Attorney-General (Cth) v Huynh & Ors
[2022] HCATrans 190
[2022] HCATrans 190
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S78 of 2022
B e t w e e n -
ATTORNEY-GENERAL (CTH)
Appellant
and
HUY HUYNH
First Respondent
ATTORNEY GENERAL (NSW)
Second Respondent
SUPREME COURT OF NSW
Third Respondent
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 8 NOVEMBER 2022, AT 10.00 AM
Copyright in the High Court of Australia
MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with MR T.M. GLOVER and MS C. ERNST for the appellant. (instructed by Australian Government Solicitor)
MR R.J. WILSON, SC: May it please the Court, I appear with MR D.J. REYNOLDS for the first respondent. (instructed by Legal Aid (NSW))
MS R.J. ORR, KC, Solicitor‑General for the State of Victoria: If the Court pleases, I appear with MR T.M. WOOD for the Attorney‑General for the State of Victoria, intervening. (instructed by Victorian Government Solicitor)
MR G.A. HILL, SC: Your Honours, I appear with MR J.S. STELLIOS by leave as amici curiae. (instructed by Australian Government Solicitor)
GAGELER J: I note that there is a submitting appearance for the second and third respondents. I also note that the Senior Registrar had advised the parties, the amici curiae, and intervener, that the Chief Justice is unwell and will not participate in the hearing this morning. I note that there is no objection to the Chief Justice participating in the consideration of the appeal on the basis of the written submissions and oral submissions captured in the transcript and the audio‑visual recording of the hearing. What that means is that the hearing will proceed before six Justices but the appeal will be determined by all seven Justices.
Mr Donaghue.
MR DONAGHUE: Your Honours, the central question raised by this appeal is whether the procedures in State legislation that provide for the referral of convictions of State offences to either the Governor for consideration of the possible exercise of the prerogative of mercy or to the Court of Appeal to be reviewed as if on an appeal, are available when the State court convicts and sentences a person of Commonwealth offences.
There are many cases that hold or assume that those procedures are at least partly available in that situation but, in the decision under appeal, the New South Wales Court of Appeal has held that they are not. If that is correct, then procedures in the criminal justice system that are designed in part to provide a remedy for miscarriages of justice have no application to Commonwealth offences. In our submission, that is a plainly undesirable result and not one that the law requires.
Indeed, to arrive at that result, it is necessary to depart from the general policy that has been recognised as underpinning section 68 of the Judiciary Act for at least 90 years – and to which I will come shortly – which is a policy that seeks to place the administration of the criminal law of the Commonwealth in each State upon the same footing as the criminal law of that State.
Can I deal with the facts very briefly – and I will do this by reference to what one sees summarised by Justice Basten at the beginning of his judgment on page 40 of the core appeal book. In essence, the first respondent, having been convicted of a criminal offence – a drug‑related offence against laws of the Commonwealth – made an application to invoke the review procedure provided by Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) – which I will call the Appeal and Review Act. A judge of the New South Wales Supreme Court, Justice Garling made – making the usual assumption as to the applicability of that procedure with respect to Commonwealth offences – considered but dismissed that application on the basis that he had:
no sense of unease or doubt as to the applicant’s guilt –
that being a precondition to the availability of the two avenues of review that I will come to in a moment.
The first respondent filed a summons in the Court of Appeal seeking an order in the supervisory jurisdiction to quash Justice Garling’s decision and in that proceeding the New South Wales Court of Appeal itself raised a question about the applicability of Division 3 of Part 7 – which is at the core of this appeal with respect to Commonwealth offences – and having heard submissions on that point went on to hold that section 79 of the Appeal and Review Act is not available with respect to a conviction or sentence for an offence against the law of the Commonwealth.
Your Honours will see that that conclusion is recorded in the order that was made by the Court of Appeal on page 151 of the core appeal book, where there is a declaration that the power conferred by section 79 is not:
(a)is to be exercised . . . persona designata –
and, as I will come to in a moment, there is no appeal against that conclusion, and no one puts it in issue – and:
(b)is not available with respect to a conviction or sentence for an offence against the law of the Commonwealth heard and determined in a New South Wales court.
That being the central conclusion that we challenge on appeal.
GAGELER J: You should not assume that the conclusion that the provision applies persona designata will necessarily be accepted.
MR DONAGHUE: Your Honour, that creates a considerable difficulty because – as Justice Leeming said in his judgment – the complexity of this matter is palpable and that gateway changes the analysis and the issues involved in the appeal very, very considerably. It changes the issues about how section 68(1) works – makes changes for the question of whether one needs to make submissions about whether it is incidental to judicial power or not – it changes the way 4AAA of the Crimes Act might be involved. So, there are lots of matters, upon which your Honours have heard no submission, which would have been addressed if that had been put in issue by the amicus. I am going to struggle to assist your Honours fully with the issues that arise on the appeal if we cannot take that agreed starting point as the basis upon which the case should be decided.
I should say, your Honour, we say it is right – what the Court of Appeal said about that is right – and the amicus says it is right and we would urge your Honour to accept what Justice Basten says about that. But, if your Honours wish us to address the appeal on the basis that it is wrong, I am going to need to seek, at a minimum, leave to file further written submissions and it might be that your Honours will need to hear further oral argument on the case.
GAGELER J: Proceed as you planned, Mr Solicitor, and we will see where we end up.
MR DONAGHUE: Okay, if the Court pleases. Your Honours, my structure will be as follows. I am going to start by taking your Honours to Part 7 of the Appeal and Review Act. I am then going to turn to section 68 of the Judiciary Act and the argument that it picks up at least the relevant parts of Division 3 of Part 7, and then I am going to turn to a further, or alternative, submission that was accepted by Justice Leeming below that, in any event, Division 3 of Part 7 applies of its own force.
Those two arguments, the section 68 argument and the own force argument, are not inconsistent with each other. Your Honours could accept them both. It is sufficient, for the appeal to be successful, that your Honours accept either one, and I could address them in either order. In writing, we addressed the application of its own force first rather than section 68.
On reflection, I have reversed those, principally for this reason, being frank with your Honours, that the operation of section 68 is a question of wider public importance than the direct application question. In our submission, the Court of Appeal was wrong in what it said about how section 68 works and it would, therefore, be desirable if your Honours accept all we say about that to correct ‑ ‑ ‑
GORDON J: Will you address that when you get to section 68?
MR DONAGHUE: I will, and that is why I am starting there. But it does not really matter. We could succeed on ‑ ‑ ‑
EDELMAN J: Without taking your matter out of order, as a matter of logic, the application of its own force would be anterior to section 68?
MR DONAGHUE: I accept that, your Honour. And that is why, again, being frank, why we did it that way in writing – but if your Honours were to find for us on that point, and then not to address section 68, one is left with the Court of Appeal’s analysis of section 68.
GAGELER J: So, your section 68 argument assumes that the State provision does not apply of its own force?
MR DONAGHUE: It does assume that, but it would be possible for it – for section 68 to overlap and to pick up it unnecessarily, but still to give it force as a federal law. So, they are not mutually exclusive, your Honour.
GORDON J: So, could I ask this question? When you say it assumes it does not apply of its own force, do you propose to address the amici submissions about lack of State legislative power in that context?
MR DONAGHUE: I do. Yes.
GORDON J: So, that is not an assumption, then? That is something where you will have to establish that they do not – that that is not an issue for you, or have I got it wrong?
MR DONAGHUE: No, your Honour. My answer might not have been sufficiently precise. In the part of the case that concerns whether the Division applies of its own force, I propose to address both why that is right as a matter of construction, and why it is right as a matter of power.
So, why it is a valid law, if construed as we submit that it should be, why it validly applies in that way. If I am right about that, then the Commonwealth appeal should be allowed on that basis alone. If I am right about that, that does not necessarily mean that section 68(1) does not pick up the law. It means it does not need to, but it does not necessarily mean that it does not pick up the law, because the law would still be a law within the category of laws, we submit, that section 68 can capture.
