandatory minimum sentence for an Australian people smuggling offence breached the ICCPR. ‘Legislatures’, she said, ‘have a vital role in … prescribing sentencing principles.’2 Whether or not a judge has the authority to interpret a charter of rights, s/he must acknowledge this role; and s/he must pay respect to legislative decisions about such questions. But how much respect must s/he accord Parliament’s views?
As we shall see, courts in jurisdictions without a charter of rights tend to answer this question differently from courts in jurisdictions where such a measure is in force. The HCA has been unwilling to use ch III of the Commonwealth Constitution to place limits on legislatures in this area; its deference to Parliament has been total. The UK3 and Strasbourg4 judges – and, in recent cases, the Canadian Supreme Court (‘CSC’)5 – have adopted a more assertive approach. Certainly, these judges have allowed Parliament broad – indeed, sometimes excessively broad – scope to decide what measures are necessary to ‘denounce unlawful conduct.’6 Nevertheless, they have also at times shown the ability of human rights charters to restrict legislative attempts to authorise or require sentences that bear no relation to ‘the moral culpability of the offender and his or her circumstances.’7
1 Nasir v Australia, UN Doc CCPR/C/116/D/2229/2012 (29 March 2016). 2 Ibid 24 [14]. 3 See, eg, Lichniak [2003] 1 AC 903, 909 [8]; Reyes [2002] 2 AC 235; Aubeeluck v Mauritius [2010] UKPC 13 (‘Aubeeluck’). 4 See, eg, Vinter GC [2013] III Eur Court HR 317, 344 [102]; Harkins (2012) 55 EHRR 19, [133]. 5 R v Nur [2015] 1 SCR 773 (‘Nur’); R v Lloyd [2016] 1 SCR 130 (‘Lloyd’); R v Boudreault [2018] 3 SCR 599 (‘Boudreault’). 6 Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519, 552 [50] (McLachlin CJ for herself, Iacobucci, Binnie, Arbour and LeBel JJ) (‘Sauvé’). 7 Ibid.
95
The chapter is structured as follows. In part B, I consider why disproportionate sentences are human rights breaches. As foreshadowed in chapters 1 and 2, they are objectionable essentially for the same reasons as are sanctions, such as the death penalty and irreducible life sentences, that by their nature are ‘inhuman or degrading.’ In other words, as Kerr and Berger have recently observed, whether a punishment is ‘cruel and unusual’8 because of the type of punishment it is, or instead because of its ‘extent or amount’,9 it violates the human dignity of the person upon whom it is imposed.10 A sentence that reflects with some precision the blameworthiness exhibited by the offender respects his/her personhood, by reasoning with him/her.11 A sentence that achieves no such equivalence is differently placed. Because it is not an individualised response to the prisoner, it is not an appeal to him/her. Rather, it both objectifies and excludes. If the offender were a member of the community like us, the message seems to be, we would have to rely on persuasion. But because s/he is instead a ‘vile embodiment of evil’,12 these niceties do not have to be observed. The prisoner must have an intimidatory sanction imposed on him/her: that is all s/he is capable of understanding. And s/he may be used as ‘a means to an end.’13 His/her sub-human status means that we need have no scruples about imposing such a sanction to achieve such goals as general deterrence and/or the reassurance of the public through ‘symbolic denunciation.’14
In part C, I consider the Australian case law concerning the constitutionality of mandatory sentencing schemes. As has often been noted, such laws are eminently capable of producing sentencing disproportionality.15 They also might be thought, at Commonwealth level, to constitute a legislative or executive interference with or usurpation of judicial power, contrary to ch III of the Constitution; and, at State and Territory level, to confer on the courts functions that are repugnant to or incompatible with their exercise of federal judicial power, contrary to
8 Canada Act 1982 (UK) cl 11, sch B pt 1, s 12. 9 Lisa Kerr and Benjamin Berger, ‘Methods and Severity: The Two Tracks of Section 12’ (2019, Forthcoming) Supreme Court Law Review 1, 6. 10 Ibid 20. 11 See, eg, Mavronicola, ‘Crime, Punishment and Article 3 ECHR’, supra, 733-4. 12 Jeremy Waldron, ‘Inhuman and Degrading Treatment: The Words Themselves’ (2010) 23 Canadian Journal of Law and Jurisprudence 269, 282-3. 13 Dirk van Zyl Smit and Andrew Ashworth, ‘Disproportionate Sentences as Human Rights Violations’ (2004) 67 Modern Law Review 541, 547, observe that such objectification is ‘one good reason why disproportionate punishments are objectionable.’ 14 To use the language of Lauren Witten, ‘Proportionality as a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties’ (2017) 48(1) Ottawa Law Review 85, 124. 15 See, eg, Morris J Fish, ‘An Eye for an Eye: Proportionality as a Moral Principle of Punishment’ (2008) 28 Oxford Journal of Legal Studies 57, 69; Nur [2015] 1 SCR 773, 800 [44] (McLachlin CJ for herself, LeBel, Abella, Cromwell, Karakatsanis and Gascon JJ).
96
Kable.16 Consistently with Allsop P’s remarks in Karim v The Queen,17 that is, the person upon whom a mandatory penalty is imposed, seems ‘justified in concluding that … as a matter of substance he or she had his or her sentence in a significant respect dictated, in advance, by a decision of the [elected branches of] … government.’ This ‘simple approach’,18 however, has not commended itself to the Australian courts.19 As in many of the cases examined in chapter 2, those courts have looked not to substance, but have instead placed excessive emphasis on matters of form, when declining to strike down the relevant laws. Sir Anthony Mason has stated that the Australian courts’ reluctance to allow ch III to restrict the state’s ability to enact mandatory sentencing legislation ‘strengthens my view that it is time that we joined the other nations of the Western world in adopting a Bill of Rights.’20 But is he right to assume that such an instrument might make a difference in this area?
In part D, I argue that decisions of the ECtHR and the Privy Council – and the CSC – indicate that he is right. As noted in chapter 1, Lord Bingham’s reasoning in Reyes21 shows the capacity of judges armed with a charter of rights to challenge harsh sentencing laws, however popular those laws are. So too does the CSC’s decision in R v Nur.22 There, McLachlin CJ – in a ‘refreshingly blunt’23 judgment – rightly asserted that Canadian courts must not shirk their duty to strike down legislation that facilitates the imposition of crushing sentences.24
Nevertheless, this response must be qualified in two ways. First, the ECtHR’s insistence that a sentence will only rarely breach art 3 ECHR because of its disproportionality,25 provides further evidence of a phenomenon that I noted in chapters 1 and 2. There are limits to the ability of human rights charters to improve protections against penal populism: such charters cannot
16 (1996) 189 CLR 51. 17 (2013) 83 NSWLR 268, 299 [117] (‘Karim’) (Emphasis added). 18 Ibid 299 [118]. 19 See especially Palling v Corfield (1970) 123 CLR 52 (‘Palling’); Magaming (2013) 252 CLR 381. 20 Sir Anthony Mason, ‘Mandatory Sentencing: Implications for Judicial Independence’ (2001) 7(2) Australian Journal of Human Rights 21, 30. See also Sir Gerard Brennan, ‘Mandatory Sentencing: Rights and Wrongs’ (2001) 7(2) Australian Journal of Human Rights 3, 6. 21 [2002] 2 AC 235. 22 [2015] 1 SCR 773. See also Lloyd [2016] 1 SCR 130; Boudreault [2018] 3 SCR 599. 23 Debra Parkes, ‘Punishment and Its Limits’ (2019) 88 Supreme Court Law Review 351, 352. 24 Nur [2015] 1 SCR 773, 807 [63], 816 [87]. 25 Vinter GC [2013] III Eur Court HR 317, 344 [102]. As noted in Vinter Chamber (2012) 55 EHRR 34, [89] (‘Vinter Chamber’), the CSC has taken the same approach: Warden of Mountain Institution v Steele [1990] 2 SCR 1385, 1417 (‘Steele’).
97
realistically be expected to render the law perfectly satisfactory ‘from a liberal point of view.’26 It is not as though, when they interpret such instruments, judges can altogether ignore the views that citizens have expressed through their representatives.
Secondly, and more worryingly, just because charters of rights can improve protections for offenders against disproportionate sentences, does not necessarily mean that they will do so. van Zyl Smit’s complaint twenty-five years ago about the ‘disappointing … lack of courage of constitutional courts in tackling the question of the potential disproportionality inherent in mandatory sentences’27 remains somewhat true today.28 In other words, when dealing with such issues, courts with the responsibility of protecting human rights have too often acted as though they have not been granted such powers. Never has this been more apparent than in the USSC’s jurisprudence concerning disproportionately severe sentences in non-capital cases29 – though for many years the CSC also took an excessively deferential approach,30 and recent UK and Strasbourg decisions31 contain reasoning that, if it takes hold more broadly, will deprive the guarantee against grossly disproportionate sentences of any meaningful content.
This reference to the USSC’s jurisprudence returns us to a point raised near the end of chapter 2. As noted there, whether a charter of rights will realise its potential to improve protections against penal populist laws depends on a number of circumstances. And as a former member of the USSC has indicated, one of those circumstances is who the judges are.32 ‘Written guarantees,’ he observes, ‘are ineffectual when the will and power to enforce them is lacking.’33 In part D I argue, and in part E I conclude, that Lord Bingham’s and McLachlin CJ’s willingness rigorously to enforce the prohibition on ‘inhuman or degrading’/‘cruel and unusual’ punishments, is commendable. But, as foreshadowed in chapter 2, I also argue in part
26 See Gearty, ‘The Human Rights Act – An Academic Sceptic Changes His Mind but not His Heart’, supra, 586. See also Kavanagh, Constitutional Review, supra, 396. 27 Dirk van Zyl Smit, ‘Constitutional Jurisprudence and Proportionality in Sentencing’ (1995) 3 European Journal of Crime, Criminal Law and Criminal Justice 369, 379. 28 For views consistent with this, see Mary Rogan, ‘Out of Balance: Disproportionality in Sentencing’ on Penal Reform International, Penal Reform International Blog (25 August 2014)
98
D that the US case law provides evidence that ‘strong-form’ charters can lead to a situation where judges like Lord Bingham and McLachlin CJ are outnumbered by more conservative colleagues. For, as the former USSC Justice also noted:34
[T]he way in which judges are chosen becomes increasingly important as their authority grows … And it would be fatuous to deny that, so long as elected officials select judges and reasonable people disagree over the proper scope of protected rights, politics will play some part in determining who ascends the bench. The ‘bitter’35 divisions between ‘liberal’ and less liberal USSC Justices in the relevant cases – and the resolution of those differences largely in the conservatives’ favour in Harmelin v Michigan36 – provides a salutary warning about what can happen when judges have the sorts of powers that US judges possess. In short, ‘weak-form’ review does carry the risk that prisoners’ rights will be under-protected; but a politicised judiciary can also be less defensive of liberty than it should be.
B. Why Disproportionate Sentences Are Human Rights Breaches In Côté J’s dissenting judgment in the Canadian case of R v Boudreault,37 her Honour noted that certain punishments and particular treatment ‘will always violate s 12’ of the Canadian Charter, which provides that ‘[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment.’ ‘The lash, the lobotomization of certain dangerous offenders, and the castration of sexual offenders’,38 she noted, are three examples of conduct that is never compatible with that guarantee. Of course, in chapter 2, I argued that the irreducible life sentence, too, is always contrary to human rights. Like ‘the lash’, it is not an attempt to communicate with an offender. Rather, it is at once a denial of the offender’s humanity and an act of exclusion: because the offender is not a reasoning being like us, s/he is not one of us, and s/he must be kept away from us.
Justice Côté also referred to a second kind of punishment that is ‘cruel and unusual’/‘inhuman or degrading.’ A sentence of imprisonment,39 her Honour observed, will be struck down if it is
34 Ibid 434-5. 35 van Zyl Smit, ‘Constitutional Jurisprudence’, supra, 371. 36 501 US 957 (1991) (‘Harmelin’). 37 [2018] 3 SCR 599, 679 [183]. 38 Ibid, citing R v Smith [1987] 1 SCR 1045, 1073-4 (‘Smith’) (Original emphasis). 39 The same is true of a fine. Note that, in Boudreault, the impugned measure required anyone found guilty of an offence contained in Criminal Code, RSC 1985, c C-46 or Controlled Drugs and Substances Act, S.C. 1996, c.19 to pay a ‘victim surcharge’ of 30 percent of any fine imposed or, if no fine was imposed, $100 for every summary conviction recorded and $200 for every conviction of an indictable offence: ibid 613 [7].
99
grossly disproportionate40 – although Kerr and Berger have argued that her Honour could have distinguished more clearly than she did between the ‘two tracks’ of s 12.41 Whether or not this is so, those commentators are clearly right to argue that ‘two tracks’ exist.42 Or, to put the matter differently, and as argued in chapter 2, we must draw a distinction between punishments that are by their nature – and, therefore, always – ‘cruel and unusual’/‘inhuman or degrading’, and those that will only be contrary to guarantees such as s 12 (and art 3 ECHR) if they bear no proper relationship to that which they are punishing. A sentence of 15 years’ imprisonment falls into the latter category. If imposed on a person who has committed murder, it might be a proportionate penalty. If imposed for a parking offence, it will not be.43 As this example shows, it is not the type of punishment that renders such a sentence contrary to human rights: the ECtHR has assured us that imprisonment is often a legitimate punishment.44 Rather, it is the amount of punishment that causes the problem: the Strasbourg judges have also told us that imprisonment will cease to be legitimate if ‘the suffering and humiliation involved … go[es] beyond that inevitable element of suffering or humiliation connected with’ that type of punishment.45
There are three points to be made here.
The first is that, when a sentence of imprisonment is disproportionate to the offender’s criminality, his/her human dignity is attacked in much the same way as it is by punishments that are barbaric in themselves. By exercising its coercive powers in a way that is not tailored to the offender’s wrongdoing, the state treats him/her, not as someone who can be persuaded to reform his/her ways, but as something that lacks such human qualities. As with the recipient of an irreducible life sentence, s/he is an object and an enemy. Because s/he is different from us, the state is saying, s/he may be bludgeoned ‘into compliance with the law’46 and/or used to intimidate others or to achieve some other end.
Telling in this regard are the state’s reasons for introducing laws that facilitate the imposition of disproportionate sentences. When the government introduces mandatory sentencing
40 Ibid 679 [183]. 41 Kerr and Berger, ‘Methods and Severity’, supra, 9-10. 42 Ibid 2. 43 See Rummel v Estelle 445 US 263 (1980), 274 (‘Rummel’). 44 Kafkaris [2008] I Eur Court HR 223, 269 [96]. 45 Ibid. 46 von Hirsch, Censure and Sanctions, supra, 5.
100
legislation, or other ‘tough’ sentencing measures, it commonly claims that its aim is to achieve goals such as general deterrence and incapacitation.47 And scholars and judges sometimes claim,48 or suggest,49 that if disproportionately harsh sentences actually caused a reduction in crime, they might50 be justified. The problem is, some continue, that ‘there is voluminous evidence to the contrary.’51 That is, because ‘there is abundant evidence to suggest that the imposition of minimum mandatory sentences does not deter criminal behaviour’,52 and because they are supported by no other ‘legitimate penological objective’,53 they are impermissible. I believe that this reasoning is misconceived. If it were to emerge that disproportionate sentences achieved a deterrent effect, that would not make them any less illiberal or any more compatible with human rights. However successfully a punishment might (to return to the words of van den Haag, quoted in chapter 2) ‘vindicate the law and the social order undermined by the crime’,54 it will only be rights-respecting if it is addressed to the offender, and not to those who might be inclined to emulate his/her deeds. Nor need we see this emphasis on reasoning with offenders as being insensitive to consequences. For, when the state treats such persons without regard for their human dignity, the concern is that it will lose its status as a liberal state.55
But the state does not have only – or, necessarily, any – rational aims when it enacts harsh sentencing laws. On the contrary, often these laws are implemented purely for political
47 See, eg, Neil Morgan, ‘Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?’ (2000) 24 Criminal Law Journal 164, 169-70. See also Anthony N Doob and Carla Cesaroni, ‘The Political Attractiveness of Mandatory Minimum Sentences’ (2001) 39 Osgoode Hall Law Journal 287, 289. 48 Mirko Bagaric, ‘What Sort of Mandatory Penalties Should We Have?’ (2002) 23 Adelaide Law Review 113, 124. See also HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford University Press, 2nd ed, 2008) 25. 49 When a person denies that disproportionate sentences deter crime, s/he often conveys the impression – and it might not always be an accurate impression – that s/he might look more favourably on such punishments if they did have a deterrent effect: see, eg, Parkes, ‘Punishment and Its Limits’, supra, 357; Anthony Gray, ‘Mandatory Sentencing around the World and the Need for Reform’ (2017) 20 New Criminal Law Review 391, 421, 432; Nasir v Australia, UN Doc CCPR/C/116/D/2229/2012 (2016) 23 [9] (partly dissenting opinion of Sarah Cleveland). 50 For some of these individuals, whether such sentences would be justified depends on whether they would ‘maximise happiness’: Bagaric, ‘What Sort of Mandatory Penalties Should We Have?’, supra, 124. In answering that question, factors beyond the deterrent effect of such sentences might be relevant. For example, Hart suggests that, if disproportionate sentences were to ‘bring … the law into contempt’, despite their utility in controlling crime, they might not be warranted: Hart, Punishment and Responsibility, supra, 25. 51 Nasir v Australia, UN Doc CCPR/C/116/D/2229/2012 (2016) 23 [9] (partly dissenting opinion of Sarah Cleveland). 52 Gray, ‘Mandatory Sentencing around the World’, supra, 421. 53 Ibid 423. 54 van den Haag, ‘For Capital Punishment’, supra, 1667. 55 Ristroph, ‘Proportionality as a Principle of Limited Government’, supra, 331.
101
reasons.56 Frequently passed in response to community concern about a particular incident or an apparently (increasingly) prevalent offence,57 such legislation’s main purposes are to express public anger about crime, forcefully to ‘reassert … the fundamental collective values of society’58 and – by so doing – to ‘demonstrate that the state is in control and is willing to use its powers to … protect the law-abiding public.’59 They are, in other words, classic instances of penal populism. In the South African case of Dodo v The State,60 Ackermann J stated that, even where a disproportionate sentence is not imposed to achieve a penological goal such as general deterrence, it ‘would … tend to treat the offender as a means to an end, thereby denying [his/her] … humanity.’61 This seems clearly true where the relevant sentence is imposed pursuant to a politically-motivated provision. In such a case, the offender is being used to achieve an end that the government considers to be worthwhile – the enhancement of its electoral prospects. But there is perhaps an even more obvious problem. Because the failure to reason with such offenders is often founded on the notion that they are ‘animals’ that cannot control themselves, we can surely object to such punishments on the basis that, like the irreducible life sentence, they treat offenders as having excluded themselves from society.
The second point concerns an implication arising from the ECtHR’s claim that imprisonment will breach human rights if the offender’s ‘suffering’ goes beyond that which this type of punishment inevitably causes.62 That implication is that a disproportionate sentence is incompatible with human dignity because of how a prisoner subjectively experiences that sentence. Similar reasoning appears in Boudreault. When finding that the impugned ‘victim surcharge’ was grossly disproportionate when applied to certain impoverished offenders63 and
56 See, eg, Doob and Cesaroni, ‘The Political Attractiveness of Mandatory Minimum Sentences’, supra, 298; Russell Hogg, ‘Mandatory Sentencing Laws and the Symbolic Politics of Law and Order’ (1999) 22 UNSW Law Journal 262, 264; Gerry Ferguson and Benjamin L Berger, ‘Recent Developments in Canadian Criminal Law’ (2013) 37 Criminal Law Journal 315, 315. 57 For example, in response to community concern about the arrival by boat of, mainly Afghan, asylum seekers, the Australian Commonwealth government in 2001, just before a federal election, enacted legislation that provided for mandatory minimum sentences for various Commonwealth people smuggling offences: see Neil Morgan, ‘Going Overboard? Debates and Developments in Mandatory Sentencing, June 2000 to June 2002’ (2002) 26 Criminal Law Journal 293, 296. See also Kate Warner, ‘Mandatory Sentencing and the Role of the Academic’ (2007) 18 Criminal Law Forum 321, 337. This was the legislation at issue in Nasir, UN Doc CCPR/C/116/D/2229/2012 (2016). 58 Chester [2014] AC 271, 333-4 [128] (Lord Sumption). 59 Garland, The Culture of Control, supra, 133. 60 Dodo v The State [2001] 3 SA 382 (Constitutional Court), 404 [38]. 61 Ibid. 62 See text accompanying n 45. 63 Boudreault [2018] 3 SCR 599, 644-5 [94] (Martin J for himself, Wagner CJ, Abella, Karakatsanis, Gascon and Brown JJ).
102
an unjustifiable infringement of s 12 of the Canadian Charter,64 the majority took into account the stress experienced by such individuals as a result of their inability to pay.65 The minority also considered this factor, though it thought that there was no evidence66 that such stress was ‘so severe that it makes the imposition of the surcharge on impecunious offenders cruel and unusual.’67 In my view, the reasoning of both the majority and minority was wrong.
It will be recalled that I argued in chapter 2 that irreducible life sentences are contrary to an offender’s human dignity, not because of the ‘distress or hardship’68 they might cause him/her, but because the state has treated that offender as being less than a person. The same is true of disproportionate sentences. If we return to the example of a 15-year sentence of imprisonment for a parking offence,69 this offender has probably been caused no more suffering than the murderer who has had the same sentence imposed on him/her. And even if s/he has, perhaps because the murderer is ‘blessed … with extraordinary mental coping capacities or … [has] a sheer lack of sensitivity’,70 that is not why the parking offender’s sentence is an ‘inhuman or degrading’ punishment. Instead, it breaches guarantees such as art 3 ECHR because, in the words of the ECtHR in Svinarenko v Russia,71 it is ‘objectively degrading.’ Again, the state’s failure to reason with the offender is what is important, not how its punishment makes that offender feel.
The third point is that the reader will have noticed that, throughout this section, I have argued that disproportionate sentences are contrary to human rights: unlike various courts around the world,72 I have not insisted that they be grossly disproportionate before they earn this status. This is because, as Chaster has contended – consistently with the views expressed by many other commentators73 – ‘[i]t seems illogical at best, verging on simply wrong, that … [the courts are] willing to uphold sentences that are demonstrably unfit, provided that they do not
64 Ibid 644-5 [94], 645-6 [96]-[97]. 65 Ibid 634-5 [71]. 66 Ibid 672 [169] (Côté J for herself and Rowe J). 67 Ibid 672 [168]. 68 Kafkaris [2008] I Eur Court HR 223, 269 [96]. 69 See text accompanying n 43. 70 Svinarenko [2014] V Eur Court HR 181, 217 (Judge Silvis). 71 Ibid 211 [138] (Emphasis added). 72 See, eg, R v Safarzadeh-Markhali [2016] 1 SCR 180, 204-5 [71]-[73] (McLachlin CJ for the Court); Vinter GC [2013] III Eur Court HR 317, 344 [102]. 73 See, eg, Asad G Kiyani, ‘R v Lloyd and the Unpredictable Stability of Mandatory Minimum Litigation’ (2017) 81 Supreme Court Law Review 117, 134; Janani Shanmuganathan, ‘R v Nur: A Positive Step but not the Solution to the Problem of Mandatory Minimums in Canada’ (2016) 76 Supreme Court Law Review 329, 343-4.
103
violate the threshold of gross disproportionality.’74 In short, as soon as a sentence is excessive, it is not a response to the offender’s crime – or, it follows, an act of communication. It does not have to manifest outrageous excess before it can be so categorised. That said, it seems clear that the courts’ departure from logic in this regard has resulted not from obtuseness, but rather from a concern to exercise some caution before stigmatising Parliament’s sentencing choices on human rights grounds.75 We shall return to this point below.
C. The Australian Position (i) Introductory remarks
What protections exist against disproportionate sentences in Australian jurisdictions without a charter of rights? The answer is that virtually no such protections exist currently, and it appears unlikely that the Commonwealth Constitution will in the future be found to place any meaningful limits on the state’s ability to impose such sentences.76 For while it might appear that mandatory and mandatory minimum77 sentencing provisions are constitutionally suspect, the Australian courts have denied that these provisions do contravene either the Commonwealth separation of powers78 or, when they are imposed at State or Territory level, the limited,79 or de facto,80 separation of State and Territory judicial power established by Kable81 and subsequent cases.
74 Susan Chaster, ‘Cruel, Unusual and Constitutionally Infirm: Mandatory Minimum Sentences in Canada’ (2018) 23 Appeal 89, 100. 75 See Rogan, ‘Out of Balance’, supra. 76 Cf Anthony Gray, Criminal Due Process and Chapter III of the Australian Constitution (Federation Press, 2016) ch 7. 77 By ‘mandatory sentencing provision’, I mean a statutory provision that states that one sentence must be imposed on all individuals convicted of a particular offence. By ‘mandatory minimum sentencing provision’, I mean a statutory provision that states that no lesser sentence than a particular minimum sentence must be imposed on anyone convicted of a particular offence, but leaves it open to the sentencer to impose a more severe sentence on a particular offender, up to the statutory maximum, if s/he considers this to be warranted: see Warner, ‘Mandatory Sentencing and the Role of the Academic’, supra, 322-3. In this chapter, I refer both to laws that provide for the imposition of one sentence alone and those that provide for the imposition of a particular minimum sentence, as ‘mandatory sentencing laws’. 78 See Commonwealth Constitution ch III. 79 Wheeler, ‘The Kable Doctrine’, supra, 15. 80 Freiberg and Murray, ‘Constitutional Perspectives on Sentencing’, supra, 339. 81 (1996) 189 CLR 51.
104
(ii) Commonwealth Law
a. The Separation of Powers Doctrine
Because it is well-established that the adjudgment and punishment of criminal guilt are ‘essentially and exclusively judicial’82 functions, it might be thought that the separation of powers doctrine – discussed in chapter 1 – can protect the rights of those who have had a disproportionate sentence imposed on them due to a federal mandatory sentencing law. If the federal legislature passes a Law of Attainder – that is, enacts legislation ‘adjudging a specific person or specific persons guilty of an offence constituted by past conduct and imposing punishment in respect of that offence’83 without the safeguards of a judicial trial84 – it has impermissibly usurped the judicial power of the Commonwealth.85 Surely the same is true if the legislature, though it refrains from making any determination of guilt, stipulates that, once a court has adjudged guilt, it must impose a particular penalty/minimum penalty on an offender? Surely in such a case, Parliament, though it has made no finding of guilt, has performed the exclusively judicial task of imposing punishment?
b. A Legislative Usurpation of or Interference with Judicial Power?
The answer to these questions is more complicated than one might expect. Indeed, the courts have drawn a distinction between laws that apply generally and those that speak ad hominem. If a law provides that a court must impose a particular sentence, or a particular minimum sentence, on a specific individual or individuals after conviction, it seems that the legislature has usurped judicial power – or, at least, has interfered impermissibly with its exercise.86 The Privy Council appears to have held as much in Liyanage v The Queen.87 Certainly, in that case, the Ceylon legislature did not merely purport to alter the sentence to which the leaders of the failed coup d’etat would be exposed upon conviction. As well as providing that the appellants were to be sentenced to at least ten years’ imprisonment if convicted, the Parliament: modified
82 See, eg, Lim (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ); Magaming (2013) 252 CLR 381, 396 [47] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 83 See Polyukhovich v Commonwealth (1991) 172 CLR 501, 535 (Mason CJ) (‘Polyukhovich’). 84 See ibid 685-6 (Toohey J). 85 Ibid 535-6 (Mason CJ), 612 (Deane J), 686 (Toohey J), 704-5 (Gaudron J), 721 (McHugh J). See also at 647-8 (Dawson J). 86 Concerning the difference between usurpation and interference, see Nicholas v The Queen (1998) 193 CLR 173, 220 [112] (McHugh J) (‘Nicholas’). See also Desmond Manderson and Naomi Sharp, ‘Mandatory Sentences and the Constitution: Discretion, Responsibility, and Judicial Process’ (2000) 22 Sydney Law Review 585, 595-7. 87 [1967] 1 AC 259 (‘Liyanage’). As a former Justice of the HCA has noted, it seems clear that this decision would be followed in Australia: Michael McHugh, ‘Does Chapter III of the Constitution Protect Substantive as Well as Procedural Rights?’ (2001) 21 Australian Bar Review 235, 243.
105
an offence with which some of the accused were charged ‘to meet the circumstances of the abortive coup’; enabled the Minister of Justice to order that the appellants’ trial be heard by three judges of his choosing, sitting without a jury; altered the laws of evidence that would apply at the trial so as to render admissible certain statements that the accused had made while in custody; and legalised the appellants’ pre-trial detention.88 Nevertheless, in finding that the relevant Act was both a ‘legislative [judgment]; and an exercise of judicial power’,89 Lord Pearce particularly emphasised Parliament’s direction to the judges to impose a minimum sentence on those who were ultimately convicted. The legislation’s aim, his Lordship thought, was, ‘[q]uite bluntly’ 90
to ensure that the judges in dealing with these particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences. They were compelled to sentence each offender on conviction to not less than ten years’ imprisonment … even though his part in the conspiracy might have been trivial. Accordingly, the Privy Council in Hinds v The Queen91 seems justifiably to have read Liyanage as holding that, in jurisdictions with a Constitution that provides for a separation of judicial power, ‘the legislature … can not … prescribe the penalty to be imposed in an individual citizen’s case.’
The position is different, however, if a law provides that a court must impose a particular sentence, or a particular minimum sentence, on anyone whose future conduct causes him/her to be convicted of a particular offence. As Barwick CJ observed in Palling v Corfield: 92
It is beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences which it creates. It may make the penalty absolute in the sense that there is but one penalty which the court is empowered to impose and … it may lay an unqualified duty on the court to impose that penalty. … If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded. But the question arises: what difference exists between the constitutionally valid, generally applicable mandatory sentencing law that Barwick CJ contemplates here and the ad hominem mandatory sentencing law that the Privy Council in Hinds and, apparently, Liyanage, stigmatised as a usurpation, or an impermissible interference with the exercise, of judicial power? In Palling, Barwick CJ considered that the former type of law is valid because ‘[t]he
88 Liyanage [1967] 1 AC 259, 278–81, 290. 89 Ibid 291, quoting Calder v Bull, 3 US (3 Dallas) 386, 389 (Chase J) (1798). 90 Ibid 290-1. 91 [1977] AC 195, 227 (Lord Diplock for the Privy Council) (‘Hinds’) (Original emphasis). 92 (1970) 123 CLR 52, 58. See also 64-5 (Menzies J), 67 (Owen J), 68 (Walsh J). These remarks have been treated as authoritative in subsequent cases: see, eg, Wynbyne v Marshall (1997) 7 NTLR 97, 108 (Mildren J, with whom Bailey J agreed) (‘Wynbyne’).
106
exercise of the judicial function is the act of imposing the penalty consequent upon conviction … which is essentially a judicial act’.93 In other words, for his Honour, because the judicial officer actually imposes the sentence, the legislature has not performed, or interfered impermissibly with, the exclusively judicial function of punishing criminal guilt. This reasoning is excessively formalistic.94 But, more importantly for present purposes, it fails satisfactorily to answer the question just posed. For, in the case of ad hominem mandatory sentencing laws, too, the judge actually imposes the sentence. In Liyanage, for instance, the trial judges, despite protesting that they ‘would have wished to differentiate in the matter of sentence between those who organised the conspiracy and those who were induced to join it’,95 imposed sentences of at least ten years’ imprisonment on those whom they convicted. Yet in that type of case, as we have seen, the relevant legislation will be struck down.
In short, there is no obvious reason why ad hominem mandatory sentencing laws should, but generally applicable mandatory sentencing laws should not, be invalidated on separation of powers grounds. Indeed, it seems that both types of law should be vulnerable to attack on this basis. A law that ‘purports to direct’ the courts as to the ‘manner and outcome of the exercise of their jurisdiction’ is constitutionally infirm.96 Surely a law that requires a court to impose a particular sentence or minimum sentence either on a particular individual or individuals, or on anyone convicted of a particular offence, has purported to direct it in this way?97
c. An Executive Usurpation of or Interference with Judicial Power?
Similar inconsistencies are present in the law concerning the executive government’s ability to impose a mandatory sentence on a person. Just as the legislature apparently may not require a court to impose a particular sentence, or a particular minimum sentence, on a specific individual or individuals, it is well-established that the executive may not sentence identified
93 (1970) 123 CLR 52, 58. 94 See text accompanying nn 115-19. 95 [1967] 1 AC 259, 291, quoting R v Liyanage (1965) 67 NLR 193, 424. 96 Lim (1992) 176 CLR 1, 36-7 (Brennan, Deane and Dawson JJ). 97 Such a proposition certainly has received significant academic – and even some judicial – support: see, eg, Gray, Criminal Due Process and Chapter III of the Australian Constitution, supra, 286-8; Anthony Gray and Gerard Elmore, ‘The Constitutionality of Minimum Mandatory Sentencing Regimes’ (2012) 22 Journal of Judicial Administration 37, 39-41; Manderson and Sharp, ‘Mandatory Sentences and the Constitution’, supra, 604-5; Andrew Trotter and Matt Garozzo, ‘Mandatory Sentencing for People Smuggling: Issues of Law and Policy’ (2012) 36 Melbourne University Law Review 553, 594-5; GFK Santow, ‘Mandatory Sentencing: A Matter for the High Court?’ (2000) 74 Australian Law Journal 298, 301. See also Chief Justice Wayne Martin, ‘Parliament and the Courts: A Contemporary Assessment of the Ethic of Mutual Respect’ (2015) 30(2) Australasian Parliamentary Review 80, 97-8.
107
persons.98 For instance, in Hinds the Privy Council held that a non-judicial Review Board could not validly determine the length of the sentences for those convicted of a certain firearms offence.99 To hold differently, Lord Diplock thought, would be to ‘open the door to the exercise of arbitrary power by the executive in the whole field of criminal law.’100
Nevertheless, in some cases, the executive has seemingly been permitted effectively to impose a mandatory sentence on identified persons. A possible example of this is Palling.101 The relevant sub-section provided that, where a person was convicted of failing to attend for a medical examination, in defiance of a notice served under pt III of the National Service Act 1951-1968 (Cth), the prosecutor could request the court to ask the offender whether he was willing to comply with the requirements of a further such notice.102 If the offender replied in the negative, the court was required to sentence him to seven days’ imprisonment.103 The HCA unanimously rejected104 the applicant’s argument that, because the imposition of this penalty was the ‘inevitable result’105 of the prosecutor’s decision to make the aforementioned request, the Crown had determined the punishment to be imposed – and so had exercised judicial power. For Barwick CJ, it was crucial that Parliament may allow the Crown to choose whether to prosecute a particular offence summarily or on indictment, even where the accused will be exposed to a higher maximum penalty if the latter procedure is used.106 It followed by analogy, his Honour thought, that when the Crown in the present case chose to make the relevant request, thus exposing the offender to the mandatory minimum penalty, it was not exercising judicial power.107
Certainly, the result in Palling has been plausibly defended. The prosecutor there, it has been said, did not effectively sentence the offender, because, contrary to the applicant’s submission, it was not the inevitable result of the Crown’s request that the Court would impose at least a
98 Hinds [1977] AC 195, 226-228 (Lord Diplock for the Privy Council). See also Browne v The Queen [2000] 1 AC 45, 46-9 (Lord Hobhouse for the Privy Council). 99 Hinds [1977] AC 195, 226 (Lord Diplock for the Privy Council). 100 Ibid. 101 (1970) 123 CLR 52. 102 Ibid 55. 103 Ibid. 104 Ibid 59-61 (Barwick CJ), 62-3 (McTiernan J), 64-5 (Menzies J), 65 (Windeyer J), 66-67 (Owen J), 69-70 (Walsh J), 70 (Gibbs J). 105 Ibid 56 (Barwick CJ). 106 Ibid 59. 107 Ibid 61.
108
seven-day prison sentence. Instead, the argument proceeds, the sentence was imposed only after the offender volunteered a negative response to the Court’s inquiry.108 But such a rationalisation, however persuasive it is, cannot explain two other HCA decisions, Fraser Henleins Pty Ltd v Cody109 and Magaming v The Queen.110
In those cases, it was alleged that the legislature had created two identical criminal offences, one of which was, and the other of which was not, punishable by a mandatory minimum prison sentence. Accordingly, on the assumption that the offences were identical,111 the executive, when prosecuting the relevant conduct, could choose whether to expose the accused to the mandatory minimum sentence. Where it opted to proceed against him/her for the offence carrying the mandatory penalty, had it usurped, or interfered impermissibly with the exercise of, judicial power?
In both cases, the HCA held that the answer to this question was ‘no.’ In so holding, their Honours deployed similar reasoning to Barwick CJ’s in Palling. The prosecutorial choice whether to charge a person with an offence carrying a mandatory sentence, or an identical offence that did not carry such a penalty, was, they thought, no different from the undoubtedly constitutionally valid choice whether to proceed summarily or on indictment for particular offences.112 This reasoning is dubious. Where the Crown chooses to proceed on indictment, this will usually expose the accused to a higher maximum penalty than that to which s/he would be subject if s/he were to be dealt with summarily. But, even so, there has clearly not been any substantial interference with the exercise of judicial power. This is because the sentencing court’s discretion to impose what it considers to be a fit sentence is preserved: it may still impose any sentence it thinks suitable, below the statutory maximum.113 Where, however, the
108 Martin Flynn, ‘Fixing a Sentence: Are There Any Constitutional Limits?’ (1999) 22 UNSW Law Journal 280, 284. See also Magaming (2013) 252 CLR 381, 407 [80] (Gageler J). 109 (1945) 70 CLR 100 (‘Fraser Henleins’). 110 (2013) 252 CLR 381. 111 In Magaming, the majority denied the truth of this assumption concerning the offences at issue: see ibid 388- 9 [16]-[17] (French CJ, Hayne, Crennan, Kiefel and Bell JJ, with whom Keane J agreed). The simple people smuggling offence created by Migration Act 1958 (Cth) s 233A(1), they held, differed in the following way from the aggravated people smuggling offence created by s 233C(1) of that Act (for which there was a mandatory minimum non-parole of three years). Whereas a person’s guilt of the latter offence depended upon proof that s/he had organised or facilitated the coming to Australia of at least five unlawful non-citizens, an accused could be convicted of the s 233A(1) offence if it was proved that only one unlawful non-citizen was to be brought to Australia. 112 Fraser Henleins (1945) 70 CLR 100, 120 (Latham CJ), 121 (Starke J), 139 (Williams J); Magaming (2013) 252 CLR 381, 394 [39] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 113 The maximum penalty is, however, a ‘guidepost’ for the sentencing judge: Muldrock v The Queen (2011) 244 CLR 120, 132 [27] (The Court).
109
Crown chooses to charge a person with an offence carrying a mandatory sentence, the Court’s discretion is at least significantly limited (if a mandatory minimum sentence applies) – and might even be removed entirely (if there is only one sentence that can be imposed). For this reason, it seems that, where the Crown could have proceeded against the accused for an identical offence that does not carry a mandatory penalty, there is a strong argument that there has been at least an impermissible interference with the exercise of judicial power.
Can Fraser Henleins and Magaming nevertheless be supported on other grounds? Might it be that, properly viewed, the executive in those cases was not effectively imposing the mandatory minimum sentence on those whom it chose to charge with the more serious offence? In Ex parte Coorey,114 which was decided the year before Fraser Henleins, the NSWSC considered the validity of the same legislation that was at issue in that slightly later case. As did the HCA, the majority found that the legislature had acted validly when it created two identical offences, one with and the other without a mandatory sentence, and allowed the Commonwealth Attorney-General, after receiving a ministerial report and advice from a committee, to choose whether to expose a particular offender to the mandatory penalty. In so holding, Davidson J employed similar reasoning to that used by Barwick CJ in Palling – and which I described above as being excessively formalistic.115 His Honour said:116
the Legislature … has vested in the Attorney-General a power which is not judicial, and although it has the effect of limiting in some degree the discretion of the Court in imposing penalties, that limitation only operates in the future upon a contingency of a conviction by the Court. The position would perhaps be different had the Parliament enacted that the judicial tribunal before which the charge was heard might only record a conviction in order that the penalty might be assessed and imposed by the Attorney-General or the Executive. In such circumstances there would be a decision upon transactions had as involving the creation of an instant liability at that stage on the person convicted. Then there would be a judicial as distinct from either a legislative or executive act. One suggestion here is that it is enough that the court has in fact imposed the mandatory minimum sentence; only if the executive made an instantly binding decision to impose a particular penalty on a specific offender would there be a breach of the separation of powers. The other is the related proposition that, because the court has adjudged guilt, the executive has neither usurped nor interfered impermissibly with the exercise of judicial power. As Jordan
114 (1944) 45 SR (NSW) 287 (‘Coorey’). 115 See text accompanying nn 93-4. 116 Coorey (1944) 45 SR (NSW) 287, 314-15 (Emphasis added). The High Court Justices who heard Fraser Henleins either expressly adopted this reasoning or deployed very similar reasoning of their own: see Fraser Henleins (1945) 70 CLR 100, 120 (Latham CJ), 121 (Starke J), 124-5 (Dixon J), 132 (McTiernan J), 139 (Williams J).
110
CJ argued in dissent,117 none of this is persuasive. To regard as critical the fact that a judge has actually imposed the sentence is to overlook the true effect of the executive’s decision to proceed against the offender for the more serious offence. By so doing, it has surely ‘dictate[d] to a Court … that at least a certain penalty shall be imposed in the event of conviction.’118 Moreover, it is irrelevant that the legislature has refrained from interfering with the judicial function of adjudging guilt. What is relevant is that, when imposing sentence – when exercising this further exclusively judicial function of punishing guilt119 – the Court acts at the behest of the executive government.
But, however unpersuasive is some of the reasoning upon which the judges have relied, the Commonwealth Parliament has an almost unrestricted power to: (i) create mandatory sentencing provisions; and (ii) allow the executive to choose to expose particular accused to mandatory sentences. The same is true of State and Territory legislatures.
(iii) The Position in the States and Territories
As noted in previous chapters, while there is no formal separation of powers in the States and Territories, ‘the principle deriving from … Kable’120 establishes that neither State nor Territory legislatures may confer on a court a function that is ‘repugnant to or incompatible with … [its] exercise of the judicial power of the Commonwealth.’121 In Kable, the majority suggested that, when deciding whether such a function has (purportedly) been conferred on a court, the crucial question is whether, if the court were to perform that function, public confidence in its independence and impartiality would be damaged.122 But public confidence is now not the touchstone of validity; rather, the crucial question is whether the court’s institutional integrity would be substantially impaired.123
117 Coorey (1944) 45 SR (NSW) 287, 300. 118 Ibid. 119 See Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, 340 [14]-[15] (Kiefel CJ, Bell, Keane and Edelman JJ), 357 [88] (Gageler and Gordon JJ) (‘Falzon’). 120 Vella (2019) 93 ALJR 1236, 1250-1 [55] (Bell, Keane, Nettle and Edelman JJ). 121 Kable (1996) 189 CLR 51, 104 (Gaudron J). See also Pompano (2013) 252 CLR 38, 88-9 [123]-[124] (Hayne, Crennan, Kiefel and Bell JJ). 122 Kable (1996) 189 CLR 51, 98 (Toohey J), 107 (Gaudron J), 116-9 (McHugh J), 133 (Gummow J). 123 See, eg, Fardon (2004) 223 CLR 575, 617-618 [102] (Gummow J); NAAJA (2015) 256 CLR 569, 595 [40] (French CJ, Kiefel and Bell JJ).
111
Because the ‘critical notions’124 of repugnancy, incompatibility and institutional integrity are apparently ‘not readily susceptible of definition in terms which will dictate future outcomes’,125 the ‘boundaries of the Kable principle are not sharp.’126 Nevertheless, as suggested in chapters 1 and 2, it is clear that, under Kable, State and Territory courts must be and appear to be impartial and independent.127 Therefore, as at Commonwealth level, these courts ‘cannot be required to act at the dictation of the Executive’,128 and ‘legislation which purport[s] to direct the[m] … as to the manner and outcome of the exercise of their jurisdiction’ is apt to be struck down.129
So, while the separation of judicial power ‘does not apply in terms to the States’,130 and while therefore ‘there can be no direct application to the State courts of all aspects of the doctrines that have been developed in relation to Ch III’,131 the principles overlap substantially and often produce the same outcomes.132 Accordingly, challenges to State and Territory mandatory sentencing laws have failed for much the same reason as have challenges to Commonwealth laws of this nature. While, as argued above, there is a powerful argument that these laws do purport to dictate to the courts that at least a minimum sentence be imposed, the relevant authorities effectively deny this.133
124 Pompano (2013) 252 CLR 38, 89 [124] (Hayne, Crennan, Kiefel and Bell JJ), quoting Fardon (2004) 223 CLR 575, 618 [104] (Gummow J). 125 Pompano (2013) 252 CLR 38, 89 [124] (Hayne, Crennan, Kiefel and Bell JJ). 126 Vella (2019) 93 ALJR 1236, 1251 [56] (Bell, Keane, Nettle and Edelman JJ). This has led many commentators to observe that the principles from Kable and subsequent cases are indeterminate: see, eg, Peter Johnston, ‘The High Court, Kable and the Constitutional Validity of Criminal Property Confiscation Laws: Attorney General (Northern Territory) v Emmerson’ (2014) 26(2) Bond Law Review 3, 9-10, 14. 127 Bradley (2004) 218 CLR 146, especially 163 [29] (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ). 128 Pompano (2013) 252 CLR 38, 89-90 [125] (Hayne, Crennan, Kiefel and Bell JJ), citing South Australia v Totani (2010) 242 CLR 1, 52 [82], 67 [149], 92-3 [236], 160 [436], 173 [481]. 129 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 531, 560 [39] (Gummow, Hayne, Heydon and Kiefel JJ). See also Attorney-General for the Northern Territory v Emmerson (2014) 253 CLR 393, 426-7 [44]-[45] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (‘Emmerson’). 130 Pompano (2013) 252 CLR 38, 90 [125] (Hayne, Crennan, Kiefel and Bell JJ). 131 Ibid. 132 International Finance Trust Co Ltd v Australian Crime Commission (2009) 240 CLR 319, 354 [53] (French CJ) (‘International Finance Trust’), quoting Kable (1996) 189 CLR 51, 118 (McHugh J). See also James Stellios, Zines’s The High Court and the Constitution (Federation Press, 6th ed, 2015) 278. 133 See, eg, Palling (1970) 123 CLR 52, 58 (Barwick CJ), 64-5 (Menzies J), 67 (Owen J), 68 (Walsh J); Wynbyne (1997) 7 NTLR 97, 99-101 (Martin CJ) and 111-12 (Mildren J); Magaming (2013) 252 CLR 381, 396 [49] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
112
(iv) Why the Dubious Reasoning and Inconsistencies?
As I have noted, the Australian law concerning the validity of mandatory sentencing provisions is not altogether consistent; and the reasoning used in cases where mandatory sentencing legislation has been challenged on constitutional grounds, has not always been persuasive. The question arises: why have the courts been so willing to rely on reasoning that, as Gageler J observed in dissent in Magaming, ‘elevates form over substance’134 and has created such inconsistencies?
Of course, it could just be that mandatory sentences were commonplace in previous centuries,135 and have continued to be ‘known forms of legislative prescription of penalty for crime’136 from Australian Federation to the present. Because, for much of that time, no one suggested that that ‘the sphere of judicial power’ was ‘invaded’ when Parliament provided for mandatory penalties,137 it does seem more difficult for a litigant now to claim that such penalties are inconsistent with ch III after all138 – even if, in fact, the relevant legislation bears all of the vices of the more unorthodox law considered in Liyanage.
It is doubtful, however, whether these historical considerations provide a full explanation for the inconsistencies and questionable reasoning in the cases. An even more important reason for the anomalies that exist, and the unpersuasive justifications that have been advanced, seems to be the judges’ desire not to be seen to be substituting their views about the wisdom of mandatory sentencing laws for those of the democratically elected legislature. Chapter III has recently been found to contain certain protections that few previously considered it to hold.139 In other words, the novelty of an argument that a particular law contravenes ch III seems not to be a sufficient reason for the HCA to reject it. For example, in Kirk v Industrial Court of New South Wales140 the Court accepted that, contrary to what had hitherto been supposed, a privative clause in a State law cannot prevent that State’s Supreme Court from granting relief
134 Magaming (2013) 252 CLR 381, 407 [81]. 135 There is debate about just how commonplace they were: compare Manderson and Sharp, ‘Mandatory Sentences and the Constitution’, supra, 617-21 with Mason, ‘Mandatory Sentencing: Implications for Judicial Independence’, supra, 28. See also Andrew Hemming, ‘The Constitutionality of Minimum Mandatory Sentencing Regimes: A Rejoinder’ (2013) 22 Journal of Judicial Administration 224, 225-6. 136 Magaming (2013) 252 CLR 381, 396 [49] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 137 Fraser Henleins (1945) 70 CLR 100, 119 (Latham CJ). 138 See, eg, George Zdenkowski, ‘Mandatory Imprisonment of Property Offenders in the Northern Territory’ (1999) 22 UNSW Law Journal 302, 309. 139 See, eg, Ronald Sackville, ‘Bills of Rights: Chapter III of the Constitution and State Charters’ (2011) 18 Australian Journal of Administrative Law 67, 70, 72, 75. 140 (2010) 239 CLR 531.
113
in the nature of certiorari for ‘jurisdictional error.’141 Academics have not unanimously accepted the plausibility of their Honours’ reasoning.142 Nevertheless, as Sackville has noted, the decision was not merely publicly uncontroversial, but popular: 143
Commentators, including in organs vehemently opposed to a national charter of rights, greeted the decision … None of the commentaries remarked upon the novelty of the reasoning … Nor did they comment on the willingness of the court to use creative reasoning to frustrate the will of democratically- elected State legislatures. However willing the press and public might be to accept novel interpretations of ch III in cases such as Kirk – where an employer was seeking judicial review of his conviction for an industrial safety offence, on the basis that the Industrial Court had, among other things, erroneously not considered it to be necessary for the prosecution to identify any particular act or omission that founded his liability144 – it must be patently obvious to the judiciary that they would not be so indulgent of such interpretations in cases concerning the controversial topic of mandatory sentencing. Accordingly, it appears that the courts, when deciding such cases, have been influenced by a desire to avoid any suggestion that they are willing undemocratically to override Parliament’s will.
