‘Too great a cost’: The High Court’s ruling in the Garlett appeal highlights the need for a Human Rights Act

13th Oct 2022

In November 2017, a 23-year-old man stole $20 in cash and a pendant necklace, pretending to be armed. He was arrested the following day and charged with robbery. He pled guilty and was sentenced to three years and six months in gaol. Case closed? Not quite.

When Peter Garlett, a Noongar man, was about to be released, the Western Australian government tried to stop him. This was Peter’s first adult offence, although he had been incarcerated since he was 12 years of age.

The state government turned to the High Risk Serious Offenders Act 2020 (WA) (the Act). This Act allows the government to ask the Supreme Court of Western Australia to keep ‘serious offenders’ behind bars after their prison sentence ends if the Court believes there is an ‘unacceptable risk’ that the person will commit ‘a serious offence’.

A fundamental tenet of our legal system is that a person should only be imprisoned if a court has found them guilty of a criminal offence. A legal action was brought for Peter and for many other Aboriginal people being placed under the Act, on the basis that the  Act breached this important legal principle. The Western Australian law sought to further imprison Peter on the basis that he might commit an offence in the future. The High Court appeal argued that the new law breached ch III of the Constitution, making the Court punish him even though he had done nothing wrong. In doing so, it impaired the ‘institutional integrity’ of the Supreme Court.

Last month the High Court of Australia disagreed. Five judges said the Act was constitutional. The majority held that imprisonment under the Act was designed to protect the community and therefore did not constitute punishment.

Our legal system allows for preventive detention in some cases. In Fardon, the High Court gave the green light to a regime that allowed prisoners convicted of a sexual offence involving violence or against children to be imprisoned after their sentence ended if the Court believed the offender was a serious danger to the community. In Benbrika, the Court said a similar system for people convicted of terrorism was also constitutional.

But Peter was convicted of robbery – he stole $20 and a necklace. The appeal urged the Court to distinguish robbery from serious child sexual offences and terrorism.

The majority said this was a question for Parliament. Not every judge agreed. In dissent, Gageler J asked if robbery ‘is sufficient to justify empowering a court to order pre-emptive detention in custody, it needs to be asked: what offence is not?’ (at [158]). Justice Gordon, also in dissent, issued a powerful rejoinder to the majority. Her Honour held that exceptions to the fundamental principle of liberty must be for only the most serious cases. Including robbery ‘comes at too great a cost’ to ‘the core values’ of our constitutional system (at [200]).

Even one of the judges in the majority had his doubts. Noting that the Act could ‘potentially lead to the imprisonment of one seventh of the entire prison population of Western Australia for offences that they have not committed’ (at [205]), Edelman J wondered whether the Act could ‘ever be morally justified’. Nevertheless, he held that ‘the Constitution does not prohibit the Parliament of Western Australia from empowering a court to impose that injustice’ (at [284]).

The Garlett High Court case shows the urgent need for a federal Human Rights Act and even constitutional protection of human rights by way of a Charter or Bill of Rights. Indefinite detention such as that sought in relation to Peter Garlett is a form of arbitrary detention. It is inconsistent with the International Covenant on Civil and Political Rights (ICCPR), which Australia signed in 1972.

It is also inconsistent with the federal government’s commitment to Closing the Gap and reducing Indigenous incarceration. In Western Australia this law will contribute, according to the government’s own advice, to the further incarceration of possibly 700 more Aboriginal adult prisoners. We know that Aboriginal incarceration is continuing to rise, as well as child removal and suicide rates, and all are interrelated.

It is now more than 30 years since the Royal Commission into Aboriginal Deaths in Custody released its Final Report. The Commission made many recommendations, including the key recommendation that Aboriginal incarceration must only happen as a matter of last resort. There have been misleading claims made by the previous federal government that the Royal Commission recommendations were overwhelmingly implemented. This Western Australia law – along with mandatory detention laws (also known as ‘three strikes’) – show why incarceration rates of Indigenous people remain so high in Western Australia.

In its Pathways to Justice inquiry, the Australian Law Reform Commission called for a National Justice Reinvestment body to reduce Aboriginal imprisonment. We need this now more than ever. In dissent,  Gordon J warned that other states and territories may copy this legislation. We must not permit this to happen.

The participation of Aboriginal people in the justice system is fundamental to justice and essential in addressing Aboriginal incarceration. Conversations about diversity in law need to include Indigenous peoples. Just last month, Canadian Prime Minister Justin Trudeau responded to long-standing criticism of the exclusion of Aboriginal people from Canada’s highest court by announcing the appointment of Michelle O’Bonsawin from the Odanak First Nations to the Supreme Court.

Over the next 18 months, two vacancies will arise in our High Court. The appointment of an Aboriginal judge will go some way to ensure justice for Aboriginal people whose experience of racism and systemic bias in the legal system has for too long been neglected.

This is an edited version of an article first posted by the ABC on 15 September 2022.

The ALA thanks Dr Hannah McGlade and Dr Harry Hobbs for this contribution.

Dr Hannah McGlade is Associate Professor in Curtin Law School. She is from the Kurin Minang people and a member of the UN Permanent Forum for Indigenous Issues.





Dr Harry Hobbs is a Senior Lecturer in the Faculty of Law at University Technology Sydney.




The views and opinions expressed in this article are the authors’ and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

Tags: Human rights Western Australia Aboriginal and Torres Strait Islander people Dr Hannah McGlade Dr Harry Hobbs Peter Garlett