But what I was intending to convey in my answer to Justice Gageler is that, even if we are wrong, so that the State law does not apply of its own force, in that situation section 68 can certainly operate to fix the problem and in that sense, if your Honours were to look at section 68 and find for us on section 68, it would not be necessary for you to go on and consider the other part of the case. It would be sufficient to resolve it on that basis, save that, as Justice Edelman says logically, one might think you should construe the State law first before you get to a section 68 point.
Your Honours, can I ask you to turn to the Act, which you will find in volume 1, tab 5 of the joint book of authorities, and to go to Part 7, which, in the joint book – if that is what you are using – is on page 263 in the print, and on the Act it is page 37. Part 7 is headed: “Review of convictions and sentences”.
It starts, if your Honours are at the commencement of it, with a definition section, which includes a definition of both “conviction” and “sentence”. In both cases, it is an inclusive definition, and it makes no reference to the source of the offence that has resulted in the conviction or sentence, although it does, in the case of the definition of sentence, refer to an order made by a court. Textually, you have a focus on the court that is recording the conviction or sentence, but no reference to the origin of the relevant offence.
I will take your Honours to the detail in a moment, but in terms of the scheme of this section, it contains what the New South Wales Court of Appeal described in Lodhi – a case I will come to later – as two separate procedures, or what Justice Leeming described as discrete and mutually exclusive pathways.
GLEESON J: Is that because it has its origin partly in the Criminal Appeal Act 1912 and partly in the Crimes Act?
MR DONAGHUE: Its origin is complicated, your Honour. It goes back, in part, even prior to the Criminal Appeal Act in UK Acts in the late 19th century. But the two pathways are quite distinct, and you can see them reflected in Division 4 and Division 5. Division 4 – and I will come to the detail of these, but just sketching the scheme for your Honour. Division 4 is a scheme that involves administrative power, resulting in a possible exercise of the prerogative of mercy. Obviously, that path was not invoked here on the facts.
Division 4 is not itself the source of the power to pardon; that power is the prerogative power which is preserved in the Act, and you see express reference to that in section 114. I do not need to take your Honours there. When we get there – but for the sake of completeness, the Governor‑General has a similar power which is similarly preserved by section 21D of Commonwealth Crimes Act.
So, the power that ultimately can result in a person being relieved from the effect of a conviction or sentence is not sourced in this State Act, but the Act creates a procedure – a path – in Division 4, that can lead to an exercise of that power ‑ ‑ ‑
GAGELER J: By the Governor of the State.
MR DONAGHUE: By the Governor of the State as a matter of State law. Yes. I accept that that is so. So, this is a pathway that, if you can down it, will not result in a pardon by the Governor‑General, save through the operation of section 68(1) picking it up.
GORDON J: We are talking now about the inquiry route, are we?
MR DONAGHUE: Yes, yes.
GORDON J: Do you accept, though, that the inquiry route has a potential outcome which is the exercise of judicial power by the State court? I accept that it is more remote than the 79(1)(b) route, but it is a route which, through a complicated set of arrangements – 82, 88, 86, et cetera, you could end up with the exercise of judicial power?
MR DONAGHUE: I understand what your Honour is putting to me. And the answer is, yes, but I need to try to distinguish, if I can – because this is quite a complicated regime. One has two pathways – an administrative pathway in Division 4 and a judicial pathway in Division 5 – and then one has two entry points into those pathways ‑ ‑ ‑
GORDON J: Correct.
MR DONAGHUE: ‑ ‑ ‑ one in Division 2 and one in Division 3. The Division 2 entry point can, as your Honour puts to me, result not just in the Division 4 but also in a Division 5. So, both entry points can go to both pathways, hence the complexity of the regime.
GORDON J: The reason why I ask is because I had understood, at least from some of your submissions, that there was an attempt to divide it into two separate, in effect, routes or powers when, on the face of it, they are, as you just said, complicated and inextricably linked at one level.
MR DONAGHUE: Well, I accept that they are complicated, but I do submit that ultimately one has the Division 4 pathway leading to a possible exercise of the prerogative of mercy or a Division 5 pathway leading to a hearing in the Court of Appeal as if on an appeal, and that you get there either by a petition to the Governor under Division 2 or by an application to the court under Division 3 and, whichever of those options you choose, you can end up either in the Division 4 administrative pathway or the Division 5 pathway. But, nevertheless, in my submission, they are quite distinct from one another. You do not end up going down both. Wherever you start – and here, of course, the first respondent made an application to the court, so we were in the territory of Division 3. And Division 3, your Honours will see, starts – it only contains two sections, sections 78 and 79. The application is made under 78.
GLEESON J: The application is for an inquiry, so, on its face, it is seeking to invoke Division 4.
MR DONAGHUE: I accept that that was the language used, but because it was an application made – your Honour, if you look at the opening words of section 78, it refers to:
An application for an inquiry into a conviction or sentence –
So, in my submission, that phrase “application for inquiry” does not mean just Division 4, because when one goes to section 79 you see both options. Option 79(1)(a) is the Division 4 path and 79(1)(b) is the Division 5 path. So, an application for an inquiry can go down either of those two routes.
GAGELER J: Do you say that the Division 4 path is one that is available in respect of a conviction for a Commonwealth offence?
MR DONAGHUE: Not without section 68(1). Whether your Honours need to decide whether I am right giving you that answer is a live question because, as I am going to come to – I do say, it can apply with the benefit of section 68(1), changing every reference to the Governor to the Governor‑General, and I submit that section 68(1) is capable of doing that work. But my primary submission on section 68, to foreshadow where I am going, is that it is enough for your Honours to decide that section 68(1) can pick up 79(1)(b) and Division 5.
GORDON J: Just so I can test that, when you have the referral under Division 2 petitions to Governor to refer the whole case to the Court of Criminal Appeal which is the exercise, I understand, you accept of judicial power. Is your answer to Justice Gageler the same in respect of that arrangement?
MR DONAGHUE: Yes. So, your Honour is asking me now about section 77?
GORDON J: I am.
MR DONAGHUE: Yes, yes.
GORDON J: Just so I can understand the scheme. Is your answer that you just gave Justice Gageler the same in respect of that route?
MR DONAGHUE: I say, yes, that 77(1)(b), together with Division 5, at least can be picked up by section 68 of the Judiciary Act.
GORDON J: But needs section 68(1) to pick it up, otherwise it is not possible, in relation to Commonwealth offences.
MR DONAGHUE: Sorry, your Honour. Justice Gageler asked me about Division 4.
GORDON J: I know.
MR DONAGHUE: If your Honour is asking me about 77(1) and as it leads to Division 4, my answer is the same.
GORDON J: As it leads to Division 5?
MR DONAGHUE: As it leads to Division 5, that raises the question, can it apply of its own force, and the same answer that I would give about 79(1)(b) I also give about 77(1)(b).
GORDON J: Thank you.
MR DONAGHUE: So, as I will come to before too long, in my submission, my primary submission is that if your Honours accept that 79(1)(b) and Division 5 can be picked up by section 68 of the Judiciary Act, then the Court of Appeal’s declaration about the operation of this provision is wrong because their Honours held that just the whole thing does not apply to Commonwealth offences and, in fact, there is a pathway that does apply to Commonwealth offences. If the possible option to refer to the Court of Appeal applies, it must follow that the converse of that, the I am not going to do that option, the do nothing option, also applies and that is what Justice Garling did in this case, he said I am not going to do anything. He would have had power to decide, I am not going to do anything, and the appeal should be allowed.