This is seemingly demonstrated by the HCA’s attitude in Magaming to an argument that the impugned provision was constitutionally invalid because, essentially, it mandated the imposition on a less blameworthy offender of a sentence that was ‘manifestly disproportionate to the circumstances of the offence committed by him and his personal moral culpability.’145 To require the courts to impose such a sentence, it was contended, was to require them to act in an ‘arbitrary and non-judicial’ way.146 Although agreeing with the majority’s reasons for dismissing the appeal, Keane J wrote a brief separate judgment containing some ‘observations’147 about this submission. In turn, these observations are eloquent of an eagerness to avoid any suggestion that his Honour was willing to claim for the courts powers that many see as properly being exercised only by Parliament:148
141 Ibid 580-1 [96]-[100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 142 See, eg, Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’, supra, 93-104; George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013) 336-7. 143 Sackville, ‘Bills of Rights’, supra, 77. 144 Ibid 557 [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 145 (2013) 252 CLR 381, 413 [101] (Keane J). 146 Ibid 390 [23] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 147 Ibid 413 [100] (Keane J). 148 Ibid 414 [105], [107] (Keane J).
114
The enactment of sentences by the legislature, whether as maxima or minima, involves the resolution of broad issues of policy by the exercise of legislative power. … It is distinctly the province of the legislature to gauge the seriousness of what is seen as an undesirable activity affecting the peace, order and good government of the Commonwealth and the soundness of a view that condign punishment is called for to suppress that activity, and to determine whether a level of punishment should be enacted as a ceiling or a floor. …
It is ironic that the appellant should invoke the separation of powers … because, in truth, the institutional integrity of the judiciary would be compromised by accepting the argument that the validity of [the relevant subsection] is conditional upon acceptance by a sentencing judge that the sentence enacted by the legislature is no more than is appropriate to that judge’s opinion of the culpability of the [offender] … The other majority Justices, while perhaps not placing quite as much emphasis on the point, similarly held that any harshness produced by the relevant provision failed to establish its invalidity.149
The first point here is that the argument that it is contrary to ch III to require a court to depart from the proportionality principle when sentencing offenders is probably not as obviously fallacious as Keane J thought. The separation of judicial power requires not merely that the judiciary exercises certain powers, but also that it does so in accordance with the judicial process.150 Accordingly, a court cannot be required or authorised to act ‘in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.’151 If it is inconsistent with a court’s essential character for it to be required or authorised, for example, not to apply procedural fairness,152 not give reasons for its decisions153 or, possibly, to proceed in a manner that does not ensure equality before the law,154 might not the same be true where it is required to impose a (radically) disproportionate sentence? After all, as noted above, sentencing is an exclusively judicial function, and it is well-established that proportionality is sentencing’s primary aim.155 Perhaps somewhat consistently with this analysis, Winterton considered that ‘Commonwealth legislation imposing barbarous sentences would probably
149 Ibid 397-8 [52] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 150 See, eg, Re Nolan; Ex parte Young (1991) 172 CLR 460, 496 (Gaudron J). See also George Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (Federation Press, 1994) 185, 199. 151 Lim (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ). 152 NAAJA (2015) 256 CLR 569, 594 (French CJ, Kiefel and Bell JJ), citing Leeth v Commonwealth (1992) 174 CLR 455, 469-70 (Mason CJ, Dawson and McHugh JJ) (‘Leeth’). 153 Wainohu v New South Wales (2011) 243 CLR 181, 228-30 [104]-[109] (Gummow, Hayne, Crennan and Bell JJ). 154 Nicholas (1998) 193 CLR 173, 208 [74] (Gaudron J); Kruger v Commonwealth (1997) 190 CLR 1, 112 (Gaudron J) (‘Kruger’), citing Leeth (1992) 174 CLR 455, 502–3 (Gaudron J). 155 See Veen v The Queen [No 2] (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson and Toohey JJ) (‘Veen’).
115
contravene s 71 of the Constitution, because the courts would be required to exercise a power which was incompatible with the role of the judiciary in a civilised society.’156
In the first paragraph set out above, Keane J does not really explain why sentencing proportionality is not among the ‘defining or essential characteristics’157 of a court. His Honour simply asserts that setting penalties is a legislative function, and, seemingly, that Parliament is better placed158 than the courts to determine how severely to punish particular misconduct.
The material in the second paragraph set out above might reveal, at least partly, why Keane J does not consider particularly carefully whether Parliament’s general freedom to legislate in this area might be ‘subject to … the constraints of any relevant Constitutional limitation.’159 Particularly noteworthy is his Honour’s statement that the courts’ ‘institutional integrity’ would be ‘compromised’ if the HCA were to strike down a law because it required the imposition of disproportionate sentences.160 The concern here appears to be for the courts’ reputation. Indeed, these remarks, and Keane J’s claim that the sentencing judge’s opinion as to the proportionality of the sentence is irrelevant to the law’s constitutionality, are reminiscent of Gleeson CJ’s statement in Baker,161 quoted in chapter 2, about the need for the courts not to be seen to be in the business of ‘wash[ing] their hands of the responsibility of applying laws of which they disapprove.’162
In other words, when Keane J concluded in Magaming that the appellant’s complaint about harshness was nothing more than ‘a point about the political wisdom of the law’;163 and when the plurality made similar remarks;164 and when majorities of the Court in cases such as
156 Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’, supra, 207. See also Anthony Gray, ‘The Constitutionality of Queensland’s Recent (Legal) War on “Bikies”’ (2014) 19 Deakin Law Review 51, 86. 157 NAAJA (2015) 256 CLR 569, 594 [39] (French CJ, Kiefel and Bell JJ). 158 This tends to ignore the possibility that Parliament enacted the relevant laws not for rational reasons, but rather in a cynical attempt to placate the public (indeed, concerning the specific law that was challenged in Magaming, see n 57). It also ignores the fact that it is widely acknowledged that sentencing policy is an area in which judges have sufficient expertise to entitle them not to be as deferential to the legislative judgment as they often must in other areas of policy: see, eg, Conor Gearty, Principles of Human Rights Adjudication (Oxford University Press, 2005) 122. As argued throughout this chapter, and as Keane J proceeds to indicate, the real reason why the Courts show deference to legislatures in cases such as Magaming is that the impugned measure is politically controversial. 159 Karim (2013) 83 NSWLR 268, 298 [110] (Allsop P). 160 Magaming (2013) 252 CLR 381, 414 [107] (Keane J). 161 (2004) 223 CLR 513, 519 [6]. 162 See also Nicholas (1998) 193 CLR 173, 197 [37] (Brennan CJ). 163 Magaming (2013) 252 CLR 381, 414 [108] (Keane J). 164 Ibid 397-8 [52].
116
Attorney-General for the Northern Territory v Emmerson165 and Kuczborski v Queensland166 expressly associated themselves with the Magaming view that laws will not be struck down on ch III grounds simply because they ‘may lead to harsh outcomes, even disproportionately harsh outcomes’,167 they seem to have been displaying the same sort of anxiety as led the Court to deploy the formalistic reasoning it did in some of the cases considered in the previous chapter.168 In the face of a risk that, if they strike down particular legislation, Australian judges will create a perception that they have substituted their views about its desirability for those of the democratically elected legislature, those judges will usually not take the risk. Novel arguments might be accepted in cases such as Kirk, where, because popular results are produced, the courts are unlikely to face any substantial criticism. But they will often be flatly rejected in cases such as Magaming, where, if a different approach were taken, the law might be developed inconsistently with ‘public expectations.’169 That is even so where, as in that case and cases such as Crump,170 Parliament has in fact ‘substantially … by-pass[ed] the structural requirement of Ch III that punishment of a crime occur only as a result of an adjudication by a court.’171
This concern with legitimacy and to avoid charges of ‘judicial activism’ also means that any further arguments deployed by those challenging mandatory sentencing legislation on ch III grounds seem unlikely to succeed. In Kuczborski,172 the plaintiff challenged the Vicious Lawless Association Disestablishment Act 2013 (Qld) (‘VLAD Act’). This legislation, the primary aim of which was to destroy various motorcycle clubs,173 required a court, relevantly, to impose a further sentence of 15 years’ imprisonment on anyone who committed one of a wide range of offences174 while a participant in the affairs of an association, if the offence was
165 (2014) 253 CLR 393, 439 [85] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 166 (2014) 254 CLR 51 (‘Kuczborski’). 167 Ibid 116 [217] (Crennan, Kiefel, Gageler and Keane JJ). 168 Namely, Crump (2012) 247 CLR 1; Knight (2017) 261 CLR 306; Minogue (No 2) (2019) 93 ALJR 1031. 169 In re Gallagher [2020] AC 185, 223 [10] (Lord Sumption). 170 (2012) 247 CLR 1. 171 Magaming (2013) 252 CLR 381, 408 [82] (Gageler J). 172 (2014) 254 CLR 51. 173 See Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3114 (Campbell Newman, Premier). 174 For the offences that were included, see VLAD Act 2013 (Qld) s 3 and sch 1, repealed by Serious and Organised Crime Legislation Amendment Act 2016 (Qld) s 492.
117
committed for that association’s purposes or while participating in its affairs.175 If the defendant was an office-bearer of the association, the further sentence that the court had to impose rose to 25 years’ imprisonment.176 In support of his contention that the Act was invalid on Kable grounds, the plaintiff argued that it ‘confer[red] a function on courts offensive to the principle of equality before the law and [was] thereby repugnant to the judicial process.’177 A person who committed the offence of affray, he submitted,178 would usually be liable to a maximum penalty of one year’s imprisonment.179 But if s/he was an office-bearer of an ‘association’ and committed the offence for the purposes of the ‘association’ or while participating in its affairs, s/he had to be sentenced to a minimum non-parole period of at least180 25 years. Surely, he argued, this showed that the VLAD Act required the courts to treat differently ‘like persons in like circumstances’?181 The difference between the two offenders referred to above – one did, and the other did not, commit the crime for the association’s purposes or in the course of participating in its affairs – was not, it was said, a relevant difference182 such as to justify the vastly different punishments.
Because the plaintiff lacked standing to challenge the Act’s validity,183 the HCA did not have to decide this point. But assuming184 that ‘equal justice … is fundamental to the judicial process’,185 so as to mean that a law requiring a court to exercise powers in an irrationally discriminatory manner is contrary to ch III,186 might such an argument succeed in the future?
175 See VLAD Act 2013 (Qld) ss 7(1)(b) and 5(1), repealed by Serious and Organised Crime Legislation Amendment Act 2016 (Qld) s 492. ‘Association’ was defined in s 3 to include ‘any … group of 3 or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal’. 176 VLAD Act 2013 (Qld) s 7(1)(c), repealed by Serious and Organised Crime Legislation Amendment Act 2016 (Qld) s 492. 177 Kuczborski (2014) 254 CLR 51, 65 [15] (French CJ). 178 See Stefan Kuczborski, ‘Plaintiff’s Written Submissions’, Submission in Kuczborski v Queensland, B14/2014, 16 July 2014, [58]-[59]. 179 See Criminal Code Act 1899 (Qld) s 72(1). 180 I say ‘at least’ because, when Kuczborksi was being argued, if the association was also a ‘criminal organisation’ within the meaning of the Criminal Code Act 1899 (Qld) s 1, the court was required to impose a minimum sentence of 25 ½ years on the offender. The provision that mandated this, Criminal Code Act 1899 (Qld) s 72(2), has since been altered: Serious and Organised Crime Amendment Act 2016 (Qld) s 66. 181 Leeth (1992) 174 CLR 455, 502 (Gaudron J). 182 See generally Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ). 183 Kuczborski (2014) 254 CLR 51, 66 [19] (French CJ), 87-8 [99]-[100] (Hayne J), 107-8 [178]-182], 110 [188] (Crennan, Kiefel, Gageler and Keane JJ), 131 [280] (Bell J). 184 For a discussion of the law concerning equality and ch III, see James Stellios, The Federal Judicature: Chapter III of the Constitution (LexisNexis Butterworths, 2010) 295-305. 185 Leeth (1992) 174 CLR 455, 502 (Gaudron J). 186 Ibid 502-3 (Gaudron J); Kruger (1997) 190 CLR 1, 112 (Gaudron J); Cameron v The Queen (2002) 209 CLR 339, 352 [44] (McHugh J).
118
The answer is that it would probably fail for largely the same reasons as the argument in Magaming about harshness did. The only Justice in Kuczborski to deal squarely with the equality argument, Hayne J, was dismissive of it.187 Such an approach is only to be expected. If, as Keane J held in Magaming, it is inappropriate for the courts to strike down mandatory sentencing legislation simply because they consider that it requires the imposition of (grossly) disproportionate sentences, how could it be appropriate for them to strike it down because, in their opinion, it requires either the different treatment of like offenders or the like treatment of different offenders? Whether there has been unequal treatment depends on a judicial assessment that the offenders are in fact relevantly alike or different. And that will usually188 require the courts to express a view about whether Parliament correctly assessed the seriousness of the relevant offences. The Kuczborski affray example again illustrates the point. In such a case, the question would essentially be: was Parliament entitled to consider an individual convicted of an affray committed while s/he was an office-bearer of an association, and for its purposes or while participating in its affairs to be so much more culpable than a person convicted of an affray that was not aggravated in these ways, as to justify the imposition on him/her of a radically different sentence? Judging by Keane J’s approach in Magaming, the courts will be slow to answer this question in the negative. To do so would be to enter what his Honour regarded as that distinctly legislative province of ‘gaug[ing] the seriousness of what is seen as an undesirable activity’ and determining a suitable punishment for it.189 In other words, even if the law in those Australian jurisdictions without a charter of rights does still leave open the possibility that the courts in the future will place some limits on Parliament’s ability to
187 Kuczborski (2014) 254 CLR 51, 90-91 [108]-[109]. 188 I say ‘usually’ because, as R v Nitu [2013] 1 Qd R 459 (‘Nitu’) shows, the argument that offenders convicted of different offences (or effectively different offences, to continue with the Kuczborski affray example), have been treated unequally, is not the only equal justice argument that might be made. In Nitu, the claim was rather that the mandatory sentencing provision at issue required the courts to impose the same mandatory minimum sentence of three years’ imprisonment on offenders convicted of the same offence, though they had displayed different levels of culpability. If such an argument were ever to be raised in the HCA, it might be dismissed on the basis suggested by the QCA in Nitu, namely, that when a mandatory minimum sentencing provision applies, there is in fact no compression of sentences at the bottom of the range that results in discrimination between ‘low level’ and ‘higher level offenders’: Nitu at 475 [42]. Of course, such reasoning would be unavailable in the case of a provision that required the imposition of the one sentence on all those convicted of an offence. In such a case, however, the Crown would presumably argue, as did the defendant in Kuczborski, that Palling’s acceptance of the validity of such provisions shows that in fact equal justice is not fundamental to the judicial process: see State of Queensland, ‘Defendant’s Written Submissions’, Submission in Kuczborski v Queensland, B14/2014, 11 August 2014, [50]. See also Nitu at 475 [42]. 189 Magaming (2013) 252 CLR 381, 414 [105] (Keane J).
119
provide for the imposition of mandatory sentences, it seems unlikely that they will do so.190 It is more likely that they will continue to refuse to intervene in such cases, partly at least due to a concern to avoid any suggestion that they are unwarrantably striking down legislation on human rights grounds.
But what happens when there is a charter of rights in a jurisdiction? When the courts have been given a specific mandate to consider whether certain sentences are ‘inhuman or degrading’191/‘cruel and unusual’ punishments, have they shown a greater willingness than the Australian courts to intervene where it has been alleged that a (grossly) disproportionate sentence has been imposed?
D. The UK Position (i) ‘The Domestic Context’
There are now many UK, Privy Council and ECtHR decisions that establish that States may not impose a grossly disproportionate sentence on an individual compatibly with guarantees such as art 3 ECHR.
The first relevant case is Weeks,192 discussed in chapter 2, where the sentencing judge had imposed a discretionary life sentence on the applicant for an almost farcical armed robbery offence that he had committed when he was 17. The ECtHR held that the only reason why this sentence did not breach art 3 was that, properly analysed, it was a part-punitive and part- preventive one that had been imposed on the applicant because he was, when sentenced, a ‘very dangerous young man.’193 Upon the expiry of the punitive part of his sentence, Weeks was entitled to challenge before a court the lawfulness of his detention, and would have to be released if that court determined that he was no longer dangerous.194 But if the judge had imposed a wholly punitive life sentence on him, then ‘[h]aving regard to … [his] age at the time [of offending] and to the particular facts of the offence he committed, … one could have serious doubts as to its compatibility with Article 3.’195 The suggestion, of course, is that a
190 For views consistent with this, see Rebecca Ananian-Welsh, ‘Kuczborski v Queensland and the Scope of the Kable Doctrine’ (2015) 34 University of Queensland Law Journal 47, 62-3. For a more optimistic assessment, see Gray, Criminal Due Process and Chapter III of the Australian Constitution, supra, ch 7. 191 ECHR art 3. 192 (1987) 114 Eur Court HR (ser A). 193 To use the trial judge’s words: see ibid 10 [14]. 194 Ibid 28-9 [58]. See also ECHR art 5(4). 195 Weeks (1987) 114 Eur Court HR (ser A) 25 [47].
120
punitive sentence that is grossly disproportionate to the seriousness of the applicant’s offence, will on that account breach art 3.
Further support for such a proposition was then provided by two other cases discussed in chapter 2, Hussain196 and V,197 where juveniles had been convicted of murder and imprisoned ‘during Her Majesty’s pleasure.’198 It will be recalled that the ECtHR in Hussain held that such a sentence is structured in the same – part-punitive, part-preventive – way as is the discretionary life sentence.199 It will also be recalled that the Court observed that, if the sentence were instead a purely punitive one, young persons upon whom such a sentence had been imposed ‘would be treated as having forfeited their liberty for the rest of their lives’, which ‘might give rise to questions under Article 3.’200 Certainly, it is unclear exactly why the ECtHR considered that art 3 might be breached in such a case. As noted in the previous chapter, the Court’s reference to art 37 of the Convention on the Rights of the Child, when expressing a similar view in V,201 indicates that it thought that one art 3 problem would be that an irreducible life sentence would have been imposed on a juvenile. Nevertheless, consistently with the analysis in Weeks, a further problem with such a sentence would surely be that it would be ‘severely disproportionate.’202
Shortly after the decision in V, the English courts, too, began to accept that grossly disproportionate sentences might be art 3 breaches. In both R v Offen203 and R v Lichniak,204 there are important statements to this effect.205 For instance, in Lichniak, Lord Bingham noted that, if the effect of the appellants’ mandatory life sentences206 had been that they had ‘forfeited [their] liberty to the state for the rest of [their] days’, he would have had ‘little doubt’ that these
196 [1996] I Eur Court HR 252, 269 [53]. 197 [1999] IX Eur Court HR 111. 198 The relevant provision is now Powers of Criminal Courts (Sentencing) Act 2000 (UK) c 6, s 90. 199 [1996] I Eur Court HR 252, 269-70 [54]. 200 Ibid 269 [53]. 201 V [1999] IX Eur Court HR 111, 150 [97]. As the Court noted, art 37 prohibits life imprisonment without the possibility of release for those aged under 18 at the time of offending. 202 See ibid 149 [93]. See also Sawoniuk v United Kingdom [2001] VI Eur Court HR 375, 394, where the Court cited V as authority for the proposition that a ‘disproportionately lengthy sentence might in some circumstances raise issues under the Convention.’ 203 [2001] 1 WLR 253 (‘Offen’). 204 [2003] 1 AC 903. 205 Offen [2001] 1 WLR 253, 276 [95]; Lichniak [2003] 1 AC 903, 909 [8], 911 [13]. 206 Imposed under Murder (Abolition of Death Penalty) Act 1965 (UK) s 1(1).
121
sentences would have breached art 3 due to their disproportionality.207 And his Lordship added that, ‘[i]ndeed, any mandatory or minimum mandatory sentence arouses concern that it may operate in a disproportionate manner in some cases.’208
By apparently holding both that the art 3 guarantee protects offenders against grossly disproportionate sentences, and that mandatory sentences/mandatory sentencing provisions are particularly likely to breach this Article, Lord Bingham was merely repeating views that he had expressed in the Privy Council in Reyes.209 In that case, Lord Bingham found that the Belize mandatory death penalty for murder by shooting breached s 7 of that country’s Constitution, which is phrased almost identically to art 3.210 After stating that s 7 protects individuals against grossly disproportionate sentences,211 his Lordship held that death penalty for murder by shooting was, sometimes at least, ‘plainly excessive and disproportionate.’212
A number of points must be made about Reyes. First, because s 7’s language is so similar to art 3’s, this case is further authority for the proposition that grossly disproportionate sentences breach that Article. Secondly, as with Lichniak, Reyes establishes that mandatory sentences/mandatory sentencing provisions are particularly constitutionally suspect. It is true that Lord Bingham expressly refrained from stating a view about the constitutionality of any mandatory penalty other than the one at issue.213 Nevertheless, the emphasis that he placed on the need, in all cases of murder by shooting, for judicial consideration of whether the death penalty is warranted,214 suggests that he considered that mandatory sentencing schemes are particularly likely to produce sentencing disproportionality (consistently of course with the view that he later explicitly stated in Lichniak). Thirdly, while Lord Bingham correctly stated that the person upon whom a grossly disproportionate sentence has been imposed has been
207 [2003] 1 AC 903, 909 [8] (Lord Bingham, with whom Lord Nicholls, Lord Steyn, Lord Hutton, Lord Hobhouse, Lord Scott and Lord Rodger agreed). As his Lordship immediately proceeded to observe, however, and as noted in chapter 2, the mandatory life sentence comprises punitive and preventive periods of detention. As with discretionary life sentences and Her Majesty’s Pleasure sentences, the offender will be released at the end of the punitive, or tariff, period if ‘the Parole Board considers it safe [for this to happen]’: at 909 [8]. 208 Ibid 911 [13]. 209 [2002] 2 AC 235. 210 Section 7 provides that: ‘[n]o person shall be subjected to torture or to inhuman or degrading punishment or other treatment.’ Indeed, the ECHR applied to Belize between 1953 and the Belize Constitution’s enactment in 1981: Reyes [2002] 2 AC 235, 245 [24]. 211 Ibid 248 [30]. 212 Ibid 256 [43]. 213 Ibid. 214 Ibid.
122
treated ‘as no human being should be treated’,215 his reasoning seems questionable216 insofar as it suggests that a person has been treated incompatibly with his/her human dignity simply because a sentence has been imposed upon him/her arbitrarily (that is, without individual consideration).217 Like the Privy Council in the later case of Aubeeluck v Mauritius,218 his Lordship might have been closer to the mark when he cited with approval219 Lamer J’s contention in R v Smith that the Canadian guarantee against ‘cruel and unusual’ punishments means ‘only that the resulting sentence must not be grossly disproportionate.’220 That is, while a lack of individual consideration might lead to sentencing disproportionality, the ultimate question is whether such (gross) disproportionality has in fact resulted. In such a case, as argued above221 (and consistently with Lamer J’s analysis), one of the problems with the sentence is that the state – perhaps by overemphasising sentencing purposes such as general deterrence – has used the offender as a ‘means to an end.’
The fourth and most important point to make about Reyes concerns the reasoning that Lord Bingham used to justify judicial intervention where a grossly disproportionate sentence has been imposed. Particularly noteworthy here is the contrast that exists between this reasoning and that which Keane J deployed to justify non-intervention in Magaming.222 Certainly, like Keane J, his Lordship did emphasise Parliament’s role in setting penalties for its criminal offences, and the need for the courts not too readily to invalidate sentencing laws: 223
In a modern liberal democracy it is ordinarily the task of the democratically elected legislature to decide what conduct should be treated as criminal … and to decide what kind and measure of punishment such
215 Ibid. 216 But see the discussion in van Zyl Smit and Ashworth, ‘Disproportionate Sentences’, supra, 543-4, and note the argument presented by Witten, ‘Proportionality as a Moral Process’, supra. For Witten, mandatory minimum sentencing schemes are contrary to human rights, not because and only insofar as they can produce (grossly) disproportionate sentences – there is no objective way of measuring whether a sentence is (grossly) disproportionate (at 103, 120) – but for process-related reasons. The offender is not given individual consideration; the sentencing decision is never ‘justif[ied] … directly to [him/her]’: at 121. I cannot share Witten’s radical scepticism about proportionality assessments. As van Zyl Smit and Ashworth suggest (at 545), while reasonable minds might differ over whether certain sentences are disproportionate, there are sentences that can only rationally be characterised as such. Some of the US cases discussed below illustrate the point. 217 See Reyes [2002] 2 AC 235, 256 [43]. 218 [2010] UKPC 13, [32]-[33]. This is another case in which the Privy Council accepted that a constitutional guarantee expressed very similarly to art 3 ‘outlaw[s] wholly disproportionate penalties’: at [22]. It also held that the sentencing provision at issue, which provided for a mandatory minimum sentence of three years’ imprisonment for trafficking in certain drugs, had produced such a sentence in the instant case, as mandatory sentencing provisions can do: at [22]-[35], [39]. 219 Reyes [2002] 2 AC 235, 253 [37]. 220 [1987] 1 SCR 1045, 1073. 221 See text accompanying nn 47-55. 222 (2013) 252 CLR 381. See text accompanying n 148. 223 Reyes [2002] 2 AC 235, 245-6 [25].
123
conduct should attract or be liable to attract. … The ordinary task of the courts is to give full and fair effect to the penal laws which the legislature has enacted. But Lord Bingham then argued that where, in a jurisdiction with a charter of rights, a sentencing law is alleged to breach a protected right, the courts should not be as passive as Keane J considered they must in jurisdictions without such an instrument. ‘When (as here) an enacted law is said to be incompatible with a [constitutional] right,’ his Lordship said, ‘the court … must interpret the Constitution to decide whether the enacted law is incompatible or not.’224 That involves no narrow or formalistic approach.225 And it is the Court’s duty not to give effect to public opinion, if such opinion, as expressed in the legislation that that Court is considering, breaches a constitutional guarantee thus interpreted.226 For, as Chaskalson P noted in S v Makwanyane, if public opinion were to be ‘decisive’, there would be no point in having rights adjudication: ‘the protection of rights’ could instead be ‘left to Parliament, which has a mandate from [and is answerable to] the public.’227
Consistently with the approach in Reyes, the ECtHR has now on several occasions stated that a grossly disproportionate sentence will violate art 3,228 and that mandatory sentencing provisions are particularly likely to produce grossly disproportionate sentences.229 In so doing, like the Privy Council in that earlier case, it has demonstrated that the UK and Strasbourg courts have a greater ability than do courts in Australian jurisdictions without a charter of rights to protect convicted persons from such human rights breaches.230 It is true that the European Court has – also consistently with Reyes – made it clear that it will not be quick to find that art 3 has been breached in such a case. As noted in chapter 1, the Court has assured Contracting States that it will not lightly interfere with their policy choices in the ‘politically sensitive’231 area of sentencing, and that it will only be on ‘rare and unique occasions’232 that the gross disproportionality threshold will be met. Nevertheless, this is only to be expected. Again, it is not as though, when interpreting charters of rights, courts have a licence to create a liberal
224 Ibid 246 [26]. 225 Ibid. 226 Ibid. 227 [1995] 3 SA 391, 431 [88] (‘Makwanyane’), quoted in ibid. 228 Vinter GC [2013] III Eur Court HR 317, 344 [102]; Vinter Chamber (2012) 55 EHRR 34, [88]-[89]; Harkins (2012) 55 EHRR 19, [133]; Ahmad v United Kingdom (2013) 56 EHRR 1, [237] (‘Ahmad’). 229 Vinter Chamber (2012) 55 EHRR 34, [93]. 230 For views consistent with this, see Mary Rogan, ‘The European Court of Human Rights, Gross Disproportionality and Long Prison Sentences After Vinter v United Kingdom’ [2015] Public Law 22, 36. 231 Marek Szydło, ‘Vinter v United Kingdom’ (2012) 106 American Journal of International Law 624, 628. 232 Vinter GC [2013] III Eur Court HR 317, 344 [102].
124
utopia. ‘Public opinion … [has] some relevance’233 to the interpretative function that they perform; they cannot afford completely to ignore it. To say as much, however, is certainly not to support the supine approach that seems to be countenanced by at least some of the UK and Strasbourg authorities with which I shall now deal.
(ii) Extradition and Prisoner Transfer Cases
Wellington234 appears to make three relatively simple points about grossly disproportionate sentences. We have already dealt sufficiently with the first two of these: there will be an art 3 breach if a grossly disproportionate sentence is imposed domestically;235 and the courts are especially likely to declare mandatory sentencing provisions to be incompatible with that Article.236 The third principle is that a Contracting State will breach art 3 if, by extraditing a person to a non-contracting state, it exposes him/her to a real risk237 of having a grossly disproportionate sentence imposed on him/her.238
But, while the ECtHR has ostensibly239 rejected the Wellington majority’s contention240 that the ‘desirability of extradition’ is relevant when determining whether there is a real risk of an inhuman or degrading punishment being imposed in the receiving State, it has also held that241
233 Reyes [2002] 2 AC 235, 246 [26], quoting Makwanyane [1995] 3 SA 391, 431 [88] (Chaskalson P). 234 [2009] 1 AC 335. 235 This is implicit in the remarks of at least Lord Hoffmann (Baroness Hale agreeing) and Lord Scott: ibid 348 [36], 351 [45]. 236 Ibid 348 [36] (Lord Hoffmann, with whom Baroness Hale agreed). Note that, in a domestic case where a prisoner challenged his/her mandatorily imposed sentence on art 3 grounds, the UK courts would issue a declaration that the section that provided for the imposition of the sentence was incompatible with human rights. The sentence itself would not be interfered with, because, although s 6(1) HRA states that it is unlawful for a public authority (such as a court: s 6(3)(a)) ‘to act in a way which is incompatible with a Convention right’, this subsection does not apply to an act if, ‘as the result of one or more provisions of primary legislation, the authority could not have acted differently’ (see s 6(2)(a)); and, of course, a mandatory sentencing provision is a classic case of a provision that requires a court to act in a particular way. However, it is unclear whether, in such a case, the UK courts could consider not only the prisoner’s sentence, but also the impugned provision’s effect on hypothetical offenders, when determining whether to issue a declaration. Concerning this issue, compare Wellington [2009] 1 AC 335, 347-8 [35] (Lord Hoffmann) with Chester [2014] AC 271, 325 [102] (Baroness Hale). 237 See Soering (1989) 161 Eur Court HR (ser A); Chahal [1996] V Eur Court HR 1831; Saadi v Italy [2008] II Eur Court HR 207. 238 Wellington [2009] 1 AC 335, 347-8 [35]-[36] (Lord Hoffmann, with whom Baroness Hale agreed), 351 [45] (Lord Scott). 239 For an argument that the ECtHR’s approach involves no less relativism than does the majority’s in Wellington, see Natasa Mavronicola and Francesco Messineo, ‘Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK’ (2013) 76 Modern Law Review 589, especially 600-3. 240 Wellington [2009] 1 AC 335, 345 [24]-[27] (Lord Hoffmann). See also 352 [48] (Baroness Hale), 355 [57] (Lord Carswell). 241 Ahmad (2013) 56 EHRR 1, 70 [238]; Harkins (2012) 55 EHRR 19, 602-3 [134] (Emphasis added).
125
the Convention does not purport to be a means of requiring the contracting states to impose Convention standards on other states. … The Court therefore considers that it will only be in very exceptional cases that an applicant will be able to demonstrate that the sentence he or she would face in a non-contracting state would be grossly disproportionate and thus contrary to art 3.
Seemingly, then, it will be even rarer for an art 3 breach to be established on the basis that an extradition would expose an alleged offender to the real risk of a grossly disproportionate sentence, than it will be for the courts to find that a domestic sentence contravenes the Article.242
In prisoner transfer cases, too, the UK and Strasbourg courts have deferred even more readily than in domestic cases to legislatures’ judgments concerning how severely to punish criminal conduct. Moreover, and worryingly, they have employed reasoning in these prisoner transfer cases that is incompatible with that in Reyes and Aubeeluck243 and, if used more widely, has the potential completely to undermine the guarantee against grossly disproportionate sentences.
In R (Willcox) v Secretary of State for Justice, the claimant, a British citizen, had been sentenced in Thailand to 33 years and 6 months’ imprisonment, almost all of which was for an offence of possessing for distribution 24 grams of heroin and 14 ecstasy pills.244 While Willcox claimed that he possessed the drugs for personal use, the relevant Thai law created an irrebuttable presumption that possession of heroin and ecstasy in these amounts was for the purpose of distribution.245 In accordance with a bilateral agreement for the transfer of prisoners, the Thai and UK governments agreed to Willcox’s transfer to a British gaol.246 A Thai royal decree then reduced his sentence by four years.247 Furthermore, once imprisoned in the UK, Willcox was subject to that State’s release provisions.248 Even so, these only rendered him eligible for parole once he had served 14 years and 6 months of the sentence.249 Before the Divisional Court, Willcox argued that his sentence was grossly disproportionate and that, by requiring him to serve it, the UK had breached art 3.250
242 Certainly that was the Court’s view in Pham v United States [2014] EWHC 4167 (Admin), [66] (Aikens LJ and Simon J). 243 See n 218. 244 [2009] EWHC 1483 (Admin), [2]. 245 Ibid [3]. 246 Ibid [2]. 247 Ibid. 248 Ibid [14]-[15]. 249 Ibid [2]. 250 Ibid [3], [56]-[57].
126
The Court accepted that, if the claimant had performed the relevant conduct in the UK, then – even if he had been convicted of possessing the relevant drugs with intent to supply – he would have been imprisoned for no longer than six years,251 and possibly only four or five.252 Nevertheless, the UK had not breached art 3. Their Lordships noted that, if they held differently, the prisoner transfer system would be undermined.253 Thailand would be displeased if the UK were to release a transferred prisoner because the Thai sentence was grossly disproportionate, even though, before the transfer, the UK had provided an assurance that there would be no interference with the maximum term.254 This might affect other prisoners, ‘languishing’ in foreign prisons, whose transfer might ‘thereby be inhibited or prevented.’255
Accordingly, the Court found that the UK had not imposed a grossly disproportionate sentence on the claimant. Thailand had imposed the impugned punishment. The UK’s treatment of the prisoner comprised its agreement, at his request, to transfer him into its prison system.256 This treatment, pursuant to a ‘humane provision’,257 the purpose of which was to ‘enabl[e] … persons sentenced for crimes committed abroad to serve out their sentences within their own society’,258 could never be characterised as inhuman or degrading.
This reasoning seems unobjectionable. It is difficult to argue that art 3 should prevent prisoners from being transferred to their own country to serve their sentences. And it is perhaps plausible enough to contend that the UK was not punishing Willcox. But Ouseley J added this:259
Even if the continued enforcement of sentence … were capable of breaching Article 3 because of the length of sentence or the circumstances in which it was imposed, I do not regard the sentence here as so grossly disproportionate to the offence … that its continued enforcement by the UK would breach Article 3. … By UK sentencing standards, the sentence is harsh but he did not commit the offences in the UK; he committed them in Thailand where there is a serious drugs problem, and where the government and legislature are entitled to take the view that harsh sentences are legitimate and necessary. Certainly, whether a sentence is disproportionate sometimes depends upon local circumstances. To use Scalia J’s example, one jurisdiction might punish the killing of a particular wild animal, because it is endangered within its borders, whereas another might offer a bounty for those who
251 Ibid [56] (Ouseley J). 252 Ibid [95] (Davis J). 253 Ibid [66] (Ouseley J), [91] (Davis J). 254 Ibid [63] (Ouseley J), [84] (Davis J). 255 Ibid [64], [70] (Ouseley J). See also [87] (Davis J). 256 Ibid [70] (Ouseley J), [95] (Davis J). 257 Ibid [70] (Ouseley J). 258 Ibid [62] (Ouseley J). 259 Ibid [75].
127
kill the same animal, because there is a plague of that creature there.260 But we must be clear about why the sentence is proportionate in the first jurisdiction, whereas it would not be so in the second. What justifies the sentence in the first State is that, unlike in the second, the killing has intentionally – that is, culpably – caused harm;261 accordingly, the conduct has a gravity that it lacks in the latter jurisdiction. Justice Ouseley, however, does not state that the person who possesses drugs, with or without intent to supply, either causes or risks any more harm in Thailand than s/he does in the UK. Such an offender is clearly also equally culpable wherever s/he commits such an offence. Instead, while his Lordship does not expressly refer to general deterrence, the suggestion seems to be that the same sentence might be grossly disproportionate in one place (the UK) but not in another (Thailand) because of the prevalence of that offence in that second place and the consequent need for harsh sentences to deter such activity.
The problem with this is that, as argued above,262 it is inconsistent with the approach correctly taken in Reyes that, while general deterrence and other penological purposes are relevant to sentencing, they cannot be allowed to produce a grossly disproportionate sentence. To say, as Ouseley J apparently did, that a sentence will not be grossly disproportionate if the court can regard it as doing only what is necessary to achieve general deterrence, is to circumvent this principle. And it is to make the same error as I attributed in chapter 1 to Baroness Hale, in chapter 2 to commentators such as Davis and in chapters 1 and 2 to Lord Sumption. A punishment’s compatibility with human rights is not determined by establishing whether there is a consensus among citizens of Thailand – or anywhere else – that it is permissible. Rather, as argued throughout this thesis, the crucial consideration is how that punishment relates to the human dignity of the punished.
Unfortunately, however, when the matter reached it, the ECtHR endorsed Ouseley J’s reasoning.263 The Court considered that the UK’s relevant treatment of Willcox was its enforcement of his sentence, observing that, as such: ‘the focus must be on whether any suffering or humiliation involved go[es] beyond that inevitable element of suffering and humiliation connected with the enforcement of the sentence of imprisonment imposed by the
260 Harmelin 501 US 957, 989 (1991). 261 To determine whether a sentence is disproportionate to the seriousness of an offender’s crime, we have to establish how serious the relevant offence was; and, as noted by Andrew von Hirsch and Nils Jareborg, ‘Gauging Criminal Harm: A Living-Standard Analysis’ (1991) 11 Oxford Journal of Legal Studies 1, 2-3, ‘[s]eriousness of crime has two dimensions: harm and culpability.’ 262 See text accompanying nn 218-221. See also text accompanying nn 47-55. 263 Willcox ECtHR [2013] I Eur Court HR 1, 27–8 [78].
128
foreign court.’264 It will be recalled265 that, previously, the ECtHR accepted that, where a sentence is grossly disproportionate, the applicant’s suffering or humiliation will go beyond that which inevitably flows from imprisonment.266 But, as its approval of Ouseley J’s reasoning would imply, the Court’s approach in Willcox v United Kingdom is not easily reconciled with this principle. It did indicate that the length of the applicants’ sentences was of some small relevance to whether the UK, by enforcing them, had contravened art 3. Such a contravention would be established, apparently, if the sentences were not ‘within the range of approaches considered to be acceptable by democratic States.’267 But it also made it clear that it would be most unusual for the enforced sentence’s length to place the enforcing State in breach. After observing that drugs offences are ‘severely punished’ in Thailand because of the ‘serious drugs problem’ there, the Court stated, in common with Ouseley J, that ‘the Thai government and legislature were entitled to take the view that harsher sentences than those applicable in the United Kingdom were legitimate and necessary.’268 It also observed that States are entitled to ‘[construct] … their criminal-justice systems around principles and approaches’ that differ vastly from each other.269
As just argued, this reasoning is erroneous. The apparent suggestion is, again, that a sentence will not be grossly disproportionate if it can be regarded as doing only what is necessary to achieve general deterrence. But the true position is that general deterrence cannot justify a sentence that is significantly greater than that warranted by the gravity of the offending conduct, however democratically ‘acceptable’ such a sentence might be.
(iii) The Capacity of Charters of Rights to Make a Difference
a. Some Conclusions about the UK and Strasbourg Jurisprudence
In sum, while the UK and Strasbourg courts have adopted a cautious approach where it has been alleged that sentences breach art 3 because of their gross disproportionality, it is now well-established that such sentences cannot be imposed consistently with that Article. This
264 Ibid 27 [76]. 265 Kafkaris [2008] I Eur Court HR 223, 269 [96]. See also text accompanying n 45. 266 Vinter GC [2013] III Eur Court HR 317, 344 [102]. See also the discussion in Mavronicola, ‘Crime, Punishment and Article 3 ECHR’, supra, 733-4. In the above text, I have criticised this focus on suffering, arguing that the real problem with (grossly) disproportionate sentences is that they fail to respect the agency of those upon whom they are imposed. But nothing turns on that for present purposes. 267 Willcox ECtHR [2013] I Eur Court HR 1, 28 [78]. 268 Ibid. 269 Ibid.
129
principle has yet not been acted upon.270 But it is important271 – mainly because it is quite conceivable that it will be applied in the future, especially in cases concerning mandatory sentencing.272 Consequently, the UK position seems preferable to that in Australia, where, as we have seen, the courts have placed no real constitutional limits on Parliament’s power to provide for mandatory sentencing schemes. It is important, however, that the UK and Strasbourg courts continue to maintain, as the Privy Council did in Reyes and Aubeeluck, that penological justifications such as general deterrence cannot justify a grossly disproportionate sentence. Certainly, different views have only been expressed in prisoner transfer cases, where pragmatic concerns understandably influenced the courts’ decisions. Nevertheless, such reasoning is wrong; and it is dangerous. It is wrong because it constitutes an abnegation of the courts’ responsibility to exercise the powers that they have been granted: such courts act as though, like the HCA in cases such as Magaming, they have been given no mandate to scrutinise laws on human rights grounds. It is dangerous because, as the North American jurisprudence shows, when courts do act in such a way, legislatures have free rein to enact populist laws that instrumentalise prisoners.
b. The USSC’s Jurisprudence
This is most graphically demonstrated by the USSC’s decisions in most of the non-capital cases273 where it has been alleged that a sentence is grossly disproportionate and, consequently, violates the Eighth Amendment to the US Constitution. In the 1980s, ‘deep divisions’274 emerged between conservative and liberal Justices concerning the proper scope of the
270 The Privy Council in such cases as Reyes and Aubeeluck did not find that art 3 had been breached – although, as noted above, the relevant guarantees in those cases were worded almost identically to that ECHR Article. 271 As observed by Ben Emmerson et al, Human Rights and Criminal Justice (Sweet & Maxwell, 3rd ed, 2012) 836-7 [20.06]. 272 There seems additionally to be a good argument that mandatory sentencing laws breach ECHR art 6(1): see Gray, ‘Mandatory Sentencing around the World ’, supra, 410-11. For, as we saw in the previous chapter, Anderson [2003] 1 AC 837 and Stafford [2002] IV Eur Court HR 115 establish that this Article is violated if a person is sentenced otherwise than by an ‘independent and impartial tribunal.’ Where a judge imposes a sentence that another arm of government has dictated to him/her, it seems formalistic to contend that there has been compliance with the Anderson and Stafford requirement. 273 Compare with the capital cases of Coker v Georgia, 433 US 584 (1977); Enmund v Florida, 458 US 782 (1982); Atkins v Virginia, 536 US 304 (2002); Roper v Simmons, 543 US 551 (2005); Kennedy v Louisiana, 554 US 407 (2008). Compare also with the recent cases in which the Court has accepted that, ‘if “death is different”, children are different too’ (see Miller v Alabama, 567 US 460, 481 (2012) (‘Miller’)); and has held that a life without parole sentence may not be imposed on juvenile non-homicide offenders (Graham, 560 US 48 (2010)); mandatorily on juvenile homicide offenders (see Miller, 567 US 460, 479 (2012)); or indeed on ‘all but the rarest of juvenile [homicide] offenders, those whose crimes reflect permanent incorrigibility’ (see Montgomery v Louisiana, 136 S Ct 718, 734 (2016); see also Miller, 567 US 460, 479-80 (2012)). 274 van Zyl Smit, ‘Constitutional Jurisprudence’, supra, 371.
130
‘proportionality principle.’275 The former contended that, in non-death penalty cases, the principle should apply only very narrowly. According to the Rummel v Estelle276 majority, legislatures should have an almost complete freedom to pursue penological purposes such as general deterrence and incapacitation: only in extreme cases (the example provided was of a legislature making ‘overtime parking a felony punishable by life imprisonment’)277 was a court justified in finding a sentence to be grossly disproportionate. Accordingly, the petitioner’s life sentence for a third petty fraud offence was upheld. While, as the dissent urged, the three crimes together ‘involved slightly less than $230’,278 the majority held that the legislature was entitled to give priority to the penological goals of ‘deter[ring] repeat offenders’ and ‘segregat[ing]’ recidivists ‘from the rest of society for an extended period of time.’279
The liberal Justices’ views, on the other hand, were largely consistent with those expressed by the Privy Council in Reyes and Aubeeluck. According to a liberal majority in Solem v Helm,280 while the courts owe legislatures ‘substantial deference’ in this area, ‘criminal sentence[s] must [nevertheless] be proportionate to the [defendant’s] crime.’281 In determining whether a sentence is grossly disproportionate, the majority continued, courts must be guided by: (i) their own assessment of the offence’s gravity and the appropriateness of the sentence that was imposed; (ii) a consideration of sentences imposed for similar offences in the relevant jurisdiction; and (iii) a consideration of sentences imposed for the same offence in other US jurisdictions.282 This analysis led their Honours to conclude that the petitioner’s sentence of life imprisonment without the possibility of parole for a seventh nonviolent felony violated the Eighth Amendment. The sentence’s capacity to deter and incapacitate recidivists was not to the point. Of far greater importance was that ‘Helm has received the penultimate sentence for relatively minor criminal conduct.’283
But it was the conservatives’ position that largely prevailed. In Harmelin,284 Kennedy J wrote the crucial judgment. After accepting the Rummel view that only ‘extreme sentences’
275 Harmelin, 501 US 957, 997 (Kennedy J) (1991). 276 445 US 263 (1980). 277 Ibid 274. 278 Ibid 295. 279 Ibid 284. 280 463 US 277 (1983) (‘Solem’). 281 Ibid 290. 282 Ibid 292. 283 Ibid 303. 284 501 US 957 (1991).
131
contravene the proportionality principle,285 his Honour upheld the petitioner’s sentence of life imprisonment without the possibility of parole for possessing more than 650 grams of cocaine.286 Justice Kennedy did make some concessions to the Solem majority’s views; but these concessions were limited, even tokenistic. After purportedly287 considering the first Solem factor, his Honour found that it was unnecessary to conduct the comparative analysis mandated by factors (ii) and (iii): the seriousness of the petitioner’s crime was such, he thought, that no such analysis was necessary.288 Moreover, significantly, Kennedy J contended that289
[t]he efficacy of any sentencing system cannot be assessed absent agreement on the purposes and objectives of the penal system. And the responsibility for making these fundamental choices and implementing them lies with the legislature.
There is a striking similarity between this reasoning and the reasoning of Keane J in Magaming. According to it, legislatures can essentially do as they want in this area. ‘The Eighth Amendment does not mandate adoption of any one penological theory’,290 Kennedy J continued, which meant that, although he doubted whether ‘Michigan’s bold experiment will succeed’291
we cannot say that the law has no chance of success and is on that account so disproportionate as to be cruel and unusual punishment. In other words, Michigan was entitled to provide for this ‘severe and unforgiving’ sentence, with the aim of achieving general deterrence.292
As noted below, unwarrantable judicial restraint of this sort demonstrates that ‘strong-form’ charters will not necessarily produce greater protections for offenders against penal populism. The remarks in chapter 2 about the recent propensity of governments in Anglophone democracies to prevent prisoners from enjoying all of the benefits that ‘weak-form’ charters can confer on them, must be read with this in mind. But, for the time being, it is necessary merely to note that Harmelin and those subsequent cases in which Kennedy J’s analysis has
285 Ibid 1001. 286 Ibid 1009. 287 When assessing the seriousness of the petitioner’s offence, Kennedy J focussed merely on the harm that it risked, and ignored the petitioner’s culpability: see ibid 1002-4. By so doing, his Honour failed to consider a factor that must be considered if there is to be any sensible evaluation of an offence’s gravity: see n 261. 288 Ibid 1004 (1991). 289 Ibid 998. 290 Ibid 999. 291 Ibid 1008. 292 Ibid.
132
been applied293 contain only negative lessons for judges who have been empowered to interpret a charter of rights.294 Contrary to Kennedy J’s view, a court’s capacity to say whether a sentence is grossly disproportionate does not hinge on whether it is able confidently to predict whether the impugned law will deter crime.
c. The CSC’s Jurisprudence
The Canadian case law, on the other hand, contains both positive and negative lessons for judges who are required to decide whether a punishment is unconstitutional because of its gross disproportionality. The Canadian judiciary has sometimes shown excessive deference to Parliament in this area. This jurisprudence, therefore, in common with the USSC cases discussed above, demonstrates the potential for unjustified judicial timidity to render guarantees against grossly disproportionate sentences not much stronger than the protections that would exist without a charter of rights. But the Court’s recent more assertive approach also shows what judges can achieve if they have the integrity to give a ‘generous and purposive interpretation’295 to guarantees against ‘cruel and unusual’/‘inhuman or degrading’ punishments.
In Smith,296 the majority struck down a provision that required a minimum penalty of seven years’ imprisonment to be imposed on any person convicted of importing narcotics into Canada. It did so, not because this provision had caused the appellant to be ‘subjected to any cruel and unusual … punishment’,297 but instead because it was capable of applying to ‘a young person who, while driving back into Canada from a winter break in the U.S.A., is caught with … his/her first “joint of grass.”’298 While, according to Lamer J, the Parliament was owed some deference,299 his Honour also thought300 that it was not entitled, by privileging sentencing aims
293 See, eg, Lockyer v Andrade, 538 US 63 (2003), where a majority held that the Californian Court of Appeal had not erred when it affirmed a fifty-year minimum sentence that had been imposed on a drug-addicted petty criminal for two offences of stealing videotapes. 294 As noted by Elizabeth Sheehy, ‘Introduction: Mandatory Minimum Sentences: Law and Policy’ (2001) 39 Osgoode Hall Law Journal 261, 267, citing Jamie Cameron, ‘The Death Penalty, Mandatory Prison Sentences, and the Eighth Amendment’s Rule Against Cruel and Unusual Punishments’ (2001) 39 Osgoode Hall Law Journal 427. 295 Reyes [2002] 2 AC 235, 246 [26] (Lord Bingham). 296 [1987] 1 SCR 1045. 297 Canadian Charter s 12. 298 Smith [1987] 1 SCR 1045, 1053 (Lamer J, writing for himself and Dickson CJ; Wilson and La Forest JJ relevantly agreed with Lamer J at 1109, 1113). 299 Ibid 1070. 300 Ibid 1073.
