Subjective and objective jurisdictional facts in habeas corpus proceedings: Chattaway v Minister for Health and Wellbeing

A few weeks ago now – time flies when you’re binge watching The Wire – a Full Court of the Supreme Court of South Australia handed down judgment in Chattaway v Minister for Health and Wellbeing. While the judgment does not establish any new principle, it is interesting for two reasons. First, it adds to a growing list of Australian authorities that emphasise that the writ of habeas corpus ad subjiciendum is not always the most appropriate procedural mechanism for challenging the lawfulness of a person’s detention by the executive government of a State. Rather, in many cases – particularly those in which the person’s detention is said to be rendered unlawful by some latent jurisdictional error – other aspects of a State Supreme Court’s constitutionally protected jurisdiction to review the lawfulness of executive action will provide a more appropriate mechanism for dealing with such a challenge. Second, the judgment deals with the distinction between ‘objective’ and ‘subjective’ jurisdictional facts, and with the principles involved in determining whether an express factual precondition to the exercise of a statutory power is one the existence of which must be ascertained objectively (in which case the power’s exercise will be unlawful if a court exercising judicial review jurisdiction subsequently finds that the precondition did not exist at the relevant time), or subjectively (in which case the power’s exercise will be lawful if the decision maker, acting rationally, fairly and in good faith, believed that the factual precondition existed at the relevant time).

The facts

The plaintiff in Chattaway was charged with the attempted murder of each of his parents. However, pursuant to s 269F of the Criminal Law Consolidation Act 1935 (SA) (the Act), the Supreme Court of South Australia recorded a finding that he was ‘mentally incompetent to commit the offence’. As a result, the plaintiff was liable to detention and supervision under Pt 8A, Div 4 of the Act. Pursuant to s 269O, the Supreme Court ordered in December of 2016 that the plaintiff be detained for a period not exceeding ten years. In accordance with s 269V of the Act, this meant that the plaintiff entered the custody of the defendant Minister, who was empowered by s 269V(1) to give directions for the plaintiff’s custody, supervision and care. The Minister was authorised to delegate these powers to a range of persons, including the Chief Psychiatrist. Pursuant to s 269V, the Minister (and, by delegation, the Chief Psychiatrist) was empowered to place the plaintiff into the custody, supervision and care of another; alternatively, if there was ‘no practicable alternative’, the Minister was authorised to direct that the plaintiff be kept in custody in a prison.

From December of 2016, the plaintiff was detained at a forensic mental health facility in Adelaide. However, for reasons that do not appear from the judgment, the Chief Psychiatrist determined in March of 2020 that it was no longer practicable for the plaintiff to be detained at the facility and directed that he be detained at a prison. The plaintiff applied to the Supreme Court for a writ of habeas corpus ad subjiciendum requiring the Minister and/or the Chief Psychiatrist to convey him to the Court and show why his detention at the prison was justified. The Supreme Court then reserved a question of law for a Full Court, being whether the existence of a practical alternative to imprisonment was an objective matter to be judged by the Court on judicial review – an ‘objective jurisdictional fact’ – or a subjective matter to be judged (lawfully, in accordance with relevant administrative law principles) by the Minister or his delegate – a ‘subjective jurisdicitional fact’. Before turning to the Court’s judgment, it is worth discussing what habeas corpus and jurisdictional facts are.

What is habeas corpus ad subjiciendum?

While it is common to refer to the writ (singular) of habeas corpus – even the Constitution of the United States does so, in Art I, s 9, cl 2 – the common law has historically recognised at least seven different writs of habeas corpus. These include the writs of habeas corpus ad prosequendum and habeas corpus ad testificandum, ‘which issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction wherein the fact was committed.‘ As a practical matter, those writs have been superseded in Australia by statutory provisions (such as s 14 of the Gaols Act 1887 (Vic) and its successors) that empower superior and inferior courts to order that a detained person be brought before the court for any purpose connected with the conduct of a proceeding. Indeed, they are so obsolete in Australia that in a proceeding in the High Court in 1995, Gaudron J’s initial response to an application for a writ of habeas corpus ad testificandum was to state that ‘I do not understand that there is any such writ.’ In New Zealand, all writs of habeas corpus other than habeas corpus ad subjiciendum have been abolished by statute.