Our friends’ primary answer to that is not to say that there is any problem with picking up 79(1)(b) or Division 5. They do not really attack that at all, for reasons that I will come to. What they say is that you cannot pick up Division 4, and if you cannot pick up Division 4, you cannot pick up any of it. So, I am going to invite your Honours to look at that question effectively as a threshold question, to reject it on the basis that there is a possible partial pick‑up at least of 79(1)(b) and, on that basis, to say that is enough to decide the appeal, which is how Justice Leeming analysed it. He said, I do not need to get to Division 4. It is enough that I conclude that (b) and 5 can be picked up, and I have got quite a bit of authority on my side. In saying that, that part of that partial pick‑up at least is available, as I will come to.
Your Honours, I think, probably, that is enough by way of overview of the statutory scheme, save, I suppose, to note that if you get a decision to refer the case to the Court of Appeal under 79(1)(b) – which is our central focus – where that takes you is to section 86 in Division 5. And section 86 in Division 5 – which is also where the provision Justice Gordon asked me about, where the Attorney refers the matter to the court under Division 5 – it is the same section that applies to them both:
the Court is to deal with the case . . . as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly.
So, you have, in effect, an appeal, which of course in respect to a Commonwealth offence can only apply if picked up by the Judiciary Act, because that would necessarily involve federal jurisdiction. So, it is no part of my argument to suggest that you can have a process – an entirely State‑based process – that results in this quashing or setting aside of the Commonwealth conviction. I do not say that.
GAGELER J: On either part of your case?
MR DONAGHUE: On either part of my case. Even on the direct application part, all I say is that the gateway administrative function under 77 or 79 can apply of its own force to confer, persona designata, an administrative power on a judge to open the gate.
GAGELER J: To nothing.
GORDON J: To nothing.
MR DONAGHUE: Well, no. To procedures that are being picked up by the Commonwealth Act.
EDELMAN J: But you do not really need to deal with section 86, because section 86 is not really part of this case. Whether or not section 86 could apply of its own force, or whether it needs to be picked up, is a different question, is it not?
MR DONAGHUE: Only insofar as – if the gateway really was to nothing; if there was nothing that could follow afterwards, then it could be said against me with some force, what would be the point of that. But, as Justice Leeming analysed it, it is not a gateway to nothing; it is a gateway to, at least, an appeal by reason of Division 5. So, it is not a pointless exercise.
GORDON J: It may not be pointless, but it has long been the position, has it not, that it is not open to a State legislative power or provision to alter the charter that has been created in relation to federal conviction and sentence or even the circumstances in which you would consider altering that charter, and is that not what is happening here?
MR DONAGHUE: Only when you are in Division 4 or Division 5.
GORDON J: I am so sorry?
MR DONAGHUE: Only when you are in Division 4 or Division 5, and that is why I am accepting that you need section 68.
GORDON J: But this is the question. If you accept that Division 4 and Division 5 had that effect, then the question is: is the power for the gateway?
MR DONAGHUE: I accept that, and that is what the second part of the case – the direction application part – is about. It really, particularly, bites if the Court of Appeal were to be right – and I say they are not right – but if they were to be right in saying section 68 is only about judicial power, because if they were to be right about that, then what is the position with an administrative power at the gateway to a judicial power that is capable of being picked up?
GORDON J: It may be a simple answer; there is no legislative power at all by the States to concern federal offences, and that 68 is limited to judicial power and incidental judicial power, but in the manner in which it is confined its sphere of operation is as is stated, and this is not in that sphere, and therefore the two sit together quite well.
MR DONAGHUE: They only sit together, your Honour, if one has a State regime that allows the Division 5 procedure, in effect, a second appeal to pure miscarriages of justice that operates perfectly well in the State sphere. And it could be picked up in respect of Commonwealth offences, but you never get there because you cannot open the door. So, that is effectively what the Court of Appeal said and, in my submission, why would you hold – unless you are compelled to hold – that you cannot open the door to that procedure given that to do so is not only beneficial but also serves the purpose of section 78, which is treating the administration of justice consistently ‑ ‑ ‑
GORDON J: You mean 68.
MR DONAGHUE: What did I say, your Honour?
GORDON J: Section 78 – you mean 68.
MR DONAGHUE: Sorry, I meant 68.
GORDON J: I understand. Well, if one accepts that 68’s purpose is that and that it is there to provide consistency, then we are talking about the method of adoption and whether or not this procedure is the appropriate procedure for the Commonwealth to have adopted.
MR DONAGHUE: Your Honour, I am starting with section 68 because, in my submission, what we say about section 68 is right, and if it is right and it avoids all of these complexities, one just looks at section 68 and picks up the whole of the operative part of Part 7, and that is it, so there is no difficulty there. I do not need to get to direct application unless I am wrong in what I say about section 68. If the reason that I am wrong about what we say about section 68 is because it is confined to judicial power, then, in our submission, Justice Leeming’s analysis is right and it solves the problem that would otherwise thereby be created. But can I come to that in due course and ask your Honours to first look at the section 68 pathway.
What I want to do in the section 68 part of the case is to start with the purpose of the section, which I have already touched on; then to make some more detailed submissions about the construction of both subsections (1) and (2) of section 68; then to come to why I submit that as a threshold matter your Honours should look at whether it is possible to separate the pick‑up of 79(1)(a) from 79(1)(b) because, if it is, most of the amicus – the arguments made by the amici fall away; then, if necessary, in the alternative to look at the pick‑up of Division 4; then, finally, depending on how I am going for time, either address what Victoria have said about 4AAA then or perhaps in reply to Victoria. So, that is the sketch of section 68.
Starting with the purpose of the provision, as I have intimated, Justice Dixon explained that purpose 90 years ago in Williams v King (No 2) in terms that the amici accept at paragraph 47.1 of their written submissions. But rather than go to Williams, I will take your Honours to something more recent where the court has looked at this in R v Gee, which your Honours will find in volume 4 at tab 26; it is (2003) 212 CLR 230. If I could ask your Honours to start with the judgment of Chief Justice Gleeson at paragraph 6 at the bottom of page 240. His Honour, having set out 68(2) and set out the definition of appeal – which I will come to later in my submissions – says, from the second line:
the language of s 68(2) is both general and ambulatory. This is consistent with its purpose, which is to “assimilate criminal procedure, including remedies by way of appeal, in State and Federal offences”. In Williams v King [No 2] Dixon J . . . said –
His Honour sets out the quote, the second half of which is:
the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice.
Pausing there, if the Court of Appeal are right, then if there is to be a capacity to solve or address miscarriages of justice with respect to Commonwealth offences, even where the miscarriage results from something that happened in a State court, perhaps where it results from something that happened in a State court that will simultaneously try Commonwealth offences and State offences, there would have to be a parallel system for the Commonwealth, and the administration of justice in the State would not, therefore, be in common as between State and Commonwealth offences.
His Honour then goes on, in paragraph 7, to explain the policy choice that is reflected in section 68, the Commonwealth having needed to choose between, in effect, option one: uniformity throughout the Commonwealth, or option two: uniformity within each State, as between State and Commonwealth offences, meaning that there is not necessarily uniformity throughout the Commonwealth, and his Honour notes that it was option two that was chosen.
The benefits of uniformity throughout the Commonwealth have been sacrificed to the desirability of trying to treat State and Commonwealth offences in the same way. In order to try to keep them lined up – as his Honour explains in the second half of paragraph 7 – the broad language has been used:
That explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time.
These are not words that should be narrowly construed. They should be construed, if possible, to allow the general purpose of keeping the two systems in sync is able to be achieved.
Sticking with Justice Gleeson, if your Honours could turn over the page to paragraph 13, you will see that his Honour there emphasises that there is no reason why the generality of the word “appeals” should – or why the word should not be given its full generality, having regard to the purpose. That is said after a discussion of Seaegg. Seaegg very much did not take a general approach to the meaning of this language. It resulted, as your Honours know, in an amendment to section 68 in order to reverse the effect of the decision in that case.