133
such as general deterrence, to require the imposition of sentences that are ‘grossly disproportionate to what the offender deserves.’301 In finding that a seven-year sentence would be grossly disproportionate to the seriousness of the hypothesised young person’s offence, Lamer J primarily, and rightly, considered the harm caused or risked by this offence and the young person’s level of culpability.302 Because only a small quantity of a not especially dangerous drug would have been imported, by a first offender, the offence could not warrant anything approaching seven years’ imprisonment.303
This was an assertive304 – even an ‘extraordinary’305 – decision: given that the appellant had been caught not with one ‘joint’, but with between $126,000 and $168,000 worth of cocaine,306 the Court could easily have avoided making the confrontational finding that the relevant provision breached the Charter.307 Unfortunately, in the cases that followed, the Court did not maintain this stance; instead, it used a number of techniques to avoid finding that various mandatory minimum sentencing provisions breached s 12.
The first such technique is already familiar to us: like the USSC, the Court gave Parliament an increased freedom to pursue sentencing aims that are liable to produce disproportionate sentences. In R v Latimer,308 the appellant had killed his 12-year-old daughter, who suffered from a severe form of cerebral palsy, in circumstances such as to arouse some feelings of sympathy for him. After being convicted of second-degree murder, Latimer claimed that he was entitled to a constitutional exemption309 from the mandatory minimum penalty of 10 years’
301 Ibid. 302 Cf Kennedy J’s approach in Harmelin: see n 287. 303 Smith [1987] 1 SCR 1045, 1078. 304 As noted by, eg, Kent Roach, ‘Searching for Smith: The Constitutionality of Mandatory Sentences’ (2001) 39 Osgoode Hall Law Journal 367, 381-2. 305 Jamie Cameron, ‘Fault and Punishment under Sections 7 and 12 of the Charter’ (2008) 40 Supreme Court Law Review 553, 583. 306 Smith [1987] 1 SCR 1045, 1083 (McIntyre J). 307 See Roach, ‘Searching for Smith’, supra, 381-2. 308 [2001] 1 SCR 3. 309 It has since been established that a constitutional exemption from the application of a mandatory minimum sentencing provision is never the proper remedy for an offender who establishes that the sentence required by such a provision would be cruel and unusual punishment in his/her case. Rather, in such a case, the Court must strike down the relevant provision: R v Ferguson [2008] 1 SCR 96, 105 [13]. For commentary on Ferguson, see Lisa Dufraimont, ‘R. v. Ferguson and the Search for a Coherent Approach to Mandatory Minimum Sentences under Section 12’ (2008) 42 Supreme Court Law Review 459; Benjamin L Berger, ‘A More Lasting Comfort? The Politics of Minimum Sentences, the Rule of Law and R. v. Ferguson’ (2009) 47 Supreme Court Law Review 101. See also Kent Roach, ‘The Future of Mandatory Sentences after the Death of Constitutional Exemptions’ (2008) 54 Criminal Law Quarterly 1; Debra Parkes, ‘From Smith to Smickle: The Charter’s Minimal Impact on Mandatory Minimum Sentences’ (2012) 57 Supreme Court Law Review 149, 161-3.
134
imprisonment for that offence. In denying that the sentence imposed on him was grossly disproportionate, the Court stated that: 310
this sentence is consistent with a number of valid penological goals and sentencing principles. … Furthermore, denunciation becomes much more important in the consideration of sentencing in cases where there is a ‘high degree of planning and premeditation, and where the offence and its consequences are highly publicized, [so that] like-minded individuals may well be deterred by severe sentences’. Although the Court here certainly undermined more subtly than has the USSC the rule that the various penological goals cannot justify a grossly disproportionate sentence, it nevertheless seems that it did fail to apply this rule in a suitably demanding way.311 In particular, its insistence that ‘the sentence is not out of step with valid penological goals or sentencing principles’312 suggests that, if it is open to regard a sentence as doing only what is necessary to achieve, say, general deterrence, this is a strong indication of compatibility with s 12.313
A second technique that the Court used to avoid interfering with mandatory minimum sentencing provisions was this: when assessing the seriousness of the relevant – hypothetical or real – offence, it excluded from consideration factors that are of obvious relevance to an offender’s culpability.314 In Latimer, the Court said that, when assessing the appellant’s blameworthiness for the purpose of determining the gravity of his offence, the offence’s ‘mens rea element’ was relevant ‘rather than the offender’s motive or general state of mind.’315 The problem with this is that an offender’s motive is of crucial importance when assessing how culpable s/he is.316 In R v Morrisey,317 too, the Court’s culpability assessment was narrowly focussed on the offence’s mens rea. ‘One cannot emphasize … enough’, according to Gonthier J, that a person could only be convicted of this offence (criminal negligence with a firearm causing death, for which there was a mandatory minimum penalty of four years’ imprisonment) if the Crown proved that s/he departed markedly from the reasonable person’s standards.318 His Honour placed little emphasis, however, on the accused’s intoxication at the time of
310 Latimer [2001] 1 SCR 3, 41 [86]. 311 See Roach, ‘Searching for Smith’, supra, 380-1. 312 Latimer [2001] 1 SCR 3, 42 [87]. 313 See David M Paciocco, ‘The Law of Minimum Sentences: Judicial Responses and Responsibility’ (2015) 19 Canadian Criminal Law Review 173, 196. 314 Cameron, ‘Fault and Punishment’, supra, 584-9. 315 Latimer [2001] 1 SCR 3, 39 [82], citing Morrisey [2000] 2 SCR 90, 112 [36]. 316 See, eg, Andrew von Hirsch, ‘Commensurability and Crime Prevention: Evaluating Formal Sentencing Structures and Their Rationale’ (1983) 74 Journal of Criminal Law & Criminology 209, 214. 317 [2000] 2 SCR 90. 318 Ibid 112 [36] (Gonthier J, writing for himself, Iacobucci, Major, Bastarache and Binnie JJ).
135
offending, the ‘extreme psychological distress’319 that he was then experiencing, or his subsequent feelings of remorse.320
Thirdly, in some cases, the Court attached importance to the possibility that the executive would release the prisoner before the expiry of his/her sentence.321 Latimer once more illustrates the point. Immediately after observing that doubt surrounded the wisdom of mandatory minimum sentences,322 the Court considered that it was ‘worth referring … to the royal prerogative of mercy’,323 which allows the executive to release an offender whom it considers to be enduring unjust imprisonment. It continued: ‘[t]he executive will undoubtedly, if it chooses to consider the matter, examine all of the underlying circumstances surrounding the tragedy of Tracy Latimer that took place … some seven years ago.’324 The suggestion is that some doubt existed about whether the appellant was serving a grossly disproportionate sentence (indeed, elsewhere in its judgment, the Court had explicitly expressed such doubt),325 but that this matter was for the executive to resolve.326
The fourth and final deference technique to which I shall refer is the Court’s insistence that judges use hypothetical examples only narrowly. We have seen that, in Smith, the majority struck down the relevant provision, not because it had been used to impose a grossly disproportionate sentence on the appellant, but because the mandatory minimum sentence for which it provided would be grossly disproportionate if imposed on the youthful importer of one marijuana cigarette. As Doherty JA has noted, ‘[u]nmodified, the … analysis described in Smith would have left very few, if any, mandatory minimum jail terms standing.’327 The offender just described was hardly a typical drug importer.328 Surely in almost any case where a mandatory minimum sentencing provision was challenged on s 12 grounds, the judges would
319 Ibid 113 [38]. Indeed, Gonthier J perhaps considered these two factors to be aggravating circumstances. 320 As noted by Kent Roach, ‘The Charter Versus the Government’s Crime Agenda’ (2012) 58 Supreme Court Law Review 211, 221. 321 For criticisms of this approach, see Roach, ‘Searching for Smith’, supra, 398. 322 Latimer [2001] 1 SCR 3, 42 [88]. 323 Ibid [89]. 324 Ibid 43 [90]. 325 Ibid 42 [87]. 326 See also R v Luxton [1990] 2 SCR 711, 725; Morrisey [2000] 2 SCR 90, 115 [42]. 327 R v Nur (2013) 117 OR (3d) 401, 432 [116] (‘Nur CA’). 328 Justice Lamer conceded that ‘no such case has actually occurred to my knowledge’: Smith [1987] 1 SCR 1045, 1054.
136
be able to summon from their imaginations such an improbably innocent offender, so as to invalidate the section?
But as Doherty JA has also observed, the Smith analysis was modified.329 In R v Goltz,330 the appellant unsuccessfully challenged a provision that created a minimum penalty of seven days’ imprisonment for anyone who drove while prohibited from doing so under certain sections of the Motor Vehicle Act.331 Justice Gonthier did concede that, where, as here, the sentence was not grossly disproportionate as applied to the appellant, the Court might still be required to strike down the relevant provision – but only if it was capable of producing a grossly disproportionate sentence in ‘reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases.’332 While the Court would inevitably have to consider hypothetical offenders, his Lordship continued: ‘this is not a licence to invalidate statutes on the basis of remote or extreme examples. … The applicable standard must focus on imaginable circumstances which could commonly arise in day-to-day life.’333
In Morrisey, Gonthier J returned to this theme. In that case, the courts below had relied on the facts of reported cases when determining whether the impugned provision might require the imposition of grossly disproportionate sentences in ‘reasonable hypothetical’ cases.334 But Gonthier J counselled that ‘a reported case could be one of those “marginal” cases, not contemplated by the approach set out in Goltz.’335 That is, it might not concern a ‘common [example] of the crime.’336
Two things must be noted about Goltz and Morrisey. First, the effect of these decisions was largely to limit the courts to considering the facts of the case actually before them, when deciding whether to strike down a mandatory minimum sentencing provision.337 Whatever
329 Nur CA (2013) 117 OR (3d) 401, 432 [116]. 330 Goltz [1991] 3 SCR 485. 331 RSBC 1979, c C-288. 332 Goltz [1991] 3 SCR 485, 506 (Gonthier J, writing for himself, La Forest, L’Heureux-Dubé, Sopinka, Cory and Iacobucci JJ) (Original emphasis). 333 Ibid 515-16. 334 See Morrisey [2000] 2 SCR 90, 100-3 [9], [13]-[14]. 335 Ibid 110 [32]. 336 Ibid 111 [33]. See also 119 [50]. For criticisms of this approach, see ibid 127 [65] (Arbour J, writing for herself and McLachlin J). See also, eg, Allan Manson, ‘Arbitrary Disproportionality: A New Charter Standard for Measuring the Constitutionality of Mandatory Minimum Sentences’ (2012) 57 Supreme Court Law Review 173, 180. 337 Peter Sankoff, ‘The Perfect Storm: Section 12, Mandatory Minimum Sentences and the Problem of the Unusual Case’ (2013) 22(1) Constitutional Forum 3, 5.
137
Gonthier J said about the legitimacy of using ‘reasonable hypotheticals’, his above comments demonstrate that he envisaged a very limited role for them indeed. Secondly, as Sankoff has observed, the Court, by insisting that ‘unusual’ cases ‘should only be addressed in the event they actually made it to court’, relied upon the Crown not to prefer charges against those less blameworthy offenders who, like the youthful importer in Smith, technically fell within the scope of the relevant enactment.338 By so doing, it once more delegated to the executive its responsibility of preventing contraventions of s 12.
But if the CSC’s jurisprudence in the decades following Smith provides further demonstration that the courts are able to deprive guarantees against grossly disproportionate sentences of any real content, the same Court’s recent decisions in Nur, Boudreault and R v Lloyd339 show that this excessively deferential approach is far from inevitable.
At issue in Nur was an offence of possessing a loaded prohibited or restricted firearm, or unloaded prohibited or restricted firearm together with readily accessible ammunition that could be discharged in the firearm, without being authorised or licensed to possess the firearm in the relevant place or holding a registration certificate for it.340 If the Crown proceeded summarily, the maximum penalty was one year’s imprisonment.341 But if the Crown proceeded on indictment, a first offender was exposed to a mandatory minimum penalty of three years’ imprisonment; and, in the case of a second or subsequent offender, the court was required to impose a sentence of at least five years’.342 The respondents, who had been proceeded against on indictment for and convicted of the offence, challenged these mandatory sentencing provisions on the basis that they allowed grossly disproportionate sentences to be imposed in ‘reasonable hypothetical’ cases.343
In accepting the respondents’ argument, the majority distanced itself from each of the deference techniques noted above. Writing for the six majority Justices, McLachlin CJ did state – as of course Lamer J had in Smith – that the Courts had to show some deference to Parliament. Only grossly disproportionate sentences will amount to ‘cruel and unusual … punishment’, her
338 Ibid. 339 [2016] 1 SCR 130. 340 Criminal Code, RSC 1985, c C-46, s 95(1). 341 See Nur [2015] 1 SCR 773, 789 [11]-[12]. 342 Ibid. 343 Ibid 786 [3]-[4].
138
Honour thought; it is not enough that a sentence is merely disproportionate or excessive.344 In so doing, she seems – like the Privy Council in Reyes and the ECtHR in cases such as Vinter345 – to have been cognisant of the need not to be too dismissive of the democratic consensus. For while, as argued above,346 it is hard to mount a principled defence of the gross disproportionality requirement, it is not so hard to see why the Canadian courts have long insisted on so ‘stringent and demanding’347 a standard. Contrary to what Cory J said in Warden of Mountain Institution v Steele,348 a ‘lesser test’ would not ‘trivialize the Charter’: a ‘merely’ disproportionate sentence is in reality a human rights breach.349 But, as we have seen, when interpreting charters of rights, courts will usually take some measures to avoid creating a perception that they are willing too freely to override the views that the public has expressed through its parliamentary representatives.350
Nevertheless, McLachlin CJ soon made it apparent that her unwillingness to challenge Parliament knew its limits. In this vein, her Honour made this strong and important statement about the impermissibility of allowing penological goals such as general deterrence to produce grossly disproportionate sentences:351
[g]eneral deterrence … is relevant. But it cannot, without more, sanitize a sentence against gross disproportionality … Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending. This, it is submitted, is a welcome corrective to the view – too often expressed by courts and accepted by academic commentators (impliedly or otherwise) – that the proportionality of a sentence depends on anything other than how it relates to the seriousness of the crime(s) that it is punishing.
Chief Justice McLachlin proceeded to support the courts’ liberal use of hypotheticals. After observing that ‘[a] single theme underlies Goltz and Morrisey … reasonable foreseeability’,352
344 Ibid 798 [39], citing Smith [1987] 1 SCR 1045, 1072-3. 345 See text accompanying nn 231-33. 346 See text accompanying nn 72-5. 347 Steele [1990] 2 SCR 1385, 1417. 348 Ibid. 349 See text accompanying nn 72-5. 350 That said, whatever it claims it is doing, the majority of the CSC might not really be adhering to the rule that the only mandatory minimum sentencing provisions that will be struck down are those that have produced, or foreseeably will produce, such gross sentencing disproportionality. See the three dissenting Justices’ remarks in Lloyd [2016] 1 SCR 130, 170 [87]-[88], 174 [99], 177 [107]. 351 Nur [2015] 1 SCR 773, 800–1 [45] (Emphasis added). 352 Ibid 804 [56].
139
her Honour favoured an approach that is in fact far more consonant with Smith than it is with either Goltz or Morrisey. ‘The reasonable foreseeability test’, she said353
is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it … targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are ‘remote’ or ‘far-fetched’ are excluded … [T]here is a difference between what is foreseeable although ‘unlikely to arise’ and what is ‘remote [and] far-fetched’ … There is obvious difficulty in reconciling this with Gonthier J’s insistence in Morrisey that, to be reasonable, a hypothetical had to be a ‘common [example] of the crime.’354 Moreover, McLachlin CJ proceeded expressly to disapprove the Morrisey majority’s contention that reported decisions could not be used as ‘reasonable hypotheticals’ if they were ‘marginal’ cases. Preferring Arbour J’s and her own dissenting view in Morrisey,355 her Honour stated:356
Reported cases illustrate the range of real-life conduct captured by the offence. I see no principled reason to exclude them on the basis that they represent an uncommon application of the offence, provided that the relevant facts are sufficiently reported. Not only is the situation in a reported case reasonably foreseeable, it has happened. Lloyd confirms that this approach is far more consistent with Smith than with Goltz. There, the majority struck down a provision that created a mandatory minimum sentence of one year’s imprisonment for a person convicted of possessing certain prohibited drugs for the purpose of trafficking, who had been convicted in the previous ten years of an offence against pt I of the Controlled Drugs and Substances Act357 other than of simple possession.358 I noted above that, if the Smith approach to hypotheticals had been maintained, few mandatory minimum sentencing provisions would have been constitutionally valid. In Lloyd, McLachlin CJ – again writing for the majority – observed that, under the Nur approach to reasonable hypotheticals, many mandatory sentencing provisions are constitutionally suspect:359
[I]n light of Nur, the reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. Consistently with this, her Honour found that a one year prison term would be grossly disproportionate in the case of an addict who had (i) twice shared a small amount of drugs with
353 Ibid 809 [68]. 354 Morrisey [2000] 2 SCR 90, 111 [33]. See also 119 [50]. 355 Ibid 127 [65]. 356 Nur [2015] 1 SCR 773, 811 [72]. 357 Controlled Drugs and Substances Act SC 1996, c 19. 358 Lloyd [2016] 1 SCR 130, 141-2 [5]-[6]. 359 Ibid 152 [35].
140
a friend or spouse360 or (ii) twice trafficked drugs to support his/her own addiction, but had conquered his/her addiction between conviction and sentencing.361
The Nur majority also made it clear that, when the courts assess the seriousness of the real or hypothetical offence for the purposes of resolving the gross disproportionality question, more than just the offence’s mens rea is relevant. The offender’s personal characteristics may also generally be considered. Accordingly, in determining whether a three-year sentence would be grossly disproportionate for a hypothetical ‘licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored’,362 McLachlin CJ emphasised not the mental element that must be proved against any offender for him/her to be convicted of the relevant offence, but instead the ‘minimal blameworthiness’ of this particular offender and the fact that his conduct neither caused harm nor created a real risk of it.363
Further, her Honour held that the courts may not delegate to the executive their responsibility to determine whether, if applied to particular offenders, a mandatory minimum sentencing provision would produce grossly disproportionate sentences. Responding to an argument that parole might be granted to any first offender upon whom the three-year mandatory minimum sentence had been imposed, McLachlin CJ stated that ‘[t]he discretionary decision of the parole board is no substitute for a constitutional law.’364 Her Honour was similarly dismissive of the further argument that the Crown’s ability to elect to proceed summarily meant that it was not in fact reasonably foreseeable that the impugned provision would produce grossly disproportionate sentences.365 Observing that ‘it is the duty of the courts to scrutinise the
360 Ibid 151 [32]. 361 Ibid 151 [33]. 362 Nur [2015] 1 SCR 773, 814 [82]. 363 Ibid 815 [83]. In Boudreault [2018] 3 SCR 599, the majority, when striking down the impugned mandatory ‘victim surcharge’ regime, described at n 39, likewise took into account the lack of culpability that ‘desperate, addicted and marginalized individuals’ might exhibit. In circumstances where ‘an offender’s moral culpability was so low that the sentencing judge decided that [s/he] … ought to be absolutely or conditionally discharged’, the majority reasoned, it would be grossly disproportionate to impose a fine on him/her that s/he could not pay: at 633 [68]. 364 Nur [2015] 1 SCR 773, 821 [98]. 365 See ibid 816 [85]-[87].
141
constitutionality of the provision’, McLachlin CJ declined the invitation to ‘delegate the courts’ constitutional obligation to … prosecutors.’366
There are two points to make before concluding this chapter.
The first concerns this emphasis on the courts’ obligation to strike down laws that infringe the Canadian Charter.367 It is reminiscent of Lord Bingham’s insistence in Reyes that the courts must interpret rights generously. However understandable it is that courts with charters of rights to interpret are mindful of how the press and public will receive their decisions, it is not right for them routinely to decline to intervene where punishments are attacked on constitutional grounds. As Parkes has observed, ‘[t]he political process has utterly failed to rein in punishment.’368 In such circumstances, courts must use their charter powers to place some limitations on it. They are singularly well-placed to determine whether a sentence is ‘so unfit having regard to the offence and the offender as to be grossly disproportionate.’369 And if they do sometimes find that a sentence has transgressed constitutional limits, they are merely ensuring that their charter fulfils its purpose.
The second point is the one about ‘strong-form’ and ‘weak-form’ review that we considered in chapter 2 and have briefly referred to on occasions in this chapter. If a court with ‘weak-form’ powers interprets its charter appropriately – that is, in the cautiously expansive way exemplified by Lord Bingham and McLachlin CJ – it is possible that those who stand to benefit from such reasoning (including, relevantly to this thesis, prisoners) will, even so, not be granted such benefits. For example, the Canadian government could have re-enacted the provisions struck down in Nur, Lloyd and Boudreault, and stated that they were to ‘operate notwithstanding’370 the CSC’s view that each of them constituted an unjustified breach of s 12. This of course cannot happen in jurisdictions where the judiciary has been granted ‘strong- form’ review powers. But there is still a danger in such jurisdictions that marginalised groups will not benefit as much as they should from charter guarantees. As foreshadowed, the danger comes not from Parliament – at least not directly – but from the judges.
366 Ibid 816 [87]. 367 See also ibid 807 [63]. 368 Parkes, ‘Punishment and its Limits’, supra, 365. 369 Smith [1987] 1 SCR 1045, 1072. See also n 158. 370 Canadian Charter s 33.
142
In his classic article about constitutional review as practised in the US, Thayer quotes a South Carolina judge, Chancellor Waties, who thought that, if the judiciary were to strike down legislation too frequently, this371
might occasion so great a jealousy of this power and so general a prejudice against it as to lead to measures ending in the total overthrow of the independence of the judges … To some extent, these comments were prescient. For though there has been no such ‘total overthrow’ of judicial independence in the US, highly controversial decisions such as Roe v Wade372 have nevertheless led to the politicisation of judicial appointments in that country.373 Accordingly, when van Zyl Smit notes that in three of the US cases analysed above – Rummel, Solem and Harmelin – the USSC was ‘divided by five votes to four’;374 and when he observes that in those cases there was ‘scant regard for precedent on either side’375; and when he criticises Harmelin for ‘its timidity,’376 he is observing the effects of that politicisation. In short, in Harmelin a court that was controlled, narrowly, by conservative appointments, read the guarantee against ‘cruel and unusual’ punishments in a manner that does not comport with its spirit. One wonders whether this would have happened if American legislatures had had the power not to implement decisions such as Roe, and had exercised such a power.377 Or, to make the same point in a different way, might ‘strong-form’ review create a special danger of the appointment of judges who refuse to allow their charter ever to facilitate decisions that ‘lead public opinion’?378
It will be observed that there is a conundrum here. If we have ‘weak-form’ review, then, as noted in chapter 2, it is conceivable that – depending on the type of society in which it is instituted – Parliaments will prevent prisoners from obtaining all of the benefits that charters of rights can grant them. We can seek to protect ourselves against this risk by instead instituting ‘strong-form’ review. But the risk with that is that the very same community sentiment that
371 James Bradley Thayer, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7(3) Harvard Law Review 129, 142, citing Administrators of Byrne v Administrators of Stewart 3 Des Eq 466 (S.C., 1812). 372 410 US 113 (1973). 373 See Bell, ‘Examining the Judge’, supra, 5-6. 374 van Zyl Smit, ‘Constitutional Jurisprudence’, supra, 371. 375 Ibid. 376 Ibid 373. 377 As Gardbaum has noted, it is hard to believe that ‘the US Supreme Court’s “essential holding” in Roe v Wade would survive if state or federal legislatures had the power to overrule it by ordinary majority, or if it were “formally” declaratory only’: Gardbaum, ‘What’s So Weak about “Weak-Form” Review?’, supra, 1047. 378 Brennan, ‘Why Have a Bill of Rights?’, supra, 435.
143
would lead Parliaments not to implement certain court decisions, might well cause those same Parliaments to appoint judges who would interpret the ‘strong-form’ charter contrary to its purpose. Is there any way out of this conundrum? If not, it might seem that, whatever charter model is preferred, prisoners are unlikely to benefit as much as they should from the reasoning that such charters facilitate.
Consistently with what I shall argue more fully in chapter 5, the words ‘depending on the type of society in which it is instituted’ in the paragraph immediately above, are important. In certain societies, ‘weak-form’ review might deliver to prisoners all, or at least most, of the protections that the judges would grant them. For instance, in Canada, there has in fact been no attempt to legislate notwithstanding Nur, Lloyd and Boudreault. In certain other societies, it appears that ‘strong-form’ review has led, not to political control of the courts, but instead to prisoner- friendly decisions that have been respected by legislatures. Germany is perhaps an example of the latter phenomenon: certainly, as I shall note in chapter 4, the German government has taken impressive steps to remove the deficiencies that the German Federal Constitutional Court379 and the ECtHR380 found its system of post-sentence preventive detention to possess. In other words, whether they be ‘strong-form’ or ‘weak-form’ instruments, charters of rights will not inevitably fail to protect prisoners’ rights satisfactorily. Much depends on the culture in the society in question.
There is, to be sure, a concern that in many modern Anglophone democracies, there is such a culture of hostility towards prisoners that neither a ‘weak-form’ nor a ‘strong-form’ charter will provide them with all of the benefits that the charters can grant them. But even in those societies, they might well get some of them. As we saw in the previous chapter, in the UK irreducible life sentences are not imposed on children; and, relevantly to the subject-matter of the present chapter, it is perhaps noteworthy that (leaving aside the mandatory life sentence for murder) there are also apparently no mandatory minimum sentencing provisions in that jurisdiction.381 That said, the American example does show that a system of ‘strong-form’
379 Sicherungsverwahrung, Bundesverfassungsgericht [German Constitutional Court], 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 571/10, 4 May 2011 reported in (2011) 128 BVerfGE 326. 380 M [2009] VI Eur Court HR 169; Haidn v Germany (European Court of Human Rights, Chamber, Application No 6587/04, 13 January 2011) (‘Haidn’). 381 See Crown Prosecution Service, ‘Sentencing Overview’ (10 September 2019)
144
review in such jurisdictions might lead to worse outcomes than would ‘weak-form’ review – even though ‘weak-form’ review, too, might not protect prisoners from some serious breaches of their rights.
E. Conclusion In this chapter, I have sought to provide further evidence that charters of rights can improve protections for offenders against penal populism. On the face of it, it might seem that Parliament’s power to require the courts to impose disproportionate sentences can be curbed without a charter. The separation of judicial power, where it exists, might be thought to provide the courts with the tools they need to strike down mandatory sentencing schemes. But the Australian case law demonstrates that this is not so. As in some of the cases considered in chapter 2, instead of identifying and striking down Parliament’s attempts to punish criminal offenders itself, the Australian courts have instead deployed unpersuasive and formalistic reasoning to uphold the relevant laws. Lying behind all of this, it seems, is an anxiety not to develop the law inconsistently with public opinion. Certainly, a democratic sensitivity seems to underpin Keane J’s denial in Magaming that ‘it is any part of the judicial function’382 to challenge legislative culpability assessments.
Justice Brennan of the USSC has noted that judges with the authority to apply a charter of rights, too, must have a ‘decent regard for public opinion’; they cannot march in front of it ‘often or by very much.’383 But as we have seen in this chapter and the last, and as Brennan J recognised, they may leap ahead of the public when its parliamentary representatives have failed to act consistently with the charter’s liberal guarantees. Indeed, if such judges are to do other than scorn the powers reposed in them, they must sometimes defy the democratic consensus. In decisions such as Reyes and Nur, the respective courts rightly did just this; in so doing, they have shown the capacity of human rights charters to facilitate attacks on populist laws that treat offenders unfairly.
In the next chapter, I further develop these themes. I shall there compare the Australian case law concerning the constitutionality of preventive detention regimes, with the UK and Strasbourg jurisprudence in that area. In those cases, too, the Australian courts have placed few
382 (2013) 252 CLR 381, 413 [104]. 383 Brennan, ‘Why Have a Bill of Rights?’, supra, 435.
145 constraints on legislatures’ ability to dehumanise the relevant offenders – while the UK courts and the ECtHR have used their charters to require such detention to have a reintegrative focus.
146
CHAPTER FOUR: PREVENTIVE DETENTION
A. Introduction I shall begin this chapter with a quotation from two English commentators that gets to the heart of the issues with which it deals:1
In public debate about predictive sentencing, it is commonly assumed that protection is only owed to those ‘law-abiding’ citizens that such sentences are designed to keep safe. What protections are owed to those considered sufficiently risky to require extended or indeterminate sentences and what residual rights they should enjoy in prison are less commonly topics for public debate … [We] explore … the contention that a fundamental precondition of respect for human dignity is that an offender who is imprisoned indefinitely should ‘not be turned into an object of crime prevention,’ but should retain their basic rights. My focus is not just on ‘predictive sentencing.’ It is on preventive detention more broadly.2 But the questions to which these commentators advert, are nevertheless of crucial importance to the argument that I advance. When, if ever, is it morally permissible for the state to detain a person, not because of what s/he has done in the past, but because of fears about what s/he might do in the future? What features must any such detention have if it is to respect offenders’ human dignity, and therefore operate compatibly with human rights? To what extent has the law in this area been able to resist demands, ‘borne of fear’,3 wholly to subordinate rights considerations of this kind to community protection concerns? The argument here is that, while preventive detention seems permissible in narrow circumstances, such detention must be rehabilitative in its nature if it is to avoid breaching the human rights of those upon whom it is imposed. And, consistently with the argument presented in chapters 2 and 3, Australian judges have been less able than their UK and European counterparts to require populist preventive detention schemes to observe such limitations.
In Part B, I deal in more detail with the first two questions just posed. It has sometimes been argued that preventive detention is always offensive to a detainee’s human dignity; and, this, for much the same reasons why disproportionate sentences and irreducible life sentences breach human rights. Such detention, it has been said, does not reason with – or, it follows,
1 Andrew Ashworth and Lucia Zedner, ‘Some Dilemmas of Indeterminate Sentences: Risk and Uncertainty, Dignity and Hope’ in Jan W de Keijser et al (eds) Predictive Sentencing: Normative and Empirical Perspectives (Bloomsbury, 2019) 127, 127-8. 2 As we shall see, in the jurisdictions with which we are concerned, preventive detention is not always imposed at sentencing. 3 Harry Hobbs and Andrew Trotter, ‘Lessons from History in Dealing with Our Most Dangerous’ (2018) 41(2) UNSW Law Journal 319, 320.
147
respect the moral agency of – those upon whom it is imposed. Indeed, a conception of punishment as ‘moral communication’4 underlies the USSC’s insistence that5
with only narrow exceptions and aside from permissible confinements for mental illness, [our system] incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law. That is, whereas it is respectful of a person’s autonomy to detain him/her for harms that s/he has chosen to inflict (provided that such punishment is proportionate), can the same ever be said when the state detains those who are capable of choosing but have not yet decided to offend?
We must consider, however, the responsible offender who can be proved to be highly likely to commit a very serious offence if released. As argued below, if such proof can be supplied, and if no less restrictive alternative than detention would adequately deal with the threat, preventive detention seems justifiable. Nevertheless, the human dignity concerns just noted do mean that the state must provide such detainees with certain protections. If they are to be treated not as ‘hopeless’6 outsiders who lack the ‘capacity for moral choice’,7 but as rights-bearing members of the community, their detention must be focussed on reintegration, not exclusion. This will only be so if the conditions of detention are as non-punitive as possible and detainees have opportunities to achieve resocialisation. And there must be regular judicial review of the continuing need for detention. A system that did not grant detainees review rights would lack a reintegrative character. Likewise, a system that did not leave such review in the judiciary’s hands would be exposing detainees to the prospect of exclusionary detention based purely on executive animus.8
In Part C, I consider how compatible with human rights the Australian preventive detention schemes are. As with similar UK,9 US10 and German11 legislation, many of the Australian laws
4 von Hirsch and Ashworth, Proportionate Sentencing, supra, 17. 5 Foucha 504 US 71, 83 (1992). 6 Ashworth and Zedner, ‘Some Dilemmas of Indeterminate Sentences’, 144. 7 Ibid 138. 8 See Fardon (2004) 223 CLR 575, 586 [2] (Gleeson CJ), quoting R v Moffatt [1998] 2 VR 229, 260 (Charles JA) (‘Moffatt’); R v England (2004) 89 SASR 316, 330-1, [56] (Doyle CJ) (‘England’). Cf McGarry v Western Australia (2005) 31 WAR 69, 78-80 [32]-[39] (Wheeler JA) (‘McGarry’). 9 Harry Annison, Dangerous Politics: Risk, Political Vulnerability, and Penal Policy (Oxford University Press, 2015) 186-96. 10 See, eg, Eric S Janus, ‘Closing Pandora’s Box: Sexual Predators and the Politics of Sexual Violence’ (2004) 34 Seton Hall Law Review 1233, 1234. 11 See, eg, Hans-Jörg Albrecht, ‘Security Gaps: Responding to Dangerous Sex Offenders in the Federal Republic of Germany’ (2004) 16 Federal Sentencing Reporter 200, 203; Christopher Michaelsen, ‘“From Strasbourg, with
148
that create these schemes are classic penal populist responses.12 This is particularly true of reasonably recent laws13 that allow courts, while an offender is serving a sentence for a serious offence, to order that s/he remain in prison beyond the expiry of his/her sentence. Accordingly, there has been no proper attempt to protect detainees’ rights. The relevant parliamentary debates contain many ‘poorly articulated claim[s] that the general public has a right to protection’;14 contentions that this must take precedence over offenders’ rights;15 and shallow assertions that, nevertheless, an appropriate balance has been struck between the competing interests.16
In chapters 2 and 3, we saw that, in cases involving challenges to (i) the legislative imposition of irreducible life sentences and (ii) mandatory sentencing schemes, the Australian judiciary has not allowed ch III of the Commonwealth Constitution to realise its obvious potential to limit penal populism. Has the position been any different where prisoners have challenged preventive detention regimes? As foreshadowed above, the answer is ‘not really.’ It is true that, as noted in chapter 1, the HCA in Kable17 struck down an ad hominem preventive detention scheme on the novel basis that, if the NSWSC had performed the function purportedly conferred on it, it would have acted ‘incompatibl[y] with its role as a repository of federal jurisdiction.’18 But, as also noted in chapter 1, the HCA soon adopted, and then maintained, a more conventional approach to its powers. In the most high-profile of the Australian preventive detention decisions, Fardon,19 the Court could have struck down the impugned legislation. But it did not do so. The Chief Justice instead suggested – as his Honour did in the companion case of Baker,20 and as Keane J did in Magaming21 – that the Court must avoid creating the
Love” – Preventive Detention before the German Federal Constitutional Court and the European Court of Human Rights’ (2012) 12 Human Rights Law Review 148, 150-2. 12 Hobbs and Trotter, ‘Lessons from History’, supra, note that many of them were primarily a response to the actions of one man (at 330-4) and are notable more for their tendency to ‘eas[e] … public concern’ (at 349) than for their fairness. 13 See, eg, Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘DPSOA’). 14 Andrew Ashworth and Lucia Zedner, Preventive Justice (Oxford University Press, 2014) 146. See, eg, Queensland, Parliamentary Debates, Legislative Assembly, 4 June 2003, 2563 (Dianne Reilly). 15 See, eg, Western Australia, Parliamentary Debates, Legislative Council, 14 March 2006, 274 (Sue Ellery). 16 See, eg, New South Wales, Parliamentary Debates, Legislative Council, 30 March 2006, 21805 (David Clarke). 17 (1996) 189 CLR 51. 18 Fardon (2004) 223 CLR 575, 591 [15] (Gleeson CJ). 19 (2004) 223 CLR 575. 20 (2004) 223 CLR 513, 519-20 [6] (Gleeson CJ). See the discussion in chapter 2. 21 (2013) 252 CLR 381, 414 [107]-[108]. See the discussion in chapter 3.
149
perception that it was willing to ‘defeat the intention of Parliament because of disagreement with the wisdom of a law.’22
In Part D, I consider whether the UK and Strasbourg courts have provided greater protection to offenders against draconian preventive detention laws. My conclusion – again, as foreshadowed above – is that they have. In M23 and Haidn v Germany,24 the ECtHR considered German legislation that – like the Fardon law – provided for preventive detention orders to be made against individuals while they were serving sentences of imprisonment. The Court unanimously held that this legislation breached the ECHR. Certainly, subsequent jurisprudence has undermined this blanket rejection of such detention.25 Moreover, the position is more complex concerning preventive detention ordered at the time of sentence. Nevertheless, the European and UK courts have now agreed26 that this latter type of detention will breach art 5(1) unless the state provides the offender with ‘a real opportunity for rehabilitation’27 once the punitive part of the sentence has expired.
In part E, I conclude that this European and UK case law demonstrates once more that charters of rights can assist those affected by penal populist laws. It is true that the UK and Strasbourg courts’ resistance has not been total. There seems, for example, to be illogicality in their insistence that, where preventive detention is imposed at sentencing, such detention is backward-looking, so as to mean that it is covered by art 5(1)(a) ECHR28 and may be served in prison.29 Nevertheless, consistently with the argument presented throughout this thesis, the respect it has shown for ‘the policy choices of parliament in relation to sentencing’30 and prisoners, has been less complete than that which the Australian courts have displayed. Accordingly, in Europe and the UK, unlike in Australia, preventive detention must be oriented
22 Fardon (2004) 223 CLR 575, 593 [23] (Gleeson CJ). 23 [2009] VI Eur Court HR 169. 24 (European Court of Human Rights, Chamber, Application No 6587/04, 13 January 2011). 25 See, eg, Ilnseher (European Court of Human Rights, Grand Chamber, Application Nos 10211/12 and 27505/14, 4 December 2018). 26 Brown [2018] AC 1, 24 [44]; James (2013) 56 EHRR 12, [218]. 27 Brown [2018] AC 1, 11 [8]. 28 Article 5(1)(a) provides that a person may be deprived of his/her liberty if this is ‘lawful detention … after conviction by a competent court.’ 29 Cf Ashworth and Zedner, ‘Some Dilemmas of Indeterminate Sentences’, supra, 142-3. 30 R (Stott) v Secretary of State for Justice [2020] AC 51, 102 [153] (Lady Black).
150
towards resocialisation; and the executive may not review the continuing need for the detention.31
B. Is Preventive Detention Ever Compatible with Human Rights? Before considering whether ‘preventive detention’ is ever compatible with human rights, it is necessary to define this term. Husak’s definition – ‘any state practice of confining individuals … to prevent them from committing future harms’32 – is broad enough to encompass practices such as pre-trial detention; but this chapter’s focus is more limited than that. It is concerned solely with what a well-known Report describes as ‘indefinite detention’33 and ‘post-sentence preventive detention.’34 In fact, though these practices are often seen as differing from one another,35 they are ‘[f]unctionally’36 and in substance almost exactly the same thing.37 With both, an offender is detained indefinitely beyond the period that is proportionate to the seriousness of his/her offending, because s/he is considered to be dangerous. The only difference is that indefinite detention is ordered at sentencing, whereas post-sentence preventive detention is ordered once the offender is serving his/her sentence. So, while some regard post-sentence preventive detention as even more normatively undesirable than indefinite detention,38 others suggest or hold that the contrary is true because the relevant prediction’s temporal proximity to the expiry of the offender’s sentence might increase its accuracy.39
When determining whether preventive detention can ever be fully consistent with human rights, it is helpful to recall precisely why irreducible life sentences and disproportionate sentences
31 Compare Van Droogenbroeck v Belgium (1982) 4 EHRR 443, 459-62 [47]-[49] (‘Van Droogenbroeck’) with Pollentine v Bleijie (2014) 253 CLR 629, 651 [50]-[51] (‘Pollentine’) and McGarry (2005) 31 WAR 69, 80 [39]. 32 Douglas Husak, ‘Lifting the Cloak: Preventive Detention as Punishment’ (2011) 48 San Diego Law Review 1173, 1175. 33 Bernadette McSherry, Patrick Keyzer and Arie Freiberg, ‘Preventive Detention for “Dangerous” Offenders in Australia: A Critical Analysis and Proposals for Policy Development’ (Report to the Criminology Research Council, December 2006) 10. 34 Ibid 11. 35 See, eg, Christopher Slobogin, ‘A Jurisprudence of Dangerousness’ (2003) 98 Northwestern University Law Review 1, 33-4; Michelle Edgely, ‘Preventing Crime or Punishing Propensities? A Purposive Examination of the Preventative Detention of Sex Offenders in Queensland and Western Australia’ (2007) 33 University of Western Australia Law Review 351, 362; Attorney-General (Qld) v Fardon [2003] QCA 416, [78]-[80] (McMurdo P) (‘Fardon QCA’). 36 Slobogin, ‘A Jurisprudence of Dangerousness’, supra, 33. 37 As Gleeson CJ implied in Fardon (2004) 223 CLR 575, 586 [2]. See also Carolan v The Queen (2015) 48 VR 87, 118 [96]-[97] (‘Carolan’); Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 378 [66]. 38 Bernadette McSherry and Patrick Keyzer, Sex Offenders and Preventive Detention: Politics, Policy and Practice (Federation Press, 2009) 52; Kerri Eagle and Andrew Ellis, ‘The Widening Net of Preventative Detention and the Unfit for Trial’ (2016) 90 Australian Law Journal 172, 188. 39 Fardon (2004) 223 CLR 575, 586 [2] (Gleeson CJ); Carolan (2015) 48 VR 87, 118 [97]; Hobbs and Trotter, ‘Lessons from History’, supra, 351.
151
are morally impermissible. For, as Judge Spano has suggested, just as ‘[t]he dignitarian conception of the human person’ lies at the heart of the objectionableness of these two types of detention,40 it also explains the offensiveness of certain forms of preventive detention.
As argued in chapters 2 and 3, respectively, the problem with irreducible life sentences and disproportionate sentences is that, by failing to reason with offenders, such punishments treat them not as persons but as objects. Because such offenders cannot engage in moral reasoning, the state is saying, they need not be treated as though they can. Their unresponsiveness to persuasion requires instead that they be permanently separated from those who retain their humanity (and citizenship), or at least allows them to be punished in a way that intentionally or knowingly crushes them.
On one view, indefinite detention in prison is a disproportionate sentence and post-sentence preventive detention in such an environment amounts to double punishment (and so is contrary to an offender’s human dignity for analogous reasons). In Chester v The Queen,41 for example, the HCA treated a WA provision42 that empowered sentencing judges to direct that certain offenders be detained during the Governor’s Pleasure upon the expiry of their sentences, as a departure from the common law rule that a sentence not be extended, for community protections reasons, beyond what is proportionate to the seriousness of their offending.43 And while English44 and Canadian45 courts have denied that an indefinite sentence is necessarily a disproportionate sentence, their reasons are unpersuasive. Consistently with the argument in chapter 3, even if indefinite detention is proportionate to the aim of protecting the community, that would not settle the real question, which is whether it reflects the gravity of the offender’s crime.
Nevertheless, the better view is that, with both indefinite detention and post-sentence preventive detention, no disproportionate sentence has been imposed. This is because the further period of detention is imposed not for past offending, but because of feared future
40 Spano, ‘Deprivation of Liberty’, supra, 157. 41 (1988) 165 CLR 611, 618 (‘Chester’). See also Thompson v The Queen (1999) 165 ALR 219, 220-1 (Kirby J); McGarry v The Queen (2001) 207 CLR 121, 141-2 [60]-[61] (Kirby J); Buckley v The Queen (2006) 80 ALJR 605, 607 [6] (‘Buckley’). 42 Criminal Code 1913 (WA) s 662(a), repealed by Sentencing (Consequential Provisions) Act 1995 (WA) s 26. 43 Veen (1988) 164 CLR 465, 472; Baumer v The Queen (1988) 166 CLR 51, 57-8. 44 Offen [2001] 1 WLR 253, 276-7 [95]-[97]; R v Pedley [2009] 1 WLR 2517, 2523-4 [22]-[23]. 45 Lyons v The Queen [1987] 2 SCR 309, 341-5.
152
wrongdoing.46 In Kable, Toohey J noted that, while the relevant post-sentence preventive detention order was imposed on the appellant when he was serving a sentence for an offence, ‘the order for his detention was not made by reason of his commission of that offence.’47 The only significance of Kable’s prior conduct was that it constituted evidence bearing on the real question, namely, whether he was ‘more likely than not to commit a serious act of violence.’48 The preventive period of a sentence of indefinite detention should be characterised in the same way. It is irrelevant that an order for such detention is made at sentencing.49 What is important is that the person is placed in detention beyond the expiry of his/her ‘nominal sentence’,50 not by virtue of his/her past behaviour, but because s/he ‘is a serious danger to the community.’51
It follows that the true human rights objection to both indefinite detention and post-sentence preventive detention, where the relevant period of detention is served in prison, is that the detention is arbitrary.52 Imprisonment can never be proportionate to the legitimate aim of protecting the community from the dangerous:53 a less intrusive measure (at least, detention in non-punitive conditions) is always available. The question arising, however, is whether, even when served in non-punitive conditions, preventive detention can ever be compatible with human rights.
46 The detention can still be punishment, because a person can be punished for something other than what s/he has actually/supposedly done in the past: Hart, Punishment and Responsibility, supra, 5-6. As indicated in chapter 2, in Minogue (No 2), Edelman J seemed to express some sympathy for the view that the law at issue in that case, s 74AB of the Corrections Act 1986 (Vic), imposed punishment not for what Minogue had done, but for what he might do in the future: at 1042 [47]-[48]. But s 74AB seems clearly distinguishable from the law considered in Kable (which, properly viewed, did facilitate punishment for feared future conduct: see Kable (1996) 189 CLR 51, 97-8 (Toohey J), 107 (Gaudron J), 122 (McHugh J), 132 (Gummow J)). Unlike the Kable law, s 74AB does not make proof of Minogue’s dangerousness a pre-condition of his continued detention. Furthermore, as noted in chapter 1, the Act that inserted s 74AB into the Corrections Act 1986 (Vic) not only took Minogue’s non-parole period from him; it also ensured that many other prisoners convicted of murdering a police officer have no real prospect of release: see Corrections Act 1986 (Vic) s 74AAA. In so doing, it surely was making a statement about the blameworthiness of their past conduct. Accordingly, s 74AB is not ‘forward-looking’ (cf Minogue (No 2) (2019) 93 ALJR 1031, 1043 [48] (Edelman J)). Its true purpose is instead to override the sentencing judge’s view of the culpability that Minogue displayed when he killed a police officer, and to increase his punishment for that murder. 47 (1996) 189 CLR 51, 97. 48 Ibid. 49 Cf, eg, Fardon (2004) 223 CLR 575, 609-610 [70]-[74] (Gummow J), 637-8 [163]-[166] (Kirby J). 50 See, eg, Sentencing Act 1991 (Vic) s 18A(3). 51 Sentencing Act 1991 (Vic) s 18B(1); Penalties and Sentences Act 1992 (Qld) s 163(3)(b); Sentencing Act 1995 (NT) s 65(8). 52 ICCPR art 9(1). An additional human rights problem with post-sentence preventive detention, where it is served in prison, will often be that this is a ‘heavier penalty … than the one that was applicable … when the criminal offence was committed’: ICCPR art 15(1); ECHR art 7(1). 53 Assuming that that is a legitimate aim: cf ECHR art 5(1); A [2009] II Eur Court HR 137, 218 [171].
153
Theorists,54 and the US courts,55 have traditionally returned a negative answer to this question. Their objections are founded on the disrespect for detainees’ autonomy that preventive detention evinces. As Smilansky explains, ‘we are not showing the respect due to the moral personality of the agent, who is … as yet innocent, and who[m] we must respect as capable of not committing the offence.’56 The idea that emerges is that preventive detention, whether served in prison or not, attacks the detainee’s human dignity, because it treats him/her not as a responsible agent, but as something that is incapable of choosing or exercising self-control.57
It is because of such concerns that the criminal law has generally relied on reason, not restraint. The prospective offender is addressed by the law’s commands; and that is all. However likely it is that s/he will ignore those commands, s/he cannot be incarcerated until s/he does.58 And the person who does proceed to offend has a right to (proportionate) punishment: a failure to accord him/her this right would be to treat him/her as being beyond the reach of the reasons thus supplied for future desistance from crime.59 Under this approach, the state may ‘give up on deterrence’60 – it may abandon reasoning with potential wrongdoers – only where an individual has a mental illness that makes him/her non-responsible and dangerous.61 In that case, ‘[b]oth punishment and the threat of punishment are ineffective’62 and the state need not act as though the person can be reasoned with, in defiance of the truth.
But what if it is proved that a mentally competent offender, if released, will commit a very serious offence? If we detain him/her before s/he is able to engage in this malign exercise of autonomy, are we really treating him/her as an object? As we have just seen, if a person cannot be reasoned with, we do not have to treat him/her as though s/he can. Why should the position be any different regarding the person who will not be reasoned with? Such an individual is an autonomous actor. But s/he is someone who will remain impervious to the criminal law’s
54 See, eg, Stephen J Schulhofer, ‘Two Systems of Social Protection: Comments on the Civil-Criminal Distinction, with Particular Reference to Sexually Violent Predator Laws’ (1996) 7 Journal of Contemporary Legal Issues 69, 90-6. 55 Foucha, 504 US 71, 83 (1992). 56 Saul Smilansky, ‘The Time to Punish’ (1994) 54 Analysis 50, 52 (Original emphasis). 57 See Carol S Steiker, ‘Foreword: The Limits of the Preventive State’ (1998) 88 Journal of Criminal Law and Criminology 771, 785. 58 Stephen J Morse, ‘Preventive Confinement of Dangerous Offenders’ (2004) 32 Journal of Law, Medicine and Ethics 56, 58. 59 Slobogin, ‘A Jurisprudence of Dangerousness’, supra, 29-30. 60 Michael Louis Corrado, ‘Sex Offenders, Unlawful Combatants, and Preventive Detention’ (2005) 84 North Carolina Law Review 77, 101. 61 Ibid; Morse, ‘Preventive Confinement of Dangerous Offenders’, supra, 58. 62 Corrado, ‘Sex Offenders, Unlawful Combatants, and Preventive Detention’, supra, 101.
