Baker v The Queen

[2004] HCATrans 3

[2004] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S395 of 2003

B e t w e e n -

ALLAN BAKER

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 FEBRUARY 2004, AT 10.19 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR A.P. COOK, for the appellant.  (instructed by Legal Aid Commission of New South Wales)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friends, MR R.D. COGSWELL, SC, and MR J.G. RENWICK, for the respondent and for the Attorney‑General for New South Wales who intervenes.  (instructed by Crown Solicitor for New South Wales)

MR H.C. BURMESTER, QC:   If it please the Court, I appear with my learned friend, MS N.L. SHARP, for the Attorney‑General of the Commonwealth intervening.  (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MS K.H. GLANCY, on behalf of the Attorney‑General for Western Australia intervening.  (instructed by Crown Solicitor for Western Australia)

MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR C.D. BLEBY, for the Attorney‑General of South Australia intervening.  (instructed by Crown Solicitor of South Australia)

MR J. BASTEN, QC:   If the Court pleases, I appear with MS R.W. BURGESS for BMB, seeking leave to intervene in support of the appellant.  (instructed by Legal Aid Commission of New South Wales)

GLEESON CJ:   We have read your application and the affidavit material and submissions filed in support of it, Mr Basten.  Is there anything you want to add to those?

MR BASTEN:   No, your Honour, not at this stage.

GLEESON CJ:   What is the attitude of the other parties?

MR WALKER:   We support it and, if the application were granted for my friend to address the Court, have reached agreement on an avoidance of overlap by division of topic.

GLEESON CJ:   What is your attitude, Mr Solicitor?

MR SEXTON:   We would oppose the application, your Honours.  I can say that shortly.  Insofar as BMB’s case raises the same issues, in our submission, these will be fully canvassed by the parties.  Insofar as they raise different issues because, for example, he was under age at the time of the offence, we would say these are matters for another day.  In particular, it is our understanding that BMB’s primary position is that his application, which is on foot before the Supreme Court of New South Wales, is not governed at all by the legislation that is being considered by the Court in this case, that he is governed by earlier legislation.  There may be some argument about that, but that is our understanding of his primary position and we say that that is a relevant factor in relation to the question of intervention.  If the Court please.

KIRBY J:   But he is one of a very small class, and Mr Walker and Mr Basten have made some efficiency agreement between them to divide up issues, and the issue that is before us is of general importance with all the people at the Bar table.  Is it not distinguishable from the fact that virtually every case we get affects lots of other people here, the class is very small.

MR SEXTON:   It simply means there is a smaller number who are affected, your Honour.

KIRBY J:   Very small.

MR SEXTON:   But inasmuch as they are affected in the same way the parties will deal with those issues.

KIRBY J:   But would it have been different if Mr Basten and Mr Walker had appeared in the one interest and divided up the argument?

MR SEXTON:   Well, it is the two interests that we say cause a problem, your Honour.

GLEESON CJ:   Yes, thank you, Mr Solicitor.  No, the Court is not prepared to grant you the leave you seek, Mr Basten.  The application to intervene is dismissed.  Yes, Mr Walker.

KIRBY J:   I would have granted the application.

MR WALKER:   Your Honours, the legislation which is the subject of my client’s appeal came about by a staged process.  The stages are traced in annexure 1 to our submissions.  I will not take you to each of those steps now but only to those which are germane to the provisions which are at the heart of our attack, in particular, of course, subsections 13A(3) and (3)(a) of the Sentencing Act 1989.  Could I take your Honours, in annexure 1, first to ‑ ‑ ‑

GLEESON CJ:   I just want to get the most convenient spot to locate that, Mr Walker.  It was in Justice Ipp’s judgment.  Is that as good a place as any?

MR WALKER:   The consolidated section can be found in the appeal book between pages 25 and 29.

GUMMOW J:   Where do we find the Act, the whole Act?

MR WALKER:   Your Honour will not find the whole Act anywhere.  However, we have contained in annexure 1 the stages by which these provisions came into their present form.

GUMMOW J:   You want to say sections of a particular Act are invalid.  Where do I find the whole Act?  Questions of severance arise.

MR WALKER:   Your Honour, we have not supplied a copy of the whole Act, if that is what your Honour is asking.

GUMMOW J:   Yes.

MR WALKER:   No.

GLEESON CJ:   Could you and the Solicitor for New South Wales arrange to let us have, during the day, the competent legislation with which we are concerned.

MR WALKER:   Could I make this clear and, with apologies to Justice Gummow, the ‑ ‑ ‑

GUMMOW J:   We go through this time after time.

MR WALKER:   Yes, but your Honour, the directions require the setting out of the particular provisions.

GUMMOW J:   I am not worried about what the directions say, Mr Walker.  I am worried about the basic need for commonsense.

MR WALKER:   For a severance argument the whole of the Act, we entirely accept, is always important.

HAYNE J:   Because at the end of the day, Mr Walker, what you want to say is that an Act cast, in effect, in terms, “some may apply after eight years”, should be read as though it reads, “all may apply after eight years”.  That is a large question which cannot be answered absent the whole of the statute with which we are dealing.

MR WALKER:   One:  I accept entirely the stricture your Honour has administered; yes, that is clearly correct.  Two:  the legislative history by which the provisions that I am arguing about were introduced show the way in which it joined a pre‑existing scheme and in fact altered it between 1989 and 1997.  Three:  the particular statute in question, as your Honours know, has been repealed and the material provisions re‑enacted with no material difference in the manner that we have referred to in our written submission and supplied in our annexure 1.  With the co‑operation of my learned friend, the Solicitor, we will attempt to obtain for the Court the latest or best version of a reprint of the Act which is the subject of our argument.

GUMMOW J:   I have Reprint 3 of the Sentencing Act 1989.  Reprint 3 is the statute as in force on 10 November 1998.

MR WALKER:   That is the one which is the version to which attention ought to be directed for the purposes of a severance, a Pidoto argument, but I need to remind the Court that that is no longer in effect.

GLEESON CJ:   This was a question that came up at the special leave.  We were told that although the legislation with which these proceedings are concerned had been repealed, it had been re‑enacted in an identical form.  What we did not ask on the special leave application, but what could possibly be material, is whether the other provisions of the legislation in which the re‑enacted section is found produce the same consequence.  In other words, has there been any material alteration of the context in which this legislation appears?

MR WALKER:    No, is our submission.

GLEESON CJ:   Because if there had been, of course, we might be dealing with a point that is moot?

MR WALKER:    Yes.  The State does not argue that and, with respect, correctly, there is nothing in the re‑enactment of the provisions which are the subject of our attack, now repealed, there is nothing in the re‑enactment ‑ ‑ ‑

GUMMOW J:   It is a question of what was repealed, you see.