As the Chief Justice emphasises, and as you also see in the reasons of Justices Gummow and McHugh at paragraph 63 and Justice Kirby at 115 – I will not ask your Honours to go there now, but their Honours all emphasise that the policy underlying section 68 has led to a broad construction and operation of that provision. Justices McHugh and Gummow in particular talking about:
since Seaegg, the decision of the Court have manifested –
a change in the approach to the interpretation of ambulatory provisions such as 68(2). I say all that only because our friends rely on Seaegg, I think in an attempt at one point in their submissions to say that your Honours should construe the word “appeal” consistently with the meaning that it had when amendments were made following that decision in 1932. That, in our submission, is completely contrary to the way that this Court in R v Gee approached the construction of the word. It should not be tied to – indeed, that was the error in effect that the South Australian Full Court had made, was by taking a too technical approach to the meaning of the word and not including case stated procedures within an appeal because of the state of the law as it had stood at the time of the amendments post Seaegg.
So, we submit, having regard to Gee, your Honours could readily dismiss that kind of argument. So, the policy is to align Commonwealth and State offences so far as possible and a broad and ambulatory interpretation is appropriate. Bearing that in mind, if your Honours then turn to the terms of section 68 of the Judiciary Act – which you will find in volume, tab 4, on page 53 of the reprint or page 140 of the joint book, and if I could ask your Honours to start with subsection (2). So, subsection (2) is a conferral of jurisdiction on courts. It starts with an identification of:
Courts of a State or Territory exercising jurisdiction with respect to –
the various identified things:
(a)the summary conviction; or
(b)the examination and commitment for trial . . .
(c)the trial and conviction . . .
appeal. Having regard to the State or Territory courts that exercise jurisdiction with respect to those matters, that then says, in the last few lines, that those courts:
shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
So, it focusses on a conferral of jurisdiction with respect to persons charged with Commonwealth offences. Obviously, that conferral of jurisdiction is federal jurisdiction and is conferred pursuant to section 77(3) of the Constitution.
Section 68(1) is not a conferral of jurisdiction on courts. It is doing something quite different. What section 68(1) does is it identifies a category of State laws that are applicable to persons who are either offenders or persons charged with offences. So, the laws of the State respecting offenders or persons charged with offences and the procedures there identified are made applicable – so far as they are applicable – apply to persons – “persons” again – who are charged with offences against the law of the Commonwealth in respect of whom the jurisdiction has been conferred.
So, we first identify in section 68(2), a category of persons in respect of whom jurisdiction is conferred on the courts – persons charged with Commonwealth offences. We then go to section 68(1) and say, with respect to those persons, the laws of the State that apply to them – broadly they are criminal laws of the State that apply to them – criminal laws, laws with respect to criminal procedure that apply to them – apply to them also with respect – that would apply to them with respect to offences against the criminal law of a State, apply similarly with respect to offences against the law of the Commonwealth.
So, the laws that are made applicable are not limited to laws that apply in the exercise of the jurisdiction conferred under subsection (2). They include, obviously include, laws that apply in the exercise of jurisdiction under subsection (2), but they are wider – and one sees that immediately ‑ ‑ ‑
GORDON J: But they are wider because they are incidental to the exercise of that judicial power, are they not.
MR DONAGHUE: No, they are wider because the attempt is to assimilate the whole of the criminal process in the State so that it is the same for Commonwealth and State offences. So, the express reference to “arrest” in the opening word of section 68(1), shows that we are not just concerned with what is going on in a court. It might well lead to something eventually that happens in a court, but we are not concerned with regulating the exercise of judicial power or laws that govern the exercise of judicial power. In other words, the laws that are picked up under subsection (1) are not co‑extensive with the jurisdiction that is conferred under subsection (2).
In fact, the amici concede that that is so in paragraphs 31 and 48 of their submissions. The first respondent submits that that is so in paragraph 13 of their submissions and Victoria submits that that is so in paragraph 8 of their submissions. Everybody who is appearing before the Court on this appeal is agreed that section 68(1) is not co‑extensive with section 68(2) – that the laws that are picked up are wider.
That point was not appreciated by the New South Wales Court of Appeal below and it is a significant reason why we lost – why the Commonwealth failed in that court. Because, instead of appreciating that section 68(1) is not concerned with regulating federal jurisdiction – it is concerned with picking up the whole body of State criminal law so that it aligns between State and Commonwealth criminal procedure – their Honours in effect treated section 68(1) as a more specific version of section 79(1) ‑ ‑ ‑
GORDON J: Can I take issue with that just for a moment. Is that right? If you accept that they treated it as covering the field in the way you have just described for the criminal process, was there not distinction to say that there was an end point for that criminal process and that when we are dealing with the prerogative, 68 was never directed at that question – in effect that the criminal justice system had ended?
MR DONAGHUE: With respect, your Honour, in my submission, that is not how their Honours reasoned. Their Honours did not accept the premise that I have put to your Honours that section 68(1) is about assimilating fully the laws applicable to State offences and Commonwealth offences. I will ask your Honours to go to the core appeal book and take you to the relevant part of the reasoning – because your Honours will see, in effect what happened is the Court applied Rizeq – what the Court said in Rizeq about the reach of section 79(1) – they treated as applicable to section 68(1).
EDELMAN J: Mr Solicitor, do you read section 68(1) effectively as though it provided that the laws of the State or Territory respecting the arrest and custody of offenders and all other anterior matters concerning persons charged with offences shall apply and so on? In other words, the arrest and custody of offenders are really just examples of all of the matters anterior to the charging of a person with an offence.
MR DONAGHUE: Yes, your Honour.
EDELMAN J: So, 68 really by application is picking up all anterior processes – even though only arrest and custody are provided for.
MR DONAGHUE: Your Honour, that is how I am reading it, but I do not think it is determinative of the result in the appeal, but that is my submission as to how it should be understood.
GLEESON J: Do you say that the prerogative of mercy is an aspect of criminal jurisdiction?
MR DONAGHUE: No, your Honour. I am not suggesting that section 68 picks up the prerogative of mercy.
GLEESON J: No.
MR DONAGHUE: That the prerogative mercy was just – and that is why I emphasised that Division 4 does not purport to confer the power exercised at the end. Indeed, the Act in 114 expressly preserves the Government’s prerogative at a State level, the Governor-General would be the same, so that we do not need section 68 to pick up anything where the Governor or Governor-General just exercises their power. But the procedure might need to be picked up.
GLEESON J: Are you suggesting that the procedure that might be anterior to the exercise of the prerogative of mercy might be an aspect of criminal jurisdiction?
MR DONAGHUE: Because, in my submission, it is a procedure respecting appeals, as that concept should be broadly understood. That is how I ‑ ‑ ‑
EDELMAN J: Because there is a pathway to an appeal.
MR DONAGHUE: Because there is a path – well, for two reasons, your Honour. On my narrower argument, because there is a pathway to an appeal, that gets you at least Division 5, and that is enough. If I need to get Division 4 as well, then it is not a pathway to a judicial appeal but it is a pathway to a procedure that can lead to a person being relieved from the consequences of a conviction or sentence. And in my submission, the word “appeal” is broad enough to pick up that. But that is the submission I only get to in the alternative.
GORDON J: Is that not, in effect, the fighting ground? That is, how far does section 68 reach? In this sense, it is that what you have just put in answer to those two questions is the critical question. One can say that this is to provide uniformity of a criminal justice system between Commonwealth and State offences, picking up – let us take a narrow view – arrest and custody of offenders, and in the procedures giving rise to trials and convictions, and appeals against sentences. And the question: does it go further?
MR DONAGHUE: In my submission, it is not the fighting ground in the sense that, as I understand it, no one is suggesting that a Division 5 procedure is not an appeal of a kind to which section 68 could extend. And if that is right, then the Division 3, the 79(1)(b) part – the gateway that leads you to that appeal – is at the very least of all respecting, the ‑ ‑ ‑
GORDON J: So, what is the question? Is it a law respecting it?
