Aboriginal Legal Service of Western Australia (Inc) v The State of Western Australia

[1992] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P23 of 1992

B e t w e e n -

ABORIGINAL LEGAL SERVICE OF

WESTERN AUSTRALIA (INC)

Applicant

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

and

LAWRENCE BERNHARD MAROUET

Second Respondent

Application for removal and an

application for a stay

Aboriginal 1 24/9/92

MASON CJ

DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 24 SEPTEMBER 1992, AT 10.10.AM

Copyright in the High Court of Australia

MR G.J. LINDELL: If the Court pleases, I appear for the

Aboriginal Legal Service of Western Australia.

(instructed by Aboriginal Legal Service of Western

Australia (Inc.))

MR L.S. KATZ:  If the Court pleases, I appear for the

respondents. (instructed by the State Crown

Solicitor for Western Australia))

MASON CJ:  Mr Lindell.

MR LINDELL:  Thank you, Your Honour. If the Court pleases,

I have handed up the outline of my argument for

today.

MASON CJ: Yes.

MR LINDELL:  The Court would be aware that there are two

applications pending, made by the Aboriginal Legal the Western Australian Supreme Court in an attempt

to prevent the Western Australian Legislative

Council to compel the production of documents; the

documents relate to the expenditure of Commonwealth

funds by the Aboriginal Legal Service. If

Your Honour pleases, the two applications will now

not be necessary because we will not be pursuing

the application for the stay of proceedings.

I have been instructed to draw the Court's

attention to certain developments that took place

yesterday morning. If the Court pleases,

His Honour Mr Justice Seaman of the Supreme Court

of Western Australia apparently has vacated the
orders made by the acting master in the

proceedings; these were orders that would have

+equired the Western Australian trial to proceed,

with the hearings to commence tomorrow. Those

orders have now been discharged and it seems that

that decision was made because of the application

to remove.

Mr Justice Seaman was very conscious of the

application for removal, and I am instructed to inform the Court that that was the basis of his

decision. Both parties were given liberty to apply

on 24 hours notice if they did wish to bring on the matter in the Western Australian Supreme Court, but as I understand it the State of Western Australia

will not do that pending, of course, the

determination of the application for removal.

Given the orders made by Mr Justice Seaman, as

I say I will not be pursuing the application for the stay, and accordingly it will not be necessary

Aboriginal 2 24/9/92

for me to refer to paragraph 3 to 7 of the outline

of argument that has been handed up.

I would now turn, Your Honours, to the

application for the removal into this Court. As

Your Honours will be aware an action has already

been commenced in the same matter arising out of

the same facts in the High Court. The application

being made under section 40, I am aware, of course,

that the Court would need to be satisfied that it

is appropriate to make the order having regard to
all the circumstances, including the interest of

the parties and the public interest under

section 40(4).

If the Court pleases, I would like to

summarize briefly the four essential grounds on

which I rely to have the Western Australian

proceedings removed into this Court. In the first
place, Your Honours, the constitutional points made

and the questions raised by the pleadings in both

actions, we would suggest, are essentially the

same. It is just that the Western Australian

action will, of course, be concentrating on the

Legislative Council's first resolution passed on

2 June of this year, and I would emphasize the fact

that that resolution has indeed not been rescinded,

and the order that was made in that resolution had

not been complied with by the Aboriginal Legal

Service. The important thing to note is that that

resolution was addressed to the Aboriginal Legal

Service. The second resolution made on

15 September is far more particular in its

requirements to produce documents, it is addressed

to five named individuals.

As I emphasize, the first resolution has not

been rescinded. Accordingly, the Aboriginal Legal

Service is somewhat concerned that it is still at

risk for not having complied with that resolution.

The second ground that I would rely on,

Your Honours, as is indicated in paragraph 9(2) on

page 2 of my outline, the proceedings do raise real

questions of law, the determination of which will

substantially affect the rights and obligations of

the ALS and the fundamental freedoms of its
officers, particularly those that are named. Their
personal liberty is ultimately potentially in issue

and as we say to Your Honours, in this regard the

jurisdictional issues raised do touch on the

decision of the Court in Reg v Richards ex parte

Fitzpatrick and Browne.

MASON CJ:	How does it touch on that decision?
Aboriginal	24/9/92
MR LINDELL:	Your Honours, that was a decision that bore

upon the privileges of the Parliament, the Houses

of Parliament. The powers that are sought to be

exercised by the Legislative Council are very

similar in nature to the powers and privileges that

are possessed by the House of Representatives,

which was an issue.

McHUGH J: But those powers had a foundation in section 49

of the Constitution in Browne and Fitzpatrick.	You
do not have anything like that here.