MR WALKER:    Yes, your Honour, it was the whole of the ‑ ‑ ‑

GUMMOW J:   Some of it was invalid or it did not need to be repealed.

MR WALKER:    With respect, we accept that.  However, I can only attack the law under which we were dealt with.  That is all I can do in a matter before this Court.  It is a matter which was clearly germane to the grant of special leave to know that the law under which we were dealt with, having been repealed, has nonetheless had its material provisions substantively re‑enacted, but that does not enable me to make a target of the law which, of course, did not apply to the application which was determined against my client.

So in answer to your Honour the Chief Justice the most convenient consolidated version of the section – and I stress the section – which is at the heart of the argument is between pages 25 and 29 of the appeal book, and it is Reprint 3 of the 1989 Sentencing Act in answer to Justice Gummow which contains the whole of the text against which a severance argument needs to be measured.

Finally, in answer to Justice Hayne, we entirely accept that it is the effect of the partial invalidity of a whole Act, that is, the invalidity of the particular provisions we have attacked which is at the heart of the question about what is the result of any success in principle of our argument about infringement on judicial power.  I hope your Honour will not be taken aback if I say we will be seeking to persuade the Court that it is not quite as Justice Hayne has put it to me that is the result.  On the other hand, I do not wish to be disingenuous.  There is a result practically for my client which is very close to the way your Honour put it.

Could I then come to the way in which, under the banner of truth in sentencing, the version of section 13A under which we were not dealt, that is the original version of section 13A came to be enacted, and that is found in our annexure 1 to our submissions, pages 38 relevantly and following.  At page 37 we note the Sentencing (Life Sentences) Amendment Act 1989 as that which inserted this new provision, section 13A, into the Sentencing Act.

At the foot of page 38 there is the commencement of section 13A.  The definition of “existing life sentence” commences at subsection (1).  I can tell your Honours by reference to section 19A, excluded from the operation of these provisions, those who when they were sentenced to life imprisonment were to be subject to what was called by the politicians “life means life”, that is, you may not be released.

On page 39 of annexure 1, the right to apply under subsection (2) was expressed in favour of a class of persons of which our client was one.  He was serving an “existing life sentence”.  He thus “may apply to the Supreme Court” for what is called “the determination of a minimum term and an additional term for the sentence”.  Jumping down to subsection (6) so as to see the nature of the application and a possible determination as Parliament saw it, one sees that if the application were successful then:

the sentence comprising those terms replaces the original sentence of imprisonment for life.

Although the expression “redetermination” is not to be found in any of the statutes it is in the common parlance, including parliamentary parlance, that which this process has become known as.

McHUGH J:   Was this the section under which Crump was dealt with by Justice McInerney?

MR WALKER:   Yes.  The way in which the application was dealt with, therefore, partook partly of a version of traditional sentencing and partly something radically different.  The time alone at which it was done and the fact that it was done after what is called an original sentencing is, of course, critical.  The determination was in relation to an application brought by a person already ex hypothesi serving a sentence of life imprisonment, the validity of which, the correctness of which, the appropriateness of which, was not in question in terms.  In subsection (9) as it was originally enacted there was mandatory regard required by Parliament from the Supreme Court of various matters and paragraph 13A(9)(a) as it originally stood was an attempt by the draftsman to capture the existing regime, a combination of executive and judicial determinations, provided by the statutes that governed the fate of those sentenced to life imprisonment.

GLEESON CJ:   Well, we happen here to be dealing with a particular problem about people who were sentenced to life imprisonment, but it is my recollection that amendments to the sentencing law over the years in a variety of respects dealt with in one way or another people who had been sentenced in the past.

MR WALKER:   Yes.

GLEESON CJ:   Prison inmates who had not been sentenced to life imprisonment but whose custodial regimes were being affected by legislation.

MR WALKER:   Yes.

GLEESON CJ:   Legislation was never purely prospective.

MR WALKER:   No.

GLEESON CJ:   It always had to deal with people who were in prison serving sentences.

MR WALKER:   Yes.  Your Honours will not have seen in our written submissions any attack which uses either the word or concept of retrospectivity or retroactivity, and with great respect, as your Honour the Chief Justice puts it, a sentence of imprisonment, which clearly in view is beyond the day it is imposed, will then be subject to a variety of legislative and executive decision‑making, not only as to its respite but also as to the conditions under which it is served.  So‑called classification of prisoners is one of the most important in terms of the actual fate of the prisoner. 

None of our attack inheres in the notion that after the event a regime was changed.  However, as a matter of what I will call a political or lay sense of justice, it is clear that those introducing the Bill in 1989 took account of the position which obtained on the eve of this Bill being introduced in relation to persons such as my client.  To make that good, may I take your Honours to ‑ ‑ ‑

HAYNE J:   Just before you do, while we are still at (9)(a) of the original form.  In the case of a person convicted of murder before the enactment of the 1989 legislation there was but one sentence that could be passed.

MR WALKER:   Relevantly, yes.

HAYNE J:   Yes.  Thus, the original sentencing court which had passed a sentence of life for murder may in fact have known what the Executive did in relation to release on licence, but that knowledge could have had no effect whatever on the sentence passed.

MR WALKER:   Quite so, your Honour.  Now, as to the proposition that they may have had knowledge, one can state confidently from the Bar table that they all did have knowledge because it was in part, of course, statutory, as your Honour knows, and it appears that Parliament ‑ ‑ ‑

HAYNE J:   But the judiciary knew what the Executive did.

MR WALKER:   The judiciary knew of what Parliament provided by way of recommendation to the Executive and the resultant power.  In particular, it would appear that the Parliament in 1989 not conventionally but accurately, by the somewhat clumsy wording of paragraph 13A(9)(a) that your Honours will find at the foot of our annexure 1, page 39, supposed or assumed, surely accurately, that the original sentencing court, as it is called, had a knowledge:

that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 . . . and of the practice relating to the issue of such licences –

One may raise an eyebrow at the universe of knowledge wrapped up in that language, but ‑ ‑ ‑

GLEESON CJ:   The extent of the practice relating to the issue of such licences was fairly well known also.

MR WALKER:   Yes.  The difficulty about knowledge of practice is that it presupposes in particular an access to information about the workings of a relatively technical bureaucracy complicated, or I should say in aid of, an ultimately political decision which probably could not be described to this day, even if you had access to all the documents.  In other words, the documents will only be part of the exercise.  Nonetheless ‑ ‑ ‑

HAYNE J:   And the consequence of the exercise by the Executive of this power to release on licence would be, would it, that the prisoner would be still under sentence and would be serving the sentence at large for the balance of his or her days?