MR DONAGHUE: Well, if it is a gateway – if we focus just on 1(b), it does nothing other than take you to an appeal. So, in my submission, it has the requisite relationship. And what our friends say is that not that I am wrong about that. They say that I am wrong about Division 4, because the executive inquiry is not an appeal, and they say if I am wrong about Division 4, the whole lot cannot be picked up. That is really the way that they have ‑ ‑ ‑
STEWARD J: Can I ask, what do you say about section 79(1) of the Appeal and Review Act that makes it procedural in nature?
MR DONAGHUE: Your Honour, I am not sure that it is part of my case to say that it has to be characterised as procedural in nature. It is sufficient for the Judiciary Act to apply to that if it meets the description of a law respecting the procedure for the hearing and determination of appeal. That is the rubric I need to put it within.
STEWARD J: But does that not mean it has to be about procedure in some way?
MR DONAGHUE: Well, it has to be. In my submission, again, one would not take a narrow view of the operation of these words. If it is the means by which one initiates an appeal under Division 5, that, in my submission, is sufficient to make it a law respecting the procedure for ‑ ‑ ‑
STEWARD J: I may be speaking only for myself, but for my part, 79(1) may not be procedural in nature, even in the wider sense of that word, because it is about conducting an inquiry that then leads to two possibilities.
MR DONAGHUE: Your Honour, it may be that in the course of debate with your Honours I skipped over the detail I should have addressed in the construction of 79(1) because, in my submission, 79(1) is properly construed as conferring a power upon the judge as a person, an administrative power on the judge as a person to do one of three things.
So, it is really actually three powers rather than one. I know our friends say that it has got to be viewed inseverably, but that is really, in my submission, the central battleground in this aspect of the case. Option one is refuse even to consider or deal with the application, and you can see that that is an option from 79(3), it says:
The Supreme Court may refuse to consider or otherwise deal with an application.
So, you can do nothing, and that is actually what Justice Garling did here, and Justice Leeming’s judgment suggests that that is usually what happens. I think he surveys 25 cases since 1999 and says in 18 of them the option was do nothing. So that is a significant and important component of your choices under section 79(1).
Option two is direct an inquiry, and that then leads to a judicial officer, which includes a retired judge, having the powers of a royal commission to conduct an inquiry and ultimately produce a report that the Governor consider in the exercise of the prerogative of mercy. That is option two. Option three is refer the whole case to the Court of Appeal. That takes you to section 86 and a proceeding that is exactly the same as an appeal.
STEWARD J: But is there not a form of preliminary inquiry because of, for example, subsection (2), that you need to be satisfied:
there is a doubt or question as to the convicted person’s guilt –
MR DONAGHUE: In my submission, your Honour, that is not a preliminary inquiry. That is a threshold condition that needs to be met by the judge. So the judge can look at the petition which has been made under section 78 and say – as I think is what happened here – what you have done is you have just repeated the arguments that you advanced to the Court of Criminal Appeal and that you advanced on special leave, I am not persuaded – the repetition of those arguments does not create, in my mind, any doubt or question as to your guilt and therefore I do nothing. That is all that was required, reading the application ‑ ‑ ‑
STEWARD J: But you say that is procedural in nature?
MR DONAGHUE: Well, if I need to put it into that box, your Honour, then yes.
STEWARD J: All right. Okay.
EDELMAN J: But you do not need to characterise 79(1) necessarily as procedural in order to fall within section 68. In one sense, you are making more work than perhaps you need to by focussing very heavily on the procedure for the proceedings and so on in section 68. But if 68(1) is read as a whole and arrest and custody are seen as examples of all of the anterior mechanisms, arrest obviously being something that is more than procedural, then the words “procedure for” in light of the purpose of the section are evidently designed to pick up, I think in your earlier submission, the whole gambit of everything that is anterior to the criminal process.
MR DONAGHUE: I entirely agree with that, your Honour. I would say anterior during the criminal process and after all of those, which is why I submitted to Justice Steward, if I need to put it into that box – I submit that I do, but I accept what your Honour puts to me.
GLEESON J: But 68 has to be considered in the context of the Judiciary Act. What this is about is the exercise of judicial power, and would it not be more appropriate to interpret 68(1) as facilitating everything that needs to be done by a court in relation to the criminal justice process?
MR DONAGHUE: In my submission, no, your Honour. One does have in 68(2), obviously, something being done by a court, and a conferral of jurisdiction on court. It would have been possible – and then one might question whether you would have needed 68(1) at all – if all you wanted to regulate was what was happening within the court. Section 79(1) of the Judiciary Act would have done a lot of that work. Section 68(1) is not so limited. It has got the wide purpose that Chief Justice Gleeson identified, in R v Gee, of trying to make sure, pursuing the policy option, that when you are tried for a Commonwealth offence, it looks exactly the same as it would if you were tried for a State offence. All the same laws are engaged. I do want to take your Honours to ‑ ‑ ‑
GORDON J: That is right, though I will have one last go at 68(1). Section 68(1) is subject to this section. It means that 68(1) and (2) have to be read together. We know that we needed 68(1) and (2) – as Justice Gleeson put to you – because we are dealing with the exercise of federal judicial power, and it is explaining what aspects of the State regime are to be used – let us use neutral language – in the trying of Commonwealth offences to achieve your objective. But it is talking about the exercise of judicial power, and, as you would say, the things anterior during and after. The question is, I think – one of the questions – what is now proposed in what you call the Appeal and Review Act, one of those things.
MR DONAGHUE: I accept that the question is, is it one of those things; that that is the debate we are having about the applicability of section 68(1). But the point that I am seeking to develop is that it is not, with respect, correct to say, as the Court of Appeal said, that 68 as a whole – 68(1) is just about judicial power, because from there it followed that their Honours, having concluded that 79 is a persona designata function, an administrative power conferred persona designata, they said that is not judicial. So, unless it is incidental to the exercise of judicial power, it is just not applicable to Commonwealth offences.
That, with respect, was not the right question, because it did not need to be judicial or incidental to judicial in order to fall within the realm of section 68(1) in the same way that when an AFP officer arrests someone with a warrant, they do not have a Commonwealth power to do that. They do that by reason of State laws picked up by section 68(1). That is how they do it. It is not judicial or regulating judicial. They can do it because the criminal procedure of the State applies equally to Commonwealth offences.
GAGELER J: Mr Solicitor, just so I fully understand this branch of your argument, you start with section 68(2) and the like jurisdiction, you say, is picked up – as I understand it – is the jurisdiction conferred by the Criminal Appeal Act 1912. Is that where you start?
MR DONAGHUE: No, your Honour. I could go by that route if we were just talking about Division 5. I can probably put it in two ways. If we were just talking about Division 5, then, in my submission, yes, the like jurisdiction would be the parallel capacity to conduct a Division 5 second appeal with respect to a Commonwealth offence that one has, with respect to a State offence.
GAGELER J: If you go that route – just holding that thought for a moment – then you would say that section 79(1)(b) and 86 of the Crimes (Appeal and Review) Act are picked up as surrogate Commonwealth laws by section 68(1) of the Judiciary Act? Is that right?
MR DONAGHUE: Yes. By that route, yes.
GAGELER J: I am sorry, I cut you off. You were going to tell me ‑ ‑ ‑
MR DONAGHUE: No, no, your Honour. That is exactly right. And that is the route that I say would be sufficient to decide the appeal as long as your Honours accept that you can separate; that it is possible to pick up (b) without needing to pick up (a), then that is the answer. The other answer would be that the like jurisdiction was the jurisdiction exercised to convict the first respondent of the criminal offence of which he was convicted. The conviction and sentence – that was the exercise of jurisdiction, and that we then have, under section 68, made applicable procedures with respect to the hearing and determination of appeals arising out of or connected with that previous exercise of the like jurisdiction under section 68(2). By that route, I submit in the alternative, I can pick up Division 4.
GAGELER J: Thank you.