154
persuasions,63 and surely we need not naively persist with moral appeals here – especially given that the state also has an obligation to respect potential victims’ autonomy.64
Such an approach is consistent with Morse’s suggestion that preventive detention of responsible agents might be acceptable as65
a limited form of self defense: The usual right to be left alone yields when the anticipated harm is very serious and we can be quite sure that the harm will occur unless preventive action is taken. Certainly, one problem is that predictions of future dangerousness are notoriously unreliable.66 This has led Morse to contend that preventive detention of the merely dangerous cannot be justified.67 But other commentators have suggested that some offenders’ dangerousness can reliably be established68 and, if this is so,69 preventive detention seems justifiable – subject to two matters.
The first concerns the standard of proof. As just argued, if the state can prove that a mentally competent person will commit a very serious offence, detention might be permissible. But should the state have to prove this beyond reasonable doubt? Or is some lesser standard acceptable? Speaking in favour of the former standard is that a detention order carries grave consequences for the detainee. As Meyerson asks,70 if this standard of proof applies at a criminal trial, why would a lesser standard be warranted before a person can be detained because of his/her dangerousness? But there are at least two answers to this. First, if the preventive detention is not served in prison, the consequences are not quite as serious as they
63 Cf Slobogin’s ‘undeterrable’ offender, to whom the criminal law does not speak: Slobogin, ‘A Jurisprudence of Dangerousness’, supra, 48. 64 Ashworth and Zedner, Preventive Justice, supra, 150. 65 Morse, ‘Preventive Confinement of Dangerous Offenders’, supra, 69. 66 On this point, see, eg, Bernadette McSherry, Managing Fear: The Law and Ethics of Preventive Detention and Risk Assessment (Routledge, 2014) 34-52. 67 Morse, ‘Preventive Confinement of Dangerous Offenders’, supra, 69; Stephen J Morse, ‘Neither Desert Nor Disease’ (1999) 5 Legal Theory 265, 302. Although Morse was writing about twenty years ago, our ability to predict future dangerousness has improved little since then: Michael Tonry, ‘Predictions of Dangerousness in Sentencing: Déjà Vu All Over Again’ (2019) 48 Crime and Justice 439, 450-2. 68 See, eg, CR Williams, ‘Psychopathy, Mental Illness and Preventive Detention: Issues Arising from the David Case’ (1990) 16 Monash University Law Review 161, 181; Kjetil Mujezinović Larsen, ‘Detention for Protection: Searching for a “Fair Balance” between the Restrictions on Preventive Detention and the Obligation to Protect Individuals’ (2015) 1 Oslo Law Review 1, 14-22. 69 One case where a prediction of future violence seems safe is where the offender accepts that s/he is likely to re- offend: see Hendricks, 521 US 346, 355 (1997). 70 Denise Meyerson, ‘Risks, Rights, Statistics and Compulsory Measures’ (2009) 31 Sydney Law Review 507, 523-4.
155
are for a convicted offender.71 Secondly, unlike at a criminal trial, it is not just the potential detainee’s liberty interest that is implicated. Rather, as I have indicated, we must balance that interest against the autonomy interest of that person’s potential victims.72 In these circumstances, it might be enough to prove that it is very likely that the person will re-offend seriously if s/he is not detained.73 If that is proved, might not the detention be an act of societal self-defence?74 Or, to use the ECtHR’s language, surely there is a known ‘real and immediate risk’ to life,75 or of ill-treatment,76 such as to oblige the state to do all that it reasonably can to avoid it.
If so, then, as suggested above, such detention would seemingly not treat the detainee as an object. In chapter 2, I briefly noted Mavronicola’s contention that, when state force against an individual is self-defensive, there is no affront to that individual’s human dignity.77 This is because, like a proportionate sentence, such force is a tailored response to his/her conduct. The same seems true here. The detention does treat the person as someone who will not be deterred. But, in so doing, it is only acting consistently with what has been proved by clear and convincing evidence, and thus in a manner that has ‘been made strictly necessary by … [the person’s] own’ established propensities.78
71 Addington v Texas, 441 US 418, 428 (1979) (‘Addington’). But note that some scholars have expressed scepticism about whether it is possible to create preventive detention conditions that are significantly different from those in prison: Richard L Lippke, ‘No Easy Way Out: Dangerous Offenders and Preventive Detention’ (2008) 27 Law and Philosophy 383, 409-413; Johannes Kaspar, ‘Preventive Detention in German Criminal Law’ (2016) 4 Peking University Law Journal 79, 95. 72 Kimberly Kessler Ferzan, ‘Preventive Justice and the Presumption of Innocence’ (2014) 8 Criminal Law and Philosophy 505, 522; Michael Louis Corrado, ‘Punishment and the Wild Beast of Prey: The Problem of Preventive Detention’ (1996) 86 Journal of Criminal Law and Criminology 778, 793-4. Meyerson argues that there is no balancing of individual and societal interests at a criminal trial because ‘we do not think that the mistaken acquittal of a guilty person does … an injustice … even [to] those who may be harmed by that person’s subsequent conduct’: Meyerson, ‘Risks, Rights, Statistics and Compulsory Measures’, supra, 523. But the real reason is that the criminal trial solely tests the Crown’s allegation that the accused committed an offence in the past. There is no allegation that the offender will be dangerous in the future, and therefore no weight can be attached to such a factor when determining what the standard of proof should be. 73 This is largely in accord with what Meyerson ultimately concludes: Meyerson, ‘Risks, Rights, Statistics and Compulsory Measures’, supra, 533. 74 The analogy that Morse draws between such a case and the case of the battered (wo)man who kills, seems valid: Morse, ‘Neither Desert Nor Disease’, supra, 303-9. 75 Mastromatteo [2002] VIII Eur Court HR 151, [74], citing Osman v United Kingdom [1998] VIII Eur Court HR 3124, 3159 [16] (‘Osman’). 76 Milanović v Serbia (2014) 58 EHRR 33, [84]. 77 Mavronicola, ‘Is the Prohibition Against Torture and Cruel, Inhuman and Degrading Treatment Absolute in International Human Rights Law?’, supra, 486-7. 78 Bouyid (2016) 62 EHRR 32, [88].
156
The second matter is even more fundamental. It concerns the availability of less restrictive alternatives than detention. If it is proved that it is very likely that, at the conclusion of their respective sentences, certain offenders will offend very seriously unless their detention is continued, preventive detention would seem justified. But if supervision of dangerous offenders in the community would adequately protect that community against the threat, the contrary is of course true. Accordingly, the UNHRC seems right to have insisted in its Fardon and Tillman communications that post-sentence preventive detention is arbitrary detention, contrary to art 9(1) ICCPR, unless the state can demonstrate ‘that the author’s rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention.’79
But, if dangerousness can be established sufficiently reliably, and if there are certain dangerous individuals whose supervision in the community would leave that community inadequately protected, preventive detention seems permissible. Such a practice will only be compatible with human rights, however, if certain limitations are placed on it.
As suggested above, a person should only be subject to such detention if it is proved that s/he is very likely to perpetrate a very serious harm if s/he is not detained.80 Moreover, in practice, it is likely that such proof will only be supplied if the offence for which s/he stands to be, or has been, sentenced, is itself a very grave one.81 And, crucially, the detainee must be placed in non-punitive conditions (again, as noted above) and given every opportunity to achieve reintegration into the community. Thus, it is essential that his/her detention be regularly reviewed,82 and it is also important that the review be judicial in character.83 Dangerous offenders are notoriously unpopular with the community. Pressure can be placed on the government to ensure that particular offenders are never released, whatever rehabilitative gains
79 Fardon v Australia UN Doc CCPR/C/98/D/1629/2007 (18 March 2010) 9 [7.4]; (Emphasis added); Tillman v Australia UN Doc CCPR/C/98/D/1635/2007 (18 March 2010) 11 [7.4] (Emphasis added). 80 See, eg, Ashworth and Zedner, Preventive Justice, supra, 168-9; Morse, ‘Preventive Confinement of Dangerous Offenders’, supra, 69; Slobogin, ‘A Jurisprudence of Dangerousness’, supra, 20. 81 Morse, ‘Neither Desert Nor Disease’, supra, 298. 82 See, eg, Christopher Slobogin, ‘Legal Limitations on the Scope of Preventive Detention’ in Bernadette McSherry and Patrick Keyzer (eds), Dangerous People: Policy, Prediction, and Practice (Routledge, 2011) 37, 46. 83 As suggested in chapter 2, the fact that the executive reviews the continuing need for the detention of UK whole life prisoners does not enhance such prisoners’ prospects of ever being released.
157
they have made. The executive will not always withstand this pressure.84 Judges are better able to do so.
But it is not enough to accord such review rights to the detainee. For, as we saw when we discussed Murray85 in chapter 2, and as we shall see when discussing cases such as James v United Kingdom86 below, a review will be meaningless unless the detainee has been given access to the rehabilitative programmes and treatment that s/he requires if s/he is to be able to establish that s/he can safely be released. And this returns us to the link between preventive detention and the punishments dealt with in chapters 2 and 3.
By denying the possibility of rehabilitation – whether because there are no reviews, or only empty ones – the irreducible life sentence treats the offender, not as a person who is potentially to be restored to the community, but as an object that must be excluded and contained. The same treatment is accorded to the person in preventive detention whose incarceration lacks the reintegrative focus that is necessary if it is to ‘be genuinely capable of leading to … [his/her] release.’87 This is demonstrated by the operation of US civil commitment schemes for sex offenders. While the ‘sexually violent predator’ (‘SVP’) laws in many US jurisdictions are predicated on the idea that there are certain sexual offenders who must be held for treatment beyond the expiry of their sentences because they have ‘a mental abnormality or personality disorder’88 that makes them dangerous, the state’s failure to provide such treatment means that ‘there are several thousand people confined to institutions with little chance of eventual freedom.’89 Moreover, though the supporters of such measures point to their capacity to protect the public, such a capacity – if it exists – justifies them no more than it would the imposition of disproportionate sentences. Consistently with what Tonry has argued, the ‘pursuit of crime prevention and public safety’90 is all very well; but the state that pursues such goals must
84 See, eg, Hogg’s discussion of the Queensland government’s determined campaign to ensure that Robert Fardon remained in detention: Russell Hogg, ‘“Only a Pawn in Their Game”: Crime, Risk and Politics in the Preventive Detention of Robert Fardon’ (2014) 3(3) International Journal for Crime, Justice and Social Democracy 55. 85 (2017) 64 EHRR 3. 86 (2013) 56 EHRR 12. 87 Murray (2017) 64 EHRR 3, [104]. 88 Hendricks, 521 US 346, 352 (1997), quoting Sexually Violent Predator Act, Kan Stat Ann § 59-29a02(a) (1994). 89 John Petrila, ‘Sexually Violent Predator Laws: Going Back to a Time Better Forgotten’ in Bernadette McSherry and Patrick Keyzer (eds), Dangerous People, supra, 63, 71. See also, eg, John Q La Fond, ‘Sexual Offender Commitment Laws in the USA: The Inevitable Failure of Misusing Civil Commitment to Prevent Future Sex Crimes’ in Bernadette McSherry and Patrick Keyzer (eds), Dangerous People, supra, 51, 60; Janus, ‘Closing Pandora’s Box’, supra, 1237. 90 Tonry, ‘Predictions of Dangerousness in Sentencing’, supra, 469.
158
nevertheless treat detainees as rational actors (that is, as our equals91) if it is to act compatibly with human rights.
One final point must be made before we consider the extent to which Australian courts have required preventive detention schemes to satisfy the normative criteria just identified. The US experiment with SVP laws demonstrates that, if there is to be preventive detention of the merely dangerous, the state should be open about what it is doing. Robinson has shown that, in the US, preventive detention has often been presented as being punishment for past guilt, due to the state’s reluctance to be seen as detaining mentally competent individuals before proved wrongdoing.92 An Australian example of this appears to be the HCA majority’s finding in Veen v The Queen (No 2)93 that a life sentence could be regarded as proportionate to the seriousness of the applicant’s manslaughter offence. The offence, their Honours remarked, ‘was particularly horrible in the manner and violence of its execution’94 and closely resembled a previous crime that Veen had committed.95 But, as Deane J pointed out in dissent, the offender’s culpability was significantly reduced by his mental condition, which allowed him successfully to raise the partial defence of diminished responsibility.96 For this reason, his Honour seems right to have held that this did ‘not even approach the rare case in which a sentence of life imprisonment for a single offence of manslaughter could conceivably be justified’97 and – subject to the above – to recommend98
the introduction of some acceptable statutory system of preventive restraint to deal with … person[s] who [have] … been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if … [they] were to be released … at the end of … a proper punitive sentence. As Deane J proceeded to note,99 under such an openly preventive system, protections demanded by the preventive character of the confinement (for example, periodic review of the
91 Ibid 473. 92 Paul H Robinson, ‘Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice’ (2001) 114 Harvard Law Review 1429. See also Paul H Robinson, ‘The Criminal-Civil Distinction and the Utility of Desert’ (1996) 76 Boston University Law Review 201. 93 (1988) 164 CLR 465, 478. 94 Ibid. 95 Ibid 468. 96 Ibid 494. 97 Ibid. 98 Veen (1988) 164 CLR 465, 495. 99 Ibid. See also Robinson, ‘Punishing Dangerousness’, supra, 1446-7.
159
continuing need for detention and non-punitive conditions of detention) can be extended to detainees. This will not be so when the state claims that it is punishing.
Robinson therefore seems to have been right about the undesirability of presenting preventive detention as punishment. But perhaps he was wrong about the SVP laws, which he regarded as an instance of legislatures candidly acknowledging that they were detaining the merely dangerous.100 In reality, such legislation might propagate as much dishonesty as the practices that Robinson deplores. Rather than cloaking preventive detention of the dangerous as punishment, the state cloaks it as mental illness detention101 – again, to ensure that no perception arises that it is detaining the mentally competent without trial. As has been noted repeatedly,102 the SVP laws are based on a contradiction. Because the relevant individuals were responsible when they offended, they were punished for such offending. But they are confined after the expiry of their sentence on the basis that they are non-responsible and dangerous. In fact, the person who has ‘serious difficulty in controlling behavior’103 because of his/her psychopathy104 or personality disorder105 is, at least for legal purposes, mentally competent.106 If s/he is dealt with in the same way as the law deals with those it regards as mentally ill and dangerous, s/he might be placed in an unsuitable therapeutic environment. Alternatively, if the US example is anything to go by, s/he might be denied much treatment at all in a system that, despite claiming to have a therapeutic orientation, is ruthlessly focussed on incapacitation and exclusion.107
100 Paul H Robinson, ‘Foreword: The Criminal-Civil Distinction and Dangerous Blameless Offenders’ (1993) 83 Journal of Criminal Law and Criminology 693, 715. 101 See, eg, Morse, ‘Preventive Confinement of Dangerous Offenders’, supra, 61, who regards as ‘a transparent failure’ the state’s claim that SVP detention is detention of the non-responsible. 102 See, eg, Stephen J Morse, ‘Fear of Danger, Flight from Culpability’ (1998) 4 Psychology, Public Policy, and Law 250, 258-9; John Q La Fond, ‘Sexually Violent Predator Laws and the Liberal State: An Ominous Threat to Individual Liberty’ (2008) 31 International Journal of Law and Psychiatry 158, 164-5; Kimberly Kessler Ferzan, ‘Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible’ (2011) 96 Minnesota Law Review 141, 154. 103 Kansas v Crane, 534 US 407, 413 (2002) (‘Crane’). 104 Ibid 412. 105 Ibid 413, 421; cf at 415; Hendricks 521 US 346, 358 (1997). 106 As suggested by, eg, Morse, ‘Preventive Confinement of Dangerous Offenders’, supra, 61-2. 107 See, eg, La Fond, ‘Sexually Violent Predator Laws and the Liberal State: An Ominous Threat to Individual Liberty’, supra, 166-71; Petrila, ‘Sexually Violent Predator Laws’, supra, 66-72.
160
C. The Australian Position (i) Australian Preventive Detention Laws
Australian preventive detention laws fall into three categories. First, there are laws in two States that facilitate the preventive detention of sex offenders who are either ‘incapable of … control[ling]’,108 or ‘incapable of controlling, or unwilling to control’,109 their sexual instincts. Such detention can be ordered either at sentencing or while the offender is serving a sentence for a qualifying offence.110 As with the US laws just discussed, the idea underlying this legislation is – or was111 – that the sex offenders whom it targets are caused to offend by a mental illness, and therefore require therapy. Secondly, there are laws in five Australian jurisdictions that authorise judges at sentencing to order the indefinite detention of those who have been convicted of certain violent or sexual offences, and who have been proved to be ‘a serious danger to the community’,112 ‘a danger to society, or a part of it’113 or sufficiently dangerous for their detention to be ‘warranted for the protection of the public.’114 Thirdly, there are laws in six Australian jurisdictions that allow courts, while an offender is serving a sentence for a serious115 offence – and upon proof that s/he ‘is a serious danger to the community’116 – to order that s/he remain in detention after the expiry of his/her sentence.117
108 Criminal Law Amendment Act 1945 (Qld) s 18(1)(a). 109 Sentencing Act 2017 (SA) s 57(6). 110 Criminal Law Amendment Act 1945 (Qld) ss 18(1), (3), (4); Sentencing Act 2017 (SA) s 57(2)-(3), (7). 111 Since 2005, the South Australian scheme has applied also to those who are unwilling to control their sexual instincts: Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA). 112 Sentencing Act 1991 (Vic) s 18B(1); Penalties and Sentences Act 1992 (Qld) s 163(3)(b); Sentencing Act 1995 (NT) s 65(8). 113 Sentencing Act 1995 (WA) s 98(2). 114 Sentencing Act 1997 (Tas) s 19(1)(d). 115 In NSW and WA, continuing detention orders can be made not only against sexual offenders, but also ‘high risk violent offenders’ (to use the NSW formulation): Crimes (High Risk Offenders) Act 2006 (NSW) ss 3, 4 and 5C; High Risk Serious Offenders Act 2020 (WA) ss 5, 7(1), 48(1), Sch 1. At the Commonwealth level, such orders can be made against certain terrorist offenders: Criminal Code Act 1995 (Cth) s 105A.7(1). There is some doubt as to the constitutional validity of this Commonwealth legislation: Fardon (2004) 223 CLR 575, 608 [68] (Gummow J), 631 [145] (Kirby J); cf at 596-7 [34] (McHugh J). That is, is the detention that it authorises constitutionally permissible though it is not consequent on a finding of criminal guilt? See Fardon (2004) 223 CLR 575, 612 [80] (Gummow J); Lim (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ). See also Andrew Lynch and Alexander Reilly, ‘The Constitutional Validity of Terrorism Orders of Control and Preventative Detention’ (2007) 10 Flinders Journal of Law Reform 105, 113-18, 122-3. 116 To cite the formulation used in some jurisdictions: DPSOA s 13(1); Serious Sex Offenders Act 2013 (NT) ss 6(1) and 31(1). 117 DPSOA s 13(5)(a); High Risk Serious Offenders Act 2020 (WA) s 48(1); Crimes (High Risk Offenders) Act 2006 (NSW) ss 5C; Serious Sex Offenders Act 2013 (NT) s 31(1); Serious Offenders Act 2018 (Vic) s 62(1); Criminal Code Act 1995 (Cth) sch 1 s 105A.7(1).
161
(ii) Post-Sentence Preventive Detention
Turning first to this last category of preventive detention laws, these post-sentence schemes were preceded by similar ad hominem regimes.118 In 1990, the Victorian government enacted the Community Protection Act 1990 (Vic), which authorised the Supreme Court of that State to order the preventive detention of one named prisoner, Gary David, who was due soon to be released.119 Several years later, the NSW government passed its own Community Protection Act, which allowed for the preventive detention of Gregory Wayne Kable if the Crown could prove that, upon his release from prison, he was ‘more likely than not to commit a serious act of violence’ and it was ‘appropriate’ for the protection of the community or part of it that he remain in custody.120 Both Acts were a reaction to what Fairall described as the ‘hysterical demands for action by some sections of the media and other pressure groups.’121 David was an unpredictable violent offender who had engaged in acts of self-mutilation while imprisoned, had a personality disorder and had threatened to perpetrate a massacre.122 Kable had written a number of letters while imprisoned for his wife’s manslaughter, in which he had threatened violence against those with custody of his children.123 In both cases, there was public concern about what the prisoner might do if released. The NSW legislation was passed about five months before an election.124
In Kable,125 the HCA of course struck down the NSW Act. The majority Justices emphasised that that Act had authorised the NSWSC to punish Kable ‘by way of imprisonment’126 without guilt127 and by a process that was ‘the antithesis of the judicial process.’128 For McHugh J, the conclusion to be drawn was that the Supreme Court had been made ‘the instrument of a
118 See, eg, Bernadette McSherry, ‘Indefinite and Preventive Detention Legislation: From Caution to an Open Door’ (2005) 29 Criminal Law Journal 94, 99-100. 119 Williams, ‘Psychopathy, Mental Illness and Preventive Detention’, supra, 162. 120 Kable (1996) 189 CLR 51, 62 (Brennan CJ), quoting Community Protection Act 1994 (NSW) s 5(1), repealed by Statute Law (Miscellaneous Provisions) Act 2015 (NSW) sch 6 item 1. 121 Paul Ames Fairall, ‘Violent Offenders and Community Protection in Victoria – The Gary David Experience’ (1993) 17 Criminal Law Journal 40, 54. 122 Williams, ‘Psychopathy, Mental Illness and Preventive Detention, supra, 162. 123 George Zdenkowski, ‘Community Protection through Imprisonment without Conviction: Pragmatism versus Justice’ (1997) 3(2) Australian Journal of Human Rights 8, 11. 124 Ibid. 125 (1996) 189 CLR 51. 126 Ibid 122 (McHugh J). See also at 97-8 (Toohey J), 131 (Gummow J). 127 Ibid 98 (Toohey J), 107 (Gaudron J), 122 (McHugh J), 132 (Gummow J). 128 Ibid 106 (Gaudron J). See also at 98 (Toohey J), 122 (McHugh J), 134 (Gummow J).
162
legislative plan … to imprison the appellant.’129 Similarly, Gummow J thought that, if it were to perform the relevant function, the judiciary would be ‘apt to be seen as but an arm of the executive which implements the will of the legislature’,130 and public confidence in it would be sapped.131
As observed in chapter 1, however, this decision failed to accord with broadly accepted views about the limits of the judicial law-making function in jurisdictions, such as NSW, without a charter of rights. ‘Parliament’, said Lord Reid, ‘is the right place to settle issues which the ordinary man regards as controversial.’132 Yet, here, the majority established a ‘quasi- separation of powers … in the States, totally contrary to the position that had hitherto been unquestioned’133 – in the process, striking down an Act that purported to resolve just such a controversial issue of social policy. In so doing, it exposed itself to accusations that it was willing to interfere with valid though unwise legislation, simply because of its conviction that it was unwise. Indeed, in his dissent in Kable, Dawson J made this very suggestion. The Community Protection Act, his Honour thought, had been struck down because the majority considered that its conferral of the relevant function on the NSWSC was ‘so undesirable as to be unconstitutional.’134 He accepted that the policy disclosed by the Act was ‘open to question.’135 But that policy was ‘a matter for the legislature rather than for this Court.’136
As also observed in chapter 1, since the appointment of Gleeson CJ as Chief Justice of the HCA in 1998, that Court’s approach to its law-making function has been largely consistent with these orthodox views of Dawson J. Indeed, Gleeson CJ could not have given a clearer signal of his intention to steer the Court back towards such an approach than he did in an article published in the Australian Bar Review two years after his appointment to the Court. ‘Our laws are not made to be administered by computers’, he said.137 Nevertheless, ‘in the administration
129 Ibid 122. 130 Ibid 134. 131 Ibid. See also at 98 (Toohey J), 107-8 (Gaudron J), 124 (McHugh J). 132 Reid, ‘The Judge as Law Maker’, supra, 23. 133 Kable (1996) 189 CLR 51, 86 (Dawson J). 134 Ibid. 135 Ibid 88. 136 Ibid. 137 Gleeson, ‘Judicial Legitimacy’, supra, 6.
163
of any law, there comes a point beyond which discretion cannot travel.’138 Judges, Gleeson CJ concluded139
have no right to throw off the constraints of legal methodology. In particular, they have no right to base their decisions as to the validity of legislation upon their personal approval or disapproval of the policy of the legislation. When they do so, they forfeit their legitimacy. It can be observed that this statement – like Dawson J’s remarks in Kable – focusses on judges who in fact decide cases, not on legal grounds, but on the basis of their own notions of what justice requires. But judicial motivations are not always clear. In light of this – and in light also of Australian judges’ continuing willingness to depart from legalism where they are convinced that this will (i) provoke little adverse comment from the press and public140 or (ii) enable them to avoid charges of judicial activism141 – his Honour seems really to have been concerned about perceptions. To return to Lord Devlin’s comments, judges must above all maintain the ‘appearance of impartiality.’142 If they are ‘in any doubt about the support of the consensus’, they ‘should not advance at all’143 – because if they do, and if the matter turns out to be as controversial as they feared, they can lose that appearance.
In any case, in two Kable cases decided on 1 October 2004, Baker and Fardon, Gleeson CJ made some observations that are strikingly similar to those in his Australian Bar Review article. We have already dealt with Baker in chapter 2. It will be recalled that, in that case, an HCA majority rejected an argument that it might have accepted, namely, that – similarly to the law struck down in Kable – the legislation at issue had ‘us[ed] the forms of judicial procedure to mask the reality of the legislative decree, which was that [non-release recommendation prisoners] … were never to be released.’144 It will also be recalled that, in Baker, Gleeson CJ indicated that ‘[t]he principle for which [Kable] … stands as authority’145 must apply narrowly, lest the Court acquire a reputation for deciding cases not on legal grounds, but on the basis of ‘political’ views about the ‘desirability’ of the impugned legislation.146 Kable gives judges no
138 Ibid. 139 Ibid 9. 140 See, eg, the discussion in chapter 3 of Kirk (2010) 239 CLR 531. 141 As suggested in previous chapters, Crump (2012) 247 CLR 1, Knight (2017) 261 CLR 306, Minogue (No 2) (2019) 93 ALJR 1031 and Magaming (2013) 252 CLR 381 might be instances of the HCA dispensing with legalism on the counter-intuitive ground that it wished to avoid claims that it was dispensing with legalism. 142 Devlin, ‘Judges and Lawmakers’, supra, 3 (Emphasis added). 143 Ibid 8. 144 (2004) 223 CLR 513, 522-3 [11] (Gleeson CJ). 145 Ibid 519 [5]. 146 Ibid 525 [18].
164
licence to strike down laws ‘of which they disapprove’, his Honour insisted;147 any different approach would lead to a loss of ‘public … confidence’ in their willingness to ‘administer justice according to law.’148 In Fardon, much the same thing happened: the majority rejected a plausible argument that the impugned law breached Kable, and the Chief Justice made it clear that he had no appetite for a broad reading of the relevant principle – or for exposing the Court to claims that it had intervened because it disagreed with the policy to which Parliament had given legal effect.
In that case, the appellant challenged the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘DPSOA’), which authorises the post-sentence preventive detention149 of a person serving a sentence (partly) for ‘a serious sexual offence’,150 if the Attorney-General proves to a high degree of probability151 that ‘there is an unacceptable risk that [s/he] … will commit a serious sexual offence’ if released152 (even under supervision).153 Like the Victorian and NSW legislation just discussed, this law was enacted as an urgent response to public concern about particular prisoners: the notorious offender, Dennis Ferguson, had recently been released, and Robert Fardon’s release was imminent.154 Unlike that earlier legislation, however, it speaks generally, not ad hominem. Nevertheless, as Gleeson CJ noted, it raises ‘[s]ubstantial questions of civil liberty.’155 First, detention under the Act is served in prison.156 Secondly, this detention lacks a reintegrative focus. Although one of the Act’s ostensible objects is ‘to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation’,157 the absence of provisions concerning such care or treatment demonstrates that, really, the sole object of the scheme is to incapacitate.158 Thirdly, the standard of proof is
147 Ibid 519 [6]. 148 Ibid 520 [6]. 149 DPSOA s 13(5)(a). 150 DPSOA s 5(6). 151 DPSOA s 13(3)(b). 152 DPSOA s 13(2). 153 DPSOA s 13(5)(b), (6). 154 See, eg, Bernadette McSherry, ‘Sex, Drugs and “Evil” Souls: The Growing Reliance on Preventive Detention Regimes’ (2006) 32 Monash University Law Review 237, 241-2; Anthony Gray, ‘Standard of Proof, Unpredictable Behaviour and the High Court of Australia’s Verdict on Preventive Detention Laws’ (2005) 10 Deakin Law Review 177, 187. 155 Fardon (2004) 223 CLR 575, 586 [3]. 156 DPSOA s 13(5)(a). See also ibid 640-1 [173] (Kirby J). 157 DPSOA s 3(b). 158 See Fardon (2004) 223 CLR 575, 640-1 [173] (Kirby J). See also DPSOA s 3(a). Nor has the regime, in its actual operation, had a rehabilitative character: See, eg, Patrick Keyzer and Bernadette McSherry, ‘The
165
deceptively undemanding: consistently with Slobogin’s observation,159 a high probability of an unacceptable risk of sexual offending is not the same as a high probability of such future conduct.
The relevant parliamentary debates make it is unsurprising that these flaws exist. Some members felt that the targeted offenders had ‘forfeit[ed] their rights’160 and Mr Choi reflected the general mood when he said that, ‘[o]n balance, I will protect children rather than prisoners every time.’161 Nevertheless, in Fardon, six Justices accepted that the DPSOA was constitutionally valid. In so doing, their Honours emphasised the differences between this scheme and that in Kable: the Act applied generally; the Court retained a discretion regarding whether to make an order and, if so, what kind of order to make; the Court had to be satisfied to a high degree of probability that an unacceptable risk existed; and the rules of evidence applied.162 The differences between the Fardon and Kable laws were, however, not great:163 for example, the Court of course had a discretion in Kable too;164 and, as just suggested, the standard of proof in the DPSOA is not very different from the ‘on the balance of probabilities’ standard in the Community Protection Act. Accordingly, had it wished to do so, the Fardon majority could have justified the opposite conclusion to that which it reached. As in Baker, underpinning the Court’s refusal to do this was seemingly a concern to avoid creating a perception that it was willing to substitute its views for those that had survived the democratic process.
Indeed, one of the most interesting things about Fardon is the different approach of the majority on one hand, and Kirby J on the other. Justice Kirby presented a compelling argument against the DPSOA scheme, but his judgment does read like that of a Court that has been empowered to interpret a charter of rights. Thus, in his opinion, the Kable principle should emphatically be
Preventive Detention of “Dangerous” Sex Offenders in Australia: Perspectives at the Coalface’ (2013) 2 International Journal of Criminology and Sociology 296, 299. 159 Slobogin, ‘Legal Limitations on the Scope of Preventive Detention’, supra, 39. 160 Queensland, Parliamentary Debates, Legislative Assembly, 4 June 2003, 2569 (Fiona Simpson). 161 Ibid 2573. 162 Fardon (2004) 223 CLR 575, 592 [19] (Gleeson CJ), 596-7 [34] (McHugh J), 656 [223], 657 [225], 657 [227], 658 [233] (Callinan and Heydon JJ). 163 See, eg, Meagher, ‘The Status of the Kable Principle in Australian Constitutional Law’, supra, 185; Wheeler, ‘The Kable Doctrine and State Legislative Power over State Courts’, supra, 26; Rebecca Ananian-Welsh, ‘Preventative Detention Orders and the Separation of Judicial Power’ (2015) 38 UNSW Law Journal 756, 774. 164 As noted in chapter 2, Grove J had in fact exercised this discretion in Kable’s favour: Kable (1996) 189 CLR 51, 123.
166
concerned with the protection of the ‘rights of unpopular minorities.’165 Further, Kirby J thought that the DPSOA’s provision for judicial participation in (i) punishment for feared future offending;166 and (ii) double and retrospective punishment for past offending,167 was crucial to its invalidity.168 On the other hand, Gleeson CJ emphasised that the point arising for decision was a ‘narrow’ one169 that required no consideration of the moral permissibility of the impugned law or its effect on the appellant’s human rights.170 And, in remarks reminiscent of those in the Chief Justice’s Australian Bar Review article and in his judgment in Baker, his Honour made clear why he was unwilling to allow the principle discovered in Kable to operate as expansively as Kirby J thought it should. If the courts allowed that principle to invalidate controversial laws such as this, he suggested, a perception would soon arise that it was ‘refus[ing] … to implement the provisions of a statute upon the ground of an objection to legislative policy.’171 In such circumstances, ‘the judiciary’s collective reputation for impartiality would quickly disappear.’172
In this thesis, I have criticised the HCA’s failure to strike down penal populist legislation in cases such as Crump,173 Knight,174 Minogue (No 2)175 and Magaming.176 But I am not so critical of the decision in Fardon. It is understandable – in fact, as noted in chapter 1, it seems right – that judges without a charter of rights to apply should ordinarily exercise their law- making function compatibly with public opinion. In other words, the problem in Crump, Knight, Minogue (No 2) and Magaming was certainly not that the HCA refused to override democratic decisions – punitive though they were. It was instead that the Court deployed highly formalistic reasoning when doing so. While I incline to the view, defended more fully in chapter 5, that some tolerance should be extended to judges who engage in subterfuge to reach
165 Fardon (2004) 223 CLR 575, 626 [135]. 166 Ibid 631 [148], 637-8 [163]-[166]. 167 Ibid 632 [148], 643-5 [180]-[186]. 168 Ibid 644-5 [184]-[186]. 169 Ibid 586 [3]. 170 Ibid 586-7 [2]-[3]. 171 Ibid 593 [23]. 172 Ibid. 173 (2012) 247 CLR 1. 174 (2017) 261 CLR 306. 175 (2019) 93 ALJR 1031. 176 (2013) 252 CLR 381.
167
results that are in keeping with community sentiment,177 there is a proviso. It is one thing if such ‘spurious and insincere’178 reasoning achieves a result that accords with the community’s sense of justice and is consistent with human rights. It is another if judges use such reasoning to facilitate an outcome that, however just most members of the public think it, constitutes a clear breach of human rights. In the latter case, the judges have exercised their powers no less democratically than have the judges in the first. They have acted as the majority of the community wishes them to act. But their reasons for bending the law are dishonourable. Unlike the judges in the first case, their motive is not to secure justice for the litigant in the case before it; rather, it is to uphold a law that treats that person unfairly.179 Of course, it is possible that, in Crump, Knight, Minogue (No 2) and Magaming, the relevant Justices were unaware that they were bending the law. They might not have appreciated how implausible and formalistic their reasoning was. But this does not make such reasoning any more justifiable. In such circumstances, there would be no judicial bad faith. But there would be very poor reasoning. Such a lack of rigour by itself – that is, unaccompanied by an intention to ‘remedy … injustice’180 – is not admirable, especially where it causes a gross breach of human rights to be upheld.
If we return to Fardon, however, this was not a case where the law pointed decisively in one direction. Kable, that is, did not require the HCA to decide Fardon in the appellant’s favour. For, though the laws impugned in those cases were similar to one another, they do seem to have been different enough to mean that the Court in Fardon had a genuine choice about whether to distinguish the DPSOA from the Community Protection Act.181 For example, the fact that the DPSOA is a law of general application, which applies the rules of evidence to the proceedings for which it provides, and sets out a reasonably lengthy list of criteria for the Supreme Court of Queensland (‘QSC’) to consider when assessing whether the defendant is a ‘serious danger to the community’,182 does tend to lessen the risk that it will cause that Court
177 Cf Jeffrey Goldsworthy, ‘The Limits of Judicial Fidelity to Law: The Coxford Lecture’ (2011) 24(2) Canadian Journal of Law and Jurisprudence 305, 321. 178 Ibid 319. 179 If it is arguable, but not clear, that the questionable judicial reasoning would facilitate a human rights breach, it seems that the Court should likewise generally not use it. The less clear it is that judicial dissembling would in fact produce a just outcome, the more reluctant a judge should be to act other than legalistically. 180 Goldsworthy, ‘The Limits of Judicial Fidelity to Law’, supra, 321. 181 It is noteworthy that Kirby J did not ‘pretend that the ultimate issue raised by these proceedings is cut and dried’: Fardon (2004) 223 CLR 575, 626 [134]. 182 DPSOA s 13(4). Cf Community Protection Act 1994 (NSW) s 17, repealed by Statute Law (Miscellaneous Provisions) Act 2015 (NSW) sch 6 item 1.
168
to be seen as ‘a mere instrument of government policy.’183 In such circumstances, as just suggested, the majority seems correct to have decided in Fardon not to set itself against the democratic consensus. Because its stance was democratic, and involved neither a lack of rigour nor the use of subterfuge to uphold an obvious breach of human rights, it seems unimpeachable.
This is not, however, to defend the very formalistic reasoning that two Justices used to justify their decision not to strike down the DPSOA. In the QCA, the appellant had submitted that, the exceptional cases of non-punitive detention aside, Kable only allows a court to order detention after a finding of criminal guilt.184 But the majority noted that the exceptional categories are not closed185 and held that, because the detention here was for the legitimate non-punitive purpose of protecting the community, a new exception should be created.186 In the HCA, Callinan and Heydon JJ expressed their general agreement with such reasoning.187 After accepting that detention will only be non-punitive if it is ‘reasonably capable of being seen as necessary for a legitimate non-punitive objective’,188 their Honours suggested that this test was satisfied here.189 In so holding, they, like the QCA majority, attached significance to the Act’s stated objects, namely, ‘to ensure protection of the community and to facilitate rehabilitation.’190
Certainly, punishment involves not only deprivation and stigma, but also an intention to inflict such ‘stigmatizing deprivation.’191 But, just as surely, when determining whether such an intention exists, we must consider what the state is doing and not just what it says it is doing. For this reason, it is easy to accept Kirby J’s conclusion that the placement of Fardon in prison, and the state’s failure to do anything to meet the law’s alleged treatment objective, meant that the detention was punitive.192
183 Fardon (2004) 223 CLR 575, 592 [19] (Gleeson CJ). See also 602 [44] (McHugh J). 184 Fardon QCA [2003] QCA 416, [23]. See also Lim (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ). 185 Fardon QCA [2003] QCA 416, [37] (de Jersey CJ), [99] (Williams JA). The HCA accepted as much: Fardon (2004) 223 CLR 575, 613 [83] (Gummow J), 633-4 [154] (Kirby J), 647 [196] (Hayne J), 653 [214] (Callinan and Heydon JJ). See also Kruger (1997) 190 CLR 1, 162 (Gummow J). 186 Fardon QCA [2003] QCA 416, [42] (de Jersey CJ), [101] (Williams JA). 187 Fardon (2004) 223 CLR 575, 650 [207]. 188 Ibid 653-4 [215], quoting Kruger (1997) 190 CLR 1, 162 (Gummow J). 189 Fardon (2004) 223 CLR 575, 654 [216]-[217]. 190 Ibid 654 [216]. For similar reasons, McHugh J thought that ‘the Act is not designed to punish the prisoner’: at 597 [34]. 191 Husak, ‘Lifting the Cloak’, supra, 1189. 192 Fardon (2004) 223 CLR 575, 641 [175]. For similar reasoning, see Hendricks 521 US 346, 390 (1997).
169
Did Callinan and Heydon JJ deploy the reasoning that they did, knowing that it was implausible and for the purpose of upholding a law that clearly breached Fardon’s human rights? Or was their Honours’ analysis simply lacking in rigour? Either way, those who have criticised their approach193 seem right to have done so. And there is a further point to be made. As argued throughout this thesis – and as demonstrated by cases such as Crump, Knight, Minogue (No 2) and Magaming – it is hardly unusual for Australian judges, in cases involving challenges to penal populist laws, to resort to the sort of formalism that Callinan and Heydon JJ did in Fardon.194 On the other hand, we have seen that the UK and Strasbourg courts have proceeded in a less narrow and more interventionist manner in such cases. This divergence of approach is evident in the cases considered in this chapter, too. Certainly, as we shall see below, it is noticeable that, in its case law in this area, the ECtHR has been willing to look beyond legislative labels when deciding whether to classify the detention at issue as punitive.195
This brings us back to the central argument in this section. Whether all of the reasoning in Fardon was defensible, and whether the Court was right to exercise restraint, the most important point is that Australian judges once again declined to uphold a ch III challenge to a draconian law. This conveyed to other State and Territory legislatures that they were free to enact similar legislation, and five other Parliaments have of course taken the opportunity to do so. Moreover, such laws are liable to be tightened to the extent that is constitutionally permissible because of virulent law and order campaigns organised by irresponsible media outlets.
This has been demonstrated recently in WA, where community concern following the release under supervision of the notorious sex offender, TJD, in March 2014 – and his arrest later that
193 See, eg, Anthony Gray, ‘Executive Detention and the Australian Constitution’ (2014) 22 Australian Journal of Administrative Law 43, 50; Patrick Keyzer, ‘The International Human Rights Parameters for the Preventive Detention of Serious Sex Offenders’ in Bernadette McSherry and Patrick Keyzer (eds), Dangerous People, supra, 27-8; Patrick Keyzer, Cathy Pereira and Stephen Southwood, ‘Pre-emptive Imprisonment for Dangerousness in Queensland under the Dangerous Prisoners (Sexual Offenders) Act 2003: The Constitutional Issues’ (2004) 11 Psychiatry, Psychology and Law 244, 250. 194 Similarly, like Callinan and Heydon JJ in Fardon, they have consistently been reluctant to look closely at the effects of detention when assessing whether that detention is punitive. See, eg, Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1, 15 [28] (Gleeson CJ), 35 [82] (McHugh J), 60 [165] (Gummow J), 85 [263] (Callinan J); Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486, 499 [21] (Gleeson CJ), 507 [53] (McHugh, Gummow and Heydon JJ), 543 [176] (Hayne J), 559 [218] (Callinan J); cf at 528 [122]-[123] (Kirby J). 195 As noted by Lucia Zedner, ‘Penal Subversions: When is a Punishment Not Punishment, Who Decides and on What Grounds?’ (2016) 20 Theoretical Criminology 3, 11-12.
170
month for allegedly breaching a condition of his supervision order196 – led to a review of the Dangerous Sexual Offenders Act 2006 (WA).197 Although this review concluded that the scheme was working largely as intended,198 and although no one had reoffended while subject to a supervision order,199 sections of the media continued to campaign ‘for dangerous sex offenders to remain in prison, to never be released under any circumstances.’200 Concerns were expressed, in particular, about the release of Alwyn Brown,201 Patrick Comeagain202 and Warren Ugle.203 One of Ugle’s victims had created a change.org petition, ‘Stop the Release of Dangerous Sex Offenders Now’, which had gained many thousands of signatures.204 Under pressure from the Labor opposition, which had cynically associated itself with the vociferous supporters of change,205 the government responded by making the Act slightly harsher than it already was: now, apart from in exceptional circumstances,206 there was to be review of continuing detention orders not annually but every two years.207
196 ‘Release of Serial WA Sex Offender TJD Prompts Legislative Review’, ABC (online), 20 March 2014
171
As is typical in these kinds of debates, the opposition supported these changes, but claimed that they did not go far enough. One of its proposals was that an offender should be released on supervision only if s/he could prove to a high degree of probability that s/he would comply with all of the conditions attached to the supervision order.208 When it was elected to government shortly afterwards, however, it was unwilling to go quite as far as this.
The triggering event for the final round of legislative activity in this area209 was the release on supervision of DAL, whom the media described as ‘[a] 67-year-old paedophile who once re- offended while being driven away from prison.’210 Under the resulting changes, offenders, if they are to be released on supervision, must prove on the balance of probabilities that they will substantially comply with all of the standard supervision order conditions.211 Predictably enough, the relevant debate was short of neither vitriol nor opportunistic political point-scoring. But one thing both parties could agree on was that, as one Liberal member put it:212
When … I go out into the community and people talk to me about these people, as they often do, particularly when the media highlight cases like DAL, the thing that … the average [person] … says to me is that these people should rot not only in prison but also in hell …
and that parliamentarians had to do what they could to reflect such concerns.
In chapter 5, I shall argue that execrable parliamentary debates of this kind undermine claims, frequently made by those who oppose charters of rights, that such charters negate the right of individuals ‘to participate as … equal[s] in collective decision making about the shape of rights in their society.’213 Of course, where the reasoning about rights issues in a parliamentary debate is ‘rich’214 and ‘careful’,215 a judicial decision to override the resulting legislative
208 Western Australia, Parliamentary Debates, Legislative Assembly, 28 June 2016, 4205 (John Quigley). A further proposal was that there be mandatory imprisonment for any breach of a supervision order, however trivial: Western Australia, Parliamentary Debates, Legislative Assembly, 29 June 2016, 4290 (John Quigley). 209 Leaving aside the very recent replacement of the Dangerous Sexual Offenders Act 2006 (WA) with the High Risk Serious Offenders Act 2020 (WA). As noted above – see n 197 – the new legislation applies to a broader range of offenders than did the former. 210 ‘Dangerous WA Paedophile Walks Free Despite Being Classed “High Risk”’, WA Today (online), 5 September 2017
172
determination might well constitute an unjustifiable restriction of citizen autonomy (if so, it should not be made). But the position is different where Parliament deliberately treats a minority group, such as prisoners, with contempt. If a court strikes down that sort of legislation, it seems in fact to have struck a blow for equality and participation. The majority’s autonomy – its right to participate – has been limited. But only so as to require it to treat other persons as ‘autonomous, self-governing beings, entitled to respect and responsibility.’216 And only so as to ensure that such persons’ concerns are heard.
For the time being, however, we can simply observe that Australian Parliaments have shown no inclination to ensure that post-sentence preventive detention regimes respect the human dignity of prisoners – and that ch III of the Commonwealth Constitution has done little to limit such legislative excesses. As we shall now see, the same is true of laws that provide for indefinite detention.
(iii) Indefinite Detention
In the 1980s and 1990s, various High Court Justices assumed that Australian Parliaments can validly provide for indefinite detention;217 and both intermediate courts of appeal218 and the HCA219 have now confirmed the constitutional validity of such schemes. The Victorian Court of Appeal’s (‘VCA’s’) reasoning in Moffatt220 and that of the SA Court of Criminal Appeal in England221 was in some ways similar to that deployed in Fardon. As in Fardon, their Honours in both cases emphasised the differences between the impugned provisions and the Kable legislation – pointing out, in particular, that the relevant laws applied generally, not ad hominem.222 But they also considered indefinite detention orders made at sentencing to be qualitatively different from post-sentence preventive detention.223 Thus, just as Hayne JA in Moffatt observed that ‘an indefinite sentence may be imposed only upon an offender found
216 James Allan and Richard Cullen, ‘A Bill of Rights Odyssey for Australia: The Sirens Are Calling’ (1997) 19 University of Queensland Law Journal 171, 181. 217 Veen (1988) 164 CLR 465, 495 (Deane J); Kable (1996) 189 CLR 51, 98 (Toohey J), 121 (McHugh J). 218 Moffatt [1998] 2 VR 229; England (2004) 89 SASR 316; McGarry (2005) 31 WAR 69. 219 Fardon (2004) 223 CLR 575, 586 [2], 592 [20] (Gleeson CJ), 613 [83] (Gummow J), 637-8 [165] (Kirby J), 647 [196] (Hayne J), 654 [217] (Callinan and Heydon JJ). 220 [1998] 2 VR 229. 221 (2004) 89 SASR 316. 222 Moffatt [1998] 2 VR 229, 237 (Winneke P), 251 (Hayne JA), 258-9 (Charles JA). See also England (2004) 89 SASR 316, 332 [63] (Doyle CJ), 336 [92] (Perry J), 336 [96] (White J). 223 Moffatt [1998] 2 VR 229, 237-8 (Winneke P), 251-2 (Hayne JA), 258-9 (Charles JA); England (2004) 89 SASR 316, 327 [36], 332 [63] (Doyle CJ), 335 [89]-[90] (Perry J), 336 [96] (White J).
173
guilty of a particular offence’,224 Doyle CJ in England thought it significant that ‘[t]he regime … is closely associated with the process of sentencing the defendant.’225
As argued above, it seems wrong to attach such importance to when preventive detention is ordered.226 An indefinite detention order is no more consequent on a finding of guilt than is a detention order made some years after such a finding. But, as we shall see, the UK and European courts have adopted no different approach to this question. For now, however, it is instructive to focus on one further aspect of Doyle CJ’s reasoning in England. Like Gleeson CJ in Fardon, his Honour noted the need for judicial restraint in the controversial area of sentencing law:227
Changing circumstances may … call for changed approaches to sentencing. So may changing community attitudes and social values. These are largely matters for Parliament. And, at least in relation to State courts, Parliament has considerable latitude, subject only to fundamental principles or limitations. Kable is an illustration of one important limitation … traceable to the requirements of the Australian Constitution.
However, I emphasise … that the sentencing process … is not immutable by any means. Parliament is at liberty to change it. The wisdom and merit of those changes is a matter for Parliament. That is, while the Kable principle must be accepted, the role that it can legitimately play is limited. In particular, that principle cannot place significant checks on sentencing policy, however unwise such policy might be. Judges must not be seen to be striking down legislation because of their opinions about its merit.
In England, Perry J observed that, if a court were empowered to order indefinite detention where release hinged ‘solely upon the will of the executive, [there] may well be … a breach of the Kable principle.’228 In McGarry v Western Australia,229 one argument put to the WA Court of Appeal (‘WACA’) was that, under the WA indefinite detention legislation – which, unlike the Victorian and SA laws, continues to place the review power in the executive’s hands230 – the executive was borrowing the courts’ reputation,231 contrary to Kable, by involving them in
224 Ibid 251. 225 England (2004) 89 SASR 316, 327 [36]. 226 See text accompanying nn 35-9 and 46-51. 227 England (2004) 89 SASR 316, 328 [43]-[44]. 228 Ibid 334 [76]. 229 (2005) 31 WAR 69. 230 Sentencing Act 1995 (WA) s 101; Sentence Administration Act 2003 (WA) ss 12, 12A, 27, sch 3. See also McGarry (2005) 31 WAR 69, 73-4 [8]-[10]. 231 McGarry (2005) 31 WAR 69, 78 [33].