MR WALKER:   Yes.

HAYNE J:   And liable to have the licence revoked?

MR WALKER:   Yes.  Those are important considerations in relation to any suggestion that this simply fits into a Kable pigeonhole.  It does not, for the reasons we have put in our written submissions.

GLEESON CJ:   Was one of the conditions on which some people were released on licence a condition that they go to a psychiatric hospital instead of a prison?

MR WALKER:   I think that is so.  There was a whole variety of conditions which were imposed, not always of an institutional kind, your Honour.

GLEESON CJ:   It is a condition that typically had a distorting effect on statistics that you used to hear produced about the length of time people served in prison.  Some people were released from prison after a very short time straight into a psychiatric hospital, where they were to spend the rest of their lives.

MR WALKER:   Others, one may be forgiven for thinking, were released in that fashion because they were more trouble – I do not mean in any sinister way – in an ordinary prison.  So that one could not interpret that decision as a decision that the desserts of the prisoner merited him or her being at large.  No such thing applied.

GLEESON CJ:   But in some statistics that I have seen produced, people of that kind would go into those statistics as murderers who were released from prison after three or four years.

MR WALKER:   That is right, your Honour.

GLEESON CJ:   Released from prison into a psychiatric hospital, where they were expected to die.

MR WALKER:   Yes.  In short, it was always a false dichotomy in prison or at large because of the conditions.  Your Honours will find in annexure 1, page 17, a form of the relevant provision for tickets-of-leave, as they are still titled in that print, section 463 of the Crimes Act, where one finds in the third line the expression “licence to be at large”, and then the terribly important following words referred to by the Chief Justice, “within limits specified in the licence . . . subject to such conditions indorsed on the licence”, et cetera, et cetera, with a power of revocation.  That is not a sentence being altered; that is not a sentence being overturned.  It is an administrative Act governed in part by legislation.

Could I then take your Honours to the recognition of that by those who introduced the 1989 version of section 13A.  In annexure 3 to our written submissions starting at page 1 commences the second reading speech by the then Mr Dowd, Attorney‑General.

HEYDON J:   You mean annexure 2?

MR WALKER:   I do mean annexure 2, thank you, your Honour, annexure 2, page 1.  Your Honours will see the political statement under which the whole of the package was being introduced in the fourth‑last line on that page:

The new section 19A –

that was life means life –

will ensure truth in sentencing . . . This sentence will give effect to what is currently only a judicial recommendation that an offender is never to be released.

The provisions, of course, did no such thing, in the sense that they did not apply 19A mandatory life means life – that is, life imprisonment meant you would stay in prison for life – only for those who got a recommendation, but it is clear what the Attorney‑General was referring to.  He went on:

Such a recommendation, although a strong guideline for the executive decision‑makers, is not necessarily binding.

There is then, after a reference to ‑ ‑ ‑

KIRBY J:   The word “necessarily” is a mistake, is it not?  It was not binding at all.

MR WALKER:   Quite so.

KIRBY J:   In fact, there were real due process problems with it because it was not the subject of a legal regime; it was not the subject of debate in court; it was not the subject of appellate review.

MR WALKER:   Audi alteram partem did not apply, the duty to give reasons did not apply and an appeal was not available.  Indeed, the description of it in shorthand as “a judicial recommendation” poses a risk of misleading.  It is a recommendation made by a judge.  As your Honours have seen in our written submissions, whether it is truly judicial except by reference to the nature of the person who uttered it, is to be doubted.

KIRBY J:   As I said on the special leaving hearing, we all know that there are some judges who would never make such a statement because it was outside the legal paradigm and there were other judges who would commonly make it.  It is just a personal idiosyncrasy with no legal footing.

MR WALKER:   Yes.  Could I then take your Honours to page 3 of annexure 2.  Halfway down the page there commences a paragraph “Proposed new section 13A” where the Attorney explains that, with reference to prisoners “serving an existing life sentence” about being able to apply after having “served at least eight years”, a reference to comparable legislation in other States and in the Commonwealth as precedents and then a reference to the particular provisions at the foot of the page.  Then at the top of page 4, first full paragraph, an important explanation of that which was being provided by way of legislative boon, if one likes, to these existing prisoners.

KIRBY J:   Where are you now?  I have lost ‑ ‑ ‑

MR WALKER:   Page 4 of annexure 2, first full paragraph.

KIRBY J:   I see, yes.  Thank you.

MR WALKER:   Commences:

Executive intervention in relation to these prisoners will be removed.  As a result, truth in sentencing will also be achieved ‑

I can pass over the second of those sentences.  The first sentence is not quite accurate because redetermination, of course, made them eligible to be considered for release by executive not judicial process, but there was an element in which the learned Attorney was clearly correct, that there was to be introduced a judicial element.

HAYNE J:   But is not the place and manner of confinement of a prisoner under sentence a matter wholly for the Executive?

MR WALKER:   Yes.  The second and third sentences of that paragraph are an important explanation of the specific mischief being aimed at by the application of 13A to those with existing life sentences.  The mischief was that:

The proposed new section 13A has been drafted carefully to ensure that these existing prisoners are not disadvantaged.

The mischief was that the new “truth in sentencing” regime might otherwise disadvantage them.  Why?  The answer by the Minister was:

It cannot be denied that these prisoners had certain expectations as to release, and these cannot and must not be ignored.

So that was the purpose of 13A when it was introduced, to recognise that when sentenced these people justifiably – I am not talking in terms of any legitimate expectations in any juristic sense at all - a lay or political sense only – justifiably said the government considered that there was a possibility that one day they may be able to apply.

Now, it has to be said that behind that explanation there lies some notion that it would be unfair to change the regime so radically without giving them some substitute.  I do not suggest for a moment there is anything constitutional or legal about that sentiment.  What is important is that this material identifies what could be gathered in any event from the 1989 version of section 13A.  It was designed to give people who would otherwise be caught up in a new policy of so‑called truth in sentencing who had been subject to mandatory life sentences at a time when the regime permitted release on licence, something in substitution for it.  Our submission obviously is, as your Honours have seen, that the 1997 amendments radically transformed the nature of section 13A in some particular regards.

Could I then take your Honours to the way in which in 1997 those amendments were introduced and I pass, that is, over 1993 amendments as not adding to our argument.  In annexure 1, that is page 49, the Sentencing Legislation Further Amendment Act 1997 amended the Sentencing Act by inserting into section 13A, as you see at item [2], a new subsection (3) in place of the former one and an entirely new subsection (3A).  It inserted section (4A) at the foot of that page, and then over the page to page 50 the other one which is germane to my argument is subsection (10A).  Now, the key elements ‑ ‑ ‑

GUMMOW J:   Is it your submission that looking at page 49 that someone or other of those amending sections was invalid, so that the Act remained in its earlier form and it was in that earlier form that it was later repealed?  It is the validity of these amendments by Act No 6 that you have to impugn, is it not?