MR DONAGHUE: So, just to take your Honours back to the Court of Appeal and to make good my submission as to the way that the Court of Appeal approached this – and this is reasoning that the amici really make no attempt to defend, for good reason, in my submission. You see it on page 75 of the core appeal book. This is in Justice Basten’s reasons, with whom the Chief Justice and Justice Gleeson and Justice Hayne all agreed. Second sentence:
Much of the discussion concerning the application of State law . . . addresses s 79 of the Judiciary Act, rather than s 68(1). The terms of s 79 being at a higher level of generality than those of s 68(1), the relevant analysis should be the same.
For the reasons I have just been addressing there, it is not a question of levels of generality at all; they are just about different topics.
GAGELER J: What paragraph is this, please?
MR DONAGHUE: Sorry, paragraph 91 on page 75. So, there is then – the court having said the analysis of 79 and section 68(1) are “the same”, the court, unsurprisingly perhaps, goes to Rizeq and quotes from Rizeq in paragraph 92, including in [103] the focus on what:
State laws relevantly cannot do within the limits of State legislative capacity is govern the exercise by a court of federal jurisdiction.
So, your Honours will recall that what your Honours held in Rizeq was that there is a gap in State legislative power – States cannot regulate the exercise of federal jurisdiction by a court – and section 79(1) fills that gap. If that analysis were applicable to section 68(1), it could only pick up laws that are properly characterised as laws that regulate the exercise or manner of federal jurisdiction in a court. That obviously could not include a rest.
So, that translation of the Rizeq analysis to section 68(1) cannot hold, and the equation of the two, and the proposition that Rizeq informs the analysis, is erroneous for that reason. That is repeated again, if your Honours go on a few pages to page 86 of the core appeal book, you see in paragraph 117, from near the top of page 86:
But if ss 78 and 79 . . . did not engage the jurisdiction of a court, it was not explained how, consistently with Rizeq, the Judiciary Act purported to pick up such laws.
We see the same sort of thing again at 123. So, the Commonwealth lost below, on this point, because we could not show how, consistently with Rizeq, section 68 could pick up a non‑judicial power. But, again, all of the parties – the amici, at paragraph 31; the first respondent, at paragraph 13; Victoria, at paragraph 9 – agree that Rizeq has nothing to say about the construction of section 68(1). So, the Court of Appeal’s reasons for holding against the Commonwealth on that point are not only wrong, for the reasons that I have just identified, but undefended.
The way that the amici seek to defend the result that the Court arrived at is by, really, a quite different path. Can I invite your Honours to turn up the amici’s submissions and to turn to paragraph 26 of those submissions, which are on page 9, where our friends say:
The third and decisive issue is whether s 79(1) of the NSW Act can be picked up by s 68(1) . . . For the following reasons, s 79 cannot be picked up.
Then there is a summary, and the summary is instructive. Step one:
Section 79(1)(a) –
That is the gate to Division 4:
cannot be picked up . . . because an inquiry held under Div 4 . . . is not a “proceeding” –
and also because:
s 79(1)(a) is not “applicable” –
because it said too much change is required. More change is required to its terms, but then section 68(1) will support. Both of those are attacks on sub‑pay. Then, in 26.2, (1)(b), cannot be picked up because it cannot be divorced from (1)(a). Then, having set out the Act – as the argument then starts to be developed – one goes to paragraph 30, for example, and one sees, consistently with that summary, a submission about the meaning of the word “proceeding” which are directed to – as the first sentence makes plain:
those points do not answer whether an inquiry undertaken under Pt 7, Div 4 . . . pursuant to a direction given under s 79(1)(a), is a “proceeding –
So, the attack again cannot pick up Division 4. When one looks at what our friends say about (1)(b) and Division 5. if you go back a paragraph to paragraph 29 you will see it said:
It can be accepted that the process to be undertaken under ss 78 and 79 . . . as designated persons, is a “procedure”.
So, that is one of the questions your Honour raised with me – Justice Steward:
It also can be accepted that the Court of Criminal Appeal, when dealing with a referral made under s 79(1)(b), is doing so in a “proceeding to review or call into question” –
Those words, in the quotation marks, are words drawn from the inclusive definition of “appeal”. So, what our friends are then accepting, is that the 79(1)(b) procedure meets the description of an appeal as defined in the Judiciary Act. Then, in paragraph 50 – jumping along a little ‑ ‑ ‑
JAGOT J: Sorry, 50?
MR DONAGHUE: Yes, 50, your Honour. Turning to the question with the heading, “Not possible to pick up s 79(1)(b) alone”. This is addressing the severance or partial pick‑up point:
It may be accepted that, if s 79(1)(b) were enacted on its own, it might be capable of being picked up as a federal law by 68(1) –
for some reason. Now, there are some qualifications or concessions in that – some qualifications upon that concession but, in our submission, for reasons I will come in a little bit, the qualified concession is clearly correct.
One sees in the structure of the submissions, particularly in the paragraphs I have just tried to sketch, that if your Honours were just to focus on 79(1)(b) and if you were to find that, whatever the position with paragraph (a), (1)(b) can be picked up and applied, then our friends do not really say anything against that. They attack the severance point, but that is really it, so that if your Honours are with us on the submission that I am about to make that you can separate the two, then that would be sufficient for your Honours to conclude that, whatever may be the position with Division 4 inquiries, for Commonwealth offences people can at least apply under section 79 for an inquiry and the judge persona designata has the options of choosing at least do nothing or send it to the court, and you can leave for another day the question of whether or not there is also the Division 4 option.
The idea that the provision can be partially picked up – that (1)(b) can be picked up by subsection (1), depends, in our submission, on whether or not to pick up (1)(b) would be to give that subsection and then Division 5, to which it takes you, an altered meaning. I will just give your Honours one reference in the authorities to support the idea that that is the right question. It is in Solomons v District Court (2002) 211 CLR 119, which is volume 4, tab 32. I will need to come back to Solomons for a different issue later. The passage I have taken your Honours to is just a short passage at the top of page 135 in paragraph 24, which is the first paragraph in the joint reasons of five members of the court under the heading “Conclusions”. Their Honours say at the top of 135:
It was pointed out in The Commonwealth v Mewett that, where a particular provision of State law is an integral part of a State legislative scheme, s 79 –
and we submit by parity of reasoning here, section 68:
could not operate to pick up some but not all of it, if to do so would be to give an altered meaning to the severed part of the State legislation.
In our submission, to pick up 79(1)(b) – or 79(1)(b), if picked up, would have exactly the same operation whether or not 79(1)(a) is also picked up because, as Justice Leeming described, the pathways are discrete or mutually exclusive. The fact that there is not a different pathway available does not change in any way the operation of the 79(1)(b) pathway if it operates. And that, indeed, is the conclusion that was reached about 23 years ago by Chief Justice Wood at common law in a case of Application of Pearson; Re, which I will take your Honours to – it is volume 5, tab 35, (1999) 46 NSWLR 148. And this is a case that has been followed in NSW quite regularly. It was criticised by Justice Basten in the judgment below, but it had been followed quite commonly since it was decided 23 years ago.
It was decided on the predecessor provision to section 79, the terms of which were materially identical. And you can see the statutory provision on page 152 of the report in paragraph 12. It was then section 474E, but if your Honours take a moment to look at that, you will see that it is the same, including the same conditions in subparagraph 2 and subparagraph 3. So, subparagraph (a) is the equivalent of 79(1)(a); subparagraph (b) is the equivalent of 79(1)(b). If your Honours then go on to page 164 of the report, paragraph 73, Chief Justice Wood said that:
By analogy with the principles established in relation to s 79 . . . it would be inappropriate to apply s 68 so as to pick up some, but not all of the otherwise applicable terms . . . if to do so would be to give an altered meaning –
Citing Mewett. So, it is the same idea picked up in Solomons. His Honour was asking exactly this question that I am inviting your Honours to ask. And he answered it at paragraph 75:
I am not persuaded that to pick up s 474(1)(b) but not s 474E(1)(a) . . . is to give the State legislation an “altered meaning”. Section 68(1) . . . permits the application of State laws “so far as they are applicable” –
Reference to the Interpretation Act requiring a divisible construction in effect. His Honour then, at 76 through to 79, refers to a number of decisions in this Court, where in various different contexts section 68 has picked up only part of a State regime, including in Cheatle concerning majority verdicts – jury verdicts – which were not picked up, obviously, having regard to section 80. And the Cheatle passage you see quoted in 79 draws by analogy on the State provisions requiring a divisible construction of the State law. I will come to the significance of that in just a moment. And then, the conclusion is reached at paragraph 81:
MR HILL: Yes.