174
a scheme that actually provided the executive with a power of indefinite detention.232 But Wheeler JA dismissed this submission. Under the scheme, her Honour insisted, the Court makes a real decision to impose an indefinite sentence, ‘after a hearing, based on defined criteria.’233 Once that decision is made, it is abundantly clear that it is for the executive to determine whether to release the offender.234 Accordingly, executive actions are not presented as having been performed by the courts.235 And ‘[i]n the end’, Wheeler JA thought, the appellant’s arguments were ‘no more than objections to the policy of the legislation.’236 The suggestion, again, is that the courts will rarely use Kable to limit majoritarian democracy, as this might provoke claims that the judiciary is allowing its own distaste for certain legislation to divert it from faithfully applying the law.
Pollentine237 confirms that there is no constitutional obstacle at State level to the executive review of the continuing need for indefinite or post-sentence preventive detention.238 However, the HCA did find that, properly construed, the Queensland legislation authorising the detention of sexual offenders determined to be incapable of controlling their sexual instincts239 did not provide the executive with an unfettered discretion concerning whether to release an offender240 (if it had, it is unclear whether there would have been a Kable breach).
The Pollentine plurality suggested that, if (i) the sentencing court had been required, upon the plaintiffs’ conviction, to detain them indefinitely; and (ii) the executive then had had an unconfined discretion to determine the detention’s length, the plaintiffs might have been right to say that the function of fixing the measure of punishment had been delegated to the executive.241 But the court was not bound to make such an order:242 even once two or more medical practitioners reported to the Court that the offender was ‘incapable of exercising proper
232 Ibid 78 [32]-[33]. 233 Ibid 78 [33]. 234 Ibid. 235 Ibid. 236 Ibid 78 [32]. 237 (2014) 253 CLR 629. 238 Ibid 651 [50]-[51]. As noted above, there is some doubt about whether post-sentence preventive detention is compatible with ch III at Commonwealth level: see above n 115. 239 Criminal Law Amendment Act 1945 (Qld) s 18. 240 Pollentine (2014) 253 CLR 629, 646-8 [32]-[39] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 241 Ibid 649-50 [43]-[45]. See also, eg, Hinds 1977] AC 195, 225-7; Browne v The Queen [2000] 1 AC 45; DPP of Jamaica v Mollison [2003] 2 AC 411, where the mandatory nature of the courts’ function was crucial to the finding that there was outsourcing to the executive of the exclusively judicial function of punishing criminal guilt. 242 Pollentine (2014) 253 CLR 629, 649-50 [44].
175
control over [his/her] … sexual instincts’,243 the Court had a discretion concerning whether to declare him/her to be so incapable and to direct that s/he be detained at Her Majesty’s pleasure.244 And the requirement that the executive release the detainee ‘upon demonstration by medical opinion of the abatement of the risk of offending’, took ‘most, if not all’ of the force from the plaintiffs’ submission that the executive had determined how severely to punish them.245 In other words, while s 18(5)(b) of the Act prevents a detainee from being released until the Governor in Council is satisfied that ‘it is expedient to release’ him/her, it also states that such satisfaction must be based on the report of two medical practitioners. For the plurality:246
by identifying the report of the medical practitioners as the foundation for the decision about what is ‘expedient’, the provision should be read as confining the matters which the decision maker may lawfully take into account to the matter with which those reports should deal: whether the detainee remains a person whose mental condition is such that he is incapable of exercising proper control over his sexual instincts. Contrary to the plaintiffs’ submission, the Governor in Council could not lawfully take into account either ‘anticipated adverse community reaction’ or ‘public opinion’ when exercising its s 18(5)(b) power.247 Therefore, the detention’s continuance turned on questions of dangerousness, not retribution.248
For similar reasons, the plurality rejected the plaintiffs’ argument that there was ‘cloaking’ in that the sentencing court’s order was ‘no more than the formal authority for what is in substance an unconstrained executive power of detention.’249 The executive’s discretion was constrained in the manner just identified, and it was subject to judicial review.250 And the plurality also observed – in a manner reminiscent of McGarry – that no appearance was created that the release decision was made by a court.251
243 Criminal Law Amendment Act 1945 (Qld) s 18(1)(a). 244 Criminal Law Amendment Act 1945 (Qld) s 18(3). 245 Pollentine (2014) 253 CLR 629, 650 [45]. See also at 656-7 [72]-[73] (Gageler J). 246 Ibid 647 [34]. 247 Ibid 647 [36]. Cf. 655 [67] and 658 [75] (Gageler J). 248 Ibid 650 [45]. 249 Ibid 657 [74] (Gageler J). 250 Ibid 650 [47]. 251 Ibid.
176
In Attorney-General (Qld) v Lawrence,252 however, the QCA did strike down on Kable grounds legislation that purported to give the executive an unfettered and unreviewable253 discretion to continue the detention of those who had originally been in preventive detention because of a judicial order. But this legislation differed from the McGarry and Pollentine laws. Those earlier laws created a simple two-step process: a judge made an indefinite detention order, and then, at particular intervals,254 the executive reviewed the continuing need for it. Under the Lawrence legislation,255 the process was more complicated. Under the DPSOA, the QSC would both make256 and review257 the continuing need for the relevant detention order. But if, upon the review, the court decided to discontinue the detention order,258 the new legislation permitted the executive effectively to overrule the court’s decision, if it was satisfied that this was ‘in the public interest.’259
This extraordinary law provides further evidence that Parliaments are not always the calm deliberative bodies that some imagine them to be.260 Indeed, it is a classic example of penal populism. Passed soon after a judicial decision to release Robert Fardon on supervision,261 the law, according to the Attorney-General, was aimed at reassuring the community ‘that sex offenders, these predators who groom our young people, never see the light of day outside of a prison cell again.’262
In finding that this was one of those ‘exceptional’ cases where legislation was invalid on Kable grounds,263 the QCA appeared to accept264 the respondents’ argument that the impugned law, by making the orders of the QSC provisional265 – in that they were ‘liable to be overruled at the whim of the executive’266 – damaged the appearance and reality of that Court’s ‘decisional
252 [2014] 2 Qd R 504. 253 Within the limits imposed by Kirk (2010) 239 CLR 531. See Lawrence [2014] 2 Qd R 504, 521-2 [19]. 254 McGarry (2005) 31 WAR 69, 73-4 [8]-[9]; Criminal Law Amendment Act 1945 (Qld) s 18(8). 255 Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 (Qld). 256 DPSOA s 13(5)(a). 257 DPSOA ss 27-8. 258 See DPSOA s 30. 259 Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 (Qld) s 21(1). 260 See text accompanying nn 213-16. 261 Hogg, ‘“Only a Pawn in Their Game”’, supra, 67-8. 262 Queensland, Parliamentary Debates, Legislative Assembly, 17 October 2013, 3536 (Jarrod Bleijie). 263 Lawrence [2014] 2 Qd R 504, 530 [42]. 264 Ibid [41]. 265 Ibid 523 [24], 530 [41]. 266 Ibid 523 [24].
177
independence.’267 In other words, because of the new Act, the DPSOA now required the QSC to exercise powers that were ‘repugnant to that [Court’s] institutional integrity.’268
(iv) Conclusions about the Australian position
Overall, however, Australian courts have been able to place few of the limitations on preventive detention that should be placed on it. In those Australian jurisdictions without a charter of rights,269 indefinite detention and post-sentence preventive detention may be served in prison and need not have a reintegrative focus; and there is no constitutional barrier to executive review of the continuing need for such detention. Accordingly, while Kable has sometimes been seen as carrying significant potential to check majoritarian democracy,270 it protects human rights far more subtly than a charter of rights does.271 Pollentine, McGarry and Lawrence illustrate the point. Lawrence establishes that, once a court has the power to review the continuing need for preventive detention, a further power to set aside its decision cannot validly be given to the executive. But Pollentine and McGarry establish that it is unnecessary to give the review power to the court in the first place. It might be that, if the executive is given such a power, fetters of the type identified in Pollentine must be placed on the discretion thus conferred on it. If so, this is an instance of Kable’s capacity quietly to insist on the existence of ‘objective and reasonable safeguards’272 in legislation affecting human rights. But such a limitation might not exist. Pollentine does not state that legislation granting the executive an unfettered discretion would breach Kable; and in McGarry the WACA upheld legislation that did not restrict the executive to considering questions of dangerousness when deciding whether to release the detainee.273 And, in any case, the discretion that the Court in Pollentine found
267 Ibid. 268 Ibid 530 [42]. 269 With the possible exception of the Commonwealth: see n 115. 270 Sackville, ‘Bills of Rights’, supra, 76-7; Mirko Bagaric, ‘The Revived Kable Doctrine as a Constitutional Protector of Rights?’ (2011) 35 Criminal Law Journal 197, 200-1. Both commentators did, however, accept that, as Sackville put it, ‘the Ch III bill of rights created by the High Court … can never be comprehensive’: at 79. 271 As noted by Ananian-Welsh, ‘Kuczborski v Queensland’, supra, 62-3. 272 International Finance Trust (2009) 240 CLR 319, 379 [140] (Heydon J). 273 Sentence Administration Act 2003 (WA) s 16, repealed by Parole and Sentencing Legislation Amendment Act 2006 (WA) s 14, empowered the executive to take into account a very broad range of factors when deciding to release a prisoner – including a person held under an indefinite sentence – on parole. These included the circumstances and seriousness of his/her offence: at s 16(a), and, indeed, ‘any other consideration that is or may be relevant to whether the prisoner should be released on parole’: at s 16(i).
178
the executive to have, might in many cases allow it to continue prisoners’ detention to avoid an ‘adverse community reaction.’274 As Hands argues:275
the Executive often has a strong political incentive to prolong detention … Acting on the advice of the Minister, the Governor is … likely to capitalise on the indeterminate margins of risk assessment in favour of continuing detention. When consideration is also given to the fact that the Governor is not required to give reasons for [the] … decision, it is clear how nominal and potentially ineffective the safeguards against executive abuse may be … Furthermore, as noted above,276 it is open to State legislatures – in response to hysterical media campaigns – to tighten the already draconian Australian post-sentence preventive detention schemes.
In short, dehumanising preventive detention is constitutionally acceptable in Australian jurisdictions without a charter of rights. But are there greater protections in the UK and Europe for offenders against such measures?
Before answering this question, we must briefly note that the UNHRC’s jurisprudence provides an indication that human rights charters can improve the position of those who have been made subject to a preventive detention order. Following the dismissal of his HCA appeal, Robert Fardon argued before the UNHRC that the DPSOA breached arts 9(1) and 14(7) ICCPR, which prohibit arbitrary detention and double punishment respectively.277 In separate proceedings, Kenneth Tillman, who was serving a term of post-sentence preventive detention under the corresponding NSW legislation,278 alleged that that law contravened these same ICCPR guarantees.279 In finding that the authors’ detention was indeed arbitrary,280 the Committee –
274 Pollentine (2014) 253 CLR 629, 647 [35]-[36]. 275 Lily Hands, ‘Constitutional Limitations on Detention “At Her Majesty’s Pleasure”: Pollentine v Attorney- General (Qld) [2014] HCA 30’ (2015) 39(2) University of Western Australia Law Review 442, 447-8. 276 See text accompanying nn 196-212. 277 Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007, 3 [1]. 278 See Tillman v Attorney-General (NSW) (2007) 70 NSWLR 448; Attorney-General (NSW) v Tillman [2007] NSWSC 605. 279 UN Doc CCPR/C/98/D/1635/2007. For commentary on the Fardon and Tillman communications, see, eg, Patrick Keyzer, ‘The United Nations Human Rights Committee’s Views about the Legitimate Parameters of the Preventive Detention of Serious Sex Offenders’ (2010) 34 Criminal Law Journal 283; Ian Freckleton and Patrick Keyzer, ‘Indefinite Detention of Sex Offenders and Human Rights: The Intervention of the Human Rights Committee of the United Nations’ (2010) 17 Psychiatry, Psychology and Law 345; Bernadette McSherry, ‘Post- Sentence Incapacitation of Sex-Offenders and the Ethics of Risk Assessment’ in Marijke Malsch and Marius Duker (eds), Incapacitation: Trends and New Perspectives (Ashgate, 2012) 77, 81-4. 280 The UNHRC found it unnecessary to consider whether, additionally, art 14(7) had been breached: Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007, 9 [7.5]; Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007, 11 [7.5].
179
in contrast to the opinions expressed by the QCA majority and some HCA Justices in Fardon281 – declared flatly that ‘[i]mprisonment is penal in character.’282 Moreover, as noted above,283 the Committee held that even post-sentence preventive detention in a non-punitive environment would breach art 9(1) unless the State Party could demonstrate that such means were necessary to achieve the legislation’s treatment objective.284
As we shall see, the UK and Strasbourg Courts have been similarly willing to find that punitive post-sentence preventive detention schemes breach human rights norms – although, like the UNHRC,285 they have not placed quite as many limits on indefinite detention.
D. The Position in the UK and Europe (i) Indefinite detention
A long line of Strasbourg authority establishes that indefinite detention is compatible with art 5(1) ECHR.286 In Van Droogenbroeck v Belgium,287 the Court explained that there is ‘lawful detention of a person after conviction by a competent court’,288 within the meaning of art 5(1)(a), if the detention ‘result[s] from, “follow[s] and depend[s] upon” or occur[s] “by virtue of”’ the conviction’;289 and it has repeatedly held that such a causal connection exists where an offender, due to his/her apparent dangerousness, is imprisoned either indefinitely or for longer than is proportionate to the seriousness of his/her offending, and then is held in prison after his/her proportionate sentence has expired because of the threat that s/he has been proved to pose.290 It should be clear by now that, in my opinion, however pragmatic such an approach
281 See text accompanying nn 184-190. See also Pollentine (2014) (2014) 253 CLR 629, 650 [45] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), 654 [64] and 657 [73] (Gageler J). 282 Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007, 8 [7.4]; Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007, 10 [7.4]. 283 See text accompanying n 79. 284 Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007, 9 [7.4]; Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 11 [7.4]. 285 Human Rights Committee, Views: Communication No 1090/2002, 79th sess, UN Doc CCPR/C/79/D/1090/2002 (6 November 2003) (‘Rameka v New Zealand’). In Rameka, the majority held that indefinite detention imposed at the time of sentence was not arbitrary: at [7.2], although four members (Mr Bhagwati, Ms Chanet, Mr Ahanhanzo and Mr Yrigoyen) thought that there had been a breach of art 9(1). Those judges reasoned, correctly in my view, that, as with post-sentence preventive detention in prison, a penalty had been imposed because of what the authors might do, not because of what they had done. 286 See, eg, Van Droogenbroeck (1982) 4 EHRR 443, 454-58 [34]-[42]; Weeks (1988) 10 EHRR 293, 308-13 [41]- [53]; Eriksen v Norway (2000) 29 EHRR 328, 348 [78]; M [2009] VI Eur Court HR 169, 202-3 [93]-[96]; James (2013) 56 EHRR 12, [197]. 287 (1982) 4 EHRR 443. 288 ECHR art 5(1) (Emphasis added). 289 Van Droogenbroeck (1982) 4 EHRR 443, 454 [35]. 290 See, eg, M [2009] VI Eur Court HR 169, 202-3 [93]-[96]; James (2013) 56 EHRR 12, [197].
180
is,291 this analysis seems wrong. Again, it is not because of the conviction that the offender is detained after the expiry of the punitive part of his/her sentence. Rather, s/he is detained because of fears of future wrongdoing. The conviction merely forms part of the evidential basis for such fears.
One consequence of this acceptance that the preventive part of a sentence of indefinite detention comes ‘after’ a finding of guilt is that this part of the sentence may be served in prison. But, as stated in a series of European and UK decisions, such detention does have to have a reintegrative focus. The textual basis for this is the word ‘lawful’ in art 5(1)(a).292 This requires not merely that the ‘detention of a person after conviction’ be in accordance with national law,293 but also that there ‘be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.’294 Thus it is guaranteed that such detention is consistent with art 5’s purpose, which is to ‘protect … the individual from arbitrariness.’295 So, just as, for example, detention of a person as a psychiatric patient will only be ‘lawful detention of a person … of unsound mind’ within art 5(1)(e) ‘if effected in a hospital, clinic or other appropriate institution authorised for that purpose’,296 James establishes that, during the preventive part of an indefinite sentence, ‘regard must be had to the need to encourage the rehabilitation of … offenders’297 – and the UK Supreme Court has now298 accepted that, unless ‘a real opportunity for rehabilitation’299 is provided then, the detention will be arbitrary and therefore unlawful.300
James concerned the indeterminate sentence for public protection (‘IPP sentence’), which was provided for by s 225 of the Criminal Justice Act 2003 (UK). Introduced by New Labour in response to media concern about dangerous offenders – and under pressure to appear to be
291 For instance, if another approach were taken, the preventive part of the English life and Her Majesty’s Pleasure sentences would not be covered by art 5(1)(a): cf Weeks (1988) 10 EHRR 293; V [1999] IX Eur Court HR 111; Stafford [2002] IV Eur Court HR 115. 292 As noted above – see n 28– ECHR art 5(1)(a) provides that one circumstance where a person may be deprived of his/her liberty is where such detention is ‘the lawful detention of a person after conviction by a competent court’ (Emphasis added). 293 Saadi v United Kingdom [2008] I Eur Court HR 31, 61 [67]. 294 Ibid [69]. 295 Ibid [67]. 296 Ashingdane v United Kingdom (1985) 7 EHRR 528, 543 [44] (Emphasis added); Aerts v Belgium (2000) 29 EHRR 50, 71 [48]. 297 (2013) 56 EHRR 12, [218]. 298 Cf R (Kaiyam) v Secretary of State for Justice [2015] AC 1344, 1363-4 [22]-[23], 1367-9 [30]-[35]. 299 Brown [2018] AC 1, 11 [8]. 300 Ibid 24 [45].
181
‘tough on crime’301 – this sentence ‘radically altered’302 the way in which such offenders were treated. Upon a person’s conviction for a ‘serious offence’, the sentencing court was required303 to impose an indefinite sentence on him/her if it found that there was ‘a significant risk to members of the public of serious harm occasioned by the commission by him[/her] of further specified offences.’304 The problem was that, partly because an IPP sentence was mandatory if the statutory criteria were satisfied,305 many such sentences were awarded, sometimes with short tariffs, and the Secretary of State failed to provide detainees with access to courses that they needed to complete if (i) the causes of their offending behaviour were to be addressed; and (ii) they were to persuade the Parole Board that they were no longer dangerous.306 ‘The undoubted consequence’ was that307
a number of short tariff IPP prisoners, once their tariff dates expired, even assuming that they were then safe to release, would have been unable to demonstrate this to the Board … [A]nd … a further number remained unsafe because they had not had the opportunity to undergo courses to eliminate or at least reduce the risk they posed.
When the matter reached it, the ECtHR insisted that, once detention is based purely on prisoners’ apparent dangerousness, ‘a concern may arise … if there are no special measures, instruments or institutions in place – other than those available to long-term prisoners – aimed at reducing the danger they present and at limiting the duration of their detention to what is strictly necessary.’308 This did not mean that the state was required to give the applicants ‘immediate access to’ the necessary courses; but it did have to ‘provide … [them] with reasonable opportunities to undertake [such] courses.’309 Likewise, any delays caused by a lack of resources had to be ‘reasonable in all the circumstances of the case.’310
301 See, eg, Annison, Dangerous Politics, supra, 41-9. 302 R (Walker) v Secretary of State for Justice [2010] 1 AC 553, 615 [92] (Lord Judge CJ) (‘Walker’). 303 Criminal Justice Act 2003 (UK) c 44, s 225(3), repealed by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (UK) c 10, s 123(a). 304 Criminal Justice Act 2003 (UK) c 44, s 225(1). See also Walker [2010] 1 AC 553, 615 [92]-[93] (Lord Judge CJ). 305 R v Docherty [2017] 1 WLR 181, 187 [11]. 306 Jessica Jacobson and Mike Hough, ‘Unjust Deserts: Imprisonment for Public Protection’ (Report, Prison Reform Trust, 2010) 9. 307 Walker [2010] 1 AC 553, 597 [26] (Lord Brown). 308 James (2013) 56 EHRR 12, [194]. 309 Ibid [218]. 310 Ibid.
182
In so holding, the ECtHR once more applied a principle that, as noted throughout this thesis, lies at the heart of its approach to punishment and prisoners’ rights. That principle emerges clearly from the Court’s following statement in Murray. ‘It would be incompatible with human dignity – which [lies] … at the very essence of the Convention system’, the Grand Chamber observed, ‘forcefully to deprive a person of his freedom without striving towards his rehabilitation and providing him with the chance to regain that freedom at some future date.’311 In other words, if detention is to be compatible with the Convention, it must be oriented towards the offender’s reintegration into the community. The detention at issue in James lacked such an orientation. As in Murray, the applicants had ‘no realistic chance of making progress towards a real reduction or elimination of the risk they posed.’312
Admittedly, the European and UK courts have held that ‘it will be rare’313 that a state will breach art 5(1) because of its delay in providing prisoners with access to rehabilitative opportunities. Together with their acceptance that an offender may serve the preventive part of an indefinite sentence in prison, this does show, once again, that charters of rights cannot realistically be expected to ensure that criminal offenders are treated entirely consistently with the dictates of liberal philosophy. Nevertheless, James and Murray do provide further evidence that such charters can improve the position of those affected by penal populist measures. Certainly, Australian preventive detention lacks the sort of rehabilitative emphasis that Strasbourg has insisted upon.
Furthermore, contrary to the Australian position, art 5(4) ECHR requires judicial review of the continuing need for the detention once the punitive part of an indeterminate sentence has expired. As noted in chapter 2, art 5(4) provides that those deprived of their liberty are ‘entitled to take proceedings by which the lawfulness of [their] … detention shall be decided speedily by a court and … [their] release ordered if the detention is not lawful.’ Consistently with the analysis in that chapter, and as explained in De Wilde v Belgium [No 1],314 when a court pronounces a sentence of imprisonment after entering a conviction, the curial supervision required by art 5(4) is incorporated in the court’s decision. But once the punitive term of an indefinite sentence ends, the position is different. Any further detention depends on the
311 Murray (2017) 64 EHRR 3, [101]. 312 James (2013) 56 EHRR 12, [220]. 313 Brown [2018] AC 1, 24 [45]; Kaiyam v United Kingdom (2016) 62 EHRR SE13, [70]. 314 (1979-80) 1 EHRR 373, 407 [76].
183
detainee’s dangerousness to society.315 By its nature, the risk that s/he poses is ‘susceptible … to change with the passage of time.’316 Accordingly, at this stage, and at reasonable intervals thereafter,317 a court must consider whether this justification for the detention still exists. If it does not, any further detention would be unlawful318 and the detainee must be released.
Nevertheless, we must acknowledge one thing. In Chester, the HCA insisted that indefinite detention be ordered only in ‘very exceptional cases … in which the sentencing judge is satisfied … that the convicted person is … so likely to commit further crimes of violence … that he constitutes a constant danger to the community.’319 While this statement was directed at judges, not Parliaments – and while there might be nothing in the Commonwealth Constitution preventing a State or Territory from creating an indefinite detention scheme that operates much more broadly than this – it appears that indefinite detention has only sparingly been ordered in Australia.320 On the other hand, as Appleton and van Zyl Smit have noted, ‘the range of offences for which an IPP [sentence] could be imposed was astonishingly wide’321 and, remarkably, in Grosskopf v Germany,322 the ECtHR held that art 5(1)(a) covered the preventive detention of an habitual burglar, because the relevant preventive detention order was made when the applicant’s guilt was established and thus resulted from that conviction. Commentators have rightly criticised this decision,323 and it seems hard to reconcile with R v Offen, where it was held that the indefinite detention of an offender who does ‘not constitute a significant risk to the public’324 ‘may well be arbitrary and disproportionate and contravene art 5.’325 Fortunately, as this reasoning in Offen might suggest, there seems to be a simple solution to the problem. Certainly, the view that the preventive part of a sentence of indefinite detention
315 Stafford [2002] IV Eur Court HR 115, 136-7 [65]. 316 Ibid. 317 Van Droogenbroeck (1982) 4 EHRR 443, 461 [48]. 318 Ibid. 319 (1988) 165 CLR 611, 618-9. See also, eg, Buckley (2006) 80 ALJR 605, 612 [40]; Lowndes v The Queen (1999) 195 CLR 665, 673 [24], 679 [39]; Moffatt [1998] 2 VR 229, 255 (Hayne JA). 320 In 2015, the VCA recorded that, apparently, only three indefinite sentences had been awarded in that jurisdiction: Carolan (2015) 48 VR 87, 108 [60]. See also Patrick Keyzer and Bernadette McSherry, ‘The Preventive Detention of Sex Offenders: Law and Practice’ (2015) 38 UNSW Law Journal 792, 800. Having said that, the post-sentence preventive detention schemes in various Australian jurisdictions operate much more broadly than that: see, eg, McSherry and Keyzer, Sex Offenders and Preventive Detention, supra, 68-9. 321 Appleton and van Zyl Smit, ‘The Paradox of Reform’, supra, 222. 322 (2011) 53 EHRR 7, [46]. 323 See, eg, Ashworth and Zedner, Preventive Justice, supra, 166. 324 Offen [2001] 1 WLR 253, 277 [97]. 325 Ibid 276 [95].
184
is ‘lawful detention of a person after conviction’,326 is too entrenched now to be overturned in the case of a violent offender. But the same is not true of the view that art 5(1)(a) also covers the indefinite detention of those who pose a danger only of committing non-violent offences if released. The ECtHR can and should depart from Grosskopf at the earliest opportunity.
(ii) Post-Sentence Preventive Detention
a. The ECtHR’s Decisions in M and Haidn
The Strasbourg Court has repeatedly stated that art 5 ECHR ‘enshrines a fundamental human right’327 and that ‘[s]ub-paragraphs (a) to (f) of art 5(1) contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty.’328 One of those grounds is not the protection of the community.329 As noted below, the Court has recently shown a willingness sometimes to circumvent this principle. For now, however, it is enough to observe that it was because of its existence that the German system of post-sentence preventive detention was held to breach art 5(1).
By the early 1990s, preventive detention was used reasonably infrequently in Germany, but after a number of highly publicised sexual offences there and elsewhere in western Europe, the German government enacted laws allowing for its more widespread use.330 Before 1998, an offender sentenced to preventive detention for the first time could be placed in such detention for a maximum of ten years.331 Legislation passed that year enabled a person who was serving such a term of preventive detention, instead to be detained indefinitely.332 Six years later, the federal legislature authorised post-sentence preventive detention where sexual and violent offenders’ dangerousness was discovered only after they had begun serving their sentences.333
326 See text accompanying nn 287-90. 327 See, eg, Al-Jedda [2011] IV Eur Court HR 305, 372 [99]; A [2009] II Eur Court HR 137, 215 [161]-[162]; Saadi v United Kingdom [2008] I Eur Court HR 31, 60 [63]. 328 Al-Jedda [2011] IV Eur Court HR 305, 372 [99]. See also A [2009] II Eur Court HR 137 [162]; Saadi v United Kingdom [2008] I Eur Court HR 31, [43] (Emphasis added). 329 Austin [2009] 1 AC 564, 580 [34] (Lord Hope) (‘Austin’). 330 See, eg, Frieder Dünkel and Dirk van Zyl Smit, ‘Preventive Detention of Dangerous Offenders Re-examined: A Comment on Two Decisions of the German Federal Constitutional Court (BVerfG – 2 BvR 2029/01 of 5 February 2004 and BVerfG – 2 BvR 834/02 — 2 BvR 1588/02 of 10 February 2004) and the Federal Draft Bill on Preventive Detention of 9 March 2004’ (2004) 5 German Law Journal 619, 619-20, 632. 331 M [2009] VI Eur Court HR 169, 187 [52]. 332 Ibid 187-8 [53]-[54]. 333 See, eg, Dünkel and van Zyl Smit, ‘Preventive Detention of Dangerous Offenders Re-examined’, supra, 632.
185
Upon convicting M in 1986 of various violent offences, the sentencing court ordered that he serve five years’ imprisonment and then be placed in preventive detention.334 At the time, the maximum term of such detention was of course ten years; but by the time that period had expired in 2001, the 1998 amendments were in force, and his detention was continued.335 In the ECtHR, M claimed that his continued preventive detention beyond the maximum period of ten years that applied at the time of his offence, breached art 5(1). He also claimed that the retrospective extension of his preventive detention from a maximum period of ten years to an indefinite period of time violated his art 7(1) right not to have a ‘heavier penalty … imposed [on him] than the one that was applicable … [when] the criminal offence was committed.’
The Court rejected the German government’s claim that the relevant detention was covered by art 5(1)(a), (c) or (e).
Consistently with its longstanding approach,336 the Court accepted that the initial period of ten years’ preventive detention did result from his conviction, and so was covered by art 5(1)(a).337 But it held that the continuation of the preventive detention was not ‘after’ his conviction.338 Such detention was not, and could not have been, ordered by the sentencing court;339 rather, it ‘was made possible only by the subsequent change in the law in 1998.’340 Concerning art 5(1)(c), the Court adhered to its well-established view341 that the second part of that sub- paragraph, which authorises detention ‘reasonably considered necessary to prevent … [a person from] committing an offence’, applies only where a concrete and specific offence is in prospect.342 Finally, it held that the detention was not covered by art 5(1)(e). This was mainly due to the way in which the domestic authorities had dealt with the applicant: the German courts had detained M after the expiry of the initial ten years of preventive detention, not because they considered him to be ‘of unsound mind’, but because they believed him simply
334 M [2009] VI Eur Court HR 169, 177-8 [12]. 335 Ibid 179 [19]. 336 See text accompanying nn 287-90. 337 M [2009] VI Eur Court HR 169, 203 [96]. 338 Ibid 204-5 [100]. 339 Ibid 205 [101]. 340 Ibid 205 [100]. 341 See, eg, Guzzardi v Italy (1981) 3 EHRR 333, 367-8 [102]. 342 M [2009] VI Eur Court HR 169, 205-6 [102].
186
to be dangerous.343 But, importantly, the ECtHR refrained from holding that preventive detention would never fall within art 5(1)(e).344 We shall return to this point.
The Court also accepted that there had been a breach of art 7(1). Its reasoning here – like the UNHRC’s reasoning in Fardon and Tillman345 – contrasted noticeably with that of the QCA majority and Callinan and Heydon JJ in Fardon. Specifically, rather than treating as determinative the German legislature’s characterisation of the applicant’s detention as non- punitive,346 the Court went ‘behind appearances’, assessing for itself whether this detention was in substance a ‘penalty’ within the meaning of art 7(1).347 Crucial to the Court’s finding that it was, was its rejection of the German government’s submission that the ‘detention served a purely preventive, and no punitive, purpose.’348 Importantly, this rejection was based on similar reasoning to Kirby J’s in Fardon. ‘[I]t is striking’, the Court observed, ‘that persons subject to preventive detention are detained in ordinary prisons, albeit in separate wings.’349 Moreover, it attached importance to the state’s failure to direct rehabilitative resources to those subject to preventive detention, beyond those available to other long-term prisoners.350
When discussing Fardon above, I made three claims that are relevant to the present discussion. First, I argued that the Fardon majority seems right not to have struck down the DPSOA. Secondly, however, I criticised the formalistic reasoning that Callinan and Heydon JJ used to justify such a result. Thirdly, I stated that, while Kirby J’s criticisms of the impugned Act were cogent, and while his characterisation of the appellant’s detention as punitive was surely correct, his judgment features reasoning that one would normally expect from a court with the responsibility of applying a charter of rights.
Underlying each of these claims is the notion, explored throughout this thesis, that the proper limits of the judicial law-making function differ as between judges with and without the power to assess primary legislation’s compatibility with human rights. Once it is accepted that, without a charter, courts should generally act consistently with public opinion when developing
343 Ibid 206 [103]. See also at 178-9 [18], 180 [23]. 344 Ibid 206 [103]. 345 See text accompanying nn 277-82. 346 Although this is a relevant consideration when determining whether a measure is a penalty: M [2009] VI Eur Court HR 169, 213 [125]; Welch v United Kingdom (1995) 20 EHRR 247, [28] (‘Welch’). 347 M [2009] VI Eur Court HR 169, 211-12 [120]. See also Welch (1995) 20 EHRR 247, [27]. 348 M [2009] VI Eur Court HR 169, 214 [128]. 349 Ibid 214 [127]. 350 Ibid 214 [128].
187
the law, it follows that Kirby J’s approach was questionable, however attractive his moral reasoning was. That said, if the only way of dismissing the appeal had been to use highly strained reasoning of the sort relied upon by Callinan and Heydon JJ, the Court would not have been justified in so acting.351 However, the continuing willingness of HCA Justices to use such reasoning to avoid controversial results, indicates that they might not agree with this last statement.
When asked to follow decisions from abroad, Australian judges will sometimes note that the relevant authority was decided in a different constitutional context.352 And, if we return to M, certainly the legal context in which that case was decided differed markedly from that in Fardon. That is why the criticisms that I have just made of Kirby J’s approach in that Australian case do not apply to the Strasbourg Court’s decision. Or, to make the same point in a different way, the ECtHR’s authority to stigmatise measures that contravene human rights made it proper for it to require the German legislator to amend that nation’s preventive detention laws, however much public support those laws had. By doing so, the Court showed yet again the capacity of human rights charters to improve protections for offenders against penal populism. Its focus on matters of substance when deciding the art 7 question differs greatly from the narrow and formalistic reasoning that features so prominently in Australian cases in which harsh laws have been attacked on constitutional grounds.
In any case, in Haidn,353 the ECtHR used similar reasoning to that in M, to find an art 5(1) breach in circumstances where the applicant’s preventive detention had only been ordered when he was serving a sentence of imprisonment.354 Given that this detention ‘was not even possible’ at the time of sentencing, it did not result from the applicant’s conviction, and therefore was not covered by art 5(1)(a).355 Nor did it fall within art 5(1)(c) or 5(1)(e).356 Regarding art 5(1)(e), the Court, as in M, attached much weight to how the domestic authorities
351 See text accompanying nn 173-80 and 184-94. 352 See, eg, Pompano (2013) 252 CLR 38, 66 [55] (French CJ); Vella (2019) 93 ALJR 1236, 1280-1 [206] (Gordon J). 353 (European Court of Human Rights, Chamber, Application No 6587/04, 13 January 2011). For commentary, see Grischa Merkel, ‘Case Note – Retrospective Preventive Detention in Germany: A Comment on the ECHR Decision Haidn v Germany of 13 January 2011’ (2011) 12 German Law Journal 968. 354 This detention had been ordered under Bavarian legislation that, like the later federal legislation to which I have referred above (see text accompanying n 333), allowed for preventive detention orders where the prisoner’s dangerousness had only been established after sentencing: Haidn (European Court of Human Rights, Chamber, Application No 6587/04, 13 January 2011) [11], [43]-[45]. 355 Ibid [88]. 356 Ibid [90], [95].
188
had dealt with the applicant. Those authorities had not treated him as a mentally ill person.357 Instead, they had sought his further detention purely because of his alleged dangerousness. Accordingly, while the Court accepted that the applicant had a personality disorder,358 it was not satisfied that this had ‘been established before a ‘competent legal authority’ or that he was suffering from a ‘true mental disorder.’359
b. The ECtHR’s Use of Art 5(1)(e) ECHR to Undermine M and Haidn
At first glance, the effect of M and Haidn is that post-sentence preventive detention breaches the ECHR. But does this leave a gap? Consider the case where an offender has had a determinate, or no, preventive detention order made against him/her at sentencing, but there is a high risk that s/he will commit a very serious offence if released. If post-sentence preventive detention is impermissible, is the community adequately protected against such an individual? In Jendrowiak v Germany,360 the German government argued that, unless it were allowed retrospectively to extend the applicant’s preventive detention beyond the old ten year maximum period for such detention, it would breach its obligation to take measures to prevent persons within its jurisdiction from suffering treatment contrary to art 3 ECHR.361 The Court dismissed this argument, noting that362
the Convention obliges state authorities to take reasonable steps within the scope of their powers to prevent ill-treatment of which they had or ought to have had knowledge, but it does not permit a state to protect individuals from criminal acts of a person by measures which are in breach of that person’s Convention rights, in particular the right to liberty as guaranteed by art.5(1). In other words, it adhered to the principle, stated above,363 that a deprivation of liberty will be lawful only if it fits within art 5(1)(a)-(f).364
357 Ibid [92]. 358 Ibid [91]. 359 Ibid [93]. In Winterwerp v The Netherlands (1979-80) 2 EHRR 387, 402-3 [39] (‘Winterwerp’), the Court held that detention will be covered by art 5(1)(e) only if a true mental disorder is established before a competent national authority and that mental disorder is ‘of a kind or degree warranting compulsory confinement.’ 360 (2015) 61 EHRR 32 (‘Jendrowiak’). 361 Ibid [36]. 362 Ibid [37]. 363 See text accompanying n 328. 364 See also Schwabe v Germany (2014) 59 EHRR 28, [85]; OH v Germany (2012) 54 EHRR 29, [93]-[94] (‘OH’); Kronfeldner v Germany (European Court of Human Rights, Chamber, Application No 21906/09, 19 January 2012) [86]-[87] (‘Kronfeldner’); B v Germany (European Court of Human Rights, Chamber, Application No 61272/09, 19 April 2012) [87] (‘B’).
189
In Austin v United Kingdom,365 however, a Grand Chamber majority held to be compatible with art 5(1) detention that, in truth, clearly did not fit within the ‘exhaustive’ art 5(1) grounds.366 Certainly, this was not done openly; rather, the Court found that persons held for up to seven hours in ‘an absolute [police] cordon’367 had not been deprived of their liberty so as to engage art 5 in the first place.368 But such a conclusion is so obviously absurd as to raise questions about what motivated the majority to reach it; and the judges’ insistence that ‘Article 5 cannot be interpreted in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public’369 makes it clear what that motivation was.370
Similar community protection concerns371 have now led the Court to squeeze within art 5(1)(e) the detention of certain offenders who, however dangerous they are, are not – for legal purposes anyway – mentally ill. By adopting this approach, it is in danger of facilitating the emergence in Europe of exclusionary preventive detention schemes of the type that exist in the US.372 It is essential that the Court now ensures that this does not happen.
We have seen that the Court in both M and Haidn found that the relevant detention was not covered by art 5(1)(e), because the domestic authorities failed to treat the offenders as suffering from ‘a true mental disorder.’373 But what about where those authorities do place an offender in a psychiatric hospital on the basis that s/he has a personality disorder that makes him/her dangerous? As noted above,374 the Court in M stopped short of stating that preventive detention would never be justified under art 5(1)(e); and the Court in Haidn was similarly non-committal, merely finding that it was ‘not convinced’ that a personality disorder was a ‘true mental disorder.’375
365 (2012) 55 EHRR 14 (‘Austin GC’). 366 See also the House of Lords’ similar approach in Austin HL [2009] 1 AC 564. 367 Austin GC (2012) 55 EHRR 14, [66]. 368 Ibid [67]. 369 Ibid [56]. 370 Note the minority’s remarks: ibid [3]-[8] (Judges Tulkens, Spielman and Garlicki). 371 See, eg, Kirstin Drenkhahn, ‘Secure Preventive Detention in Germany: Incapacitation or Treatment Intervention?’ (2013) 31 Behavioral Sciences and the Law 312, 326. 372 See text accompanying nn 88-9 and 100-107. 373 Winterwerp (1979-80) 2 EHRR 387, 402-3 [39]. See also n 359. 374 See text accompanying n 344. 375 Haidn (European Court of Human Rights, Chamber, Application No 6587/04, 13 January 2011) [93].
190
In the 2003 case of Hutchison Reid v United Kingdom,376 a Chamber had accepted that an offender with a psychopathic personality disorder suffered from a ‘true mental disorder.’ In reaching this conclusion, the Court pointed to the way in which the matter had been dealt with domestically: the applicant had been placed in a ‘mental hospital’377 on the basis of ‘unanimous medical evidence’378 that he was psychopathic. Further, the Court dismissed the applicant’s argument that, because his condition was not amenable to medical treatment, his detention was arbitrary (and therefore contrary to art 5(1)).379 The implication seems to be that states may detain the dangerous but non-mentally ill as psychiatric patients, either at the time of sentencing or while the person is serving a sentence of imprisonment, thus circumventing M and Haidn’s apparent prohibition of post-sentence preventive detention.
After some vacillation, the ECtHR has now at least partly confirmed that this is so.380 In so doing, it has demonstrated the wisdom of Alexander, Graf and Janus’s statement, commenting on M, ‘that we ought to be cautious of what … appears to be the Court’s limitation on the use of preventive detention’381 given that it failed properly to explain when a person will have a ‘true mental disorder’ for the purposes of art 5(1)(e).382
In OH, the applicant apparently had anti-social personality disorder.383 The German courts had ordered that he serve a term of preventive detention in prison, finding that his detention in a psychiatric hospital would probably not assist him. Once the matter reached Strasbourg, the majority held that if, on a proper understanding of the domestic courts’ reasoning, they had found that the applicant had ‘a true mental disorder warranting his compulsory confinement’,384 his detention nonetheless fell outside art 5(1)(e), because he had not been placed in ‘the therapeutic environment appropriate for a person detained as being of unsound mind.’385 As
376 [2003] IV Eur Court HR 1 (‘Hutchison Reid’). 377 Ibid 19 [51]. 378 Ibid 19 [53]. 379 Ibid 19 [52]. 380 Ilnseher (European Court of Human Rights, Grand Chamber, Application Nos 10211/12 and 27505/14, 4 December 2018). 381 Shawn Alexander, Leah Graf and Eric Janus, ‘M v Germany: The European Court of Human Rights Takes a Critical Look at Preventive Detention’ (2012) 29 Arizona Journal of International and Comparative Law 605, 617. 382 See also Kirstin Drenkhahn et al, ‘What is in a Name? Preventive Detention in Germany in the Shadow of European Human Rights Law’ [2012] Criminal Law Review 167, 181-2. 383 OH (2012) 54 EHRR 29, [20]-[21]. 384 Ibid [87]. 385 Ibid [88]. See also Kronfeldner (European Court of Human Rights, Chamber, Application No 21906/09, 19 January 2012) [78]-[85]; B (European Court of Human Rights, Chamber, Application No 61272/09, 19 April
191
Judge Zupančič pointed out in dissent, the implication is that it might be permissible for states to place ‘psychopaths [in] … psychiatric hospitals … [so as they can be] offered … (non- existent) treatment for their personality disorders.’386 Accordingly, while two dissenting judges387 in Radu v Germany argued that the term ‘“unsound mind” … has an autonomous meaning and the Court is not bound [by] interpretations given in domestic legal orders’,388 they proceeded to base their finding that the applicant’s detention was not covered by art 5(1)(e) on the domestic courts’ lack of satisfaction that he had a ‘true mental disorder.’389 The suggestion was seemingly that, if the domestic authorities had come to the contrary conclusion and placed the applicant in a psychiatric institution – as in Hutchison Reid – these judges might have accepted that this was art 5(1)(e) detention.
Glien v Germany,390 however, introduced some uncertainty about this matter. The Court explicitly doubted whether the applicant’s dissocial personality disorder by itself was a ‘“true” mental disorder.’391 It also refrained from expressing a final view about whether this personality disorder, combined with non-pathological paedophilia, meant that he was of ‘unsound mind’ within the meaning of art 5(1)(e).392 Because the applicant had not been placed in an appropriate institution for a mental health patient,393 it was unnecessary to consider whether, if he had been, his detention would have been covered by art 5(1)(e).
But in Bergmann v Germany,394 the Court accepted that sexual sadism is a ‘true mental disorder’ for the purposes of art 5(1)(e). Certainly, in so doing, it observed that the domestic courts had found that this disorder, when combined with the consumption of alcohol, had diminished the applicant’s criminal responsibility.395 Nevertheless, despite the Court’s insistence that post-sentence preventive detention is only compatible with art 5 – and art 7396
2012) [77]-[84]; S v Germany (European Court of Human Rights, Chamber, Application No 3300/10, 28 June 2012) [92]-[100]. 386 OH (2012) 54 EHRR 29, [6]. 387 The majority did not address the art 5(1)(e) point. 388 Radu v Germany (European Court of Human Rights, Chamber, Application No 20084/07, 16 May 2013) [8] (Judges Villiger and Power-Forde). 389 Ibid [10] (Judges Villiger and Power-Forde). 390 (European Court of Human Rights, Chamber, Application No 7345/12, 28 November 2013). 391 Ibid [88]. 392 Ibid [89]-[90]. 393 Ibid [95]. 394 (2016) 63 EHRR 21. 395 Ibid [114]. 396 See text accompanying nn 420-31.
192
– if it is served in a therapeutic environment after a ‘true mental disorder’ is established,397 it did seem to countenance a definition of this last term that was wide enough to catch some individuals who had made an autonomous decision to offend.
Petschulies v Germany398 constituted a further movement in this direction. In that case, the applicant’s dissocial personality disorder with marked psychopathic elements did not cause the domestic courts to find that he had acted with diminished criminal responsibility.399 But, even so, the ECtHR concluded ‘that there were sufficient elements to show that th[is] … mental disorder … was so serious that it could be considered … a true mental disorder for the purposes of Article 5(1)(e).’400 The Court noted that the applicant’s abuse of alcohol ‘rendered [his] … personality disorder and its effects more serious.’401 It also attached ‘considerable importance’ to the fact that, several years before the impugned domestic proceedings, the domestic authorities had ordered the applicant’s preventive detention in a psychiatric hospital.402 But, of course, neither factor bears very much on whether his personality disorder was a ‘true mental disorder.’ Rather, the Court was keen to incapacitate a dangerous person. Thus, its focus on the seriousness of the effects of the applicant’s personality disorder when he had been drinking, and thus its observation that ‘[o]wing to … [his personality] disorder and the resulting lack of empathy, he had hardly any inhibitions with regard to injuring others.’403
In short, despite reminding states of its supervisory role in this area,404 the Court in Petschulies opened the way to the detention in psychiatric institutions of those who are merely dangerous. Such an approach was confirmed by WP v Germany;405 Ilnseher v Germany;406 and Becht v Germany.407 Moreover, and crucially, the Grand Chamber has now accepted the correctness of such a view.408 For, when the case of Ilnseher reached it, that Court upheld the Fifth Section’s
397 Bergmann (2016) 63 EHRR 21, [113]. 398 (European Court of Human Rights, Chamber, Application No 6281/13, 2 June 2016) (‘Petschulies’). 399 Ibid [72]. 400 Ibid [78]. 401 Ibid. 402 Ibid [79]. 403 Ibid [73]. 404 Ibid [74]. 405 (European Court of Human Rights, Chamber, Application No 55594/13, 6 October 2016) [51], [61]. 406 (European Court of Human Rights, Chamber, Application Nos 10211/12 and 27505/14, 2 February 2017) [66]. 407 (European Court of Human Rights, Committee, Application No 79457/13, 6 July 2017) [31]. 408 Ilnseher (European Court of Human Rights, Grand Chamber, Application Nos 10211/12 and 27505/14, 4 December 2018).
193
finding that the applicant’s ‘sexual sadism’ was a ‘true mental disorder’ for the purposes of art 5(1)(e).409
Nor has art 7 been found always to prevent states from making post-sentence preventive detention orders against the merely dangerous. In Bergmann, the applicant was sentenced to fifteen years’ imprisonment in 1986 for various violent offences, and made subject to a preventive detention order.410 At this time, the maximum period of preventive detention was of course ten years;411 but upon the expiry of that period in 2011, he was not released. In the proceedings at issue before the ECtHR, a German court in 2013 ordered the continuation of the applicant’s preventive detention on the basis that he was suffering from a mental disorder that made him dangerous.412 As noted above, the ECtHR accepted that his condition (sexual sadism) is a ‘true mental disorder.’413 Moreover, it held that, because his detention was served in an appropriate institution for a mental health patient, that detention was covered by art 5(1)(e).414 In this connection, the applicant was detained in a preventive detention centre that the domestic authorities had constructed in response to decisions of the German Federal Constitutional Court415 that broadly accepted the ECtHR’s conclusions in M about the shortcomings of the previous German system of preventive detention. In holding that this was a suitable place of detention for the mentally ill,416 the Strasbourg Court noted that the centre was well-staffed, including with psychiatrists and psychologists;417 the applicant ‘had regularly and repeatedly been offered’ libido-reducing treatment;418 and the authorities had (successfully) urged him to participate in group and individual therapy.419
But did this detention nevertheless amount to a ‘penalty’ within the meaning of art 7(1)? While the Court thought that detention in the new German preventive detention centres generally constituted a ‘penalty’,420 it held that this was not so where, as here, ‘preventive detention is
409 Ibid [151]. 410 Bergmann (2016) 63 EHRR 21, [7]. 411 Ibid [16]. 412 Ibid [14]-[15], [53]. 413 Ibid [114]. 414 Ibid [128]. 415 Sicherungsverwahrung, Bundesverfassungsgericht [German Constitutional Court], 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 571/10, 4 May 2011 reported in (2011) 128 BVerfGE 326. 416 Bergmann (2016) 63 EHRR 21, [128]. 417 Ibid [125]. 418 Ibid [126]. 419 Ibid [127]. 420 Ibid [181].
194
extended because of, and with a view to the need to treat … [a detainee’s] mental disorder.’421 The Court found that the new mental disorder precondition for the retrospective prolongation of preventive detention in Germany meant that the focus of the measure was now on the detainee’s ‘medical and therapeutic treatment.’422 In this regard, emphasis was again placed on the treatment that the applicant had been offered423 and the psychiatric care and psychotherapy that was now provided.424 For similar reasons, the Court found that the purpose of the applicant’s detention was preventive.425 It will be recalled that the Strasbourg judges in M rejected the German government’s argument that that applicant’s preventive detention served no punitive purpose.426 It will also be recalled that this finding was based on the state’s failure to direct additional rehabilitative resources at detainees in his position.427 In Bergmann, the Court noted that, since M, the German legislature had implemented changes, so that ‘adequate treatment of persons in preventive detention with a view to reducing their dangerousness is now at the heart of preventive detention.’428 For the Court, the decisive consideration in its acceptance that the purpose of the applicant’s detention was non-punitive was the new mental disorder precondition;429 and it again focussed on the treatment and rehabilitative opportunities provided to detainees,430 which far exceeded those offered to ordinary prisoners.431
In Ilnseher, the Grand Chamber lent its approval to such reasoning.432 Unlike the applicant in Bergmann, Ilnseher’s preventive detention had not been prolonged beyond the maximum period at the time that he was originally sentenced. Rather, it had been ordered only once he was already serving a sentence for the relevant offence.433 But the Court held that that was irrelevant.434 More relevant, it thought, were the applicant’s ‘considerably improved material
421 Ibid [182]. 422 Ibid [167]. 423 Ibid [169]. 424 Ibid [168]. 425 Ibid [176]. 426 See text accompanying n 348. 427 See text accompanying n 350. 428 Bergmann (2016) 63 EHRR 21, [174]. 429 Ibid [176]. 430 Ibid [176]-[177]. 431 Ibid [176]. 432 (European Court of Human Rights, Grand Chamber, Application Nos 10211/12 and 27505/14, 4 December 2018). 433 Ibid [12], [14]. 434 Ibid [238].