Because most of the writs of habeas corpus recognised by the common law are now obsolete in Australia, it is common to use the phrase habeas corpus as shorthand for the writ of habeas corpus ad subjiciendum. Indeed, even in the United States, where the lesser known writs of habeas corpus are still employed, Marshall CJ stated as early as 1807 that while habeas corpus is a ‘generic term’ that refers to a number of different writs, ‘when used singly – when we say “the writ of habeas corpus,” without addition, we most generally mean that great writ [of habeas corpus ad subjiciendum] which is now applied for, and in that sense it is used in the Constitution.’ So what is the writ of habeas corpus ad subjiciendum? Fundamentally, it is a procedural mechanism by which the lawfulness of any total deprivation of a person’s liberty may be tested. Thus, as the Supreme Court of Victoria has put it:

It is a mechanism for making a substantive order releasing a person from detention and is not a remedy in and of itself … [T]he writ is a means ‘to test the legality of a given restraint on liberty’ or ‘to test the lawfulness of the arrest and detention’; it is ‘the ancient and most celebrated and most efficacious procedural instrument of the common law’ that ‘provides an immediate, expeditious and effective machinery for vindicating and securing the liberty of the subject’. For this reason, Roberts CJ (in dissent as to the result) observed in Boumediene v Bush that ‘[h]abeas is most fundamentally a procedural right, a mechanism for contesting the legality of executive detention.’ Similarly, in M68 v The Commonwealth, Gageler J noted that ‘the question of amenability to the writ is quite distinct from the question of the legality or illegality of the detention.’ The liberty of the subject may be secured by ‘orders consequent upon a writ of habeas corpus, directing the release of’ the person detained, not … by the writ of habeas corpus alone.

Because it is simply a procedural mechanism for testing the legality of a person’s detention, the procedures associated with the writ of habeas corpus ad subjiciendum have changed over the years and vary significantly between superior courts. Indeed, in the Australian Capital Territory, the writ has formally been abolished, although the jurisdiction of the Territory’s Supreme Court to make procedural and substantive orders testing the lawfulness of a person’s detention and vindicating their right to be released from unlawful restraint has not. Notwithstanding these variations, the exercise of an Australian superior court’s jurisdiction to test the lawfulness of a person’s detention inevitably involves something akin to the ‘ancient process‘ employed by the common law courts of England and Wales in habeas proceedings. This process comprises two steps: first, the plaintiff must show probable cause to believe that they (or some other person – generally speaking, ‘[a]nybody in the community who knows that a person is wrongfully imprisoned has a right to have the writ to discharge that person out of the imprisonment‘) are being detained unlawfully. If the plaintiff meets this low threshold, an order will be made requiring the defendant to demonstrate why the plaintiff’s detention is lawful. At this second stage, the court will order that the plaintiff be released if the defendant fails to affirmatively satisfy it that the plaintiff’s detention is lawful. Ordinarily, if the plaintiff succeeds at the first stage, a writ of habeas corpus ad subjiciendum (or a functionally identical procedural order in those jurisdictions where the writ has been abolished) will issue requiring the defendant to facilitate the plaintiff’s presence at court during the second stage, although there is nothing to prevent a court from ordering the defendant to set the plaintiff at liberty without first formally issuing the writ. Because the writ of habeas corpus ad subjiciendum exists to provide an expeditious procedure for testing the lawfulness of a person’s detention, the two stages will ordinarily take place within a matter of days.

However, the fact that the writ of habeas corpus ad subjiciendum contemplates an expeditious, summary procedure for determining the lawfulness of a person’s detention means that there are cases in which its use is inappropriate. For example, the recent trend of authority in Australia and New Zealand suggests that habeas corpus is not generally an appropriate mechanism for challenging the lawfulness of a person’s detention pursuant to a judicial order or administrative decision that, though apparently valid on its face, is alleged by the plaintiff to be void for jurisdictional error (such as a failure to comply with the rules of procedural fairness). That is, ‘habeas corpus does not provide a procedure for seeking judicial review for latent jurisdictional error.‘ It follows that where testing the lawfulness of a person’s detention is likely to require evidence or discovery of documents, it will be more appropriate to seek an order in the nature of certiorari quashing the decision that is said to authorise the persons’s detention, and an injunction requiring them to be released, than to apply for a writ of habeas corpus ad subjiciendum. The same position applies where it is sought to challenge the location or conditions of a person’s detention, as opposed to the lawfulness of their detention per se. Finally, the writ is likely to be inappropriate where the defendant lacks sufficient physical control over the plaintiff to convey them to court (for example, where the plaintiff is on parole and seeks to challenge the lawfulness of their parole conditions). In this regard, the position in Australia is very different from that in the United States, where habeas proceedings may be employed to challenge the lawfulness of partial restrictions on a person’s liberty (such as those imposed by a parole order), and to challenge on constitutional grounds the lawfulness of a person’s detention pursuant to a sentence of imprisonment.