MR LINDELL:  Your Honours, there are provisions in the

Western Australian Constitution documents that do in fact give the Western Australian Parliament the

power to vest in its houses and its committees the
privileges that are necessary to exercise their
powers with the one proviso, that the privileges
that are declared do not exceed those that were
possessed by the House of Commons at the relevant
time. So that this has put the Western Australian
Parliament in the position of being able to pass a

Parliamentary Privileges Act which would claim the

privileges that the House of Commons had.

MASON CJ: But it is not a federal constitutional question,

is it?

MR LINDELL:	Your Honours, we are going to suggest, and I would like to elaborate this point, that the
Commonwealth Constitution is attracted by the
nature of the inquiry, or at least the nature of
the order made to produce documents, given that it
relates to the expenditure of Commonwealth funds,
and the way in which those funds were obtained by
the Aboriginal Legal Service and I will address the Court on that in a moment, if the Court pleases.

The third point that we would make,

Your Honours, is that there is no need to determine

any questions of fact, given the way in which the

proceedings have been handled so far, so that we

would not need to trouble the Court on that matter.
And we would lastly emphasize the point that there

are major constitutional issues, as I hope to

illustrate in a moment, on which however there is a

dearth of authority. This is not a matter of which

has much guidance from the previous cases. The

Fitzpatrick v Browne case being perhaps a notable exception in that regard, decided in 1954.

Those then are the four main grounds and we would urge the Court to remember that the liberty

of the persons who have been named in the

resolutions of the Legislative Council are in issue

here which makes these constitutional points all

the more important.

Aboriginal 4 24/9/92

MASON CJ:	In what way is their liberty in issue?
MR LINDELL:	If Your Honour pleases, the powers that the

Legislative Council possesses for punishing people

position of being able to order the imprisonment of persons who do not comply with their lawful orders.	for contempt do put the Legislative Council in the resolutions are not lawful, for reasons that are connected with the Commonwealth Constitution and
that is the point that I would now like to address
the Court on, essentially the five grounds which do raise questions of the Commonwealth Constitution.

MASON CJ: Yes.

MR LINDELL: If I may summarize those claims. They are

elaborated in paragraphs 18 to 24 of the statements

of claim in both cases, but I think it would be of

some assistance to the Court if I summarized, in

effect, the nature of the claims based on the

Commonwealth Constitution. We would argue that the

resolutions passed by the Legislative Council are

invalid because, in the first place, there is an

inconsistency between what is being done by the

Legislative Council with Commonwealth legislation -

that is, the Aboriginal and Torres Strait Island

Commission Act and also the Audit Act.

Your Honours, the inconsistency is derived

from the fact that there is a regime of

Commonwealth control and accountability for the

expenditure of Commonwealth funds that is provided

for in that federal legislation and, for that

reason, one of our grounds of invalidity will rest

upon section 109 of the Constitution.

The second ground to attract the Commonwealth

Constitution is an inconsistency with sections 81

and 61 of the Constitution. Given that the money

is derived from Commonwealth agencies there is

here, we would suggest, a potential for controlling

and burdening the exercise of Commonwealth

authority under sections 61 and 81 of the

Constitution because of the disbursement of

Commonwealth funds that is involved.

The third ground, Your Honour, is a question

of discrimination; the attempt by the Legislative
Council, we would argue, to discriminate against

persons by reference to the funds that they have

received from Commonwealth agencies and that, as a

result, it is those agencies themselves that will

then be the subject of discrimination.

Aboriginal 5 24/9/92

The only case that I do propose to read from

today, Your Honours, is one that I have listed in

the authorities that I supplied the Court. I would

ask the Court's attention to be drawn to page 681

the question of· discrimination. Half-way down

in 56 CLR, the judgment of His Honour on

the page it is said:

In the ordinary course of administration many

obligations not created or defined by statute

are contracted by the Commonwealth and

discharged out of moneys lawfully available

for the purpose. This is done in the exercise

of the powers conferred by the Constitution,

as for instance, under the operations of

secs 61, 67, 69, 70, 81, 82 and 83, or one or

more of them. Surely it is implicit in the
power given to the Executive Government of the

Commonwealth that the incidents and

consequences of its exercise shall not be made

the subject of special liabilities or burdens

under State law.

I would emphasize that particular point,

Your Honours:

Surely it is implicit in the power given to

the Executive Government of the Commonwealth
that the incidents and consequences of its

exercise shall not be made the subject of

special liabilities or burdens under State

law.

MASON CJ: What is the special burden here?

MR LINDELL:  The singling out, Your Honour, for inquiry the

activities of the ALS by reference to money which

is almost totally provided to them by the

Commonwealth. I might add, Your Honour, that this

is not in the course of any established inquiry by

the Legislative Council. The actions of the

Legislative Council are to determine whether there

should be an inquiry. So there is what is a major

fishing expedition in order to determine whether

there are matters for inquiry.