MR WALKER:    It is the validity of the amended provision.  If that be invalid, then the amendment does not take effect; that is, one cannot amend a law by inserting an invalid provision that is invalid from the moment of its enactment.  I am not sure whether that is a square answer to your Honour’s question because, of course, there is a repeal aspect to an amendment as well.  For example, the opening words of item [2] are “Omit section 13A (3)”.

GUMMOW J:   Yes, that is right.  We may want to know at some stage, looking at page 49, which of those items [1], [2] and [3], you say – or maybe going over to page 50 as well – is invalid.

MR WALKER:    Yes, you do.  One does have to go to 50 in order to give a proper answer to your Honour.  I can say now there is nothing on page 50 which is invalid in our argument.  It is only on page 49 and it is ‑ ‑ ‑

GLEESON CJ:   What about item [7] on page 50?

MR WALKER:    No, we do not attack subsection (10A).  We call it in aid as part of our argument about special reasons but we do not say it was invalid, that is, had it appeared on its own, we do not say that would have been invalid.  We do not say anything is invalid in relation to item [1].  We do not say anything is invalid in relation to item [3] on page 49, but in item [2] we say after the words, “Insert instead”, that is, governed by the words “Insert instead” we attack the validity of paragraph (b) and we attack the whole of the clause intended to become subsection (3A).

GUMMOW J:   So it is paragraph (3)(b), and the whole of (3A)?

MR WALKER:    Yes, your Honour.

GUMMOW J:   But you do not challenge the omission of 13A(3)?

MR WALKER:    No, your Honour.  I have no ground to do that.

GUMMOW J:   So 13A(3) is just replaced by (3)(a).  Is that right?

MR WALKER:    Yes, your Honour, it is only the first half of (3)(a).  I am sorry, the last half of (3)(a), of course, applies to paragraph (b), so whether you enact ‑ ‑ ‑

HAYNE J:   And that is the rewriting problem that you have to come square up against, is it not?

MR WALKER:   Yes.  I could formalistically say the line comes at the comma, your Honour.  But that does not, with respect, answer your Honour’s substantive point that there is conceptually, which is the test, a rewrite being engaged in.  As it happens, that rewrite leaves it in the form it would have been in.  As your Honours have seen from the pages I have already taken you to, there was an eight‑year minimum term to be served.  So the rewrite in effect says that the attempt to change the law in subsections (3) and (3A) wholly miscarried, leaving, as it happens, the law as it was because there is the omission of…..and the insertion of part of the new intended provision, being the whole of the former provision relevantly.

HAYNE J:   But that seems to be flirting with the notion that the whole of item 2 is invalid, including that part which omitted the then 13A(3), so that you were thrown back into the old law.

MR WALKER:   That is right.

HAYNE J:   That seems to be a flirtation with that.

MR WALKER:   This is the practical effect, as it happens, and only coincidentally because of what was reproduced in the first part of (3A), your Honour, yes.

HAYNE J:   But the legal path you seem to invite us to follow is, is it, that a provision which says there are two classes of possible applicants, A or B, B is bad, therefore everybody falls within class A, that is, there is no subdivision of applicants?  Is that the legal path that you invite us to follow?

MR WALKER:   Yes, being the law as it stood before there was an attempt to make substantive amendment which was invalid.  Your Honours will have seen that there is an alternative attack put in our written submission and the alternative is as to whether or not paragraph 13A(3)(b) is bad as well as subsection 13A(3A).  My principal argument is focused on subsection (3A).  It is in case subsection (3A) and paragraph 13A(3)(b) should be seen as the kind of package that could be dubbed the non‑release recommendation group, that one would involve both of them in the invalidity.

GLEESON CJ:   Would the argument be any different if the legislation had said not “a person who is the subject of a non‑release recommendation is not eligible”, et cetera, but had said “the following 10 people are not eligible:  A, B, C, D”, et cetera?

MR WALKER:   In subsection (3)?

GLEESON CJ:   Subsection (3A).

MR WALKER:   Yes, in our submission, there would be a somewhat stronger reliance on a Liyanage principle for an objection under the principle illustrated in Kable that the Supreme Court was being enlisted in that case for a political end espoused by the Executive and the legislature rather than for truly institutionally impartial and separate judicial conduct, yes, but it would only strengthen the position rather than change the legal reasoning.  It would make clearer by use of the names.  Of course, Liyanage did not use names, but their Lordships had no difficulty in putting two and two together from the circumstances, including the reference to the date of the coup d’etat.

Your Honours, may I then put that in context as to, again, what we can see from the official record was the mischief perceived by Parliament to be met by these amendments, the validity of which we challenge, by going back to annexure 2, now to the Hansard of 8 May 1997 starting at page 7.  Your Honours have seen in the chronology how this followed hard on the heels of a successful application by my client’s co‑offender, Crump, before Justice McInerney.  The speeches that your Honours will see in this annexure include copious references, none of them complimentary, to the outcome of the application before Mr Justice McInerney.

The beginning of the speech contains, in fact, names in a way which evokes the considerations that your Honour the Chief Justice has just raised with me and, as we have put in writing, the whole speech is characterised by vituperation.  It is no part of my argument to say whether that vituperation was justified or not.  What is clear is that there is a characterisation of named people in a way which describes the mischief as being the possibility that they may one day, by executive action under a legislative regime, be released, go out of gaol.

KIRBY J:   Now, let me get clear the purpose for which you are using the Hansard, because we must not reflect upon debates within the House of Parliament.

MR WALKER:   So as to identify the mischief perceived by the legislators at which the provisions proposed to be enacted were aimed, in particular so as to understand what was meant by the general expression “special reasons” in subsection (3A).  So a traditional mischief identification approach.

The second paragraph on page 7 introduces – and I am not going to dwell on them – the topicality, the particular occasion of judicial conduct which gave rise to the mischief perceived by those introducing the Bill and, as it happens also, those on the other side who supported the Bill.  There is the reference to the redetermination for Crump.  On page 8, the first full paragraph referred to the Kable experience and then a reference to this Court as being the ultimate scrutiny for the validity of what was being enacted.  In the next paragraph, having identified the mischief from the Crump Case, the intended policy is clearly announced:

Proposing legislation that is constitutionally sound is the Government’s primary objective –

and here comes the purpose –

so as not to give Crump and these nine other animals any hope for the future.