195
conditions compared to ordinary prison conditions’435 and ‘the individualised medical and therapeutic treatment’436 that was available to him. Indeed, as in Bergmann, the Court held that this focus on ‘medical and therapeutic treatment of the person concerned’437 differentiated the applicant’s detention from the punitive detention in M.438 It was not a ‘penalty’ within the meaning of art 7(1).439
c. Conclusions about the ECtHR’s Approach to Post-Sentence Preventive Detention
We can draw the following conclusions from this. Following M and Haidn, it appeared that post-sentence preventive detention was contrary to the ECHR. But in subsequent cases, the Strasbourg Court has effectively accepted that the detention of those who are merely dangerous, and not mentally ill, can be covered by art 5(1)(e) and will not necessarily breach art 7. I referred above440 to the danger that Europe will now follow the US example, authorising the widespread non-therapeutic detention in ‘psychiatric institutions’ of those thought to be dangerous. How real is this danger?
The answer is that post-sentence preventive detention continues to be ordered far less frequently in Europe than it is in the US441 and the ECtHR is seemingly aware of the need to prevent US-style ‘warehouses’ from developing. Admittedly, in Hutchison Reid,442 the Court stated that detention may be covered by art 5(1)(e) even if no treatment can be provided to the detainee. But more recently, in Ilnseher443 and Bergmann,444 the Court emphasised that a Convention-compatible system of post-sentence preventive detention must have a therapeutic orientation. Further, even though that Court also accepted the dubious proposition that the detention at issue fell within art 5(1)(e), the ‘individualised care’445 offered to detainees in the new German preventive detention facilities seems really to be directed far more towards reducing those detainees’ dangerousness than it is towards treating their non-existent mental
435 Ibid [220]. 436 Ibid [221]. 437 Ibid [227]. 438 Ibid [219]-[223]. 439 Ibid [236]. 440 See text accompanying n 372. 441 Tonry, ‘Predictions of Dangerousness in Sentencing’, supra, 476. 442 [2003] IV Eur Court HR 1, 19 [51]-[53]. 443 (European Court of Human Rights, Grand Chamber, Application Nos 10211/12 and 27505/14, 4 December 2018) [227]-[228]. 444 (2016) 63 EHRR 21, [174]. 445 Ibid [177].
196
illnesses.446 In short, at this stage, the ECtHR has shown no readiness to approve the sorts of practices that prevail in the US. Relatedly, the European position concerning post-sentence preventive detention is preferable to the position in Australia. Such detention is not served in prison. Moreover, detainees have the same judicial review rights under art 5(4) as do those detained under indefinite detention schemes.447
E. Conclusion As Eagle and Ellis have observed, ‘[a] balancing of individual rights and community protection is … the crux of the issue in the preventative detention of serious offenders.’448 In this chapter, we have considered whether, given Parliaments’ consistent failure to strike anything resembling a proper balance between these competing interests, judges have been able to improve the position of those detained under the resulting populist schemes. Or does it all depend on whether those judges have been authorised to apply a human rights charter?
In previous chapters, we have seen that Australian judges have been loath to use ch III of the Commonwealth Constitution to strike down penal populist laws that authorise or require the imposition of (or themselves impose) (i) irreducible life sentences or (ii) disproportionate sentences. This was not because they lacked a choice in the matter. In all of these cases,449 they could have adopted a more interventionist stance. Indeed, in many of them, it was only by deploying highly unpersuasive reasoning that they were able to avoid doing so.
The position is no different when it comes to preventive detention. While the HCA struck down the ad hominem law at issue in Kable, it has since provided many assurances that ‘only extreme legislation’450 will fall foul of the principle enunciated in that case. The QCA found the law challenged in Lawrence to be sufficiently ‘exceptional’;451 but it has been far more usual for the Courts, as the HCA did in Fardon, to uphold the impugned measure. In doing so, they have deployed the same narrow and, in some cases, formalistic, reasoning that is found in the cases
446 The conditions of such detention are described in ibid [34]-[41]. 447 See text accompanying nn 314-18. 448 Eagle and Ellis, ‘The Widening Net of Preventative Detention’, supra, 188. 449 Baker (2004) 223 CLR 513; Crump (2012) 247 CLR 1; Knight (2017) 261 CLR 306; Minogue (No 2) (2019) 93 ALJR 1031; Magaming (2013) 252 CLR 381. 450 Vella (2019) 93 ALJR 1236, 1251 [56] (Bell, Keane, Nettle and Edelman JJ). 451 Lawrence [2014] 2 Qd R 504, 530 [42].
197
discussed in previous chapters. And they have been at pains to emphasise the ‘latitude’452 that Parliament enjoys where sensitive and controversial issues of sentencing policy are concerned.
As in cases involving irreducible life sentences and/or disproportionate sentences, the Strasbourg and UK courts have made compromises when ruling on the acceptability of preventive detention regimes. Contrary to their approach, when a preventive detention order is made at sentencing, there is no principled reason why the detention that it mandates should be served in prison. And it is difficult to accept the Strasbourg Court’s insistence that detention in the new German facilities is covered by ECHR art 5(1)(e).453 Nevertheless, two things are noticeable. First, the ECtHR’s reasoning in the relevant cases is far less narrow than that deployed by the Australian judges. Secondly, that Court has required European preventive detention schemes to contain far more safeguards for detainees than would otherwise have been so. This different reasoning and these more liberal outcomes have surely resulted from the Strasbourg judges’ authority to decide whether Contracting States’ legislation contravenes human rights norms – whatever its democratic pedigree.
452 England (2004) 89 SASR 316, 328 [43]. 453 That said, given the apparent dangerousness of offenders such as the applicant in Ilnseher, and given the rehabilitative focus of the new German preventive detention facilities, such reasoning might not have produced any injustice.
198
CHAPTER FIVE: CONCLUSION
A. The Judicial Law-Breaking Function in Australia In a speech delivered at Melbourne Law School in October 2005, Michael Kirby, then a Justice of the HCA, made some forceful remarks about judicial law-making in Australia. ‘In our legal system’, he said1
the judges are law-makers. They are not law-makers in the bold tradition of the other branches of government … . But law-making is part of the judicial function. Let there be no mistake about this. Alluding to Lord Reid’s remarks to the same effect over thirty years before,2 Kirby J stated that ‘dreams of judges without choice, devoid of creativity, abjuring all ‘activism’, may be found in fairy stories.’3 ‘But’, he continued,4
judges, lawyers and citizens who are obliged to live in the real world … [must] face up to the requirements of judicial choice. Choice about the meaning of a constitutional text. Choice about the interpretation of ambiguous legislation. Choice about the application, extension, confinement or elaboration of old principles of the common law to new facts, circumstances and times. It followed, Kirby J thought, that the question is not whether there is judicial activism. ‘Of course there is’, he said, and the debate about it is ‘largely a phoney’ one.5 ‘Judicial activism’, the judge concluded6
has become a code word for denunciation and demonisation, mainly by people of a conservative social and professional disposition. If we pretend to an intellectual approach to the judicial function, we must do better than this. We must attempt to identify the circumstances when a further step in legal doctrine is justifiable according to past authority, legal principle and policy. And when it is not.
This thesis has largely been about the choices that judges make in the face of legal uncertainty. Indeed, insofar as Australian law is concerned, it has been about the choices that judges make full stop – that is, whether or not there is in fact any ‘relevant legal indeterminacy necessitating [such] judicial choice.’7 And I have expressed views about whether certain judicial decisions to take, or not to take, ‘a further step in legal doctrine’ were justifiable.
1 Justice Michael Kirby, ‘Judicial Activism: Power Without Responsibility? No, Appropriate Activism Conforming to Duty’ (2006) 30 Melbourne University Law Review 576, 577 (Original emphasis). 2 Reid, ‘The Judge as Law Maker’, supra, 22. 3 Kirby, ‘Judicial Activism’, supra, 577. 4 Ibid 577-8. 5 Ibid 578. 6 Ibid. 7 Goldsworthy, ‘Tom Campbell on Judicial Activism’, supra, 249.
199 As we have seen throughout, where they lack the authority to apply a charter of rights Australian judges have usually declined invitations to develop the law in a manner that might cause controversy. They have generally been reluctant to risk placing themselves at odds with the community’s conception of justice. In two cases discussed in chapter 2, Elliott8 and Baker,9 and in one case discussed in chapter 4, Fardon,10 the law left it open to the HCA to (i) frustrate a legislative attempt to remove the possibility of release from two unpopular, high-profile prisoners (Elliott) and (ii) strike down laws that imposed harsh consequences on notorious murderers (Baker) and sex offenders (Fardon). But it did not require their Honours to do so. As noted in those chapters, in each of those three cases, the Court decided against developing the law in a way that would benefit the appellants.
In five other cases that I have discussed – Crump,11 Knight,12 Minogue (No 2),13 Fraser Henleins14 and Magaming15 – it is not so clear that their Honours did have a genuine choice. The applicable law seemed clearly to point in one direction; it was only by employing ‘obviously and woefully inadequate’16 reasoning that the Court avoided striking down the draconian legislation at issue. In previous chapters, I have argued that a major reason for its doing so – and also for deciding Elliott, Baker and Fardon as it did – was to avoid the ‘denunciation and demonisation’ of which Kirby J spoke in his Melbourne oration. Of course, if it had acted differently, charges of ‘judicial activism’ would have been unfair. Indeed, if we follow Goldsworthy in defining ‘judicial activism’, not as ‘judicial law-making’ of any sort (contra Justice Kirby), but rather as the intentional – or perhaps reckless – judicial resolution of a dispute otherwise than in accordance with clear law,17 it appears possible18 that Crump, Knight, Minogue (No 2), Fraser Henleins and Magaming were themselves activist decisions. Even so, the point remains: when deciding those cases, their Honours were seemingly
8 (2007) 234 CLR 38. 9 (2004) 223 CLR 513. 10 (2004) 223 CLR 575. 11 (2012) 247 CLR 1. 12 (2017) 261 CLR 306. 13 (2019) 93 ALJR 1031. 14 (1945) 70 CLR 100. 15 (2013) 252 CLR 381. 16 Goldsworthy, ‘Tom Campbell on Judicial Activism’, supra, 250. 17 Ibid 248. 18 I say ‘possible’, because, whether these decisions were ‘activist’ in the relevant sense does depend on whether their Honours wilfully or recklessly disobeyed the law.
200 influenced – at least subconsciously – by a concern not to exercise their law-making function in a way in which the press and public would disapprove.
In chapter 2, I argued that the decision in Baker was probably right; and in chapter 4, I said the same thing about Fardon. For similar reasons, the HCA might well have been justified in Elliott when it refused to allow the appellants to re-open their 1992 sentencing appeal. In making such claims, I have been seeking to take seriously Kirby J’s insistence that we must attempt to identify the circumstances in which the judicial development of the law is and is not permissible. In cases where the law provides no clear answer, judges will often have to make value judgments.19 But, in a democracy, and without a charter of rights, it seems that, generally, it is illegitimate for them in such cases to legislate incompatibly with community sentiment. Cases such as Baker, Fardon and Elliott show the truth of Bell J’s claim, noted in chapter 1, that it is usually fairly easy for judges to work out what that sentiment is.20 The public would obviously not have responded favourably to decisions to strike down the Fardon or Baker legislation or to uphold Blessington’s and Elliott’s appeal. Assuming that I am correct to say that the law in those cases did not require the Court to find in the respective appellants’ favour, their Honours appear right to have exercised public power consistently with public opinion – whatever their personal views about the merits of the legislation under consideration.
What if the law in those cases had required the Court to find for the appellants? This brings into play a statement made by Goldsworthy, which I think also must be taken seriously. It is true that that commentator undoubtedly had in mind rather more liberal judicial decisions than those with which we are presently concerned, when he observed that:21
Legal commentators often condone or even silently applaud judges who override the law in order to advance a personal vision of justice that the commentators find attractive. They convey a ‘nudge-nudge, wink-wink’ attitude: ‘we all know that judges do this sort of thing’ is whispered with a knowing smile, as if worldly-wise lawyers should accept this phenomenon without complaint, or even welcome it. While this may be a defensible position, it is rarely defended in a rigorous fashion; it more often reflects a somewhat shallow complacency. I do not mean that judicial activism is never morally defensible, just that any instance of it is prima facie wrong and in need of a rigorous defence. Even so, this observation does apply as much to the knowing judicial use of implausible reasoning to justify illiberal outcomes as it does to the use of such reasoning to achieve results
19 See Gleeson, ‘Judicial Legitimacy’, supra, 6. 20 Bell, ‘Judicial Activists’, supra, 15. 21 Goldsworthy, ‘Tom Campbell on Judicial Activism’, supra, 248.
201 that strengthen ‘judicial independence and the rule of law.’22 May judges ever lie about what the law is, so as to avoid applying it?23
For Gleeson CJ, the answer to this question is ‘no.’ ‘Judges whose authority comes from the will of the people’, he has said24
and who exercise authority upon trust that they will administer justice according to law, have no right to subvert the law because they disagree with a particular rule. No judge has a choice between implementing the law and disobeying it. Yet this response seems too absolute. Certainly, there is a tension between it and Bell J’s suggestion, noted in chapter 1, that the HCA in Mullen25 justifiably deployed dubious reasoning when holding that s 291 of the Criminal Code 1899 (Qld) required the Crown to disprove accident and provocation.26 This ‘creativ[e]’ interpretation of s 291, her Honour notes, accorded with ‘fundamental’ community values.27
Goldsworthy has expressed some surprise that ‘the legal reasoning in Kirk [v Industrial Court of New South Wales28] has not provoked a similar critical response to that which Kable [v Director of Public Prosecutions29] received.’30 He argues that this might be because the result in Kirk gained ‘more enthusiastic support within academia and the legal profession.’31 The difficulty with this is that many academic and practising lawyers had no objection to the result in Kable: most lawyers oppose ad hominem preventive detention regimes.32 Rather, it all seems to come back to Bell J’s remarks about fundamental community values. As we saw Sackville observing in chapter 3, insofar as it was noticed, Kirk, like Mullen, was a popular decision: it was ‘greeted’ warmly – even in ‘organs vehemently opposed to a national charter of rights.’33 When a decision does achieve such popularity, there might be a tendency for academics and
22 Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’, supra, 76. 23 See generally Goldsworthy, ‘The Limits of Judicial Fidelity to Law’, supra. 24 Gleeson, ‘Judicial Legitimacy’, supra, 6. 25 (1938) 59 CLR 124. 26 Bell, ‘‘Keeping the Criminal Law in ‘Serviceable Condition’’, supra, 339-40. 27 Ibid 340. 28 (2010) 239 CLR 531. See the discussion of Kirk in chapter 3. 29 (1996) 189 CLR 51. The reaction to Kable is discussed in chapters 1, 2 and 4. 30 Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’, supra, 112. 31 Ibid. 32 For instance, Taylor has conceded that it was ‘understandable’ that the HCA ‘dislike[d]’ the legislation impugned in Kable: Taylor, ‘Conceived in Sin’, supra, 266. See also Winterton, ‘Justice Kirby’s Coda in Durham’, supra, 170. 33 Sackville, ‘Bills of Rights’, supra, 77.
202 practitioners who lack Goldsworthy’s thoughtfulness and concern with principle to take a less critical approach to it than they should.
If this is true of people with legal training, it is certainly true of the press and public: as one of the above quotations from Kirby J’s speech perhaps suggests,34 it is only when they disagree with the result a Court has reached that they will accuse it of ‘activism.’35 Criticism of judicial decisions is most unlikely when those decisions ‘capture … the public mood.’36 And that is why I disagree with Goldsworthy’s contention that ‘covert judicial law-breaking may (and perhaps, in some circumstances, must) be resorted to only in very extreme cases.’37 Should the HCA in Mullen have found that the onus of proof lay on the accused? Should their Honours in Kirk have upheld the privative clause at issue? In my view, the answer is ‘no’ in both cases. This is partly because, consistently with Bell J’s above remarks, the Court in those cases amended the law in a manner that, if anything, ‘strengthen[ed] public confidence’38 in the judiciary. In other words, because both decisions accorded with public opinion, they had impeccable democratic credentials. They could not be criticised on the basis that the judiciary had substituted its views for those of the people.
Two other things can be said for the decisions in Mullen and Kirk. First, in both cases, the judges developed the law without requiring the other branches of government to engage in involved legislative processes – or, in the case of Kirk, an expensive and cumbersome process of constitutional amendment – to achieve the same result. Because the results accorded with the wishes of the governed, and because Parliament was seemingly untroubled by either legal development, Bell J seems right to characterise such judicial law-making/breaking as reflecting a legislative ‘partnership between the court and the parliament.’39 Secondly, they ensured that there was a just result in the case before them. This reference to justice is important. While Goldsworthy’s approach to the proper limits of ‘judicial dissembling’40 does seem too narrow, if Bell J thinks that the only limit that should be placed on such conduct is that it must be deployed in the service of a result that the public will accept, then her views should not be
34 See text accompanying n 6. 35 As McHugh J has observed: ‘If the community or an important section of it like a result, it will applaud a decision, no matter how far the law has been stretched to achieve that result’: Justice Michael McHugh, ‘The Judicial Method’ (1999) 73(1) Australian Law Journal 37, 43. 36 R (GC) v Commissioner of Police of the Metropolis [2011] 1 WLR 1230, 1247 [61] (Baroness Hale). 37 Goldsworthy, ‘The Limits of Judicial Fidelity to Law’, supra, 321. 38 Ibid 322. 39 Bell, ‘‘Keeping the Criminal Law in ‘Serviceable Condition’’, supra, 342. 40 Goldsworthy, ‘Tom Campbell on Judicial Activism’, supra, 248.
203 accepted either. However, for the reasons shortly to be given, her Honour probably does not think this.
I have just argued that the decisions in Mullen and Kirk seem permissible partly because they reflected ‘community values’ and therefore did not damage public confidence in the judiciary. But, as the word ‘partly’ indicates, this seems a mere necessary condition for the acceptability of judicial subterfuge. The other necessary condition, I believe, is that the implausible reasoning is deployed in the pursuit of human rights protection and not to frustrate it. As briefly explained in chapter 4, that is for the following reason. The judge who knowingly lies about the law to safeguard liberty, has an honourable motive. The judge who does the same thing because of the shouts of the mob, does not. As Goldsworthy observes, lying is sometimes morally justified.41 But surely not where its aim is to uphold an obvious breach of human rights.42
It will be observed that the decisions in Mullen and Kirk satisfy this second condition. A reverse onus for a person charged with murder is neither protective of liberty nor consistent with human rights.43 Similar criticisms can be made of privative clauses.44 But the decisions in Crump, Knight, Minogue (No 2), Fraser Henleins and Magaming are different. It is submitted that, because highly formalistic and unpersuasive reasoning was used in those cases to uphold a clear breach of human rights, that reasoning was impermissible. That was so even though the results in those cases undoubtedly reflected the popular will. And it was so even if the judges in all or some of those cases were unaware of the implausibility of the reasoning that they were deploying. If that was so, then there were no judicial mala fides. But, consistently with the remarks in chapter 4, there was nevertheless poor reasoning that caused draconian legislation wrongly to be upheld.
In this vein, Crump was not the only case decided in 2012 where the HCA – knowingly or otherwise – used extremely dubious reasoning to justify an outcome that was obviously contrary to human rights. In PGA v The Queen,45 a majority held that, at least by the time of the enactment of the Criminal Law Consolidation Act 1935 (SA), the marital exemption to the
41 Goldsworthy, ‘The Limits of Judicial Fidelity to Law’, supra, 319. 42 As observed in n 179 in chapter 4, where the breach of human rights is merely arguable, not obvious, the position would seem, at least generally, to be the same. 43 See, eg, R v Lambert [2002] 2 AC 545; R v Oakes [1986] 1 SCR 103. 44 See, eg, Goldsworthy, ‘The Limits of Judicial Fidelity to Law’, supra, 312-13. 45 (2012) 245 CLR 355, 369 [18] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (‘PGA’).
204 offence of rape was no longer part of the common law of Australia. Therefore, their Honours held, the appellant could be convicted of raping his wife on two separate occasions in 1963.46 The majority denied that its decision owed anything to ‘judicial perceptions today of changes in social circumstances and attitudes which had occurred in this country by 1935.’47 Rather, it said, the foundation of the common law immunity had disappeared by that date.48 According to their Honours, the immunity was based upon an ‘understanding of the law of matrimonial status’49 that was at odds with Australian statutory developments50 – especially concerning divorce51 and suffrage52 – in the nineteenth, and the early part of the twentieth, century. In other words, Sir Matthew Hale had supplied as the rationale for the immunity the notion that the wife had, by the matrimonial contract, irrevocably consented to sexual intercourse with her husband.53 But, by 1935, the matrimonial vow was revocable; and the idea that a wife gave her irrevocable consent to intercourse with her husband could not be reconciled with such a change in the status of women.54
I stated above that Bell J probably does not believe that judges may knowingly deploy implausible reasoning whenever this will facilitate a result that accords with public opinion. I said that because her Honour, together with Heydon J, dissented in PGA. Justice Bell noted that, by the time of the appellant’s alleged conduct, it had not occurred to any court or Australian parliament55 that the immunity had vanished. Various curial proceedings had proceeded on the basis that ‘it was a legal impossibility for a man to rape his wife during cohabitation’;56 in no known proceedings had ‘a husband … been prosecuted for the rape of his wife with whom he was living in any common law jurisdiction’;57 and as late as 1976 the South Australian Parliament had chosen to retain the immunity in modified statutory form.58
46 Ibid 364 [2], 369 [18]. 47 Ibid 384 [65]. 48 Ibid 373 [30]. 49 Ibid 377 [43]. 50 Ibid 384 [64]. 51 Ibid 381 [56]-[57]. 52 Ibid 383 [61]-[63]. 53 Ibid 376 [39]. 54 See ibid 382 [58]-[59]. 55 Ibid 444 [244]. 56 Ibid 439 [230], citing R v Cogan [1976] QB 217, 223. 57 Ibid 417 [173]. 58 Ibid 441 [235]. As both Heydon J (at 406 [136]) and Bell J (at 444 [244]) observed, if the majority’s reasoning was to be accepted, while Parliament evidently intended by this legislation to narrow the immunity, it in fact was unintentionally partially restoring it.
205 According to Bell J, it might well have been that, because of ‘the recognition of the equal status of married women’59, the rationale for the immunity had changed. ‘The contemporary evidence suggest[ed]’60 that, by 1963, ‘the justification for the immunity … [had] come to rest more upon the notion that the criminal law ought not to intrude into the marital bedroom, than on the fiction of the wife’s irrevocable consent.’61 But there was no support for the proposition that, by that time, ‘the immunity had fallen into desuetude as the result of changes in the conditions of society.’62 And her Honour indicated that the majority’s unpersuasive reasoning to the contrary had produced a breach of the appellant’s human rights. ‘It is abhorrent’, Bell J concluded, ‘to impose criminal liability on a person for an act or omission which, at the time it was done or omitted to be done, did not subject the person to criminal punishment.’63
In my view, the approach taken by Bell J – and Heydon J – in PGA was right. The notion that the marital immunity had disappeared by 1963, without this having been perceived by anyone, including those who began campaigning for law reform in this area in the 1970s,64 is not credible.65 And as Heydon J pointed out,66 the idea that either the South Australian courts or the HCA in 1963 would have allowed for the appellant’s conviction if the relevant authorities had chosen then to charge him with rape, is fanciful. In truth, as both Heydon and Bell JJ argued, the majority had effected a ‘retrospective change in the criminal law’,67 to the detriment of the accused.68 That said, it follows that Heydon and Bell JJ were wrong in Crump – and Bell J was wrong in Knight, Minogue (No 2) and Magaming – to hold as they did. Indeed, those four cases are even clearer examples than PGA of the phenomenon that we are discussing – the judicial use of highly unpersuasive reasoning to reach a result that, though acceptable to the public, obviously breaches human rights. For, in PGA, the majority could at least say that, even if its reasoning facilitated a breach of the appellant’s human rights, it upheld the complainant’s
59 Ibid 441 [235]. 60 Ibid 441 [236]. 61 Ibid 417 [173]. See also 399 [122] (Heydon J), 441-2 [237]-[240] (Bell J). 62 Ibid 441 [235]. 63 Ibid 444 [245]. See also 445 [247]. 64 See ibid 398-9 [121] (Heydon J). 65 For similar views, albeit from differing ideological perspectives, see Wendy Larcombe and Mary Heath, ‘Developing the Common Law and Rewriting the History of Rape in Marriage in Australia: PGA v The Queen’ (2012) 34(4) Sydney Law Review 785; Nicholas Hasluck, ‘Judicial Activism and the Rule of Law’ (2016) 5 Quadrant 52. 66 PGA (2012) 245 CLR 355, 406-414 [137]-[157]. 67 Ibid 402 [128] (Heydon J). 68 Ibid 402-6 [128]-[136] (Heydon J), 444-5 [245]-[247] (Bell J).
206 right to have in place ‘effective criminal-law provisions to deter the commission of offences against … [her] person.’69 No such defence is available to the Court in Crump, Knight, Minogue (No 2), or to the majority in Magaming.70
Were the (majority) Justices in those four cases – and PGA – aware of the flimsiness of their reasoning? It is difficult to tell. Just as academics and practitioners can sometimes be insufficiently critical of popular results71 (especially if they agree with them), judges’ focus on outcomes72 might sometimes lead them not to appreciate the implausibility of the reasoning with which they are justifying those outcomes. And that is relevant to this thesis. Whether judges should decide cases such as Crump, Knight, Minogue (No 2) and Magaming differently, they are under significant pressure not to take an appropriately legalistic approach when deciding such controversies. However morally and legally defensible their reasoning is, if that reasoning produces unpopular results, they will almost certainly be denounced by the persons of ‘conservative … disposition’ of whom Kirby J spoke – and by the public more generally. Judges will usually not resist such pressure. Thus the spurious and formalistic reasoning that, as we have seen throughout this thesis, features so prominently in Australian cases where penal populist laws have been challenged on constitutional or other grounds. And thus the Australian judiciary’s failure to place any major limits on legislatures in the three areas of law that we have been considering.
B. Judicial Law-Making in the UK and Europe On the other hand, when applying human rights charters, UK and European judges have been far more willing to employ reasoning that has had the effect of improving protections for offenders against penal populist laws. In chapter 2, we saw that it has long been the case that, because of art 3 ECHR, irreducible life sentences cannot be imposed – and, in the UK, are not
69 Osman [1998] VIII Eur Court HR 3124, [115]. In other words, it is well-established that a Contracting State would breach art 3 ECHR if it were not to criminalise rape: see, eg, Jendrowiak (2015) 61 EHRR 32, [36]. South Australia’s ‘demeaning’ (PGA (2012) 245 CLR 355, 445 [247]) failure to criminalise ‘rape in marriage’ would thus surely today breach such a guarantee. 70 Assuming that the PGA majority knew of the implausibility of its reasoning, its concern to uphold the complainant’s human rights does not mean that it acted permissibly. Their Honours still lied about what the law was to uphold an obvious breach of human rights; and that is dishonourable. That is, if a court has a choice between (i) applying clear law that breaches human rights and (ii) using spurious reasoning to avoid applying that law, in the process facilitating a separate breach of human rights, it should choose (i). In such a case, human rights have been breached; but because the Court has simply applied the law, it is not responsible for that breach. 71 See text accompanying nn 28-35. 72 See Lord Goff of Chieveley, ‘The Mental Element in the Crime of Murder’ (1987) 22(1) Israel Law Review 1, 2.
207 imposed73 – on children.74 We saw, too, that the laws upheld in Crump, Knight and Minogue (No 2) would breach various Convention guarantees; and that the ECtHR has now thrice held that a Contracting State will also breach art 3 if it removes the possibility of release from an adult prisoner.75 Likewise, in chapter 3, we saw that a grossly disproportionate sentence cannot be imposed compatibly with art 376 – a rule that makes mandatory sentencing schemes vulnerable to constitutional attack.77 And, in chapter 4, it was noted that the Strasbourg and UK courts have brought preventive detention regimes far closer to the liberal ideal than have the Australian courts.78
This is unsurprising. As argued throughout this thesis, the judicial law-making function under charters of rights is more expansive than it is in jurisdictions without such instruments. Again, the purpose of human rights charters is to allow the judges to move beyond public opinion, not merely where clear law requires such action, but also in certain instances where clear law reflects the public’s views. If the judiciary never does so, or if it uses some other technique79 to frustrate its charter’s guarantees, it is abdicating its responsibility to place liberal constraints on democratic action.
Those who oppose ‘American-style judicial review’80 sometimes say that, because such review is undemocratic, it would only possibly be ‘tolerable’ if it improved outcomes.81 ‘The sad fact is, however,’ they continue82
that this simplicity and moral certainty is unavailable. No one in the trade now believes that the truth about rights is self-evident or that, if two people disagree about rights, one of them must be either corrupt or morally blind.
If we cannot agree about what an improved outcome is – if ‘we do not have agreement’ about when ‘a social group is being badly treated by the majority’83 – how can we know whether
73 See Criminal Justice Act 2003 (UK) s 269(4) and sch 21 para 7. 74 Weeks [1987] 114 Eur Court HR (ser A), 25 [47]; Hussain [1996] I Eur Court HR 252, [53]; V [1999] IX Eur Court HR 111, 150 [97]. 75 Vinter GC [2013] III Eur Court HR 317; Murray (2017) 64 EHRR 3, [101]; Hutchinson (European Court of Human Rights, Grand Chamber, Application No 32541/08 and 43441/08, 17 January 2017). 76 See, eg, Vinter GC [2013] III Eur Court HR 317, 344 [102]. 77 See, eg, Lichniak [2003] 1 AC 903, 911 [13]. 78 See, eg, James (2013) 56 EHRR 12; M [2009] VI Eur Court HR 169. 79 See, eg, James Allan, ‘Portia, Bassanio or Dick the Butcher? Constraining Judges in the Twenty-First Century’ (2006) 17(1) Kings College Law Journal 1, 12-20. 80 As described by Kavanagh, ‘Participation and Judicial Review’, supra, 454. 81 Waldron, ‘The Core of the Case Against Judicial Review’, supra, 1393. 82 Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999) 225. 83 Tom Campbell, ‘Judicial Activism – Justice or Treason?’ (2003) 10(3) Otago Law Review 307, 323.
208 judicial review improves outcomes or not?84 Without such knowledge, these commentators state, all we can do is ensure that we have the best possible process for resolving rights disagreements.85 Removing such questions from the democratic arena, and placing them instead in the hands of a small number of unelected, unaccountable judges, they conclude, is patently not the best possible process.86 This, Ekins claims, is ‘an exclusionary form of political organisation.’87 ‘Political equality’, he continues, ‘is diminished if citizens are unable to control the final legal authority.’88
Three things must be said at this stage about such arguments. First, we must be suspicious when commentators with conservative political inclinations – and, certainly, not all opponents of ‘American-style judicial review’ have such leanings89 – base their arguments against a practice on an asserted concern to achieve equality. It might turn out that their conception of equality is both formal and dubious. In this vein, it is interesting that Ekins proceeds to contend that one problem with relying on litigation to resolve rights controversies is that it ‘increases the power of strategically placed minorities such as the legal profession, legal academics, and groups with financial and legal resources, at the expense of everyone else.’90 The obvious response to this is that groups with enormous financial resources and influence, such as News Corporation, have frequently distorted the democratic process. As Roberts and his co-authors have noted, when it comes to penal populism, ‘[t]he influence of the media cannot be overstated.’91 If such organisations successfully promote both (i) misinformation among the citizenry and (ii) irrational laws that treat criminal offenders unequally by objectifying and excluding them, it is difficult to see how equality is damaged when a court strikes down such measures. We shall return to this point.
84 See, eg, Richard Ekins, ‘Judicial Supremacy and the Rule of Law’ (2003) 119(1) Law Quarterly Review 127, 145. 85 See, eg, Jeremy Waldron, ‘A Rights-Based Critique of Constitutional Rights’ (1993) 13(1) Oxford Journal of Legal Studies 18, 32. 86 See, eg, Waldron, ‘The Core of the Case Against Judicial Review’, supra, 1386-95; Adam Tomkins, Our Republican Constitution (Hart Publishing, 2005) 25-6. 87 Ekins, ‘Judicial Supremacy and the Rule of Law’, supra, 146. 88 Ibid. 89 See, eg, Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007); JAG Griffith, ‘The Brave New World of Sir John Laws’ (2000) 63(2) Modern Law Review 159; Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999); Michael Mandel, ‘A Brief History of the New Constitutionalism, or “How We Changed Everything So That Everything Would Remain the Same”’ (1998) 32(2) Israel Law Review 250. 90 Ekins, ‘Judicial Supremacy and the Rule of Law’, supra, 146 (Emphasis added). 91 Roberts et al, Penal Populism and Public Opinion, supra, 75.
209 Secondly, the argument that we cannot agree on what the best outcomes are, is overstated. ‘No one now believes that the truth about rights is self-evident,’ says Waldron.92 But then he concedes that ‘[o]ccasionally … [it] may be evident’93 that legislation does not ‘secur[e] … rights.’94 He is right to make the concession. Take, for example, the Northern Irish legislation at issue in Dudgeon v United Kingdom,95 which made ‘certain homosexual acts between consenting adult males criminal offences.’96 It is irrelevant that ‘smart, reasonable, even nice people’ might disagree about the desirability of such legislation.97 However reasonable – or smart, or nice – a person is, if s/he supports a law of this nature, s/he is not being reasonable. In other words, as Kumm suggests, it is necessary to distinguish between legislation that some reasonable persons unreasonably favour and legislation, the merits of which might properly be the subject of reasonable disagreement.98
Indeed, opponents of ‘strong-form’ judicial review sometimes indicate that, contrary to what they sometimes argue, it is not really so difficult to determine what is and is not reasonable. According to Allan:99
When you look at how judges decide morally tough cases over time in a Bill of Rights regime … and at how politicians decide them when there is no Bill of Rights in place, I see no strong evidence favouring the former. I have lived and worked in New Zealand for eleven years. There, with no bill of rights … women were granted the vote before anywhere else in the world, indigenous Maori men were granted the vote in 1876 and had four seats reserved for them in Parliament, and … [i]n more modern times, sexual orientation was added to the prohibited grounds of discrimination by Parliament. Ekins makes a similar argument. ‘There is’, he argues, ‘no empirical evidence to suggest that judicial supremacy will safeguard freedom or justice better than the Westminster alternative.’100 He points out that, in states with ‘strong-form’ charters of rights, there have been ‘gross lapses in judicial moral judgment: Dred Scott v Sandford, Lochner v New York, and Korematsu v United States being prominent American examples.’101 Here we have the curious spectacle of two scholars who express much scepticism about whether a good outcome
92 Jeremy Waldron, ‘Freeman’s Defense of Judicial Review’ (1994) 13(1) Law and Philosophy 27, 35. 93 Ibid 36. 94 Ibid 35. 95 (1981) 4 EHRR 149. 96 Ibid [13]. 97 James Allan, ‘An Unashamed Majoritarian’ (2004) 27 Dalhousie Law Journal 537, 542. 98 Kumm, ‘Institutionalising Socratic Contestation’, supra, 175-6. 99 James Allan, ‘‘Do the Right Thing’ Judging? The High Court of Australia in Al-Kateb’’ (2005) 24 University of Queensland Law Journal 1, 31. 100 Ekins, ‘Judicial Supremacy and the Rule of Law’, supra, 145. 101 Ibid.
210 can be distinguished from a bad one102 purporting to demonstrate that, in fact, parliaments have produced some good outcomes and courts some bad ones. And the measure that Ekins uses is noteworthy. Decisions that ‘safeguard freedom’ are good decisions. Certain decisions that have not done so are ‘gross lapses in … moral judgment.’ This leads to the next point.
Thirdly, as Ekins suggests, when we assess the performance of a charter of rights, the question is whether it has made the law more liberal than it otherwise would have been. And this returns us to the UK and Strasbourg case law concerning irreducible life sentences, disproportionate sentences and preventive detention. As noted at the start of this section, and as argued throughout this thesis, in each of these areas of law, the HRA and the ECHR have facilitated more liberal reasoning and results than would have been possible without those instruments. It is true that liberalism does not enjoy a monopoly on reasonableness. Because of that, the defender of ‘American-style judicial review’ must explain whether – and, if so, why – liberal outcomes should be imposed on those who reasonably disagree with them. But, as the cases mentioned in the last two paragraphs show, sometimes reasonable disagreement with a liberal outcome is impossible. And, most importantly for present purposes, it is wrong to say that charters of rights cannot deliver the sorts of freedom-promoting outcomes that we have just seen Allan and Ekins applauding – including in cases involving prisoners. If charters are interpreted purposively, they can make outcomes more liberal – which one suspects might have something to do with the hostility that some commentators feel for them.103
C. ‘Weak-form’ charters and penal populism It was noted briefly in chapter 2 that, in Minogue (No 1),104 the HCA suggested that the Victorian state cannot impose an irreducible life sentence on an offender compatibly with s 10(b) of the Victorian Charter. Indeed, in his Honour’s judgment both in that case and in
102 See, eg, James Allan, ‘Oh That I Were Made a Judge in the Land’ (2002) 30 Federal Law Review 561, 566; Ekins, ‘Judicial Supremacy and the Rule of Law’, supra, 144-5; Richard Ekins, ‘Human Rights and the Separation of Powers’ (2015) 34 University of Queensland Law Journal 217, 220-1. Both scholars would seem to adopt a similar position to that which, in chapters 1 and 2, we saw Lord Sumption advocating. There are, they acknowledge, some government acts that are ‘obviously wicked’: Allan, ‘Oh That I Were Made a Judge in the Land’ at 566; see also Ekins, ‘Human Rights and the Separation of Powers’ at 221. But, for them, the vast bulk of disputes resist such characterisation. As indicated in the text, in my view, Ekins and Allan exaggerate the scope for reasonable disagreement. 103 In his submission to a Queensland Parliamentary Committee in 2016, Allan argued that human rights charters deliver little, ‘save to lawyers, judges, criminals, and some articulate, well-educated members of the professional class:’ Legal Affairs and Community Safety Committee, Parliament of Queensland, Inquiry into a Possible Human Rights Act for Queensland (Report No 30 of 2016, June 2016) xv, 27 (Emphasis added). 104 Minogue (No 1) (2018) 264 CLR 252, 272-3 [52]-[55] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
211 Minogue (No 2),105 Gageler J travelled beyond suggestion. ‘On the widely accepted international understanding that incarcerating a person without hope of release is an affront to the inherent dignity of that person’, his Honour said in Minogue (No 1), ‘it is not in dispute that the right set out in s 10(b) encompasses the right of a prisoner serving a life sentence to be “offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.’”106 Indeed, according to Gageler J, such a sentence is also incompatible with s 22(1) of the Victorian Charter,107 which provides that ‘[a]ll persons deprived of liberty must be treated with humanity and respect for the inherent dignity of the human person.’
The question that now arises is this: what would happen if, in a case where the Victorian government had not disapplied the Charter,108 the HCA were to hold that the irreducible life sentence being challenged was contrary to s 10(b) and/or s 22(1)? As we also saw in chapter 2, Victorian legislation states that sentencing judges may impose such sentences;109 and while the Victorian courts have imposed them only reasonably sparingly, they have done so in some cases.110 In the face of a judicial view that the relevant law was inconsistent with human rights, would Parliament repeal it?111
Similar questions can be asked about other Australian provisions discussed in this thesis. The law considered in Magaming was a Commonwealth one. But if there were a human rights charter at Commonwealth level, and if a person such as the author of the communication in Nasir v Australia112 were to persuade the HCA that his/her sentence was a grossly disproportionate punishment,113 would Parliament refrain from using any power it had to override such a determination? Likewise, what will happen if the Australian courts are to follow the UNHRC in holding that the DPSOA provides for arbitrary detention,114 and is
105 Minogue (No 2) (2019) 93 ALJR 1031, 1039 [30]. 106 Minogue (No 1) (2018) 264 CLR 252, 276 [72], quoting Vinter GC [2013] III Eur Court 317, 347 [114]. 107 Ibid 278 [79]. 108 Cf Corrections Act 1986 (Vic) ss 74AA(4) and 74AB(4). 109 Sentencing Act 1991 (Vic) s 11(1). 110 See, eg, Coulston [1997] 2 VR 446. 111 See Victorian Charter s 36(5). 112 UN Doc CCPR/C/116/D/2229/2012 (29 March 2016). I discuss Nasir briefly at the beginning of chapter 3. 113 For reasons that are not immediately apparent, insofar as Nasir’s mandatory minimum sentence was concerned, his lawyers claimed that such detention was arbitrary (see ICCPR art 9(1)); they did not argue that the sentence was grossly disproportionate and therefore breached ICCPR art 7. 114 Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (18 March 2010) 8 [7.4]. See also Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 (18 March 2010) 10 [7.4].
212 therefore incompatible with s 29(2) of the Queensland Charter? Will Parliament remove the incompatibility?115
According to Williams, writing at the time of the Victorian Charter’s enactment, there was a ‘real risk’ that the Victorian Parliament would use the override power provided for by s 31(1) to insulate certain legislation from judicial scrutiny.116 But, ultimately, he concluded, the risk was ‘low … because of the high political cost involved in using s 31.’117 ‘A government desiring, for example, to override a ‘right not to be subjected to any cruel and unusual treatment or punishment’’, Williams observed, ‘must be prepared to meet strong and organised resistance from many sections of the community.’118 It was understandable that Williams thought this. But, as ss 74AA(4) and 74AB(4) of the Corrections Act 1986 (Vic) show, unfortunately he was wrong. As noted in chapter 2, the Victorian government has used s 31 to ensure that no court expresses an opinion about the human rights consistency of laws that take the possibility of parole from Julian Knight and Craig Minogue (and therefore impose ‘cruel and unusual punishment’ on them). By so doing, it has incurred no political cost. On the contrary, as Chandrachud and Kavanagh have suggested, commenting on the UK government’s failure to relax the blanket ban on prisoner voting despite judicial decisions that that prohibition breaches the ECHR, governments in Anglophone democracies will now commonly enhance their reputations by resisting – or by making impossible – judicial challenges to legislation that breaches prisoners’ rights.119
This returns us to Kavanagh’s contention that, despite claims that the HRA provides for ‘weak- form’ review, the UK courts in fact have powers ‘not hugely dissimilar from those possessed by the US Supreme Court.’120 The words ‘not hugely dissimilar’ here are important. For, as just noted, and as observed also in chapter 1, Kavanagh has acknowledged that, where prisoners’ rights are concerned, Parliament might sometimes resist declarations of incompatibility.121 And while she and Chandrachud dismiss the prisoner voting episode as
115 Queensland Charter s 54. 116 George Williams, ‘The Victorian Charter of Human Rights and Responsibilities: Origin and Scope’ (2006) 30 Melbourne University Law Review 880, 899. 117 Ibid. 118 Ibid 900. 119 Chintan Chandrachud and Aileen Kavanagh, ‘Rights-based Constitutional Review in the UK: From Form to Function’ in John Bell and Marie-Luce Paris, Rights-based Constitutional Review: Constitutional Review in a Changing Landscape (Edward Elgar, 2015) 63, 86. 120 Kavanagh, Constitutional Review, supra, 418. 121 Kavanagh, ‘A Hard Look at the Last Word’, supra, 837.
213 ‘truly exceptional’,122 there are reasons to believe that, as argued in chapter 2, the UK government would have defied any declaration in McLoughlin123 that English whole life orders were incompatible with art 3. It is true that we must treat counterfactuals such as this with some caution.124 But when there is ‘consensus across all political parties’125 about an issue, it can be more politically costly for the government to implement the detested judicial decision than to resist it.
The record in certain other jurisdictions tends to confirm that, depending on the characteristics of the society in which it operates, a ‘weak-form’ charter might not lead prisoners and the other targets of penal populist legislation to gain all of the protections that the judiciary would grant them. Kelly has noted that, in New Zealand (‘NZ’), for example, ‘law and order issues’ are a ‘hard case’, in that they ‘generally result … in parliamentary reluctance to demand an approach that is consistent with the [New Zealand Bill of Rights Act 1990] … for fear of appearing ‘soft on crime.’126 An example of this is the so-called ‘Hansen/BZP episode’,127 where the NZ Parliament ignored the Supreme Court’s indication in R v Hansen128 that a reverse onus provision, provided for by s 6(6) of the Misuse of Drugs Act 1975 (NZ), was contrary to the right to be presumed innocent.129 Indeed, Parliament soon added a further drug, benzylpiperazine (BZP), to the list of drugs to which the reverse burden provision applied: an accused found in possession of 5 grams or 100 tablets of that drug would be deemed a trafficker until s/he proved the contrary.130
This leads us back to the question that we considered briefly in chapters 2 and 3. When we see that, in jurisdictions such as Victoria, NZ and the UK, Parliament has overridden and/or ignored judicial decisions that have challenged penal populism, one response is to ask whether a ‘strong-form’ charter might be desirable in jurisdictions such as this (or at least in some of them). For while, as Stephenson has recently observed, it is notorious that ‘the way a system
122 Chandrachud and Kavanagh, ‘Rights-based Constitutional Review in the UK’, supra, 86. 123 [2014] 1 WLR 3964. 124 Aileen Kavanagh, ‘What’s So Weak about Weak-Form Review? A Rejoinder to Stephen Gardbaum’ (2015) 13(4) International Journal of Constitutional Law 1049, 1052. 125 Ibid 1051. 126 James B Kelly, ‘Judicial and Political Review as Limited Insurance: The Functioning of the New Zealand Bill of Rights Act in ‘Hard’ Cases’ (2011) 49(3) Commonwealth and Comparative Politics 295, 309. 127 Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice, supra, 155. 128 [2007] 3 NZLR 1. 129 New Zealand Bill of Rights Act 1990 (NZ) s 25(c). 130 Kelly, ‘Judicial and Political Review as Limited Insurance’, supra, 310.
214 of rights constitutionalism operates is, at most, only partly determined by the constitutional design choices a jurisdiction makes’,131 such design choices might well be of ‘some importance.’132 Accordingly, both Stephenson133 and Gardbaum134 have suggested that, in jurisdictions where ‘weak-form’ charters do not – or would not – protect minority rights adequately, there might be good reasons for instituting a system of ‘strong-form’ review.135
D. ‘Strong-form’ charters and penal populism If a ‘strong-form’ charter had been in force in Victoria when Parliament enacted the legislation considered by the HCA in Knight and Minogue (No 2), what would have happened? The answer is that the courts would very probably have struck that legislation down. Indeed, Parliament’s knowledge that the judiciary would be highly likely to take such action136 might have prevented it from passing these laws in the first place. But this does not necessarily mean that ‘strong- form’ review is desirable in jurisdictions like Victoria. This is not for reasons of principle. Rather, pragmatic arguments against conferring such powers on judges seem the most difficult for supporters of ‘strong-form’ review to overcome.
We have adverted above to some of the principled arguments against ‘strong-form’ charters; we must now consider those arguments in greater detail. First we can consider the ‘right to participate’,137 or political equality, argument: why should ‘the overwhelming majority of the population … be disenfranchised … in favour of a few select judges … on a significant number of major social policy questions’?138 Apart from anything else, Allan says, most of those who favour ‘strong-form’ charters are ‘strong-rights theorists’:139 they believe that, as Waldron has put it, we have and protect rights because we view ‘the human individual as essentially a
131 Stephenson, ‘Is the Commonwealth’s Approach to Rights Constitutionalism Exportable?’, supra, 885. 132 Stephen Gardbaum, ‘The Single and General New Commonwealth Model: A Response to Ran Hirschl and Suit Choudhry’ (2013) 11(4) International Journal of Constitutional Law 1100, 1101. 133 Stephenson, ‘Is the Commonwealth’s Approach to Rights Constitutionalism Exportable?’, supra, 892. 134 Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice, supra, 50. 135 See also Rosalind Dixon, ‘The Core Case for Weak-Form Judicial Review’ (2017) 38 Cardozo Law Review 2193, 2206. 136 The government’s decision to override the Charter in both instances provides good evidence that it knew that the courts would probably hold that Corrections Act 1986 (Vic) ss 74AA and 74AB were inconsistent with rights. Indeed, the relevant Minister, in her Statement of Compatibility (see Victorian Charter s 28) acknowledged that s 74AB breached human rights: Victoria, Parliamentary Debates, Legislative Assembly, 24 July 2018, 2238. 137 Waldron, Law and Disagreement, supra, chapter 11. 138 James Allan, ‘A Defence of the Status Quo’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights: Instruments and Institutions (Oxford University Press, 2003) 175, 189. 139 James Allan, ‘Bills of Rights and Judicial Power – A Liberal’s Quandary’ (1996) 16 Oxford Journal of Legal Studies 337, 342-4.
215 thinking agent, endowed with an ability to deliberate morally.’140 The problem for such theorists, according to Allan, is that this view of humans as ‘autonomous, self-governing beings’141 is very difficult to reconcile with the idea that humans should be prevented from governing themselves. Why should the right to participate be ‘discounted [in] this way’?142 Surely, the distrust thus evinced for other human beings is inconsistent with the strong-rights theorist’s approach to humans’ moral agency? 143
This argument is not nearly as persuasive as Allan evidently considers it to be. The person who believes that rights find their basis in properties that humans happen to possess – and, like Allan, I tend to think that this person has ‘succumb[ed] to the naturalistic fallacy’144 and that consequentialist rights theories are more plausible145 – need not ‘squirm’146 when confronted with Allan’s objections. Rather, as Kavanagh has argued, it is perfectly consistent for someone, on one hand, to view people as having the ‘capacity to deliberate about rights’, while also acknowledging that they might not always exercise that capacity in a manner that respects other persons’ agency.147 In fact, as she suggests,148 the criminal law is predicated upon such a view of human beings: they are autonomous actors who sometimes choose to do the wrong thing.