What are jurisdictional facts?

While I think the term ‘jurisdictional fact’ is unnecessarily confusing, it is now well entrenched in Australian public law. Fundamentally, a jurisdictional fact is a state of affairs that must exist in order for a statutory power or duty to be enlivened. Whether the existence of the state of affairs falls to be determined by the repository of the relevant power or by a reviewing court depends on whether the jurisdictional fact is properly characterised as ‘subjective’ or ‘objective’. The distinction was helpfully explained by Biscoe J  in Arnold v Minister Administering the Water Management Act 2000 (No 6):

A jurisdictional fact is a fact that, by statute, is a condition precedent to the decision-maker’s exercise of jurisdiction. An objective jurisdictional fact is that X exists or occurred. A subjective jurisdictional fact is that the decision maker has a prescribed mental state, such as being satisfied or holding the opinion that X exists or occurred. In the case of a subjective jurisdictional fact, the court determines on the evidence before it whether the decision maker was satisfied or held the opinion that X exists or occurred. But (as discussed below) even if that is so, if that state of satisfaction or opinion was seriously irrational or illogical the decision will be unlawful. In contrast, in the case of an objective jurisdictional fact the court determines on the evidence before it whether X exists or occurred; therefore, inquiry into irrationality by the administrative decision maker is irrelevant.

Where a jurisdictional fact requires some judgment with respect the allocation of scarce public resources, or relates to some matter that requires particular government expertise, it will almost inevitably be characterised as subjective. Thus courts have almost inevitably characterised provisions conferring powers on corrections authorities as being conditioned on subjective jurisdictional fact finding, to the point where they have taken a ‘hands off’ approach under which (as the Supreme Court of South Australia once put it) ‘[p]risoners have been singularly and conspicuously unsuccessful in their attempts to have the Courts intervene for the protection of any residual rights under the law which they might retain against abuses of power by the administrative regimes set up for their detention and control.’

The judgment in Chattaway

Consistently with the general presumption that decisions concerning the allocation of public resources are conditioned on subjective jurisdictional fact finding, the Full Court held that the question whether there was no practical alternative to imprisoning the plaintiff was one that fell to be determined subjectively by the Minister or his delegate. In this regard, the Full Court considered that ‘[w]hat is practicable … requires a careful evaluative judgment as to the allocation of limited resources by the decision-maker’ and that ‘it would be inconvenient if the existence of the relevant fact … is an objective jurisdictional fact.  In effect, it would render the direction as provisional.’ With respect to the appropriate procedure for testing the lawfulness of the decision to transfer the plaintiff from a psychiatric facility to a prison, the Court reiterated that while habeas is not always the appropriate mechanism for testing the validity of a restraint on a person’s freedom, there will always be some remedy available to an Australian superior court to prevent the executive government from unlawfully interfering with a person’s liberty:

The applicant in this case is already subject to an order for detention … His grievance is not amenable to the remedy of the old writ of habeas corpus. He does not seek to be brought before the Court for the purpose of restoring his freedom from unlawful detention. He is lawfully detained pursuant to s 269O.  What is in issue is where he is detained. However, the inapplicability of habeas corpus is largely academic as his complaint is amenable to judicial review or declaration if the direction made pursuant to s 269V(2)(b) is unlawful.

As a result, the Full Court remitted the matter to the trial judge to determine the plaintiff’s application on the basis that the question whether there was no practicable alternative to detaining him in a prison was a subjective jurisdictional fact that had to be decided by the Minister (or his delegate) according to law, not an objective jurisdictional fact that the Court was entitled to decide for itself.

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