Then there is a reference to political and social matters.  Then, having described the Bill as:

Effectively the toughest sentencing legislation ever introduced into this Parliament –

the intended purpose of it is described as:

It will provide the bleakest possible futures for these men –

Then there is a reference of a political partisan kind to the 1989 form of section 13A.  I think there is a typographical error in the quotation from Mr Justice Allen.  On page 9, after Mr Whelan in the Lower House had referred to provisions which were to be inserted, in the middle paragraph commencing “The two other factors” he turned to the presently critical matter of:

any relevant comments made by the original sentencing court when imposing the sentence –

and then he turns to the amendments:

They are designed to do five things.  First, the bill tells judges that we, the Parliament and the community, do not expect these most serious offenders ever to be released.

The very next sentence I think identified the mischief.  The very next sentence designates the provision intended to subserve that purpose:

Under proposed section13A(3A), in order for such an offender to be eligible for redetermination of his sentence the Supreme Court must find there are “special reasons” why the sentence should be redetermined at all.

In our submission, just as the circumstances leading to the enactment of the legislation in Liyanage were appropriate for the judicial committee to consider in that case in assessing the somewhat different but related vice alleged in that case, so here under traditional means of a court looking at the travaux one can see far more obviously than the white paper in Ceylon demonstrated, one can see here the mischief identified, they may ever get out, and the means by which it was proposed the statutory text to be enacted would prevent that mischief from being realised.

McHUGH J:   What has Liyanage to do with this case?

MR WALKER:   Your Honour, what it has to do with this case is that this case is equally clearly, as in Liyanage, aimed at a known closed group.  That is one distinction which we would offer between that and the very different position in Nicholas’ Case, for example.

HAYNE J:   What is aimed at them if that is a proper characterisation, which may be open to debate, is that the sentence originally passed on them should remain intact.

GUMMOW J:   Is that not your fundamental problem, Mr Walker?

MR WALKER:   Yes.  We have tried to confront that in our written submission by ‑ ‑ ‑

GUMMOW J:   The original 13A conferred upon the court the new power of relaxation, if you like.  The later legislation constricted that relaxation.

MR WALKER:   Yes, and if by argument at any point resembles, as it were, some claim to a ratchet effect - it can only get better, it can never get worse - then it ought to be rejected because in our argument that is the area in which Parliament does have the right to alter the conditions under which prisoners are kept; for example, to alter the regime under which executive respite of how and whether you serve sentence of imprisonment is doled out.  We accept all of that. 

The thing which represents a vice in this is that Parliament did not take for itself the responsibility that section 463 of the Crimes Act had clearly located away from the judicial arm, administrative advice, and then the Governor in Council makes decisions under the old 463, release on licence, and now judges are enlisted ‑ ‑ ‑

GUMMOW J:   Mr Walker, this sort of activity with this relaxation regime is the sort of activity which is in that category of neutral categorisation for judicial power.  It need not necessarily be conferred on the court, but it may be and if it is it takes that character; likewise, if it is conferred on the Executive.

MR WALKER:   I accept that entirely, your Honour.

GUMMOW J:   So what is the problem?

MR WALKER:   The problem is having enlisted the judges – and I do not say you cannot enlist judges in determination of the nature of the offender and the offence, and we do not say you cannot do it long after the original sentence.  That will be a matter for consideration on the merits of any particular State legislation that does so.  They do not have to address the question of whether the Commonwealth could do it with Chapter III judges.

GUMMOW J:   You do, in effect, it seems to me.

MR WALKER:   I am sorry, your Honour.

GUMMOW J:   You do, in a way, because the clearest answer to any Kable argument is to say, “You do not get that far.  This could be absolutely kosher under Chapter III”.  If the answer to that is “yes”, the rest of it disappears.

MR WALKER:   Your Honour, I accept that reasoning.

GUMMOW J:   That is what we did in Bachrach, for example.  It seems to elude attention in a lot of the submissions.

MR WALKER:   Your Honour, my argument is that having enlisted the judges ‑ unexceptionable as a general proposition, enlisting the judges in this exercise – they have done so by statutory text which requires the judges earnestly to consider the possibility of special reasons in cases where, for reasons I am about to elaborate, that is a mockery of judicial process.

HAYNE J:   Why?  The judges simply give content to special reasons.  That may be a difficult task.  It may take a deal of working through, but why is that a mockery?  It is a hard piece of legislation.

MR WALKER:   Yes.  As we have said in our written submissions, it would be fatuous to suggest that the use legislatively of the notion of special reasons to be assessed by a court has any invalidating effect on legislation.  We do not put any such argument.  Tradition alone would show that it would be impossible.  There are thousands of examples of special reasons being referred to.

GUMMOW J:   There are plenty of Chapter III cases too.

MR WALKER:    We do not say that there is anything about calling up special reasons, generally, in the abstract, as being a vice in legislation.  We could not and we do not.  What we say in this case by reference to the other provisions into which these amendments have been inserted, and some of which were adjusted – see page 50 of annexure 1 – by this insertion, it can be seen that all germane matters which could bear upon whether to redetermine – because we are not talking about whether to release.  This is a regime which does not release prisoners.  It makes them eligible to seek administrative executive release some time in the future.  It is just bearing on the question whether to redetermine every matter which would be germane is applicable to all cases, not just to the non‑release recommendation cases.

McHUGH J:   How does it impinge on the Supreme Court of New South Wales functions under Chapter III of the Constitution?  You would concede, would you not, that originally when 13A was enacted in 1989 the Parliament of New South Wales could have said, “A person serving an existing life sentence other than Allan Baker may apply to the Supreme Court for the determination of a minimum term”?  They could have specially selected him and said he cannot apply, and that law would be perfectly valid, would it not?

MR WALKER:    It would not raise any Chapter III problem at all.

McHUGH J:   No.  There is nothing that could have stopped the Parliament in 1997 saying, “This provision does not apply to Allan Baker or any of these nine persons”.

MR WALKER:    Same answer.

McHUGH J:   Yes, perfectly valid.  So how does it come about that Chapter III invalidates what the legislature did?

MR WALKER:    Because the decision to make such a law, the responsibility for its merits or demerits or for its appearance being borne squarely by the Parliament and by the Executive proposing the Bill, would do nothing to cloak the practical effect intended by such legislation – that practical effect is achieved uno ictu by enactment – with the judicial process – ratiocination, weighing up, hearing the other side, considering possibilities different from those for which the Crown contends – which is involved in the notion of an application to a judge who has to examine the possibility of so‑called special reasons, not because they are special reasons but because the legislation has, we submit carefully and comprehensively, bearing in mind the residuary clause that says “and anything other relevant”, made sure that all cases – not just the non‑release recommendation group, but all cases under section 13A have as the ordinary or standard gamut of reasons anything that could ever possibly appear in any case.