This is not to say that Allan is completely off the mark when he detects among modern elites ‘a moral self-righteousness and disdain for (or condescension regarding) the capacities and abilities of her fellow citizens and their elected representatives … when it comes to rights.’149 Indeed, I share his and Goldsworthy’s impression that, to use the latter’s words,150
140 Waldron, Law and Disagreement, supra, 250. 141 Allan, ‘A Defence of the Status Quo’, supra, 189. 142 Ibid. 143 Allan, ‘Bills of Rights and Judicial Power – A Liberal’s Quandary’, supra, 352. 144 Allan, ‘A Defence of the Status Quo’, supra, 185. 145 Allan, ‘Bills of Rights and Judicial Power – A Liberal’s Quandary’, supra, 343. In other words, the contention that we have rights because of the qualities that are peculiar to us appears to be an observation posing as a reason. Why does our capacity to reason confer a particular status on us? It seems more likely that rights have a utilitarian basis: we have them because, without them, and without the liberal society that comes with them, we would be worse off. 146 Allan, ‘A Defence of the Status Quo’, supra, 189. 147 Kavanagh, Constitutional Review, supra, 361 (Original emphasis). 148 Kavanagh, ‘Participation and Judicial Review’, supra, 477. 149 Allan, ‘An Unashamed Majoritarian’, supra, 550. 150 Jeffrey Goldsworthy, ‘Losing Faith in Democracy: Why Judicial Supremacy Is Rising and What to Do about it’, Quadrant (online, 25 March 2015)
216 in countries such as Britain, Canada, Australia and New Zealand, a substantial proportion of the tertiary educated professional class has lost its faith in the ability of their fellow citizens to form opinions about public policy in a sufficiently intelligent, well-informed, dispassionate and carefully reasoned manner. These sort of attitudes are dangerous; indeed, one suspects that lurking behind them might sometimes be the same sort of class interest that led former elites to arrive at the kinds of decisions that we have seen Ekins decrying.151 But even though ordinary citizens’ capacity to reason about rights issues should not be underestimated,152 and even though Parliaments can generally be trusted to arrive at sensible conclusions after rational debate,153 it is deeply unrealistic to imagine that citizens will never treat a minority group disrespectfully – and it is just as unrealistic to believe that Parliament will never ‘pander to [such] populist (but misguided) views.’154 Throughout this thesis, we have seen many instances of parliamentary debates that were, to use Waldron’s language, ‘a disgrace.’155 And we can add to this that, as many scholars have observed, there are also limits to legislators’ powers of foresight.156 One advantage that courts enjoy is that they judge actual cases where legislative rules have been applied: in those cases, it can become apparent that such a rule can operate unjustly.157
If we focus on populism for a moment, however, Waldron imagines ‘some public-spirited citizen who wishes to launch a campaign or lobby her MP on some issue of rights about which she feels strongly and on which she has done her best to arrive at a considered and impartial view.’158 If she ‘get[s] up a petition’, he continues, and then finally succeeds in persuading Parliament to enact the relevant measure, why should that measure then be liable to be ‘challenged and struck down’ simply because this citizen’s ‘view of what rights we have does not accord with the judges’ view’?159 But surely it depends on what the citizen’s proposal involves. If her petition is a change.org petition entitled ‘Stop the Release of Dangerous Sex Offenders Now’,160 or if it is aimed at keeping two 10-year-old murderers imprisoned for
151 See text accompanying n 101. See also, eg, Mandel, supra; Gearty, On Fantasy Island, ch 2. 152 Waldron, ‘A Rights-Based Critique of Constitutional Rights’, supra, 34-6. 153 Waldron, ‘The Core of the Case Against Judicial Review’, supra, 1384-5. 154 Aileen Kavanagh, ‘The Role of the Courts in the Joint Enterprise of Governing’ in Richard Ekins et al (eds), Lord Sumption and the Limits of the Law (Bloomsbury Publishing, 2016) 121, 134. 155 Waldron, ‘The Core of the Case Against Judicial Review’, supra, 1386. 156 See, eg, Kavanagh, ‘The Role of the Courts in the Joint Enterprise of Governing’, supra, 135; Dixon, ‘The Core Case for Weak-Form Judicial Review’, supra, 2208-9. 157 Kavanagh, Constitutional Review, supra, 363. 158 Waldron, ‘A Rights-Based Critique of Constitutional Rights’, supra, 50-1. 159 Ibid 51. 160 See text accompanying n 204 in chapter 4.
217 life,161 then it is just as well that the courts are able to strike down the resulting legislation. Or, to put the same point in different terms, Waldron’s political equality argument is too absolute.162 In my view, it is undoubtedly true that judges should be circumspect when exercising any powers that they have to strike down primary legislation163 – largely because of the concerns about citizen autonomy and equality that Waldron and other commentators have highlighted.164 Parliament should be the primary legislator; courts should play a secondary role.165 But, as King has observed, where legislative ‘pathologies’ lead certain groups – such as prisoners – to be ‘disadvantaged … systematically’, there is an end to the egalitarianism that Waldron rightly prizes.166 As suggested above, there are obvious difficulties in saying, as we saw Ekins doing,167 that it is inegalitarian and ‘exclusionary’ to strike down laws that themselves treat offenders as being other than our equals and exclude them.
It is noteworthy that conservative opponents of human rights charters are often not entirely illiberal in their outlook. ‘I think that it is perfectly possible to have an illiberal democracy’, Lord Sumption has said, ‘[but] I would not like to live in one.’168 Elsewhere, too, he has noted the importance of ‘respect[ing] the autonomy of an individual’s choices.’169 Moreover, in certain circumstances, Lord Sumption accepts the need for liberal outcomes to be imposed on a community that disagrees with them. ‘Majority rule is the basic principle of democracy’, he observes.170 ‘But’, he continues171
… [d]emocracies cannot operate on the basis that a bare majority takes 100 per cent of the political spoils. If it did, it would harbour large and permanently disaffected groups in [its] … midst … A state based on that principle would quickly cease to be a political community. That is one reason why all democracies have evolved methods of limiting or diluting the power of majorities.
161 See n 329 in chapter 2. 162 See Wojciech Sadurski, ‘Judicial Review and the Protection of Constitutional Rights’ (2002) 22(2) Oxford Journal of Legal Studies 275, 280. 163 For like views, see, eg, Kavanagh, ‘The Role of the Courts in the Joint Enterprise of Governing’, supra, 123. 164 Relatedly, a court that intervenes too readily is liable quickly to lose its legitimacy: Jeff King, ‘Rights and the Rule of Law in Third Way Constitutionalism’ (2015) 30 Constitutional Commentary 101, 124. 165 See, eg, Kumm, ‘Institutionalising Socratic Contestation’, supra, 172; ‘Dimitrios Kyritsis, ‘Constitutional Review in Representative Democracy’ (2012) 32(2) Oxford Journal of Legal Studies 297, 318-19. 166 King, ‘Rights and the Rule of Law in Third Way Constitutionalism’, supra, 118. 167 See text accompanying nn 87-8. 168 Lord Sumption, ‘A Response’ in Richard Ekins et al (eds), Lord Sumption and the Limits of the Law (Bloomsbury Publishing, 2016) 213, 218. 169 Sumption, Trials of the State, supra, 9. 170 Ibid 25. 171 Ibid.
218 Lord Sumption proceeds to argue that the most satisfactory such method is ‘representative politics.’172 A ‘chosen body of citizens’ can ‘take a view of the national interest which transcends a current snapshot of electoral opinion’173 – without the ‘loss of democratic legitimacy’174 that occurs when the courts ‘appl[y] … values of their own, which are at odds with the harsher policies [regarding such matters as immigration and penal policy] adopted with strong public support by Parliament and successive governments.’175 Indeed, for Lord Sumption, representative democracy itself can be imposed on a community that opposes such an arrangement. ‘Recent polls’, he notes, with evident disapproval, ‘show that a clear majority of our fellow citizens would welcome government by a strongman willing to break the rules’ and that a ‘high proportion think that this strongman should not be inhibited by representative institutions.’176
If representative politics and the outcomes that it produces may be imposed on a community, however – and it can be noted that, as suggested in chapter 2, Lord Sumption also supports conferring rights on individuals177 where those rights ‘express … noble values, almost universally shared’178 – why may judges not impose certain other liberal outcomes?179 Any such impermissibility would seem especially strange where the judicially-imposed outcomes give effect to precisely the same ‘noble values’ that underlie the outcome that, for Lord Sumption, may be enforced. Take torture, for instance. As indicated in chapter 2, Lord Sumption regards this practice as ‘a gross affront to our civilisation’180 and as something about which there is no scope for reasonable disagreement.181 Accordingly, the state may justifiably prohibit such conduct.182 But if that is so, that must be for a reason; and that reason cannot be that most people believe that such conduct is wrong. If such a societal consensus were to disappear, torture would not suddenly be acceptable. Rather, torture is impermissible because
172 Ibid 26. 173 Ibid 28. 174 Ibid 39-40. 175 Ibid 39. 176 Ibid 105. 177 Lord Sumption, ‘A Response’, supra, 219. 178 Sumption, Trials of the State, supra, 59. 179 See generally Dimitrios Kyritsis, ‘Representation and Waldron’s Objection to Judicial Review’ (2006) 26(4) Oxford Journal of Legal Studies 733. 180 Sumption, Trials of the State, supra, 51. 181 See ibid 50. 182 See ibid 56.
219 of the properties that it possesses – properties that it shares with punishments such as the death penalty and the irreducible life sentence.183
In short, Lord Sumption’s liberalism – his concern to shield individuals from ‘state action [that is] … oppressive’184 – is as cramped and unprincipled as Ekins’s conception of equality is formal. Liberal outcomes may be imposed on a reluctant political community if those outcomes happen to promote an interest that Lord Sumption – applying what measure, it is unclear – considers to be sufficiently important to warrant such protection. But in other cases, the opposition of many ‘reasonable people’185 to the proposed imposition, for some reason tells decisively against it. The state that Lord Sumption advocates is a state that would recognize the liberty of the powerful, while remaining indifferent to the liberty of those of whom the powerful disapprove.186
I noted above the difference between reasonable disagreement on one hand and reasonable persons unreasonably disagreeing with a measure on the other.187 To exemplify the point, I used the law at issue in Dudgeon. Some people who believe that homosexual acts should be criminal, are sane. Even so, their view is not a reasonable one. It is unreasonable for precisely the same reason as was the law at issue in Ghaidan v Godin-Mendoza,188 which allowed de facto partners to succeed to protected tenancies on the death of their partner only if the relevant relationship was a heterosexual one. ‘[O]ne looks in vain’, observed Lord Nicholls, ‘to find justification for the difference in treatment of homosexual and heterosexual couples.’189 Because no such justification existed, there had been discrimination on an irrational basis. Homosexual partners had been treated unequally.
Not so long ago, the claims made in each of the previous two sentences would have required a more thorough defence. People tend to find ingenious reasons to justify the status quo; and it often takes sustained exposure to rational argumentation for the old orthodoxy to crumble. The current status quo, reflected in the laws and parliamentary debates discussed in this thesis, is
183 As argued in chapter 2. 184 Sumption, Trials of the State, supra, 19. 185 Ibid 50. 186 British voters, too, tend to be more supportive of ECtHR decisions that enhance their own liberty than they are of those that defend the liberty of the ‘underserving’: see, eg, Lieve Gies, ‘A Villain’s Charter? The Press and the Human Rights Act’ (2011) 7(2) Crime Media Culture 167. 187 See text accompanying nn 95-8. 188 [2004] 2 AC 557. 189 Ibid 568 [18].
220 that prisoners are not persons and therefore need not be treated as though they are. It is submitted that these ideas are no more rational or defensible, and are no less discriminatory, than the laws considered in Dudgeon and Ghaidan.
Consider, for example, the issue of prisoner voting. ‘There are respectable arguments for giving prisoners the vote’, according to Lord Sumption, ‘[but t]here are respectable arguments against it.’190 But other commentators have their doubts. Though Hodgson and Roach have said that they ‘remain open … to the possibility that prisoner voting could … be justified’, they are nevertheless ‘sceptical’ as to whether it can be.191 In my view, they are right to express such scepticism. For, as they go on to show,192 governmental attempts to provide a principled justification have so far been conspicuously unsuccessful.193 In Sauvé v Canada (Chief Electoral Officer),194 the majority of the CSC, in a judgment authored by McLachlin CJ, was correct to dismiss in clear and uncompromising terms the government’s contentions that prisoner disenfranchisement was proportionate to the ‘[v]ague and symbolic objectives’195 of enhancing (i) ‘civic responsibility and respect for the rule of law’ and (ii) ‘the general purposes of the criminal sanction.’196 Such disenfranchisement does not encourage respect for the law, her Honour held.197 It encourages disrespect for it, by conveying an ‘anti-democratic and internally self-contradictory message’198 – namely, that the government can, in the name of democracy, bar certain citizens from deciding whether it should be elected again.199 Nor had the government explained how ‘depriving at risk individuals of their … membership in the community’ was likely to ‘instill a sense of responsibility and community identity.’200 And its
190 Lord Sumption, ‘A Response’, supra, 221. 191 Jacqueline S Hodgson and Kent Roach, ‘Disenfranchisement as Punishment: European Court of Human Rights, UK and Canadian Responses to Prisoner Voting’ [2017] Public Law 450, 463. See also Rosalind Dixon, ‘The Supreme Court of Canada, Charter Dialogue and Deference’ (2009) 47 Osgoode Hall Law Journal 235, 278. 192 Hodgson and Roach, ‘Disenfranchisement as Punishment’, supra, 463-7. 193 Peter Ramsay has presented a reasonable argument in favour of prisoner disenfranchisement: Peter Ramsay, ‘Voters Should Not be in Prison! The Rights of Prisoners in a Democracy’ (2013) 16(3) Critical Review of International Social and Political Philosophy 421. But that argument applies to a society that Ramsay imagines, which is radically different from our own – and in which, crucially, prisoners are treated as persons: at 433. Perhaps, in that society, prisoner disenfranchisement would not be contrary to human rights; but until that society comes into existence, and for so long as governments justify such disenfranchisement as they have done so far, such treatment seems inconsistent with prisoners’ human dignity. 194 [2002] 3 SCR 519. 195 Ibid 540 [22]. 196 Ibid 540 [21]. 197 Ibid 543 [30]. 198 Ibid 544 [32]. 199 Ibid. 200 Ibid 547 [38].
221 argument that disenfranchisement is a legitimate punitive tool was, when ‘stripped of rhetoric’,201 a crass assertion that Parliament may punish by capriciously removing constitutional rights from individuals.202 If Parliament may not deny prisoners the right to freedom of expression or religion, or to avoid cruel and unusual punishment, McLachlin CJ asked, ‘[w]hy is the right to vote different?’203 In truth, her Honour concluded, the law at issue was a penal populist204 measure: it constituted an assertion that criminal wrongdoers may be ‘denounced and punished as the government sees fit.’205 Just because many people believed that it was justified, did not make it so. When examined, the justifications that those people advanced were lacking in ‘logic and common sense.’206 The disagreement that existed about this issue was spirited, but it was not reasonable.207
It is submitted that McLachlin CJ was right to imply that any law that ‘countermands the message that everyone is equally worthy and entitled to respect under the law’208 is unreasonable, however much public support it has. As cases such as Dudgeon and Ghaidan – and Dred Scott v Sandford209 – show, political majorities have frequently supported grossly unreasonable laws. It might be less easy for us to perceive the discriminatory effect of a law that prevents certain or all prisoners from voting – or that authorises or imposes (i) an irreducible life or disproportionate sentence or (ii) preventive detention that is punitive and/or lacks a reintegrative orientation – but it is present all the same. As argued throughout this thesis, any law that treats offenders as other than reasoning persons, also necessarily treats them as not being community members – and therefore as other than our equals. In other words, penal populist laws are as much an affront to equality as are laws that discriminate on the basis of gender, ethnicity or sexual orientation.210 Their very object, often proudly proclaimed by their sponsors and supporters, is to treat offenders other than as human beings.
201 Ibid 550 [46]. 202 Ibid 550 [46], 553 [52]. 203 Ibid 550 [46]. 204 See also Hodgson and Roach, supra, 466. 205 Sauvé [2002] 3 SCR 519, 553 [52] (Emphasis added). 206 Ibid 535 [9]. 207 See ibid 537 [13]. 208 Ibid 555 [58]. 209 60 US 393 (1856). 210 Tellingly, courts sometimes use the same language when explaining why discriminatory laws are incompatible with human rights as they do when stigmatising penal populist ones. In East African Asians v United Kingdom (1981) 3 EHRR 76, for example, the ECHR noted that, because of its inegalitarian and exclusionary character,
222 It follows, in my view, that participatory arguments against ‘strong-form’ charters of rights fail. When a court strikes down a law that treats members of a minority group without respect for their personhood, it upholds the value – equality – that such arguments are ostensibly concerned to defend. It is true that, where there really is reasonable disagreement about a legislative measure, it is difficult to see why the views of a small number of judges should be substituted for those of the majority of the community, acting through Parliament. Thus, it is highly desirable for ‘strong-form’ judges to exercise their review functions with circumspection and humility. But, where a penal populist measure is at issue, it is submitted that the only thing that might properly restrain the judges is the more pragmatic concern to maintain the courts’ legitimacy. On occasions in this thesis, we have seen judges taking less interventionist stances than principle might have justified, because of such reputational concerns. As argued above and throughout, while courts must take account of such considerations, they must nevertheless remember that they have been granted the power sometimes to counteract oppressive democratic majorities.
We can now deal briefly with a second principled argument against ‘strong-form’ charters of rights. Some contend that, as well as being undemocratic, these charters breach the rule of law. The citizen is governed, not by ‘clear, prospective rules’,211 established by his/her parliamentary representatives,212 but instead by judicially-framed rules that are applied to him/her retrospectively – and as a result of proceedings in which the clear parliamentary rule is struck down. But while legal certainty is undoubtedly important, it is necessary to understand why it is important. According to Campbell, ‘a system of explicit, precise and comprehensive rules’ ensures ‘freedom for individuals and groups’, who are governed by general commands and not by ‘official whim.’213 And, for Ekins, ‘[b]y minimising legal uncertainty and constraining discretionary power’, ‘the positivist rule of law’ ‘reduces the threat of arbitrary state interference with personal liberty.’214 Such liberty concerns are precisely why the legal system should not pursue legal certainty in an absolute manner and at the expense of all other considerations. Rules that deprive prisoners of the possibility of parole, or punish them disproportionately, or place them in punitive and non-rehabilitative conditions because of
the racially discriminatory law at issue amounted to an ‘interference with [the applicant’s] human dignity’: at [208] (Emphasis added). 211 Ekins, ‘Judicial Supremacy and the Rule of Law’, supra, 148. 212 Tom Campbell, ‘Incorporation through Interpretation’ in in Tom Campbell, KD Ewing and Adam Tomkins (eds), Sceptical Essays on Human Rights (Oxford University Press, 2001) 79, 95. 213 Tom D Campbell, ‘Democracy, Human Rights and Positive Law’ (1994) 16 Sydney Law Review 195, 209. 214 Ekins, ‘Judicial Supremacy and the Rule of Law’, supra, 149.
223 crimes that they might commit in the future, do not safeguard their freedom – however clear those rules are. If the response to this is that ‘[t]he positivist rule of law does not purport to guarantee justice. Nor should it. The ideal is not a complete theory of justice’,215 that response seems obviously inadequate. Any theory of law-making that treats legal clarity as a value from which there can be no derogation, and justice as merely an incidental consideration, holds limited appeal.
There are, however, three major pragmatic arguments against ‘strong-form’ charters: the ‘democratic debilitation’ argument; the politicisation of the judiciary argument; and what I shall call the reactionary judges argument. Any jurisdiction thinking of instituting a system of ‘strong-form’ review would be wise to take all three of these matters into account before acting. Depending always on the circumstances, such considerations – especially, in my view, the final two of them – might make ‘weak-form’ review the more prudent course.
The democratic debilitation argument is familiar. As stated by one of its early advocates, it contends that ‘the power of the judiciary to disregard unconstitutional legislation’216
even when unavoidable is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors. … The tendency of a common and easy resort to this great function … is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility. Or, as Waldron has put it more recently, the concern is that many important issues of principle will be removed from the people, who, at best, will be relegated to the role of irresponsible, ‘star-struck’ spectators, as ‘a few black-robed celebrities’ impose upon them judicial views as to how these highly contentious issues should be resolved.217
It is not necessarily an answer to such concerns to point out that, as argued above, judges upon whom ‘strong-form’ powers have been conferred should act cautiously – only striking down legislation where the public would not oppose such action,218 or which gives effect to an unreasonable point of view (and, even then, exercising some caution). For, what if the judges
215 Ibid 150. 216 James Bradley Thayer, John Marshall (Houghton, Mifflin and Co, 1901) 106-7. 217 Waldron, Law and Disagreement, supra, 291. 218 I referred above, briefly, to the limits of legislative foresight: see text accompanying nn 156-7. As Dixon has suggested, when such ‘legislative blind-spots’ are revealed in individual cases, judges can often remove the injustice (or suggest that the legislature might remove it), without acting in a manner that would attract the public’s disapproval: Dixon, ‘The Core Case for Weak-Form Judicial Review’, supra, 2219. And the same goes for ‘legislative blockages’: that is, rights-claims that might be supported by a ‘majority of citizens’, but which, for whatever reason, the government does not place on its legislative agenda: at 2211.
224 fail to adopt so deferential an approach? On the other hand, ‘weak-form’ review might be able more adequately to counter such concerns (even if the difference is ultimately relatively marginal). This is probably not for the reasons advanced by Gardbaum. If courts lack the ‘final word’, he has said219
the expectation is that legislatures will be forced to face, and deliberate in a principled manner about, the same controversial and indeterminate legal, political and moral issues that courts face in the context of constitutional adjudication. The suggestion here is that ‘weak-form’ review facilitates a culture of ‘dialogue’ – or ‘direct inter-institutional disagreement’220 – between the courts and the elected branches, which seems inconsistent with how ‘weak-form’ charters have actually operated.221 Nevertheless, under ‘weak-form’ review, it might be that fewer controversial questions will be removed from public and legislative deliberation than would have been so if there were a system of ‘strong-form’ review in the same jurisdiction. Even if the legislative power of the ‘final word’ is often more limited than at first it appears to be, no one seems to deny that it gives Parliament some capacity to override or ignore judicial decisions.222 That capacity might, in turn, sometimes lead the courts to exercise more caution when passing on the human rights compatibility of primary legislation than would otherwise have been the case.223
The politicisation of the judiciary argument raises related concerns. Not only can ‘strong-form’ review turn the citizenry into mere observers, it is said; in addition, its passivity can become a resentful one. Waldron notes the ‘insult and dishonour’224 that is involved when people are ‘exclude[d] … from the governance of the society in which they live.’225 And even though, as I have argued, it is in fact not disrespectful for judges to override a majority’s decision to treat a minority group disrespectfully, majorities nevertheless tend to perceive that they have been treated unfairly in such circumstances. Once such a perception exists, then, as argued in chapter 3, court packing is one response that is available to the ‘disfavoured’ majority’s elected
219 Gardbaum, ‘The New Commonwealth Model of Constitutionalism’, supra, 746. 220 Stephenson, From Dialogue to Disagreement, supra, 7. 221 Claudia Geiringer, ‘Book Review: Scott Stephenson, From Dialogue to Disagreement in Comparative Rights Constitutionalism (Federation Press, 2016)’ (2017) 15 International Journal of Constitutional Law 1247, 1252- 3. 222 See text accompanying nn 122-5. See also Kavanagh, ‘What’s So Weak about Weak-Form Review? A Rejoinder to Stephen Gardbaum’, supra, 1050-1. 223 Cf Gearty, On Fantasy Island, supra, 76-7. This claim should not be overstated, however. The possibility of more indirect resistance from the elected branches to judicial decisions in ‘strong-form’ jurisdictions (see Stephenson, From Dialogue to Disagreement, supra, chapter 5) can lead to high levels of judicial deference. 224 Waldron, ‘A Rights-Based Critique of Constitutional Rights’, supra, 40. 225 Ibid 43.
225 representatives.226 And, as also argued in chapter 3, once there are enough judges whose views on rights questions align with those of such governments, the protection of ‘the rights of criminals’227 and other marginalised groups is likely to be a low priority.
This returns us to the conundrum noted in that chapter. We have seen that, under ‘weak-form’ review, the elected branches might prevent the judiciary from granting prisoners and others all of the protections against penal populism that charters of rights can deliver. Sections 74AA(4) and 74AB(4) of the Corrections Act 1986 (Vic) are two examples of that. But imagine now that there had been a ‘strong-form’ charter in place in Victoria at the time that those laws were passed, that Parliament had nevertheless enacted them, and that the Australian courts had struck them down. Would the public’s response have been any different from that of the British public after the decisions in Hirst (No 2)228 and Vinter?229 And might any such adverse response have led eventually to the sorts of politicised appointments that we have been discussing? The concern is that, as the US example seems to indicate, ‘strong-form’ charters might not, in the long term, deliver better outcomes for marginalised groups than ‘weak-form’ charters do. Indeed, they might deliver worse ones. For, even though governments are liable to use override or like powers to preserve some draconian legislation, liberal judges might still be able to use a ‘weak-form’ charter to achieve fairer outcomes in cases where there has been no such override. On the other hand, once very conservative judges are on the bench, their ability to undermine a charter – whether ‘strong’ or ‘weak-form’ – cannot be underestimated.
This reference to very conservative judges takes us to an argument that, depending on the circumstances in a particular jurisdiction, might also be a reason for not implementing ‘strong- form’ review. This is what I have referred to above as ‘the reactionary judges argument.’
In Commonwealth countries, charters of rights have recently been enacted by ‘left-of-centre’ governments230 – the Liberals in Canada and Labo(u)r in NZ, the UK, the ACT, Victoria and Queensland. In most of those jurisdictions, right-of-centre political parties have opposed the relevant charter; and in some of them, they have threatened to repeal it.231 But it has not always been so. As Gardbaum notes, ‘traditionally, left-of-centre parties in these countries had been
226 Stephenson, From Dialogue to Disagreement, supra, 94. 227 See ibid 91. 228 [2005] IX Eur Court HR 187. 229 [2013] III Eur Court HR 317. 230 As noted by Gardbaum, The New Commonwealth Model of Constitutionalism, supra, 8-9. 231 Ibid 9.
226 deeply suspicious of judicial power as a conservative, if not reactionary, check on their electoral mandates for democratic reform.’232 What accounts for the change?
At the moment in countries such as Canada, the UK, Australia and NZ, we have a liberal judiciary. But, as Gearty has noted, that is a reasonably recent development.233 Accordingly, just as the left’s traditional hostility to charters of rights was due in no small part to its suspicion of those who held judicial office at the time, with their ‘illiberal instincts’,234 its recent support for such charters seems to owe much to the current judges’ greater ‘concern for equality and fairness.’235 As Gearty has also argued, however, there is always the prospect that the next generation of judges will be less progressive than the present – however much they might ‘disguise this from themselves with their talk of freedom and liberty.’236 In other words, even without the sort of politicisation that we have been considering, the judges might once more begin acting as they did in the cases noted by Ekins above237 – striking down ‘fine’238 legislation of the sort at issue in Lochner,239 and declining to strike down legislation that, in truth, clearly breaches human rights. If Parliament has an override or like power, it can reverse the Lochner-style strike downs240 (though it cannot do much about mistaken judicial failures to exercise its strike-down power). 241
In short, when faced with the recent willingness of various governments in Anglophone jurisdictions to (i) disapply ‘weak-form’ charters when enacting penal populist laws and (ii) ignore judicial findings that such legislation breaches human rights, it is natural to ask whether ‘strong-form’ review should be instituted in such jurisdictions. But, assuming that such a solution is politically possible – which it might well not be – there might often be powerful
232 Ibid. 233 Gearty, On Fantasy Island, supra, chapter 3. 234 JAG Griffith, ‘The Political Constitution’ (1979) 42(1) Modern Law Review 1, 14. 235 Gearty, On Fantasy Island, supra, 48. 236 Ibid. 237 See text accompanying n 101. 238 Waldron, Law and Disagreement, supra, 247. 239 Lochner v New York 198 US 45 (1905). 240 As noted by Sujit Choudhry, ‘The Commonwealth Constitutional Model or Models?’ (2013) 11(4) International Journal of Constitutional Law 1094, 1099. 241 The temptation is to regard the possibility that the courts will erroneously fail to strike down certain legislation, as being irrelevant when we assess whether a charter of rights should be adopted. As many scholars have observed, however, that is a mistake: see, eg, Sadurski, ‘Judicial Review and the Protection of Constitutional Rights’, supra, 285. When a court upholds legislation that it should have struck down, it tends somewhat to bolster that legislation. The law’s supporters can now point to its human rights compatibility when responding to the criticisms of its opponents. See Tham and Ewing, ‘Limitations of a Charter of Rights in the Age of Counter-Terrorism’, supra, 484.
227 arguments against such an arrangement. As just argued, and as also noted in chapter 3, the American example shows that ‘strong-form’ review can lead to politicisation of the judiciary, court packing and, possibly, worse results for prisoners than would have been achieved had a ‘weak-form’ charter been in force. Even if politicisation does not result, future generations of judges might strike down laws simply because they disagree with the liberal values underpinning them – and despite the fact that, unlike penal populist measures, those laws have resulted from anxious parliamentary consideration.
Moreover, ‘weak-form’ charters might well have utility despite the possibility that, in certain jurisdictions, the elected branches will prevent prisoners from receiving all of the protections against penal populism that the judges would grant them. Governments are far from certain to disapply their charter or ignore declarations of incompatibility every time they enact a harshly punitive law;242 and the Courts might additionally be able to use the interpretative power granted by provisions such as s 3 HRA to render some such laws compatible with human rights.243 And, leaving aside penal populism for a moment, such charters might well have other benefits.244 For example, I referred above to the limits of legislators’ foresight:245 when enacting legislation, they will not, and cannot be expected to, appreciate every possible way in which the legislation can operate. Courts are well-placed to deal with any injustice that arises. If, in an individual case, it becomes clear that the law has affected an individual unfairly, they can indicate that the law must be altered slightly to bring it into conformity with human rights.246 Parliament usually will not resent such action.247
242 An example is the House of Lords’ finding in A v Secretary of State for the Home Department [2005] AC 68 that, among other things, the indefinite detention of suspected international terrorists was discriminatory and therefore incompatible with art 14 ECHR read with art 5. The UK government responded to this declaration of incompatibility by enacting a control order scheme that, whatever its faults, did appear to be an improvement on the previous arrangement: cf Ewing and Tham, ‘The Continuing Futility of the Human Rights Act’, supra. 243 A UK example is Offen [2001] 1 WLR 253. 244 As Geiringer has pointed out, even in Victoria there have been ‘some noteworthy victories’: Claudia Geiringer, ‘Moving Beyond the Constitutionalism/Democracy Dilemma: ‘Commonwealth Model’ Scholarship and the Fixation on Legislative Compliance’ in Mark Elliott et al, The Unity of Public Law?: Doctrinal, Theoretical and Comparative Perspectives (Bloomsbury, 2018) 301, 316. 245 See text accompanying n 156. See also n 218. 246 For a recent example, see In re Gallagher [2020] AC 185, 247-8 [62]-[64]. 247 Though sometimes there might be some controversy. See, eg, Gearty, On Fantasy Island, supra, 65-6, discussing the UK government’s response to R(F A Child) v Secretary of State for the Home Department [2011] 1 AC 331.
228 E. Conclusion This thesis has argued that charters of rights can improve protections for prisoners and others against penal populist laws that seek to dehumanise them; however, the extent to which such charters will in fact have this effect depends on a number of variables. The first is the judiciary’s willingness to interpret charters purposively. As argued throughout, when applying charters, judges must take public opinion into account; but they must also remember that they have been granted a mandate to challenge democratically-enacted legislation in some circumstances. Accordingly, when it comes to the rights of prisoners, the ECtHR has not been ‘self-aggrandising.’248 Rather, it has been right to indicate that, when a penal law is incompatible with the human dignity of such prisoners, it will also be incompatible with the ECHR249 – no matter how popular that law is.
The second relevant factor seems to be the charter’s design. As just argued, there are reasons to doubt whether a charter that provides the courts with the ‘final word’ about rights controversies will necessarily ensure that prisoners are better protected against draconian laws than they would be under a ‘weak-form’ charter. But this does depend on all the circumstances in a particular jurisdiction; and, as Stephenson has persuasively argued, even when a government institutes ‘weak-form’ review, it is important that it has regard to existing ‘constitutional principles and values’250 in the relevant system, when it deals with questions of how precisely the charter should be designed.251 To use an Australian example, the HCA’s finding in Momcilovic v The Queen that a declaration of incompatibility/inconsistent operation cannot be made at Commonwealth level compatibly with ch III of the Constitution,252 means that it would be a mistake for the Commonwealth government to enact a UK-style charter.253
248 Cf Goldsworthy, ‘Losing Faith in Democracy’, supra. 249 Vinter GC [2013] III Eur Court HR 317, 347 [113]. 250 Stephenson, From Dialogue to Disagreement, supra, 11. 251 Ibid 143. 252 (2011) 245 CLR 1, 65-6 [89]-[91] (French CJ), 93-7 [172]-[188] (Gummow J), 123 [280] (Hayne J), 185 [457] (Heydon J), 241 [661] (Bell J). 253 Cf George Williams and Daniel Reynolds, A Charter of Rights for Australia (UNSW Press, 7th ed, 2017) 185- 6.
229 A Canadian-style charter seems a better proposition254 (though without a prospective override power)255 – whatever political obstacles stand in its path.
This reference to political obstacles brings us to a third factor that is relevant to how much of a bulwark against penal populism a human rights charter will be. The culture in the jurisdiction in which a charter operates seems to bear heavily on whether it operates effectively.256 Or, as Geiringer has noted, it is not only ch III that has prevented the existing Australian charters from fulfilling their potential to improve the position of unpopular minorites.257 The ‘vulnerability of human rights arguments in Australia’258 is also a reason. It follows that there is something to be said for claims, frequently made by opponents of human rights charters, that ‘[i]f we are to create a more just and a more free society, we must do it the hard way’:259 we must change the culture, rather than relying on the judiciary to modify its effects.260 However, it seems unrealistic to imagine that we will ever be able to eradicate the ‘pathologies and blind spots’261 to which legislatures are prone. And even if we are also unable to improve the political culture sufficiently to ensure that ‘pathological’ laws are limited to the extent that the judges would limit them, human rights charters are liable to expose many ‘blind spots’ and improve the relevant legislation.
254 See Michael McHugh, ‘A Human Rights Act, the Courts and the Constitution’ (Presentation given at the Australian Human Rights Commission, 5 March 2009) 35-6. There is also much to be said for such a charter being constitutionally entrenched, however politically infeasible this is: see Michael McHugh, ‘Does Australia Need a Bill of Rights’ (Speech given at Melbourne Law School, 15 May 2007) 43; Stephenson, From Dialogue to Disagreement, supra, 216. 255 If Parliament were prevented from disapplying the Charter before the courts considered whether that the relevant law breached human rights, it might be more difficult to override the Charter in the case of laws such as Corrections Act 1986 (Vic) ss 74AA and 74AB. Parliament would be forced to re-enact these laws despite a judicial ruling that they provided for ‘cruel and unusual punishment’, which might be harder politically than it is altogether to exclude the courts from reviewing such laws on human rights grounds. 256 See, eg, Ran Hirschl, ‘How Consequential is the Commonwealth Constitutional Model?’ (2013) 11(4) International Journal of Constitutional Law 1086, 1089; Waldron, Law and Disagreement, supra, 310. 257 Although she acknowledges that this is a major factor: Claudia Geiringer, ‘What’s the Story? The Instability of the Australasian Bills of Rights’ (2016) 14(1) International Journal of Constitutional Law 156, 171. 258 Geiringer, ‘Moving Beyond the Constitutionalism/Democracy Dilemma’, supra, 319. 259 Griffith, ‘The Brave New World of Sir John Laws’, supra, 165. 260 Waldron, Law and Disagreement, supra, 311. 261 King, ‘Rights and the Rule of Law in Third Way Constitutionalism’, supra, 117.
