Crown Solicitor's Office

ALQ September 2022 High Court

Issue: September 2022

High Court

New 'reasonable expectations' test for retrospective or retroactive operation of statutes

Access the decision: Stephens v The Queen [2022] HCA 31

On 29 November 2018, Mr Stephens was arraigned in the District Court and pleaded not guilty to historic sexual offences. Four of the instances of alleged conduct were formulated as pairs of alternative counts for offences under s. 81 (in force until 8 June 1984) and s. 78K (in force from 8 June 1984 to 13 June 2003) of the Crimes Act 1900

On 1 December 2018, s. 80AF of the Crimes Act came into force. It provided that, where it is uncertain as to when during a period alleged conduct occurred and that conduct would have constituted more than one sexual offence in the period, the prosecution can rely on whichever offence carries the lesser maximum penalty. 

Mr Stephens' indictment was amended so that the counts which had been alternatives, relied only on s. 81. He was ultimately convicted of those four counts and others. Mr Stephens appealed to the Court of Criminal Appeal in relation to the counts which relied on s. 80AF. His convictions on three of the four counts were upheld.

Mr Stephens appealed to the High Court. The key issue was whether s. 80AF applied retroactively to his trial. The High Court held that s. 80AF did not operate with respect to trials that had already commenced prior to its coming into force and could not be invoked after a trial had commenced. 

Their Honours eschewed the significance of the distinction between provisions which operate 'retroactively' as opposed to 'retrospectively'. The Court reformulated the presumption concerning how to interpret the temporal operation of legislation as based upon the 'reasonable expectations' of the public about how a law is implemented; the force of the presumption depended upon the circumstances of the case, including the extent to which a law's retrospective operation would interfere with fundamental rights. Their Honours considered that an interpretation of s. 80AF as completely retroactive would 'significantly disturb reasonable expectations' about the how the law is implemented by changing the law for extant proceedings where forensic decisions may have been made; in particular, s. 80AF would remove a possible path of acquittal based upon uncertainty as to the period of offending. 

High Court upholds Western Australian continuing detention order scheme for offenders convicted of robbery offences

Access the decision: Garlett v State of Western Australia [2022] HCA 30

Mr Garlett had been sentenced to a term of imprisonment following guilty pleas to offences of robbery and assault with intent to rob. He had, in company with others, entered a dwelling without consent and stolen a pendant necklace and $20 cash whilst pretending to be armed with a handgun. 

Shortly before his term of imprisonment was due to expire, the State of Western Australia applied to the Supreme Court of Western Australia for a restriction order in relation to Mr Garlett under the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act). The HRSO Act applied to persons convicted of a 'serious offence' which included, relevantly, robbery. The court was required to make a continuing detention order or a supervision order in relation to the offender if it found that the offender was a 'high risk serious offender'. Such a finding depended on whether the court was satisfied that a restriction order was 'necessary' to 'ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.'

Mr Garlett challenged the validity of the HRSO Act insofar as it applied to persons convicted of robbery, on the basis that it was contrary to Chap. III of the Constitution (Cth) by reason of the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

The key issues before the High Court were: whether, in purporting to confer the function of making a restriction order, the HRSO Act substantially impaired the institutional integrity of the Supreme Court of Western Australia as a repository of federal jurisdiction; and, what was the relevance to that analysis, if any, of the principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 to the effect that, exceptional cases aside, the involuntary detention of a citizen in custody by the State is penal or punitive in character and exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.

The High Court delivered five sets of reasons. Five Justices upheld the validity of the HRSO Act in its application to offenders convicted of robbery, finding that the function conferred on the Supreme Court of Western Australia was not incompatible with its role as a repository of the judicial power of the Commonwealth. Four Justices found that the principle in Lim, articulated as a limitation on Commonwealth legislative power, was irrelevant to the validity of the HRSO Act.

High Court upholds the validity of the Surveillance Devices Act 2007 in relation to animal welfare activists

The plaintiffs commenced proceedings in the High Court, contending that ss. 11 and 12 of the Surveillance Devices Act 2007 (the SD Act) were invalid because they impermissibly burdened the implied freedom of political communication implied in the Constitution. Section 11 prohibits the publication etc of a record of the carrying on of an activity that has come to the person's knowledge as the result of the use of an optical surveillance device in contravention of Part 2 of the Act. Section 12 prohibits the possession of a record of the carrying on of an activity knowingly obtained by the use of an optical surveillance device, in contravention of Part 2. Section 8 (in Part 2) prohibits the installation, use, or maintenance of an optical surveillance device to record activities within premises or a vehicle, where entry onto the premises or into the vehicle amounts to a trespass.

The plaintiffs submitted that ss. 11 and 12 of the SD Act operated as an effective 'gag' on communication about agricultural practices involving cruelty to animals.

The Court, by majority, held that ss. 11 and 12 of the SD Act were valid as they did not impermissibly burden the implied freedom of political communication, at least where a person was complicit in the record or report being obtained in breach of s. 8 of the SD Act. The Court held that the incremental burden imposed by the prohibition on the publication and possession of visual records obtained by trespass was reasonably appropriate and adapted to the legitimate purpose(s) of those provisions, being the protection of privacy (through the deterrence of trespass) and/or property rights. 

Other decisions in this issue

Last updated:

09 Jun 2023

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