JAGOT J: Does that not then mean that your argument collapses to an alteration of meaning?
MR HILL: Your Honour, I only quibble with the word collapse. I prefer ‑ ‑ ‑
JAGOT J: I do not mean collapses. I mean ‑ ‑ ‑
MR HILL: I prefer to see my argument as winnowing away the irrelevant issues and directing the Court’s mind ‑ ‑ ‑
JAGOT J: But that means you are not saying in principle you can never get over that which happened to be right, you can never get over that administrative step. So, you are not hanging your hat on the fact that all appeal rights have been exhausted, that federal jurisdiction is exhausted, you are hanging your hat ultimately on that 79(1)(b) and 86 do not stand alone, that they are part of a much broader scheme and you cannot have a bit of it.
MR HILL: Yes, exactly.
JAGOT J: Okay.
MR HILL: So, just to explain ‑ ‑ ‑
GORDON J: Do you accept that?
JAGOT J: Is that what you are saying?
MR HILL: I am worried that I may have acceded too quickly to your Honour’s very persuasive comment to me.
JAGOT J: No, no, I thought you had said – and I understood what you said – that the step after federal jurisdiction is exhausted, all you have got left is this executive power and you cannot get over that – section 68 cannot get you over that hurdle or roadblock.
MR HILL: Yes.
JAGOT J: That I got, but then when you said you accepted what Justice Gageler put to you about 79(1)(b) and 86 if they stood alone, well, that to me, is inherently accepting that you can get over the executive roadblock.
MR HILL: I need to clarify my submissions, your Honour.
JAGOT J: Okay.
MR HILL: So far I have been talking about whether the New South Wales provisions could apply of their own force, and the main reason I say they cannot apply of their own force is because they are an exercise of executive power directed to dispensation from a conviction, and I say only the Commonwealth Executive can exercise any powers. So that is the relevance, and I say that section 68 of the Judiciary Act, I will be coming back to its sphere of operation. But I say consistently with that submission about the sphere of operation of State laws of their own force, section 68 of the Judiciary Act, it stops at the point of conviction and appeal rights being exhausted as well.
So that is why I say the field of operation of State laws dispensing with convictions matches the scope of when 68(2) of the Judiciary Act stops. But ultimately, your Honour, I think it is true to say that our submission comes down to there is something that would be possible, and the reason it is not possible is because the provisions are not severable or divisible.
GORDON J: I do not quite understand that so I am also confused. It seems to me that if you accept that the scope and sphere of operation of section 68 is as you have just described before you dealt with the collapse argument, then why does not that not carry over when one gets to whether or not you can do the picking‑up? I put this bluntly. We started off by asking what was the scope and sphere of 68 and you explained that it dealt with the exercise of judicial power consistent with providing a scheme which was matched – and I think you said you did not accept the Commonwealth’s submissions as to the breadth so much but you accepted the underlying idea was that there would not be a difference between State and federal offences in terms of the proceedings leading up to the trial of and then the appeals relating to those offences.
If that is the end point and one is now dealing with a prerogative which is an administrative executive power giving rise to its own scheme why does not the same idea about the scope of section 68 carry over to your picking up argument in the context where, as you properly point out, even consistent with Mallard, whether it is executive or whether it is administrative or judicial, we are dealing with a different subject matter, we are dealing with a prerogative. We are dealing with a provision which says it is as if it is an appeal under the Act.
MR HILL: Your Honour, the answer is that my first submission is focussing on the reach of section 68 in relation to the initial conviction, to say that the effect of section 68 on that conviction which then you seek dispensation from. That stops at the point of order of the Court and appeal exhausted.
GAGELER J: I am not sure why that is so. Would it not depend on the content of State law? State law provides for a second appeal – it would be picked up by section 68, would it not?
MR HILL: Going back to this useful table prepared by Dr Stellios, you are thinking of provisions such as, in this table, we noticed there was Part 6.4 of the Criminal Procedure Act (Vic) which is a second right of appeal to a court. Yes, when I say appeal rights exhausted, including any second appeal rights, what I am trying to distinguish is, if the initial go‑around in the courts and in the second appeals is finished, then the only thing a person has available to them is some form of the prerogative, the power of dispensation which, conferred on the Executive ‑ ‑ ‑
GAGELER J: Well, I am just not sure how useful that is as some global proposition, given that we are trying to understand the meaning and operation of Part 7 of the New South Wales Act.
MR HILL: Exactly. May I go, then, directly to Part 7?
GAGELER J: Yes.
EDELMAN J: Just before you do, do you accept, then, that in section 68(1) the word “proceedings” in (d) does not just mean judicial proceedings? Or that the words “hearing and determination of appeals” have a broader scope than “hearing and determination of appeals” in subsection (2)?
MR HILL: I am pretty sure my answer is no. I say that “proceedings” have a consistent meaning of judicial proceedings throughout.
EDELMAN J: Yes. And so, if that is the case, then how does section 68(1) apply to, in its terms, to the administrative procedure that would lead up to the second appeal?
MR HILL: Your Honour, I will be coming to the Judiciary Act but I will answer your Honour now, and then probably develop it a bit more because it is laws of a State or Territory respecting various matters and we say the word “respecting” in section 68(1) can do the same work as “with respect to” in section 77 of the Constitution to pick up incidental non‑judicial powers. So that is how we get there to say in principle section 68(1) could pick up an administrative gateway provision such as section 79 if it were possible to pick up the section 86 proceedings as an exercise of like jurisdiction under section 68(2) of the ‑ ‑ ‑
GAGELER J: So you would say all of paragraphs (a), (b), (c) and (d) of section 68(1) are things that are done in the exercise of judicial power, but that a gateway procedure, whether it is regarded as incidental to an exercise of judicial power or whether it is even characterised as an exercise of executive power, can still be respecting the procedure; it is the way into the procedure?
MR HILL: Certainly our submission is the word “respecting” in the chapeau to subsection (1) can include non‑judicial powers.
EDELMAN J: Well, particularly because it precedes arrests and so on.
MR HILL: Exactly. The only qualification – I am sorry to point out the obvious – with paragraph (b), it is “examination and commitment for trial”, which, of course, is an administrative power, sui generis. But apart from that, yes, exactly what we say is that. We say that the proper place to start – and I will be coming back to this with the Judiciary Act – the proper place to start is the conferral jurisdiction on subsection (2). It is section 77(3) jurisdiction ‑ the source of power for subsection(2) is, of course, 77(3), and then in incidental power.
GAGELER J: Mr Hill, it is our fault. We have taken you to your question 3; you were trying to complete your submissions on question 2.
MR HILL: I was hoping to, your Honours, and your Honour has rightly pointed out, I have been talking at too high a level of generality. So, could I attempt to say something about this particular statutory scheme? And by going to what the Court in this hearing has said about the nature of the statutory scheme and adopt that description of the scheme to support the proposition that is ultimately a substitute for, or connected with, executive power. That is where I am trying to go with this submission.