230 BIBLIOGRAPHY
A. Articles, Book Chapters and Books Hans-Jörg Albrecht, ‘Security Gaps: Responding to Dangerous Sex Offenders in the Federal Republic of Germany’ (2004) 16 Federal Sentencing Reporter 200
Shawn Alexander, Leah Graf and Eric Janus, ‘M v Germany: The European Court of Human Rights Takes a Critical Look at Preventive Detention’ (2012) 29 Arizona Journal of International and Comparative Law 605
James Allan, ‘A Defence of the Status Quo’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights: Instruments and Institutions (Oxford University Press, 2003) James Allan, ‘An Unashamed Majoritarian’ (2004) 27 Dalhousie Law Journal 537 James Allan, ‘Bills of Rights and Judicial Power – A Liberal’s Quandary’ (1996) 16 Oxford Journal of Legal Studies 337 James Allan, ‘‘Do the Right Thing’ Judging? The High Court of Australia in Al-Kateb’’ (2005) 24 University of Queensland Law Journal 1 James Allan, ‘Oh That I Were Made a Judge in the Land’ (2002) 30 Federal Law Review 561 James Allan, ‘Portia, Bassanio or Dick the Butcher? Constraining Judges in the Twenty-First Century’ (2006) 17(1) Kings College Law Journal 1 James Allan and Richard Cullen, ‘A Bill of Rights Odyssey for Australia: The Sirens Are Calling’ (1997) 19 University of Queensland Law Journal 171 James Allan and The Hon Michael Kirby AC CMG, ‘A Public Conversation on Constitutionalism and the Judiciary Between Professor James Allan and the Hon Michael Kirby AC CMG’ (2009) 33 Melbourne University Law Review 1032 Rebecca Ananian-Welsh, ‘Kuczborski v Queensland and the Scope of the Kable Doctrine’ (2015) 34 University of Queensland Law Journal 47 Rebecca Ananian-Welsh, ‘Preventative Detention Orders and the Separation of Judicial Power’ (2015) 38 UNSW Law Journal 756
John Anderson, ‘‘Indefinite, Inhumane, Inequitable’ – The Principle of Equal Application of the Law and the Natural Life Sentence for Murder: A Reform Agenda’ (2006) 29(3) UNSW Law Journal 139 John Anderson, ‘The Label of Life Imprisonment in Australia’ (2012) 35(3) UNSW Law Journal 747 Harry Annison, Dangerous Politics: Risk, Political Vulnerability, and Penal Policy (Oxford University Press, 2015)
Catherine Appleton and Dirk van Zyl Smit, ‘The Paradox of Reform: Life Imprisonment in England and Wales’ in Dirk van Zyl Smit and Catherine Appleton, Life Imprisonment and Human Rights (Hart Publishing, 2016)
Andrew Ashworth and Lucia Zedner, Preventive Justice (Oxford University Press, 2014)
Andrew Ashworth and Lucia Zedner, ‘Some Dilemmas of Indeterminate Sentences: Risk and Uncertainty, Dignity and Hope’ in Jan W de Keijser et al (eds) Predictive Sentencing: Normative and Empirical Perspectives (Bloomsbury, 2019)
Mirko Bagaric, ‘The Revived Kable Doctrine as a Constitutional Protector of Rights?’ (2011) 35 Criminal Law Journal 197
Mirko Bagaric, ‘What Sort of Mandatory Penalties Should We Have?’ (2002) 23 Adelaide Law Review 113
Justice Virginia Bell, ‘Keeping the Criminal Law in ‘Serviceable Condition’: A Task for the Courts or the Parliament?’ (2016) 27(3) Current Issues in Criminal Justice 335
231
Richard Bellamy, ‘Political Constitutionalism and the Human Rights Act’ (2011) 9(1) International Journal of Constitutional Law 86 Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007) Benjamin L Berger, ‘A More Lasting Comfort? The Politics of Minimum Sentences, the Rule of Law and R. v. Ferguson’ (2009) 47 Supreme Court Law Review 101 Jonathan Bild, ‘Whole of Life Order: Article 3 Compliant After All?’ (2017) 75 Cambridge Law Journal 230 Lord Bingham of Cornhill, ‘The Judges: Active or Passive’ (2006) 139 The Proceedings of the British Academy 55 Tom Bingham, ‘The Judge as Lawmaker: An English Perspective’ in Tom Bingham, The Business of Judging (Oxford University Press, 2000) Michael Bohlander, ‘The Remains of the Day – Whole Life Sentences after Bieber’ (2009) 73 Journal of Criminal Law 30 Sir Gerard Brennan, ‘Mandatory Sentencing: Rights and Wrongs’ (2001) 7(2) Australian Journal of Human Rights 3 William J Brennan Jr, ‘Why Have a Bill of Rights?’ (1989) 9 Oxford Journal of Legal Studies 425 Jamie Cameron, ‘Fault and Punishment under Sections 7 and 12 of the Charter’ (2008) 40 Supreme Court Law Review 553 Jamie Cameron, ‘The Death Penalty, Mandatory Prison Sentences, and the Eighth Amendment’s Rule Against Cruel and Unusual Punishments’ (2001) 39 Osgoode Hall Law Journal 427 Tom D Campbell, ‘Democracy, Human Rights and Positive Law’ (1994) 16 Sydney Law Review 195 Tom Campbell, ‘Incorporation through Interpretation’ in Tom Campbell, KD Ewing and Adam Tomkins (eds), Sceptical Essays on Human Rights (Oxford University Press, 2001) Tom Campbell, ‘Judicial Activism – Justice or Treason?’ (2003) 10(3) Otago Law Review 307 Paolo G Carozza, ‘Human Dignity and Judicial Interpretation of Human Rights: A Reply’ (2008) 19(5) European Journal of International Law 931 Chintan Chandrachud and Aileen Kavanagh, ‘Rights-based Constitutional Review in the UK: From Form to Function’ in John Bell and Marie-Luce Paris, Rights-based Constitutional Review: Constitutional Review in a Changing Landscape (Edward Elgar, 2015) Susan Chaster, ‘Cruel, Unusual and Constitutionally Infirm: Mandatory Minimum Sentences in Canada’ (2018) 23 Appeal 89 Sujit Choudhry, ‘The Commonwealth Constitutional Model or Models?’ (2013) 11(4) International Journal of Constitutional Law 1094 Michael Louis Corrado, ‘Punishment and the Wild Beast of Prey: The Problem of Preventive Detention’ (1996) 86 Journal of Criminal Law and Criminology 778
Michael Louis Corrado, ‘Sex Offenders, Unlawful Combatants, and Preventive Detention’ (2005) 84 North Carolina Law Review 77 Nicholas Cowdery QC, ‘Mandatory Life Sentences in New South Wales’ (1999) 22 UNSW Law Journal 290 Michael Davis, ‘A Sound Retributive Argument for the Death Penalty’ (2002) Criminal Justice Ethics 22 Michael Davis, ‘Death, Deterrence and the Method of Common Sense’ (1981) 7 Social Theory and Practice 145 Michael Davis, ‘The Death Penalty, Civilisation and Inhumaneness’ (1990) 16 Social Theory and Practice 245 Michael Davis, ‘The Moral Justifiability of Torture and other Cruel, Inhuman, or Degrading Treatment’ (2005) 19 International Journal of Applied Philosophy 161
232
Michael Davis, ‘Torture and the Inhumane’ (2007) 26 Criminal Justice Ethics 29 Lord Devlin, ‘Judges and Lawmakers’ (1976) 39(1) Modern Law Review 1 Rosalind Dixon, ‘The Core Case for Weak-Form Judicial Review’ (2017) 38 Cardozo Law Review 2193 Rosalind Dixon, ‘The Supreme Court of Canada, Charter Dialogue and Deference’ (2009) 47 Osgoode Hall Law Journal 235 Rosalind Dixon, ‘Weak-Form Judicial Review and American Exceptionalism’ (2012) 32(3) Oxford Journal of Legal Studies 487 Anthony N Doob and Carla Cesaroni, ‘The Political Attractiveness of Mandatory Minimum Sentences’ (2001) 39 Osgoode Hall Law Journal 287 Kirstin Drenkhahn, ‘Secure Preventive Detention in Germany: Incapacitation or Treatment Intervention?’ (2013) 31 Behavioral Sciences and the Law 312
Kirstin Drenkhahn et al, ‘What is in a Name? Preventive Detention in Germany in the Shadow of European Human Rights Law’ [2012] Criminal Law Review 167
Lisa Dufraimont, ‘R. v. Ferguson and the Search for a Coherent Approach to Mandatory Minimum Sentences under Section 12’ (2008) 42 Supreme Court Law Review 459 Frieder Dünkel and Dirk van Zyl Smit, ‘Preventive Detention of Dangerous Offenders Re-examined: A Comment on Two Decisions of the German Federal Constitutional Court (BVerfG – 2 BvR 2029/01 of 5 February 2004 and BVerfG – 2 BvR 834/02 — 2 BvR 1588/02 of 10 February 2004) and the Federal Draft Bill on Preventive Detention of 9 March 2004’ (2004) 5 German Law Journal 619
Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977) Andrew Dyer, ‘Can Charters of Rights Limit Penal Populism?: The Case of Preventive Detention’ (2018) 44(3) Monash University Law Review 520 Andrew Dyer, ‘(Grossly) Disproportionate Sentences: Can Charters of Rights Make a Difference?’ (2017) 43(1) Monash University Law Review 195 Andrew Dyer, ‘Irreducible Life Sentences, Craig Minogue and the Capacity of Human Rights Charters to Make a Difference’ (2020) 2 UNSW Law Journal 484 Andrew Dyer, ‘Irreducible Life Sentences: What Difference Have the European Convention on Human Rights and the United Kingdom Human Rights Act Made?’ (2016) 16 Human Rights Law Review 541 Kerri Eagle and Andrew Ellis, ‘The Widening Net of Preventative Detention and the Unfit for Trial’ (2016) 90 Australian Law Journal 172
Michelle Edgely, ‘Preventing Crime or Punishing Propensities? A Purposive Examination of the Preventative Detention of Sex Offenders in Queensland and Western Australia’ (2007) 33 University of Western Australia Law Review 351
Richard Ekins, ‘Human Rights and the Separation of Powers’ (2015) 34 University of Queensland Law Journal 217 Richard Ekins, ‘Judicial Supremacy and the Rule of Law’ (2003) 119(1) Law Quarterly Review 127 Ben Emmerson et al, Human Rights and Criminal Justice (Sweet & Maxwell, 3rd ed, 2012) KD Ewing, ‘The Futility of the Human Rights Act’ [2004] Public Law 829 KD Ewing and Joo-Cheong Tham, ‘The Continuing Futility of the Human Rights Act’ [2008] Public Law 668 Paul Ames Fairall, ‘Violent Offenders and Community Protection in Victoria – The Gary David Experience’ (1993) 17 Criminal Law Journal 40
Gerry Ferguson and Benjamin L Berger, ‘Recent Developments in Canadian Criminal Law’ (2013) 37 Criminal Law Journal 315
233
Morris J Fish, ‘An Eye for an Eye: Proportionality as a Moral Principle of Punishment’ (2008) 28 Oxford Journal of Legal Studies 57 Kate Fitz-Gibbon, ‘Life Without Parole in Australia’ in Dirk van Zyl Smit and Catherine Appleton, Life Imprisonment and Human Rights (Hart Publishing, 2016) Martin Flynn, ‘Fixing a Sentence: Are There Any Constitutional Limits?’ (1999) 22 UNSW Law Journal 280 Steve Foster, ‘Whole Life Sentences and Article 3 of the European Convention on Human Rights: Time for Certainty and a Common Approach’ (2015) 36 Liverpool Law Review 147 Ian Freckleton and Patrick Keyzer, ‘Indefinite Detention of Sex Offenders and Human Rights: The Intervention of the Human Rights Committee of the United Nations’ (2010) 17 Psychiatry, Psychology and Law 345 Arie Freiburg and Sarah Murray, ‘Constitutional Perspectives on Sentencing: Some Challenging Issues’ (2012) 36(6) Criminal Law Journal 335 Jeremy Gans, ‘Current Experiments in Australian Constitutional Criminal Law’ (Australian Association of Constitutional Law, 9 September 2014)
234
Jeffrey Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (2014) 40(1) Monash University Law Review 75 Jeffrey Goldsworthy, ‘Losing Faith in Democracy: Why Judicial Supremacy Is Rising and What to Do about it’, Quadrant (online, 25 March 2015)
Anthony Gray, ‘Mandatory Sentencing around the World and the Need for Reform’ (2017) 20 New Criminal Law Review 391 Anthony Gray, ‘Standard of Proof, Unpredictable Behaviour and the High Court of Australia’s Verdict on Preventive Detention Laws’ (2005) 10 Deakin Law Review 177 Anthony Gray, ‘The Constitutionality of Queensland’s Recent (Legal) War on “Bikies”’ (2014) 19 Deakin Law Review 51 Anthony Gray and Gerard Elmore, ‘The Constitutionality of Minimum Mandatory Sentencing Regimes’ (2012) 22 Journal of Judicial Administration 37 JAG Griffith, ‘The Brave New World of Sir John Laws’ (2000) 63(2) Modern Law Review 159 JAG Griffith, ‘The Political Constitution’ (1979) 42(1) Modern Law Review 1 Matthew Groves, ‘A Life Without Hope – The Victorian Charter and Parole’ (2018) 42(6) Criminal Law Journal 353 Jürgen Habermas, ‘The Concept of Human Dignity and the Realistic Utopia of Human Rights (2010) 41(4) Metaphilosophy 464 Lily Hands, ‘Constitutional Limitations on Detention “At Her Majesty’s Pleasure”: Pollentine v Attorney-General (Qld) [2014] HCA 30’ (2015) 39(2) University of Western Australia Law Review 442
HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford University Press, 2nd ed, 2008) Nicholas Hasluck, ‘Judicial Activism and the Rule of Law’ (2016) 5 Quadrant 52 Andrew Hemming, ‘The Constitutionality of Minimum Mandatory Sentencing Regimes: A Rejoinder’ (2013) 22 Journal of Judicial Administration 224 JD Heydon, ‘Are Bills of Rights Necessary in Common Law Systems?’ (2014) 130 Law Quarterly Review 392
Justice Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2004) 10(4) Otago Law Review 493 Ran Hirschl, ‘How Consequential is the Commonwealth Constitutional Model?’ (2013) 11(4) International Journal of Constitutional Law 1086 Harry Hobbs, Andrew Lynch and George Williams, ‘The High Court under Chief Justice Robert French’ (2017) 91 Australian Law Journal 53 Harry Hobbs and Andrew Trotter, ‘Lessons from History in Dealing with Our Most Dangerous’ (2018) 41(2) UNSW Law Journal 319
235
Jacqueline S Hodgson and Kent Roach, ‘Disenfranchisement as Punishment: European Court of Human Rights, UK and Canadian Responses to Prisoner Voting’ [2017] Public Law 450 Russell Hogg, ‘Mandatory Sentencing Laws and the Symbolic Politics of Law and Order’ (1999) 22 UNSW Law Journal 262 Russell Hogg, ‘“Only a Pawn in Their Game”: Crime, Risk and Politics in the Preventive Detention of Robert Fardon’ (2014) 3(3) International Journal for Crime, Justice and Social Democracy 55
Douglas Husak, ‘Lifting the Cloak: Preventive Detention as Punishment’ (2011) 48 San Diego Law Review 1173
Eric S Janus, ‘Closing Pandora’s Box: Sexual Predators and the Politics of Sexual Violence’ (2004) 34 Seton Hall Law Review 1233
Peter Johnston, ‘The High Court, Kable and the Constitutional Validity of Criminal Property Confiscation Laws: Attorney General (Northern Territory) v Emmerson’ (2014) 26(2) Bond Law Review 3 Seema Kandelia, ‘Life Meaning Life: Is there any Hope of Release for Prisoners Serving Whole Life Orders?’ (2011) 75 Journal of Criminal Law 70 Johannes Kaspar, ‘Preventive Detention in German Criminal Law’ (2016) 4 Peking University Law Journal 79
Aileen Kavanagh, ‘A Hard Look at the Last Word’ (2015) 35(4) Oxford Journal of Legal Studies 825 Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge University Press, 2009) Aileen Kavanagh, ‘Participation and Judicial Review: A Reply to Jeremy Waldron’ (2003) 22(5) Law and Philosophy 451 Aileen Kavanagh, ‘The Lure and Limits of Dialogue’ (2016) 66 University of Toronto Law Journal 83 Aileen Kavanagh, ‘The Role of the Courts in the Joint Enterprise of Governing’ in Richard Ekins et al (eds), Lord Sumption and the Limits of the Law (Bloomsbury Publishing, 2016) Aileen Kavanagh, ‘What’s So Weak about Weak-Form Review? A Rejoinder to Stephen Gardbaum’ (2015) 13(4) International Journal of Constitutional Law 1049 Aileen Kavanagh, ‘What’s So Weak about “Weak-Form Review”? The Case of the UK Human Rights Act 1998’ (2015) 13(4) International Journal of Constitutional Law 1008 James B Kelly, ‘Judicial and Political Review as Limited Insurance: The Functioning of the New Zealand Bill of Rights Act in ‘Hard’ Cases’ (2011) 49(3) Commonwealth and Comparative Politics 295 Lisa Kerr and Benjamin Berger, ‘Methods and Severity: The Two Tracks of Section 12’ (2019, Forthcoming) Supreme Court Law Review 1 Kimberly Kessler Ferzan, ‘Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible’ (2011) 96 Minnesota Law Review 141
Kimberly Kessler Ferzan, ‘Preventive Justice and the Presumption of Innocence’ (2014) 8 Criminal Law and Philosophy 505
Patrick Keyzer, ‘Preserving Due Process or Warehousing the Undesirables: To What End the Separation of Judicial Power of the Commonwealth?’ (2008) 30 Sydney Law Review 101 Patrick Keyzer, ‘The International Human Rights Parameters for the Preventive Detention of Serious Sex Offenders’ in Bernadette McSherry and Patrick Keyzer (eds), Dangerous People: Policy, Prediction, and Practice (Routledge, 2011)
Patrick Keyzer, ‘The United Nations Human Rights Committee’s Views about the Legitimate Parameters of the Preventive Detention of Serious Sex Offenders’ (2010) 34 Criminal Law Journal 283
Patrick Keyzer and Sam Blay, ‘Double Punishment? Preventive Detention Schemes Under Australian Legislation and Their Consistency with International Law: The Fardon Communication’ (2006) 7 Melbourne Journal of International Law 407
236
Patrick Keyzer and Bernadette McSherry, ‘The Preventive Detention of “Dangerous” Sex Offenders in Australia: Perspectives at the Coalface’ (2013) 2 International Journal of Criminology and Sociology 296
Patrick Keyzer and Bernadette McSherry, ‘The Preventive Detention of Sex Offenders: Law and Practice’ (2015) 38 UNSW Law Journal 792
Patrick Keyzer, Cathy Pereira and Stephen Southwood, ‘Pre-emptive Imprisonment for Dangerousness in Queensland under the Dangerous Prisoners (Sexual Offenders) Act 2003: The Constitutional Issues’ (2004) 11 Psychiatry, Psychology and Law 244
Jeff King, ‘Lord Sumption’s Conception of Law and Democracy’ in Richard Ekins et al (eds), Lord Sumption and the Limits of the Law (Bloomsbury Publishing, 2016) Jeff King, ‘Rights and the Rule of Law in Third Way Constitutionalism’ (2015) 30 Constitutional Commentary 101 Justice Michael Kirby, ‘Judicial Activism: Power Without Responsibility? No, Appropriate Activism Conforming to Duty’ (2006) 30 Melbourne University Law Review 576 Asad G Kiyani, ‘R v Lloyd and the Unpredictable Stability of Mandatory Minimum Litigation’ (2017) 81 Supreme Court Law Review 117 Joshua Kleinfeld, ‘Two Cultures of Punishment’ (2016) 68 Stanford Law Review 933 Francesca Klug, ‘The Human Rights Act – A ‘Third Way’ or ‘Third Wave’ Bill of Rights’ (2001) 4 European Human Rights Law Review 361 Matthias Kumm, ‘Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review’ (2008) 1 European Journal of Legal Studies 153 Dimitrios Kyritsis, ‘Constitutional Review in Representative Democracy’ (2012) 32(2) Oxford Journal of Legal Studies 297 Dimitrios Kyritsis, ‘Representation and Waldron’s Objection to Judicial Review’ (2006) 26(4) Oxford Journal of Legal Studies 733 Nicola Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies (Cambridge University Press, 2008) John Q La Fond, ‘Sexual Offender Commitment Laws in the USA: The Inevitable Failure of Misusing Civil Commitment to Prevent Future Sex Crimes’ in Bernadette McSherry and Patrick Keyzer (eds), Dangerous People: Policy, Prediction, and Practice (Routledge, 2011)
John Q La Fond, ‘Sexually Violent Predator Laws and the Liberal State: An Ominous Threat to Individual Liberty’ (2008) 31 International Journal of Law and Psychiatry 158
Wendy Larcombe and Mary Heath, ‘Developing the Common Law and Rewriting the History of Rape in Marriage in Australia: PGA v The Queen’ (2012) 34(4) Sydney Law Review 785 Kjetil Mujezinović Larsen, ‘Detention for Protection: Searching for a “Fair Balance” between the Restrictions on Preventive Detention and the Obligation to Protect Individuals’ (2015) 1 Oslo Law Review 1
Anthony Lester, ‘UK Acceptance of the Strasbourg Jurisdiction: What Really Went on in Whitehall in 1965’ [1998] Public Law 237
Richard L Lippke, ‘Irreducible Life Sentences and Human Dignity: Some Neglected and Difficult Issues’ (2017) 17 Human Rights Law Review 383
Richard L Lippke, ‘No Easy Way Out: Dangerous Offenders and Preventive Detention’ (2008) 27 Law and Philosophy 383
David Luban, ‘Human Dignity, Humiliation, and Torture’ (2009) 19 Kennedy Institute of Ethics Journal 211 David Luban, ‘Liberalism, Torture and the Ticking Bomb’ (2005) 91 Virginia Law Review 1425
237
Andrew Lynch and Alexander Reilly, ‘The Constitutional Validity of Terrorism Orders of Control and Preventative Detention’ (2007) 10 Flinders Journal of Law Reform 105
Michael Mandel, ‘A Brief History of the New Constitutionalism, or “How We Changed Everything So That Everything Would Remain the Same”’ (1998) 32(2) Israel Law Review 250 Desmond Manderson and Naomi Sharp, ‘Mandatory Sentences and the Constitution: Discretion, Responsibility, and Judicial Process’ (2000) 22 Sydney Law Review 585 Allan Manson, ‘Arbitrary Disproportionality: A New Charter Standard for Measuring the Constitutionality of Mandatory Minimum Sentences’ (2012) 57 Supreme Court Law Review 173 Chief Justice Wayne Martin, ‘Parliament and the Courts: A Contemporary Assessment of the Ethic of Mutual Respect’ (2015) 30(2) Australasian Parliamentary Review 80 Sir Anthony Mason, ‘Mandatory Sentencing: Implications for Judicial Independence’ (2001) 7(2) Australian Journal of Human Rights 21 Natasa Mavronicola, ‘Crime, Punishment and Article 3 ECHR: Puzzles and Prospects of Applying and Absolute Rights in a Penal Context’ (2015) 15 Human Rights Law Review 721 Natasa Mavronicola, ‘‘Güler and Öngel v Turkey: Article 3 of the European Convention on Human Rights and Strasbourg’s Discourse on the Justified Use of Force’ (2013) 76(2) Modern Law Review 370 Natasa Mavronicola, ‘Is the Prohibition Against Torture and Cruel, Inhuman and Degrading Treatment Absolute in International Human Rights Law? A Reply to Steven Greer’ (2017) 17 Human Rights Law Review 479 Natasa Mavronicola and Francesco Messineo, ‘Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK’ (2013) 76 Modern Law Review 589 Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655 Justice Michael McHugh, ‘Does Chapter III of the Constitution Protect Substantive as Well as Procedural Rights?’ (2001) 21 Australian Bar Review 235 Justice Michael McHugh, ‘The Judicial Method’ (1999) 73(1) Australian Law Journal 37 Justice Michael McHugh, ‘The Law-making Function of the Judicial Process – Part II’ (1988) 62 Australian Law Journal 116 Bernadette McSherry, ‘Indefinite and Preventive Detention Legislation: From Caution to an Open Door’ (2005) 29 Criminal Law Journal 94
Bernadette McSherry, Managing Fear: The Law and Ethics of Preventive Detention and Risk Assessment (Routledge, 2014)
Bernadette McSherry, ‘Post-Sentence Incapacitation of Sex-Offenders and the Ethics of Risk Assessment’ in Marijke Malsch and Marius Duker (eds), Incapacitation: Trends and New Perspectives (Ashgate, 2012) Bernadette McSherry, ‘Sex, Drugs and “Evil” Souls: The Growing Reliance on Preventive Detention Regimes’ (2006) 32 Monash University Law Review 237 Bernadette McSherry and Patrick Keyzer, Sex Offenders and Preventive Detention: Politics, Policy and Practice (Federation Press, 2009)
Dan Meagher, ‘The Status of the Kable Principle in Australian Constitutional Law’ (2005) 16 Public Law Review 182
Grischa Merkel, ‘Case Note – Retrospective Preventive Detention in Germany: A Comment on the ECHR Decision Haidn v Germany of 13 January 2011’ (2011) 12 German Law Journal 968
Denise Meyerson, ‘Risks, Rights, Statistics and Compulsory Measures’ (2009) 31 Sydney Law Review 507
Christopher Michaelsen, ‘“From Strasbourg, with Love” – Preventive Detention before the German Federal Constitutional Court and the European Court of Human Rights’ (2012) 12 Human Rights Law Review 148
238
Monique Moffa, Greg Stratton and Michele Ruyters, ‘Parole Populism: The Politicisation of Parole in Victoria’ (2019 31(1) Current Issues in Criminal Justice 75 Neil Morgan, ‘Going Overboard? Debates and Developments in Mandatory Sentencing, June 2000 to June 2002’ (2002) 26 Criminal Law Journal 293 Neil Morgan, ‘Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?’ (2000) 24 Criminal Law Journal 164 Stephen J Morse, ‘Fear of Danger, Flight from Culpability’ (1998) 4 Psychology, Public Policy, and Law 250 Stephen J Morse, ‘Neither Desert Nor Disease’ (1999) 5 Legal Theory 265
Stephen J Morse, ‘Preventive Confinement of Dangerous Offenders’ (2004) 32 Journal of Law, Medicine and Ethics 56
Jeffrie G Murphy, ‘Cruel and Unusual Punishments’ in Jeffrie G Murphy, Retribution, Justice, and Therapy: Essays in the Philosophy of Law (D. Riedel Publishing Co, 1979) Jeffrie Murphy, ‘Moral Death: A Kantian Essay on Psychopathy’ (1972) 82(4) Ethics 284 Wendy O’Brien and Kate Fitz-Gibbon, ‘“Cemented in Their Cells”: A Human Rights Analysis of Blessington, Elliott and the Life Imprisonment of Children in New South Wales’ (2016) 22(1) Australian Journal of Human Rights 111 David M Paciocco, ‘The Law of Minimum Sentences: Judicial Responses and Responsibility’ (2015) 19 Canadian Criminal Law Review 173 Debra Parkes, ‘From Smith to Smickle: The Charter’s Minimal Impact on Mandatory Minimum Sentences’ (2012) 57 Supreme Court Law Review 149 Debra Parkes, ‘Punishment and Its Limits’ (2019) 88 Supreme Court Law Review 351 Mark Pettigrew, ‘A Vinter Retreat in Europe: Returning to the Issue of Whole Life Sentences in Strasbourg’ (2017) 8(2) New Journal of European Criminal Law 128 Mark Pettigrew, ‘Public, Politicians and the Law: The Long Shadow and Modern Thrall of Myra Hindley’ (2016) 28(1) Current Issues in Criminal Justice 51 Mark Pettigrew, ‘Retreating from Vinter in Europe: Sacrificing Whole Life Prisoners to Save the Strasbourg Court?’ (2017) 25 European Journal of Crime, Criminal Law and Criminal Justice 260 Mark Pettigrew, ‘Whole of Life Tariffs in the Shadow of Europe: Penological Foundations and Political Popularity’ (2015) 54 The Howard Journal of Criminal Justice 292 John Petrila, ‘Sexually Violent Predator Laws: Going Back to a Time Better Forgotten’ in Bernadette McSherry and Patrick Keyzer (eds), Dangerous People: Policy, Prediction, and Practice (Routledge, 2011)
John Pratt, ‘Emotive and Ostentatious Punishment: Its Decline and Resurgence in Modern Society’ (2000) 2(4) Punishment and Society 417 John Pratt, Penal Populism (Routledge, 2007) John Pratt, ‘Sex Crimes and the New Punitiveness’ (2000) 18 Behavioral Sciences and the Law 135 Bernadette Rainey et al, The European Convention on Human Rights (Oxford University Press, 7th ed, 2017) Peter Ramsay, ‘Voters Should Not be in Prison! The Rights of Prisoners in a Democracy’ (2013) 16(3) Critical Review of International Social and Political Philosophy 421 Lord Reid, ‘The Judge as Law Maker’ (1972) 12 Journal of the Society of Public Teachers of Law 22 Alice Ristroph, ‘Proportionality as a Principle of Limited Government’ (2005) 55 Duke Law Journal 263 Kent Roach, ‘Searching for Smith: The Constitutionality of Mandatory Sentences’ (2001) 39 Osgoode Hall Law Journal 367
239
Kent Roach, ‘The Charter Versus the Government’s Crime Agenda’ (2012) 58 Supreme Court Law Review 211 Kent Roach, ‘The Future of Mandatory Sentences after the Death of Constitutional Exemptions’ (2008) 54 Criminal Law Quarterly 1 Julian V Roberts et al, Penal Populism and Public Opinion: Lessons from Five Countries (Oxford University Press, 2003) Paul H Robinson, ‘Foreword: The Criminal-Civil Distinction and Dangerous Blameless Offenders’ (1993) 83 Journal of Criminal Law and Criminology 693
Paul H Robinson, ‘Life without Parole under Modern Theories of Punishment’ in Charles J Ogletree Jr and Austin Sarat (eds), Life Without Parole: America’s New Death Penalty (2012, New York University Press) Paul H Robinson, ‘Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice’ (2001) 114 Harvard Law Review 1429
Paul H Robinson, ‘The Criminal-Civil Distinction and the Utility of Desert’ (1996) 76 Boston University Law Review 201
Mary Rogan, ‘Discerning Penal Values and Judicial Decision Making: The Case of Whole Life Sentencing in Europe and the United States of America’ (2018) 57(3) The Howard Journal of Crime and Justice 321 Mary Rogan, ‘The European Court of Human Rights, Gross Disproportionality and Long Prison Sentences after Vinter v United Kingdom’ [2015] Public Law 22 Oscar Roos, ‘Baker v The Queen and Fardon v Attorney-General for the State of Queensland’ (2005) 10 Deakin Law Review 271 Michael Rosen, ‘Dignity: The Case Against’ in Christopher McCrudden, (ed) Understanding Human Dignity (Oxford University Press, 2013) Ronald Sackville, ‘Bills of Rights: Chapter III of the Constitution and State Charters’ (2011) 18 Australian Journal of Administrative Law 67 Wojciech Sadurski, ‘Judicial Review and the Protection of Constitutional Rights’ (2002) 22(2) Oxford Journal of Legal Studies 275 Peter Sankoff, ‘The Perfect Storm: Section 12, Mandatory Minimum Sentences and the Problem of the Unusual Case’ (2013) 22(1) Constitutional Forum 3 GFK Santow, ‘Mandatory Sentencing: A Matter for the High Court?’ (2000) 74 Australian Law Journal 298 Stephen J Schulhofer, ‘Two Systems of Social Protection: Comments on the Civil-Criminal Distinction, with Particular Reference to Sexually Violent Predator Laws’ (1996) 7 Journal of Contemporary Legal Issues 69
Janani Shanmuganathan, ‘R v Nur: A Positive Step but not the Solution to the Problem of Mandatory Minimums in Canada’ (2016) 76 Supreme Court Law Review 329 Elizabeth Sheehy, ‘Introduction: Mandatory Minimum Sentences: Law and Policy’ (2001) 39 Osgoode Hall Law Journal 261 Leon Sheleff, Ultimate Penalties: Capital Punishment, Life Imprisonment, Physical Torture (1987, The Ohio State University Press) Christopher Slobogin, ‘A Jurisprudence of Dangerousness’ (2003) 98 Northwestern University Law Review 1
Christopher Slobogin, ‘Legal Limitations on the Scope of Preventive Detention’ in Bernadette McSherry and Patrick Keyzer (eds), Dangerous People: Policy, Prediction, and Practice (Routledge, 2011)
Saul Smilansky, ‘The Time to Punish’ (1994) 54 Analysis 50
Sonja Snacken, ‘Resisting Punitiveness in Europe?’ (2010) 14(3) Theoretical Criminology 273 Robert Spano, ‘Deprivation of Liberty and Human Dignity in the Case-Law of the European Court of Human Rights’ (2016) 4(2) Bergen Journal of Criminal Law and Criminal Justice 150
240
Carol S Steiker, ‘Foreword: The Limits of the Preventive State’ (1998) 88 Journal of Criminal Law and Criminology 771
James Stellios, The Federal Judicature: Chapter III of the Constitution (LexisNexis Butterworths, 2010) James Stellios, Zines’s The High Court and the Constitution (Federation Press, 6th ed, 2015) Scott Stephenson, ‘Constitutional Re-engineering: Dialogue’s Migration from Canada to Australia’ (2013) 11(4) International Journal of Constitutional Law 870 Scott Stephenson, From Dialogue to Disagreement in Comparative Rights Constitutionalism (Federation Press, 2016) Scott Stephenson, ‘Is the Commonwealth’s Approach to Rights Constitutionalism Exportable?’ (2019) 17 International Journal of Constitutional Law 884 Adrienne Stone, ‘Review Essay: Constitutional Orthodoxy in the United Kingdom and Australia: The Deepening Divide’ (2014) 38 Melbourne University Law Review 835 Lord Sumption, ‘A Response’ in Richard Ekins et al (eds), Lord Sumption and the Limits of the Law (Bloomsbury Publishing, 2016) Jonathan Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, 2019) Marek Szydło, ‘Vinter v United Kingdom’ (2012) 106 American Journal of International Law 624 Greg Taylor, ‘Conceived in Sin, Shaped in Iniquity – The Kable Principle as Breach of the Rule of Law’ (2015) 34 University of Queensland Law Journal 265 Joo-Cheong Tham and KD Ewing, ‘Limitations of a Charter of Rights in the Age of Counter-Terrorism’ (2007) 31 Melbourne University Law Review 462 James Bradley Thayer, John Marshall (Houghton, Mifflin and Co, 1901) James Bradley Thayer, ‘Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7(3) Harvard Law Review 129 Adam Tomkins, Our Republican Constitution (Hart Publishing, 2005) Adam Tomkins, ‘The Role of the Courts in the Political Constitution’ (2010) 60(1) University of Toronto Law Journal 1 Michael Tonry, ‘Equality and Human Dignity: The Missing Ingredients in American Sentencing’ (2016) 45(1) Crime And Justice 459 Michael Tonry, ‘Predictions of Dangerousness in Sentencing: Déjà Vu All Over Again’ (2019) 48 Crime and Justice 439
Michael Tonry, ‘Punishment and Human Dignity: Sentencing Principles for Twenty-First-Century America’ (2018) 47(1) Crime and Justice 119 Andrew Trotter and Matt Garozzo, ‘Mandatory Sentencing for People Smuggling: Issues of Law and Policy’ (2012) 36 Melbourne University Law Review 553 Mark Tushnet, ‘New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries’ (2003) 38 Wake Forest Law Review 813 Mark Tushnet, Taking the Constitution Away from The Courts (Princeton University Press, 1999) Anne Twomey, ‘Book Review: Inside the Mason Court Revolution: The High Court of Australia Transformed by Jason L Pierce (Durham: Carolina Academic Press, 2006)’ (2007) 31 Melbourne University Law Review 1161 Dirk van Zyl Smit, ‘Constitutional Jurisprudence and Proportionality in Sentencing’ (1995) 3 European Journal of Crime, Criminal Law and Criminal Justice 369 Dirk van Zyl Smit, ‘Life Imprisonment as the Ultimate Penalty in International Law: A Human Rights Perspective’ (1999) 9 Criminal Law Forum 5
241
Dirk van Zyl Smit, ‘Outlawing Irreducible Life Sentences: Europe on the Brink?’ (2010) 23 Federal Sentencing Reporter 39 Dirk van Zyl Smit, Taking Life Imprisonment Seriously in National and International Law (Kluwer Law International, 2002) Dirk van Zyl Smit and Catherine Appleton, Life Imprisonment: A Global Human Rights Analysis (Harvard University Press, 2019) Dirk van Zyl Smit and Andrew Ashworth, ‘Disproportionate Sentences as Human Rights Violations’ (2004) 67 Modern Law Review 541 Dirk van Zyl Smit and Sonja Snacken, Principles of European Prison Law and Policy: Penology and Human Rights (Oxford University Press, 2009) Dirk van Zyl Smit, Pete Weatherby and Simon Creighton, ‘Whole Life Sentences and the Tide of European Human Rights Jurisprudence: What Is to Be Done?’ (2014) 14 Human Rights Law Review 59 Ernest van den Haag, ‘For Capital Punishment’ (1986) 99 Harvard Law Review 1662 Ernest van den Haag, ‘Refuting Reiman and Nathanson’ (1985) 14 Philosophy and Public Affairs 165 Ernest van den Haag, ‘The Death Penalty Once More’ in Hugo Bedau (ed), The Death Penalty in America: Current Controversies (1997) Andrew von Hirsch, Censure and Sanctions (Clarendon Press, 1993) Andrew von Hirsch, ‘Commensurability and Crime Prevention: Evaluating Formal Sentencing Structures and Their Rationale’ (1983) 74 Journal of Criminal Law & Criminology 209 Andrew von Hirsch and Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (Oxford University Press, 2005) Andrew von Hirsch and Nils Jareborg, ‘Gauging Criminal Harm: A Living-Standard Analysis’ (1991) 11 Oxford Journal of Legal Studies 1 Jeremy Waldron, ‘A Rights-Based Critique of Constitutional Rights’ (1993) 13(1) Oxford Journal of Legal Studies 18 Jeremy Waldron, ‘Freeman’s Defense of Judicial Review’ (1994) 13(1) Law and Philosophy 27 Jeremy Waldron, ‘How Law Protects Dignity’ (2012) 71 Cambridge Law Journal 200 Jeremy Waldron, ‘Inhuman and Degrading Treatment: The Words Themselves’ (2010) 23 Canadian Journal of Law and Jurisprudence 269 Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999) Jeremy Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346 Kate Warner, ‘Mandatory Sentencing and the Role of the Academic’ (2007) 18 Criminal Law Forum 321 Rivka Weill, ‘The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial Review and Constitution-Making’ (2014) 62(1) American Journal of Comparative Law 127 Fiona Wheeler, ‘The Kable Doctrine and State Legislative Power over State Courts’ (2005) 20(2) Australasian Parliamentary Review 15 Fiona Wheeler and John Williams, ‘‘Restrained Activism’ in the High Court of Australia’ in Brice Dickson (ed), Judicial Activism in Common Law Supreme Courts (Oxford University Press, 2007) CR Williams, ‘Psychopathy, Mental Illness and Preventive Detention: Issues Arising from the David Case’ (1990) 16 Monash University Law Review 161
George Williams, ‘The Victorian Charter of Human Rights and Responsibilities: Origin and Scope’ (2006) 30 Melbourne University Law Review 880
242
George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013) George Williams and Daniel Reynolds, A Charter of Rights for Australia (UNSW Press, 2017) George Williams and Daniel Reynolds, ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’ (2015) 41(2) Monash University Law Review 469 George Winterton, ‘Justice Kirby’s Coda in Durham’ (2002) 13 Public Law Review 165 George Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (Federation Press, 1994) Lauren Witten, ‘Proportionality as a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties’ (2017) 48(1) Ottawa Law Review 85 GD Woods, A History of the Criminal Law in New South Wales (Volume Two): The New State 1901-1955 (Federation Press, 2018) George Zdenkowski, ‘Community Protection through Imprisonment without Conviction: Pragmatism Versus Justice’ (1997) 3(2) Australian Journal of Human Rights 8
George Zdenkowski, ‘Mandatory Imprisonment of Property Offenders in the Northern Territory’ (1999) 22 UNSW Law Journal 302 Lucia Zedner, ‘Penal Subversions: When Is a Punishment Not Punishment, Who Decides and on What Grounds?’ (2016) 20 Theoretical Criminology 3
B. Speeches Justice Virginia Bell, ‘Examining the Judge’ (Speech delivered at the Launch of Issue 40(2) UNSW Law Journal, 29 May 2017) Justice Virginia Bell, ‘Judicial Activists or Champions of Self-Restraint: What Counts for Leadership in the Judiciary?’ (The General Sir John Monash Leadership Oration, 4 August 2016) Lord Dyson, ‘Are the Judges Too Powerful?’ (Speech delivered at the Bentham Association, London, 12 March 2014)
Lord Judge, ‘Constitutional Change: Unfinished Business’ (Speech delivered at University College London, 4 December 2013) Chief Justice Susan Kiefel, ‘Social Values and the Criminal Law’s Adaptability to Change’ (Speech delivered at the International Criminal Law Congress Byron Bay, 6 October 2018) Michael McHugh, ‘A Human Rights Act, the Courts and the Constitution’ (Presentation given at the Australian Human Rights Commission, 5 March 2009) Michael McHugh, ‘Does Australia Need a Bill of Rights?’ (Speech given at Melbourne Law School, 15 May 2007) Lord Mance, ‘Destruction or Metamorphosis of the Legal Order?’ (Speech delivered at the World Policy Conference, Monaco, 14 December 2013)
Lord Sumption, ‘The Limits of Law’ (The 27th Sultan Azlan Shah Lecture, Kuala Lumpur, 20 November 2013)
C. Reports Department of the Attorney-General, Government of Western Australia, ‘Review of the Dangerous Sexual Offenders Act 2006’ (2014)
243
Alice Donald et al, ‘The UK and the European Court of Human Rights’ (Research Report No 83, Equality and Human Rights Commission, 2012) 152
Jessica Jacobson and Mike Hough, ‘Unjust Deserts: Imprisonment for Public Protection’ (Report, Prison Reform Trust, 2010)
Legal Affairs and Community Safety Committee, Parliament of Queensland, Inquiry into a Possible Human Rights Act for Queensland (Report No 30 of 2016, June 2016) Bernadette McSherry, Patrick Keyzer and Arie Freiberg, ‘Preventive Detention for “Dangerous” Offenders in Australia: A Critical Analysis and Proposals for Policy Development’ (Report to the Criminology Research Council, December 2006)
National Human Rights Consultation Committee Report (September 2009)
New South Wales Sentencing Council, Consultation Paper: Homicide (October 2019) Secretary of State for the Home Department, Rights Brought Home: The Human Rights Bill (Cm 3782, 1997)
D. Cases A v Secretary of State for the Home Department [2005] AC 68 A v United Kingdom [2009] II Eur Court HR 137 Addington v Texas 441 US 418 (1979)
Aerts v Belgium (2000) 29 EHRR 50
A-G (Cth) v The Queen [1957] AC 288 Ahmad v United Kingdom (2013) 56 EHRR 1 Al-Jedda v United Kingdom [2011] IV Eur Court HR 305 Al-Saadoon v United Kingdom [2010] II Eur Court HR 61 Ashingdane v United Kingdom (1985) 7 EHRR 528
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 Atkins v Virginia 536 US 304 (2002) Attorney-General v Lawrence [2014] 2 Qd R 504 Attorney-General for the Northern Territory v Emmerson (2014) 253 CLR 393 Attorney-General (NSW) v Tillman [2007] NSWSC 605 Attorney-General (Qld) v Fardon [2003] QCA 416
Aubeeluck v Mauritius [2010] UKPC 13 Austin v Commissioner of Police of the Metropolis [2009] 1 AC 564
Austin v United Kingdom (2012) 55 EHRR 14
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 B v Germany (European Court of Human Rights, Chamber, Application No 61272/09, 19 April 2012)
Baker v The Queen (2004) 223 CLR 513
244
Baumer v The Queen (1988) 166 CLR 51
Becht v Germany (European Court of Human Rights, Committee, Application No 79457/13, 6 July 2017)
Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007 Bergmann v Germany (2016) 63 EHRR 21 Bouyid v Belgium [2015] V Eur Court HR 457 Brown v Parole Board of Scotland [2018] AC 1 Browne v The Queen [2000] 1 AC 45 Buckley v The Queen (2006) 80 ALJR 605
Calder v Bull 3 US (3 Dallas) 386 (1798) Cameron v The Queen (2002) 209 CLR 339 Carolan v The Queen (2015) 48 VR 87
Chalal v United Kingdom [1996] V Eur Court 1831 Chen v R (2002) 130 A Crim R 300 Chester v The Queen (1988) 165 CLR 611
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Coker v Georgia 433 US 584 (1977) Crump v State of New South Wales (2012) 247 CLR 1 De Wilde v Belgium [No 1] (1979–80) 1 EHRR 373
Dickson v United Kingdom [2007] V Eur Court 99 Dietrich v The Queen (1992) 177 CLR 292 Dodo v The State [2001] 3 SA 382 (Constitutional Court) DPP of Jamaica v Mollison [2003] 2 AC 411
Dred Scott v Sandford 60 US 393 (1856) Dudgeon v United Kingdom (1981) 4 EHRR 149 East African Asians v United Kingdom (1981) 3 EHRR 76 Eastman v ACT (2014) 285 FLR 325 Einhorn v France [2001] XI Eur Court HR 275 Elliott v The Queen (2007) 234 CLR 38 Enmund v Florida 458 US 782 (1982) Eriksen v Norway (2000) 29 EHRR 328
Ex Parte Coorey (1944) 45 SR (NSW) 287 Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 Foucha v Louisiana 504 US 71 (1992)
245
Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 Ghaidan v Godin-Mendoza [2004] 2 AC 557 Glien v Germany (European Court of Human Rights, Chamber, Application No 7345/12, 28 November 2013) Golder v United Kingdom (1979-1980) 1 EHRR 524 Graham v Florida 560 US 48 (2010) Grosskopf v Germany (2011) 53 EHRR 7 Guzzardi v Italy (1981) 3 EHRR 333
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 531 Haidn v Germany (European Court of Human Rights, Chamber, Application No 6587/04, 13 January 2011) Harakchiev v Bulgaria [2014] III Eur Court 317 Harkins v United Kingdom (2012) 55 EHRR 19 Harmelin v Michigan 501 US 957 (1991) Hinds v The Queen [1977] AC 195 Hirst (No 2) v United Kingdom [2005] IX Eur Court HR Human Rights Committee, Views: Communication No 1090/2002, 79th sess, UN Doc CCPR/C/79/D/1090/2002 (6 November 2003)
Human Rights Committee, Views: Communication No 1629/2007, 98th sess, UN Doc CCPR/C/98/D/1629/2007 (18 March 2010) Human Rights Committee, Views: Communication No 1635/2007, 98th sess, UN Doc CCPR/C/98/D/1635/2007 (18 March 2010) Human Rights Committee, Views: Communication No 1968/2010, 112th sess, UN Doc CCPR/C/112/D/1968/2010 (22 October 2014) Human Rights Committee, Views: Communication No 2229/2012, 116th sess, UN Doc CCPR/C/116/D/2229/2012 (29 March 2016) Hussain v United Kingdom [1996] I Eur Court HR 252 Hutchinson v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 57592/08, 17 January 2017) Hutchison Reid v United Kingdom [2003] IV Eur Court HR 1
Ilnseher v Germany (European Court of Human Rights, Chamber, Application Nos 10211/12 and 27505/14, 2 February 2017)
Ilnseher v Germany (European Court of Human Rights, Grand Chamber, Application Nos 10211/12, 27505/14, 4 December 2018) In re Gallagher [2020] AC 185 International Finance Trust Company Ltd v Australian Crime Commission (2009) 240 CLR 319 James v United Kingdom (2013) 56 EHRR 12 Jamieson v R (1992) A Crim R 68 Jendrowiak v Germany (2015) 61 EHRR 32 Kable v Director of Public Prosecutions (1996) 189 CLR 51 Kafkaris v Cyprus [2008] I Eur Court HR 223
246
Kafkaris v Cyprus (No 2) (2011) 53 EHRR SE14 Kaiyam v United Kingdom (2016) 62 EHRR SE13 Kansas v Crane 534 US 407 (2002)
Kansas v Hendricks 521 US 346 (1997)
Karim v The Queen (2013) 83 NSWLR 268 Kaytan v Turkey (European Court of Human Rights, Second Section Chamber, Application No 27422/05, 15 September 2015) Kennedy v Louisiana 554 US 407 (2008) Khoroshenko v Russia [2015] IV Eur Court HR 337 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Knight v Victoria (2017) 261 CLR 306 Kronfeldner v Germany (European Court of Human Rights, Chamber, Application No 21906/09, 19 January 2012)
Kruger v Commonwealth (1997) 190 CLR 1
Kuczborski v Queensland (2014) 254 CLR 5 Laszlo Magyar v Hungary (European Court of Human Rights, Second Section Chamber, Application No 73593/10, 20 May 2014) Latimer v The Queen [2001] 1 SCR 3 Leach v The Queen (2007) 230 CLR 1 Leeth v Commonwealth (1992) 174 CLR 455 Life Imprisonment case 45 BVerfGE 187 (1977) Liyanage v The Queen [1967] 1 AC 259 Lochner v New York 198 US 45 (1905) Lockyer v Andrade 538 US 63 (2003) Love v Commonwealth of Australia (2020) 94 ALJR 198 Lowndes v The Queen (1999) 195 CLR 665
Lyons v The Queen [1987] 2 SCR 309 M v Germany [2009] VI Eur Court HR 169 Mabo v Queensland (No 2) (1992) 175 CLR 1 McGarry v The Queen (2001) 207 CLR 121
McGarry v Western Australia (2005) 31 WAR 69 McLoughlin v The Queen [2014] 1 WLR 3964 Magaming v The Queen (2013) 252 CLR 381 Makoni v Commissioner of Prisons [2016] ZWCC 8 Mastromatteo v Italy [2002] VIII Eur Court HR 151 Matiošaitis v Lithuania (European Court of Human Rights, Second Section Chamber, Application Nos 22662/13, 51059/13, 58823/13, 59692/13, 59700/13, 60115/13, 69425/13 and 72824/13, 23 May 2017)
247
Milanović v Serbia (2014) 58 EHRR 33
Miller v Alabama 567 US 460 (2012) Minogue v Victoria (No 1) (2018) 264 CLR 252 Minogue v Victoria (No 2) (2019) 93 ALJR 1031 Momcilovic v The Queen (2011) 245 CLR 1 Montgomery v Louisiana 136 S Ct 718 (2016) Morrisey v The Queen [2000] 2 SCR 90 Muldrock v The Queen (2011) 244 CLR 120 Mullen v The Queen (1938) 59 CLR 124 Murray v The Netherlands (2017) 64 EHRR 3 Nicholas v The Queen (1998) 193 CLR 173 Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Nivette v France [2001] VII Eur Court HR 491 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 Öcalan v Turkey (No 2) (European Court of Human Rights, Second Section Chamber, Application Nos 24069/03, 197/04, 6201/06 and 10464/07, 18 March 2014) OH v Germany (2012) 54 EHRR 29 O’Neil v Vermont 144 US 323 (1892) Osman v United Kingdom [1998] VIII Eur Court HR 3124
Palling v Corfield (1970) 123 CLR 52 Petschulies v Germany (European Court of Human Rights, Chamber, Application No 6281/13, 2 June 2016)
Petukhov (European Court of Human Rights, Fourth Section Chamber, Application No 41216/13, 12 March 2019) PGA v The Queen (2012) 245 CLR 355 Pham v United States [2014] EWHC 4167 (Admin) Pollentine v Bleijie (2014) 253 CLR 629 Polyukhovich v Commonwealth (1991) 172 CLR 501 Public Service Association and Professional Officers’ Association Amalgamated (NSW) v Director of Public Employment (2012) 250 CLR 343 R v B (2005) 153 A Crim R 205 R v Bieber [2009] 1 WLR 223 R v Boudreault [2018] 3 SCR 599 R v Bryant (Unreported, Supreme Court of Tasmania, Cox CJ, 22 November 1996) R v Camilleri [1999] VSC 184 R v Cogan [1976] QB 217 R v Coulston [1997] 2 VR 446
248
R v Crabbe (2004) 150 A Crim R 523 R v Crump (Unreported, Supreme Court of NSW, Taylor J, 20 April 1974) R v Crump (Unreported, NSW Court of Criminal Appeal, 30 May 1994) R v Crump (Unreported, Supreme Court of NSW, McInerney J, 24 April 1997) R v Denyer [1995] 1 VR 186 R v Docherty [2017] 1 WLR 181 R v Eastman (Unreported, Supreme Court of the Australian Capital Territory, Carruthers AJ, 10 November 1995) R v Elliott (2006) 68 NSWLR 1 R v England (2004) 89 SASR 316
R v Ferguson [2008] 1 SCR 96 R v Garforth (Unreported, NSW Court of Criminal Appeal, 23 May 1994) R v Goltz [1991] 3 SCR 485 R v Hansen [2007] 3 NZLR 1 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 R v Knight [1989] VR 705 R v Lambert [2002] 2 AC 545 R v Leach (2005) 145 NTR 1 R v Lee [2007] NSWCCA 234 R v Lichniak [2003] 1 AC 903 R v Lloyd [2016] 1 SCR 130 R v Luxton [1990] 2 SCR 711 R v McDougall (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 21 July 2011) R v Miller (2000) 76 SASR 151 R v Minogue (Unreported, Supreme Court of Victoria, Hampel J, 14 December 1988) R v Moffatt [1998] 2 VR 229
R v Nitu [2013] 1 Qd R 459 R v Nur (2013) 117 OR (3d) 401 R v Nur [2015] 1 SCR 773 R v Oakes [1986] 1 SCR 103 R v Oakes [2013] QB 979 R v Offen [2001] 1 WLR 253 R v Pedley [2009] 1 WLR 2517
R v Safarzadeh-Markhali [2016] 1 SCR 180 R v Secretary of State for the Home Department, ex parte Venables and Thompson [1998] AC 407 R v Smith [1987] 1 SCR 1045
249
R v Taylor (Unreported, Supreme Court of Victoria, Vincent J, 24 August 1988) R v Wagner [2019] SASC 70 R v Wilkinson (1983) 5 Cr App R (S) R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 R (Chester) v Secretary of State for Justice [2014] AC 271 R (F A Child) v Secretary of State for the Home Department [2011] 1 AC 331 R (GC) v Commissioner of Police of the Metropolis [2011] 1 WLR 1230 R (Kaiyam) v Secretary of State for Justice [2015] AC 1344
R (Nicklinson) v Ministry of Justice [2015] AC 657 R (Stott) v Secretary of State for Justice [2020] AC 51 R (Walker) v Secretary of State for Justice [2010] 1 AC 553
R (Wellington) v Secretary of State for the Home Department [2008] 3 All ER 248 R (Wellington) v Secretary of State for the Home Department [2009] 1 AC 335 R (Willcox) v Secretary of State for Justice [2009] EWHC 1483 (Admin) Radu v Germany (European Court of Human Rights, Chamber, Application No 20084/07, 16 May 2013)
Re BC Motor Vehicle Act [1985] 2 SCR 486 Re Director of Public Prosecutions Reference No 1 of 2017 (2019) 364 ALR 407 Re Nolan; Ex parte Young (1991) 172 CLR 460 Re Northern Ireland Human Rights Commission’s Application for Judicial Review (Reference by the Court of Appeal (Northern Ireland)) [2019] 1 All ER 173 Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 Reyes v The Queen [2002] 2 AC 235 Roe v Wade 410 US 113 (1973) Roper v Simmons 543 US 551 (2005) Rummel v Estelle 445 US 263 (1980) S v Germany (European Court of Human Rights, Chamber, Application No 3300/10, 28 June 2012)
S v Makwanyane [1995] 3 SA 391 Saadi v Italy [2008] II Eur Court 207 Saadi v United Kingdom [2008] I Eur Court HR 31
Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519 Sawoniuk v United Kingdom [2001] VI Eur Court HR 375 Schwabe v Germany (2014) 59 EHRR 28
Sicherungsverwahrung, Bundesverfassungsgericht [German Constitutional Court], 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 571/10, 4 May 2011 reported in (2011) 128 BVerfGE 326
Soering v United Kingdom (1989) 161 Eur Court HR (ser A) Solem v Helm 463 US 277 (1983)
250
Stafford v United Kingdom [2002] IV Eur Court 115 State of Western Australia v Harvey [2019] WASC 261 Svinarenko v Russia [2014] V Eur Court HR 181 Thompson v The Queen (1999) 165 ALR 219 Thynne v United Kingdom (1991) 13 EHRR 666 Tillman v Attorney-General (NSW) (2007) 70 NSWLR 448 TP v Hungary (European Court of Human Rights, Fourth Section Chamber, Application Nos 37871/14 and 73986/14, 4 October 2016) Trabelsi v Belgium [2014] V Eur Court 301 Tyrer v United Kingdom (1980) 2 EHRR 1 V v United Kingdom [1999] IX Eur Court HR 111 Van Droogenbroeck v Belgium (1982) 4 EHRR 443
Veen v The Queen [No 2] (1988) 164 CLR 465
Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236 Vinter v United Kingdom (2012) 55 EHRR 34 Vinter v United Kingdom [2013] III Eur Court HR 317 Wainohu v New South Wales (2011) 243 CLR 181 Warden of Mountain Institution v Steele [1990] 2 SCR 1385 Weeks v United Kingdom (1987) 114 Eur Court HR (ser A) Weems v United States 217 US 349 (1910) Welch v United Kingdom (1995) 20 EHRR 247
Wik Peoples v Queensland (1996) 187 CLR 1 Willcox v United Kingdom (2013) 57 EHRR SE16 Winterwerp v The Netherlands (1979–80) 2 EHRR 387
Wong v The Queen (2001) 207 CLR 584 Woolmington v Director of Public Prosecutions [1935] AC 462 WP v Germany (European Court of Human Rights, Chamber, Application No 55594/13, 6 October 2016) Wynbyne v Marshall (1997) 7 NTLR 97 Wynne v United Kingdom (1995) 19 EHRR 333
E. Court Transcripts and parties’ submissions Craig William Minogue, ‘Plaintiff’s Submissions’, Submission in Minogue v Victoria [No 2], M162/2018, 27 February 2019 Minogue v Victoria [2019] HCA Trans 124 (18 June 2019) State of Queensland, ‘Defendant’s Written Submissions’, Submission in Kuczborski v Queensland, B14/2014, 11 August 2014
251
Stefan Kuczborski, ‘Plaintiff’s Written Submissions’, Submission in Kuczborski v Queensland, B14/2014, 16 July 2014
F. Legislation
Canada Act 1982 (UK) cl 11, sch B pt 1 Charter of Human Rights and Responsibilities Act 2006 (Vic) Children and Young Persons Act 1933 (UK), repealed by Powers of Criminal Courts (Sentencing) Act 2000 (UK) sch 12 Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9
Community Protection Act 1994 (NSW), as repealed by Statute Law (Miscellaneous Provisions) Act 2015 (NSW) sch 6 item 1 Controlled Drugs and Substances Act SC 1996, c 19 Corrections Act 1986 (Vic) Corrections Amendment (Parole) Act 2018 (Vic) Corrective Services Act 2006 (Qld) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes Administration of Sentences Act 1999 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes Legislation Amendment (Existing Life Sentences) Act 2001 (NSW) Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 1997 (UK) c 43 Crimes (Sentencing) Act 2005 (ACT) Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 (NSW) Criminal Code, RSC 1985, c C-46 Criminal Code Act 1899 (Qld) Criminal Code Act 1913 (WA) Criminal Code Act 1995 (Cth) Criminal Justice Act 2003 (UK) c 44 Criminal Law Amendment Act 1945 (Qld)
Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 (Qld) Criminal Law (High Risk Offenders) Act 2015 (SA)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
Dangerous Sexual Offenders Act 2006 (WA), repealed by High Risk Offenders Act 2020 (WA) s 121
Firearms Act 1968 (UK) c 27
252
High Risk Offenders Act 2020 (WA)
Human Rights Act 1998 (UK) c 42
Human Rights Act 1998 (Commencement No 2) Order 2000 (UK) SI 2000/1851
Human Rights Act 2004 (ACT)
Human Rights Act 2019 (Qld)
Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
Justice Legislation Amendment (Parole Reform and Other Matters) Act 2016 (Vic) Migration Act 1958 (Cth) Motor Vehicle Act, RSBC 1979, c C-288. Murder (Abolition of Death Penalty) Act 1965 (UK) c 71 New Zealand Bill of Rights Act 1990 (NZ)
Penalties and Sentences Act 1992 (Qld)
Powers of Criminal Courts (Sentencing) Act 2000 (UK) c 6 Representation of the People Act 1983 (UK) c 2 Sentence Administration Act 2003 (WA) Sentencing Act 1989 (NSW), repealed by Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) sch 1 Sentencing Act 1991 (Vic) Sentencing Act 1995 (WA) Sentencing Act 1995 (NT), repealed by Sentencing Act 2003 (NT)
Sentencing Act 1997 (Tas) Sentencing Act 2003 (NT) Sentencing Act 2017 (SA) Sentencing Amendment (Transitional) Act 1997 (NSW) Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) Serious and Organised Crime Legislation Amendment Act 2016 (Qld) Serious Offenders Act 2018 (Vic) Serious Sex Offenders Act 2013 (NT)
Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), repealed by Serious Offenders Act 2018 (Vic) s 350
Sexually Violent Predator Act, Kan Stat Ann § 59-29a02(a) (1994).
Statute Law (Miscellaneous Provisions) Act 2015 (NSW)
Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA)
Vicious Lawless Association Disestablishment Act 2013 (Qld), repealed by Serious and Organised Crime Legislation Amendment Act 2016 (Qld) s 492
253
G. Treaties and Committee of Ministers Recommendations Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies) United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
H. Parliamentary Debates New South Wales, Parliamentary Debates, Legislative Council, 30 March 2006, 21805
Queensland, Parliamentary Debates, Legislative Assembly, 4 June 2003, 2563, 2569
Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3114 Queensland, Parliamentary Debates, Legislative Assembly, 17 October 2013, 3536 Victoria, Parliamentary Debates, Legislative Council, 18 February 2014, 305 Victoria, Parliamentary Debates, Legislative Council, 11 March 2014, 590 Victoria, Parliamentary Debates, Legislative Assembly, 7 December 2016, 4850, 4855 Victoria, Parliamentary Debates, Legislative Assembly, 24 July 2018, 2238 Victoria, Parliamentary Debates, Legislative Council, 25 July 2018, 3276-8 Victoria, Parliamentary Debates, Legislative Council, 26 July 2018, 3305 Western Australia, Parliamentary Debates, Legislative Council, 14 March 2006, 274
Western Australia, Parliamentary Debates, Legislative Council, 2 December 2015, 9224, 9225
Western Australia, Parliamentary Debates, Legislative Assembly, 28 June 2016, 4170–215
Western Australia, Parliamentary Debates, Legislative Assembly, 29 June 2016, 4290
Western Australia, Parliamentary Debates, Legislative Assembly, 14 September 2017, 4098
I. Media Richard Ackland, ‘When Pure Evil Is No Longer the Correct Label’, Sydney Morning Herald (online, 22 April 2005)
Olivia Caisley and Nicola Berkovic, ‘‘Activism’ Puts Focus on High Court Vacancies’, The Australian (online) 21 February 2020
254
Laura Chang, ‘Anita Cobby Murderer Gary Murphy Dies in Prison’ Sydney Morning Herald (online, 22 February 2019)
David King, ‘Russell Street Bomber Craig Minogue Wins Parole Battle’, The Australian (online, 20 June 2018)
Indra Warnes, ‘Triple Murderer Arthur Hutchinson’s Latest Appeal Against UK Whole Life Sentences Dismissed by EU Human Rights Judges’, The Sun, 18 January 2017
‘Dangerous Sex Offender Warren Ugle to be Released on 10-Year Supervision Order’, Perth Now Sunday Times (online), 24 November 2015
‘Dangerous WA Paedophile Walks Free Despite Being Classed “High Risk”’, WA Today (online), 5 September 2017
‘Release of Serial WA Sex Offender TJD Prompts Legislative Review’, ABC (online), 20 March 2014
J. Online material Australian Government, ‘Response of Australia to the Human Rights Committee in Communication No. 1968/2010 Blessington and Elliot (sic) v Australia’
255
HM Prison and Probation Service, ‘PSO 4700 Indeterminate Sentence Manual’, Justice (Web Page, 11 April 2019) Chapter 12
256