McHUGH J:   Yes, I know, but what your argument seems to come to, Mr Walker, is this.  You concede that if the Parliament said that your client could not make an application under this section, it would be perfectly valid.  You say it gives him the right to make it, but it is a very slender right, maybe so slender that only in very exceptional circumstances could he get any relief under the section.  But how does it come about that giving him a chance to show special reasons impugns the independence of the Supreme Court of New South Wales?

MR WALKER:   If my argument were as your Honour has put it, particularly in the last two steps, it should fail.  If your Honours find that there is real content in the possibility of special reasons, then it does not matter that my client’s right is to make an application with very slender, tenuous or highly unlikely prospects of success.  That would be an absurd ground of invalidation and I do not argue that.

HAYNE J:   But the argument proceeds, does it, from the premise that the words “satisfied that special reasons exist” are devoid of content?

MR WALKER:   Yes.

HAYNE J:   That is a very large argument.

McHUGH J:   If you fail on that, your case fails.

MR WALKER:   Yes, it collapses.

McHUGH J:   You are a very persuasive advocate, Mr Walker, but you are going to have to talk long and persuasively to persuade me at the moment that the words “special reasons” do not have any ‑ ‑ ‑

MR WALKER:   Not long, I hope, your Honour.

GLEESON CJ:   Let us just amend that to “persuasively”.

MR WALKER:   I very gratefully accept that, your Honour.  No, there is not much to be said, and I have put that in only one of the ways in which that could be understood.  In other words, the point if good is a straightforward one; otherwise I have, I hope, conceded that the legislative device of giving assessments – whether they are discretions or not does not matter at the moment – on a range of possibilities to judges to decide and referring to mandatory or facultative lists of matters to be considered and requiring in certain cases special reasons – Cabal’s Case is just a most recent consideration by this Court of such matters – is unexceptionable.  Let me make that crystal‑clear.

GLEESON CJ:   Let me give one example of a possible special reason for the purpose of your comment on whether it could fall within the legislative description.  Unusual and extreme assistance to the law enforcement authorities by way of the provision of information assisting in the apprehension of other offenders, coupled with risk to safety or even life if retained in custody.  Can you think of any circumstances under which that could possibly qualify as a special reason within this legislation?

MR WALKER:   No, because that is already within subsection 13A(9)(b).  If I use now for convenience the consolidated version, page 27 of the appeal book.  It certainly could fall if it is relevant at all under the, in our submission, cunning last line of subsection (9) to be found at the foot of page 27 of the appeal book.  This is the first part of my argument about “special”.  Those are factors which are not special.  They are general or ordinary; they apply to everybody.

GLEESON CJ:   I am sorry, section (9) says that the “Supreme Court . . . is to have regard to” certain circumstances.

MR WALKER:   Yes.

GLEESON CJ:   Do you say that they cannot possibly qualify as special reasons?

MR WALKER:   Yes I do, because they apply in all cases not just to the subsection 13A(3A) non‑release recommendation group.  They apply to ‑ ‑ ‑

HAYNE J:   So the consequence of that argument, Mr Walker, is if contrary to your view special reason can be shown, you seem to be inverting (9) by saying, “Oh well, the judge having been satisfied special reasons exist can’t consider those matters because those are different from, separate from, isolated from, any other relevant matter”.

MR WALKER:   No.  No, I am not saying they cannot.  What I am saying is that the content of what is special in a reason requires contrast with what is ordinary or general - that is the first step in the argument – because a reason either exists or not that justifies a determination.

HAYNE J:   And it is very fact specific.  From what you are wishing to put to us, as I would understand it, is that there can be no set of circumstances imagined which could qualify for the description “special reasons”.

MR WALKER:   Yes, for this group.  Now, there are two aspects to my argument.  May I take it step by step, and yes the bar is that high, your Honour, yes.  The first is the notion of a special reason invokes a standard, because what a judge does is not intuition and then an arbitrary label but involves the process of reasoning from the nature of the task set by the legislation.  Even administrators have to do that, see Browning v Irrigation Commission.  Judges par excellence do it.  In understanding the function imposed by section 13A the judge starts by asking, “What are the general ordinary reasons which from the nature of things” - that is the possibility one day of making application administratively for release, a determination provision - “and from the statutory text by which I am bound and I am commanded to be guided, what are the ordinary or general reasons which will apply in all cases?”

Among the answers – we have set them out in our written submissions – will be, of course, primarily those found in section 13A(4A), which almost goes without saying except for the second bit, and subsection (9) because the judge knows that his or her functions under the new section 13A required discrimination by the judge in the case of somebody with a non‑release recommendation.

In our submission, for the reasons we have put in writing, adapting the approach taken by this Court in the quite different context of extradition, Cabal’s Case, that epithet “special” requires as part of the judicial process understanding what its content may be and most importantly may not be.  What it may not be, you may not defy Parliament by simply looking at a reason which would apply in any case and dubbing it special ‑ ‑ ‑

KIRBY J:   What do you say about the categories that Justice Ipp nominated as possible special circumstances?

MR WALKER:    Some are fantastic but, in our submission, they are all in substance in reality captured by paragraph 13A(9)(b) in the residuary last line.  Now, in answer to Justice Hayne’s, with great respect, completely correct proposition about every case being fact specific, that gives rise to an inquiry in this hypothetical judge asking, “What does ‘special’ mean?”, because that is the first test, “I must understand the law before I can apply it to the facts”, one possibility which might arise is, well, every case is special.  Indeed, that is cliché that lawyers use.  Well, does that mean that reasons that simply emerge from any case for a non‑release recommendation prisoner is therefore special because every case is special to its own facts, to use another cliché.  That would be to trivialise the command Parliament uttered by putting that epithet “special” in in a textual setting where we know that there are reasons, other matters – see subsection (4A) and subsection (9) – which they must take account of.  So we know that Parliament has used the notion of “special” in a text which includes references to reasons generally.

GLEESON CJ:   Mr Walker, would your argument be that subsection (3A) is invalid if there were a full stop after the word “section” in line 3?

MR WALKER:    That would be valid.

GLEESON CJ:   How does it make the section invalid to demonstrate that there is no practical content to the qualification?

MR WALKER:    Because, your Honour, if the full stop came there, judicial power would never be engaged.

GLEESON CJ:   The words that you are basing your attack on are words of qualification to a general proposition.

MR WALKER:    Yes, which requires a court to do something.  Without the qualification, a court is not required, indeed, is not entitled to do it.