The first point is to actually go back to the decision of Justice Garling, and if I could ask the Court to go to core appeal book, page 9, and just point out a couple of things that his Honour said about the nature of the task under section 79 – it is Court book 9, paragraph 9. What your Honours sees at the start of that paragraph is the obvious that it is an “administrative task” because 79(4) expressly provides it is “not judicial proceedings.” But what I wanted to emphasise is the next statement:
this application is not another avenue of appeal. Rather, it is an administrative function engaged once the criminal justice system has run its course –
Now, the relevance of that is that if it were an appeal there might be a question whether a New South Wales Act is concerned with correcting error by all decisions of New South Wales courts. There might be that possible construction. The fact that this has a different focus supports our submission that it is concerned with New South Wales offences. Then in the second passage over the page at paragraph 12, the statement that:
“in almost every case, [arise] where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence”.
This again is just to make the submission that these provisions in Part 7 are not really about correcting error per se which is in the nature of appeal, but have a different focus, and what we adopt is what Justice Basten said about the scheme in paragraph 17 of his Honour’s reasons which are at core appeal book paragraph 44.
GORDON J: Do you rely upon what is in 13 and 14 before you go there where Justice Garling explains not only is the focus different, but the materials you look at are different?
MR HILL: Yes, that it might be that once you get to the section 86 proceedings it is looking pretty familiar as a court‑like proceeding, albeit not limited to the proceeding before the initial court. But all the steps before it are very different. I was going to take your Honours to what his Honour Justice Basten says about the scheme at paragraph 17. Your Honours will see that Justice Basten said:
Part 7 of the Appeal and Review Act gives statutory effect to two disparate, but related, aspects of executive power in relation to the administration of criminal justice. The first may be described as the prerogative of mercy . . . The second aspect is available to deal with apparent miscarriages of justice. It could be called upon –
before there are criminal appeals but – and his Honour says:
Although that statute reduced the significance of executive intervention, it did not entirely remove the occasions on which it could be invoked.
So that is merely to say this is an executive function, has a different focus from the traditional appeal rights. So that is why we say the hinge for such an exercise of executive function is the offences for which the New South Wales Executive could provide dispensation, because it is a substitute for the prerogative of mercy exercised by the New South Wales Government.
GAGELER J: Perhaps another way of putting the same submission, but focussing more particularly on the words of the Act, is that the conviction or sentence referred to in section 78 in respect of which the application could be made must be a conviction or sentence which could be dealt with under section 79 by either of the two routes, one of which ends in the prerogative of mercy being considered by the State Governor.
MR HILL: Yes. Yes, your Honour, so ‑ ‑ ‑
GAGELER J: That would be using the language consistently.
MR HILL: Yes. Thank you, your Honour, perhaps I should have started with that. If your Honours have the outline, we way in paragraph 6, we say “conviction” and “sentence” have a consistent meaning in Part 7. That is exactly the point your Honour puts to me, that these words are used throughout. There are certain Divisions, particularly the executive inquiry under Division 4 where it is accepted that that process cannot apply in relation to Commonwealth offences and as a matter of textual analysis it does not make sense that the same words, “conviction” or “sentence”, have a different scope of operation in one Division than in another. I adopt the way your Honour Justice Gageler has put it to me, which is to say “conviction” or “sentence” means something on which either of the paths could operate.
GAGELER J: One of which is the exercise, or non‑exercise, of the true prerogative of mercy.
MR HILL: Yes, exactly, your Honour. If I could then go to the New South Wales Act briefly, this is under tab 5. If I could just make this submission briefly without reading out any subsections, what your Honours see is that this policy that I took your Honours to from Justice Garling, that this is not a substitute for appeals, it happens after the appeal process, your Honours will see this in the grounds on which an application may be refused under section 79(3). Under subsection (3):
the Supreme Court may refuse to consider or otherwise deal with an application if –
(a)it appears that the matter –
(i)has been fully dealt with in the proceedings giving rise to the conviction . . .
. . .
(iii)has been the subject of a right of appeal . . . but no such appeal or application has been made, or
At (iv), an appeal that has been commenced has been withdrawn. Your Honours will notice, under subsection (3A), there is scope to defer consideration if the person can exercise an appeal right. So that emphasises what his Honour said, that this is not a substitute for an appeal – it is not a second go‑around, it is a different beast. One thing I wanted to point out – this is most important when it comes to divisibility – is that I am not sure that it has been made clear to your Honours that one of the outcomes of an executive inquiry under Division 4 is to have the matter referred back into the court.
GORDON J: I put that to the Solicitor this morning. One of the reasons why – I think I said to him, I thought that you had underplayed – or overplayed – depending which way you looked at it – the distinction between (a) and (b).
MR HILL: Yes.
GORDON J: Because it seems to me that it is a very complicated scheme. But one of the outcomes of (a) can be a judicial inquiry under (b) – a judicial inquiry not dissimilar to (b).
MR HILL: Yes. So, if your Honours have the Act, what your Honours will see is that at section 82(2) there is scope for the judicial officer who has finished the executive inquiry to refer the matter to the Court of Criminal Appeal for consideration of whether the conviction should be quashed or for review of the sentence – that is subsection (2). Then, what your Honours see is that that is a reference to section 84(4) – or, at least, subsection (4) refers to what proceedings that is. So, Division 5, actually ‑ ‑ ‑
GORDON J: I think you go to 88.
MR HILL: I am sorry, your Honour?
GORDON J: I think you go to 88 which says ‑ ‑ ‑
MR HILL: I am sorry, your Honour is quite right but – sorry, this is what I was thinking of. Your Honours see that it is dealt with as if it was made under section 84. So, in fact Division 5 is not a monolithic beast either. It is not as simple as saying that Division 5 is completely separate from inquiries because you can end up with an application to quash a conviction following a pardon under sections 84 and 85 and then only section 86 deals with dealing with a matter as if it was on appeal. So, we embrace the comment by your Honour Justice Gordon that this is a complicated scheme and the different Divisions are actually integrated, we say, quite closely in ways such as that. I will come back to the Act when I make submissions as to why it is not applicable with in the meaning of the Judiciary Act.
GAGELER J: Have we finished question 2?
MR HILL: I have one last submission, which will take, I hope, only a couple of minutes. This is to respond to something said by his Honour Justice Leeming, and I think embraced by my learned friends. Could I ask your Honours to turn up Justice Leeming’s judgment at paragraph 217 – it should be core appeal book, page 120. If your Honours see at the end of page 120, his Honour Justice Leeming says:
It seems quite artificial to exclude from the scope of a beneficial provision which is designed to prevent injustice to offenders –
federal offenders. Then, his Honour says at the end of that paragraph, given a person might be charged with both federal and State offences:
it would be capricious if s 78 were only available in respect of –
State offences. Our submission is – remembering that the question here is, does section 78 apply of its own force, because that is what his Honour has directed these remarks towards. So, what we say is, the fact something is a beneficial provision obviously cannot make it mean what a court wishes it had been enacted, and his Honour Justice McHugh said this with typical bluntness in Eastman (2003) 214 CLR 318 at paragraph 60. His Honour was talking about the phrase remedial, saying calling legislation “remedial”:
does not of course mean that courts can construe a statute so as to achieve a result which they think the legislature should have enacted –
We say the same principle applies to beneficial legislation. As to “capricious”, we say there is no way of achieving perfect matching between Commonwealth and State offences, because on his Honour’s approach, Division 4 does not apply to Commonwealth offences, but Division 5 does. We say that seems equally, in our submission, more capricious because at least our construction is based on a consistent understanding of what the Act operates on.
It operates on State offences because the State can only dispense with convictions for State offences. It cannot, or would be presumed not to attempting to dispense with Commonwealth offences. I have just realised that we have something to say about State legislative power, so that might
be something that I hope that I need not spend too long on that tomorrow, your Honours.
GAGELER J: Will we finish in half a day tomorrow, Mr Hill?
MR HILL: Definitely. I am confident your Honours will be able to make us all finish in half a day.
GAGELER J: We will then adjourn until 10.00 am tomorrow.
AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 9 NOVEMBER 2022
4
4
0