MASON CJ: Does the Aboriginal Legal Service receive funding

from the State?

MR LINDELL:  Indeed it does, Your Honour, and it is prepared

to comply with the resolutions passed by the

Legislative Council in regard to the expenditure of

the small amount of funds received from the State.

MASON CJ:  But is it not a matter of legitimate interest on

the part of the State Parliament, which is, of

Aboriginal 6 24/9/92

course, naturally concerned with the funding from

State sources of such a body to ascertain what

funding it is receiving from the Commonwealth and

what it is doing with that funding?

MR LINDELL:  If Your Honours please, we would suggest that

if there is going to be an inquiry of that kind, it

is more properly seen to fall under section 49 of

the Constitution. That would be a matter that is

more appropriately the concern of the Commonwealth

Parliament acting, as it were, as the grand

inquest.

MASON CJ:  It might be more appropriately the concern of the

Commonwealth Parliament, but can you deny that it

is also a concern of the State Parliament?

MR LINDELL: 

If Your Honours please, I would emphasize the

point that this money is coming from the
Commonwealth, there is going to be a question of

accountability and responsibility to Commonwealth

agencies, and I would suggest that that is the
method that the Constitution would contemplate as
the means of determining whether these monies are
properly spent.

McHUGH J: 

But the Parliament of the State may want to look

at how they are expending Commonwealth monies for

the purpose of seeing whether they should give or

withdraw State monies from them. Why can they not

do that as a step in coming to that conclusion?

MR LINDELL:	I would suggest, Your Honour, that that is a somewhat remote foundation to found a compulsive
audit to compel persons to produce documents and
perhaps even give evidence on the way in which that body is run, a body that, as I say, is receiving
,almost all of its funding from a Commonwealth
agency under the -

McHUGH J: But it is a body registered under a Western

Australian Act and it has got obligations under

companies codes. Surely this part of its finances are not hived off from the investigatory powers of

the State companies codes, and so on.

MR LINDELL:  That may be so, Your Honours. I do not think

it is the companies code but it would, of course,

be the Association's incorporations legislation and

I take the point that you are making. All that I

would wish to establish today is that we at least

have an arguable point; matters that are fit for

argument and simply cannot be disposed of by

dismissing them. I would suggest that that is a

matter that should occupy the attention of this

Court when the merits are addressed.

Aboriginal 7 24/9/92

DEANE J: But is that so? If all that emerges is that a

corporation which is incorporated under West

Australian law has received Commonwealth funds, you
have not gone anywhere towards establishing the

sort of immunity that you want to establish -

presuming it does have constitutional protection.

I realize that this is not pleaded, which is very much against you in one sense, but if you are to

even get to an arguable base, are you not going to

have to establish that there is an overall

Commonwealth programme of Aboriginal legal aid?

That this entity, while a Western Australian

corporation, has as its only real activity

performing functions as part of that programme and

that, looked at in the context of the overall

programme, the activities of this entity are really

to be seen as carried out on behalf of the

Commonwealth?

MR LINDELL: Well, if Your Honour please, I would suggest

that we do have that pattern here. My instructions

are that the body is almost wholly Commonwealth

funded and it is not d~nying its obligations to

disclose how it spends State funds.

DEANE J: But I would see that if the document was addressed

to the Aboriginal and Torres Strait Islands

Commission - - -

MR LINDELL: Indeed, Your Honour.

DEANE J:  - - - but your problem is you are a

Western Australian Corporation, incorporated under

State law and the only real fact you have is that

you get most of your money from the Commonwealth.

I would have thought if there is an argument, and I

am not saying whether I think it is right or wrong,

that the foundation simply is not there without a

much larger factual foundation.

MR LINDELL: Well, all I can do, Your Honour, is to

reiterate the point that this is part of a

Commonwealth scheme to deal with legal aid for

persons of the Aboriginal race - - -

DEANE J:  I am not trying to be destructive; in an.odd sort

of a way I am trying to be helpful, but I do not

think it is, at the end of the day, unfortunately.

MR LINDELL: Well, I would suggest, Your Honour, that it is

very much a matter for the Commonwealth to

determine whether the delivery of these services

should take one form rather than another. The

pattern that was established in this case was to
actually utilize existing agencies without having

to set up further Commonwealth bodies as such, but

I would emphasize the point that these moneys are

Aboriginal 24/9/92

audited under the ATSIC Act itself - the Aboriginal

and Torres Strait Islanders Act. There would be

provisions dealing with the auditing and the

control of the funds that are spent in this way.

DEANE J: Are they in the Act itself or by arrangement

between the Commission and the Corporation?