GLEESON CJ:   So your argument is that because the qualification purports to empower the court to exercise a discretion in circumstances where the discretion is of no practical content, then the result for which you contend follows?

MR WALKER:    Yes, your Honour.

GLEESON CJ:   Is an alternative result simply to construe the section on the basis that the words do have some practical content?  Is that not the ordinary process of construction that a court would adopt?

MR WALKER:    Yes and yes.

GLEESON CJ:   So you say it is impossible, as a process of construction, to give those words an impractical content?

MR WALKER:    Yes.

McHUGH J:   What if your client was suffering from Alzheimer’s?

MR WALKER:    That, of course, your Honour, is a matter to do with a decision whether to release.  Now, as it happens, after the event, in section 154A, to which we have made reference, that is precisely the kind of thing that is a consideration by the Executive, not by the judiciary, as to whether to actually release.  So that has been removed from the universe of special reasons to justify a determination.  A determination does not release.

McHUGH J:   Yes, but we are dealing with 13A.  Why would not – if your client was suffering from Alzheimer’s or a terminal disease and his life expectancy was dramatically shortened, a judge could not regard the case as coming within the expression “special reasons”?

MR WALKER:    Because that is a matter germane to release, not a matter to determining a minimum term and a possible additional term.  Now, as I say, after the event, 2001, that has been made crystal‑clear by the provisions of 154A which you will find at 69D in our annexure 1.  Now, I stress, this is a provision which emphasises how remote from the occasion and nature of a redetermination application are the Alzheimer’s moribund state, because 154A is about whether you release somebody on their death bed, in effect.  That is a release matter, not a redetermination matter.

McHUGH J:   Supposing your client now came along with psychiatric evidence which said in the light of current psychiatric knowledge, maybe pathological testing, “We know he was suffering from a mental disease at the time these offences were committed”.  Why would that not be a special reason?

MR WALKER:   It would have to go further, I assume, “and no longer is”.  They would all be captured by paragraphs 13A(9)(b) and (c).

GLEESON CJ:   And you say “And, therefore, cannot be special”?

MR WALKER:   Yes, your Honour, that is an essential step in the argument.

HAYNE J:   Leaving aside the present debate about special reasons and focusing for the moment only on the other cases who fall within the eight‑year requirement, in exercising the power thus given in respect of those offenders, is the Court in redetermining to follow Bugmy’s Case and to fix the period before eligible for release according to the principles in Bugmy (1990) 169 CLR 525, Bugmy being a Victorian redetermination case in which the decision of the trial judge was overturned on the basis that he had fixed the period before eligibility by reference to considerations appropriate to the head sentence rather than considerations appropriate to a minimum term.  Let me show you the knife and the napkin.  If minimum term requirements are the relevant considerations, then the Alzheimer’s example, the rendered quadriplegic in hospital, the terminal illness examples, may perhaps wear a different aspect.

MR WALKER:   Yes.  I accept that, your Honour.  The function of the minimum term under paragraph 13A(4)(a)(i) is plainly to the earliest date upon which a request can be made for an executive decision in the nature of release.  When I say “release” I do not mean, as the Chief Justice pointed out at the opening of the argument, I do not mean, of course, walking the streets, but what can be done?

HAYNE J:   And fixes, therefore, the minimum term that must be served by the prisoner before consideration for that merciful release.

MR WALKER:   Yes, that is my point.  The law requires that they serve their sentence – I am leaving aside prerogatives of mercy and pure executive conduct at the moment, the statutory regime in question.  The law requires them to serve it.  This is an entrenchment upon that because there can come a time, the date after which you may then, if they still exist, seek to invoke certain statutory provisions which put in train a purely executive, not judicial, process of, I will call it release.

Now, in our submission, because that is a decision not about release - indeed it is studiously apart from a decision of release or not, which one can see from the possibility that an additional term may be as long as for the remainder of your natural life - because of that, matters which are, in our submission, of a I will call the merciful character if that is what is involved in Alzheimer’s, or a convenience character which may also be involved in relation to Alzheimer’s, are germane to release and not to this notion that at some time in the future there will be a date upon which those considerations going to release will be considered by a different organ of the State.

HAYNE J:   What I am suggesting to you is that the notion of a sharp dichotomy that you seek to draw between release and fixing a minimum term may have to take account of the fact that in fixing minimum term what is done is to set the least amount of time – not the actual, but the least amount of time – that the prisoner must serve if justice is to be done.

MR WALKER:   Yes.  Can I volunteer an example against myself in order to try and overcome it.  One may suppose that there is an onset of a terrible disease of a kind which, notwithstanding the terrible nature of the offence and the otherwise undeserving nature of the offender, excites pity.  I leave to one side the idea that it is more convenient to have them out of the prison in that State – just exciting pity.  The person had not applied for a redetermination, is eligible to apply, and the question then comes, under subsection (3A), is he eligible to have a determination made – to adopt the language of the Act – because of a “special reason”?  It is said the special reason is he is struck with this terrible disease, he is in a piteous state.  There ought to be some recognition of that by release from prison, perhaps to a hospital, whatever.

It could be put against me that that may be a reason which justifies a redetermination being made in order that the court sets the minimum term at, shall we say, a period expiring very soon, so as to clear the way for the other agency of the State – the Parole Board, relevantly – to examine the question whether the person ought to be released and, if so, on what terms and conditions.

In seeking to answer that, the first thing we would say is these are provisions which rigorously observe a delineation or demarcation of statutory function between the limited mandate given to the judge simply to set a minimum term, if any, which has a meaning that the judge will and must take into account, namely, that then another body altogether, who will not be bound by the redetermining judge, will consider on material which will perforce be different – because it will be updated – whether somebody actually should be released and, if so, on what terms and conditions.

Because of that rigorous demarcation of function, it would be wrong, in our submission, for the judge to take into account.  It would be an irrelevant consideration to second guess, in anticipation, what a differently constituted body, acting under different legislation and guided by different institutional requirements – in terms of giving effect to government policy, for example – will, may or may not do in relation to that prisoner.  In other words, the judge must not at any stage simply become a cross between a rubber stamp and a gate in order to get through to the administrative body that can actually make a concrete effect on the prisoner’s life.

It is for those reasons that the idea that there can be special reasons under subsection (3A) which are of the kind that both the Bench and I have illustrated, namely, the mortal disease and the pity evoked – it is for those reasons that they simply are not available on a proper, purposive and, in our submission, judicially faithful exercise by a judge trying to fulfil the 13A function.

McHUGH J:   But why?

MR WALKER:   Those are matters for another body.