MR LINDELL:  I had thought, Your Honours - I cannot quote

the actual provision - but I am instructed that
there were provisions in the Act itself that deal

with the detailed auditing of moneys that are

provided by the ATSIC body.

The last point that I would make to the Court

in support of the view that there may be a breach

of the Commonwealth Constitution in this case is that the powers of inquiry which the Legislative
Council possesses should be seen as only adjunct to

its power to legislate for the peace, order and

good government of the State of Western Australia

and in view of the points that I have been making,

we would suggest here, Your Honours, that the

information that would be obtained under the

resolutions relates more to the peace, order and

good government once you accept the fact that this

is the means chosen by the Commonwealth for the

delivery of services in this area, so that that

point really rests on the issue as to whether this is for the peace, order and good government of the

Commonwealth rather than the peace, order and good government of the States.

I do not wish to delay Your Honours much

further except to say that there are obviously

important questions of justiciability where
parliamentary inquiries are involved and the powers

that the parliaments have to carry out

inquisitorial functions. The only matter that I

would raise at this point, or by way of emphasis,

is that while those powers are, of course, quite

wide and the powers given to the Western Australian

Legislative Council are very much akin to those

that the House of Commons would have, I would urge

the Court to remember that they cannot operate in

the same way in a federal system of government.

There must be some limitations on powers which are

otherwise as sweeping as those obtained by the

House of Commons compelled by the federal nature of

government.

I simply use the example, Your Honours, of

what would occur if one of the houses of the

Western Australian Parliament sought to require the

Prime Minister or other ministers of the

Commonwealth to appear before them and produce do~uments. There needs to be some limitation

Aboriginal 9 24/9/92

because of the federal system of government created
by the Constitution, and I would suggest that that

would probably work in reverse as well, that there

would need to be some limit even on section 49 on

the powers of the House of Representatives or the

Senate to have before them ministers of the State.

If Your Honours please, it is for those

reasons that I have made the points that appear on

page 3 of the outline in the argument. If you will

notice subparagraph (4), the application, or

otherwise, of the Bill of Rights in relation to the

Parliament of Western Australia is subject to the

provisions of the Commonwealth Constitution that I

have stated there. I have gone on to state that

the High Court is not precluded from performing its

constitutional role of pronouncing upon the

constitutional limits of the powers of the

Commonwealth and State Parliaments inter se, by

Article 9 of the Bill of Rights, and we have cited

authority, and in relation to non-justiciability we

end by saying that in any event the remedy sought

challenge nor seek to impeach the proceedings in	is declaratory relief only. The proceedings do not the limits of the inquisitorial powers of the
Legislative Council does not constitute an
impeachment nor questioning of the freedom of
speech, debate or parliamentary proceeding.

The final point that I would draw Your Honours

attention to is on the last page of my outline in

subparagraph (9), and this is designed to deal with

the suggestion that urgency requires that the
western Australian proceedings be allowed to

continue and be determined quickly to enable the

Legislative Council to execute its resolutions

before the conclusion of the parliamentary sittings

for this year.

Your Honours, we would say that it will not help the cause of urgency to have the Western

Australian proceedings be determined while the

proceedings are still pending in the High Court,

because the issues here, as I have emphasized

before, are not the subject of direct authority and

we would suggest that the matter would ultimately

have to come back to this Court, so that we are not

really serving the interests of urgency, even if it

is thought to exist, by allowing the proceedings to
go ahead in the Western Australian Court. That

concludes what I wish to say, Your Honours.

Aboriginal 10 24/9/92

MASON CJ: Thank you, Mr Lindell. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 10.25 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.29 AM:

MASON CJ:  The Court need not trouble you, Mr Katz. The

Court is indebted to Mr Lindell for putting the

arguments in support of this application clearly

and concisely. Nonetheless, the circumstance that
questions of constitutional validity have been

raised in the Supreme Court is not in itself a

sufficient reason for the exercise by this Court of

its discretion to remove the case from the Supreme

Court. Removal would deny this Court the advantage

of a consideration of the questions by the Supreme

Court. In those circumstances, the Court does not

propose to exercise its discretion to remove the

case and the application is refused.

MR KATZ: If the Court pleases. Your Honour, I would seek

an order for costs of the application.

MASON CJ: Yes. What do you say about that, Mr Lindell?

MR LINDELL: If Your Honour pleases, I have no instructions

on the question of costs. We are content to let

the costs turn on the event, that the costs be

costs in the cause, Your Honour.

MASON CJ: But there is no cause in this Court, with the

result that we cannot make an order along those

lines, Mr Lindell. The application will be refused

with costs.

MR KATZ: If the Court pleases.

AT 10.31 AM THE MATTER WAS ADJOURNED SINE DIE

Aboriginal 11 24/9/92