McHUGH J:   Your argument seems to me to be based on a complete misapprehension of the factors that judges take into account in sentencing.  In sentencing there is almost no factor concerning a person’s background, mental state, that a judge will not take into account.  They even take into account your war service.  Why in determining a minimum term cannot a judge take into account any background factor concerning the applicant or the victim so long as it can be described as “special”?

MR WALKER:   I am sorry, your Honour, there are two notions conflated there.  Your Honour is now asking only about the non‑release recommendation group.  I think Justice Hayne’s questions were directed at the generality.

HAYNE J:   Yes, but the argument spills over, Mr Walker.

MR WALKER:   Quite.  I just wanted to mark it explicitly.

HAYNE J:   Try to put a finger in the dyke.

McHUGH J:   You start with the hypothesis that an applicant is serving a life sentence.

MR WALKER:   Yes.

McHUGH J:   The question is whether this person is eligible to be given a minimum term and an additional term.  In making that determination ‑ ‑ ‑

MR WALKER:   That is what applies to everybody, with special requirements for a subgroup.

McHUGH J:   Yes.  In the case of people such as your client, then you are not eligible for the determination unless the court is satisfied that special reasons exist that justify making the determination of a minimum term.

MR WALKER:   Quite so.

McHUGH J:   Why can the court not consider every factor?

MR WALKER:   They can.

McHUGH J:   You concede that?

MR WALKER:   They can consider; indeed, they must consider.

McHUGH J:   Yes, every factor that would throw light on whether or not you should get a minimum term, the only difference being in your client’s case as to whether the factor relied on is a special factor.

MR WALKER:   That is right.  That is my only point, which is why the fate of the argument depends upon whether it is legitimate judicial process to say of a reason that it is special in effect without explaining what differentiates it from the list of ordinary reasons which apply ‑ ‑ ‑

GLEESON CJ:   It could be special in degree.

MR WALKER:   Your Honour, first of all, if that were true, (a) we lose, but (b) the category has in fact collapsed because ‑ ‑ ‑

McHUGH J:   But subsection (2) provides that a person may apply but then (3) ‑ ‑ ‑

MR WALKER:   Only (3) cuts back who can make it.

McHUGH J:   Exactly.

MR WALKER:   But (3A) does not cut back who can make it, (3A) cuts back who is eligible for success at the end of a process which is the making of an application because it involves the attempt to show special reason.  Now, that is, of course, one’s application.  I think that exhausts my answer to your Honour’s question.

McHUGH J:   Right.  Now, the other thing I want to put to you is this that in seeking to bring down (3) and (3A) you want to preserve the “Omit section 13A (3)”.

MR WALKER:   For the reasons I have put in answer to Justice Gummow most recently this afternoon ‑ ‑ ‑

McHUGH J:   Let me put to you this, is not the test the intention of the legislature?  Would the legislature have intended to preserve the old regime enabling people like your client to make an application if its new legislation, or amending legislation, was invalid?  Now, is that not the test that arises out of Bread Manufacturers?

MR WALKER:   Yes and no.  Yes, the authorities contain a test which, with great respect to your Honour, has captured by your words, but this notion of the intention of the legislature is bad enough if understood literally when referring to actual valid legislation which one is trying to understand and, in our submission, ought to be treated as a form of conventional courtesy by the courts when construing the product of legislative action, namely, a text in permissible context.

GLEESON CJ:   How do you treat it when it appears in the Interpretation Act?

MR WALKER:   The same way.  The legislature, grateful to adopt the conventional courtesy, because the notion of an intention, which is, of course, personifying a legislature, intention being something which – we are now talking about actors rather than texts having intentions – is to personify a legislature in a way which defies common sense, politics, psychology.  It is a fiction.  I do not mean it is an unfortunate fiction.  It is, nonetheless, a fiction, to this extent, that it is almost impossible to see a difference in principle between asking the question, “What did the legislature intend?” and “What does the text mean”?

One can say this emphatically, namely, that if the court started answering the question “What is the intention of the legislature?” differently from what the text meant, then the court would almost certainly be betraying a basic function of applying the law.

GLEESON CJ:   I thought there was a very large question of what the word “meaning” means.  There have been books written about that.

MR WALKER:   Yes, there is, and this is an infinite regression as soon as one uses words to talk about the meaning of “meaning”.  I am presently – and this is the “no” part of my answer to Justice McHugh – with great respect, querying the utility in the severance test of intention, bearing in mind its limited utility in straightforward interpretation of valid legislation.  But there is this extra matter when one comes to its use in a Pidoto‑style exercise or a Bread Manufacturers‑style exercise or an Interpretation Act‑style exercise, section 21.

There is this problem, that it invites the court, without any recourse, of course, to travaux preparatoires of a law that was never enacted because there are no such things, to make a judgment about what is the result of a process involving debate and partisan vote and there is no way of avoiding that that is the process by which laws are made.  That is one of the reasons why, with respect, with all the modern liberality, it is still a matter of construing a text and not being diverted by the statements of those who engaged in the process by which the text resulted. 

In our submission, in this case to speculate that they would rather have no 13A, none of Mr Dowd’s 13A, than have 13A without Mr Whelan’s “keep them locked up” addition, is just that and is profoundly to be avoided by a court because it is legislative in character as well as speculative.

McHUGH J:   Prima facie, it all comes down, unless – once you take part down, it all comes down, the onus, in effect, so far as one can talk about an onus in this context, being on you.

MR WALKER:   Yes, I accept that, and for once the person tugging at the lintel of the temple does not want the whole temple to come down.  Quite.

GLEESON CJ:   What do you say is the test?

MR WALKER:   The test is whether in light of the text of the impugned provision and its place in its statutory context – and it is only its statutory context – what is left is a sensible enactment, leaving out only that which has been invalid and not thereby transforming, beyond the invalidation of the impugned provisions, the statutory context.  Now, that is important, because some formulations of the test simply say you do not leave something which thereby transforms from what the legislature who has done something invalid wanted.  That cannot be right, because you can have severance. 

The Interpretation Act provisions have not yet, I think, been subject to any challenge and certainly not any successful challenge, although one day maybe that will happen.  Certainly, common law severance is well established.  You can have severance, so therefore the change to the evident legislative project which included the invalid bit is not a change which means you cannot sever.  That starts the question, when I take this out, is what is left a sensible operation which does not present any more jarring a discordance with what the project was than is necessary to take out that which invalidated it?  You have to be able to take out the invalid bit, otherwise there is never any issue of severance at all.

HAYNE J:   That seems to be a test of “Can the severed Act operate?”  It has to be more sophisticated than that, has it not?

MR WALKER:   Yes.  I was about to say, your Honour, that is the beginning of its statement because if it fails that, if it is not sensible – a bit like a blue pencil, perhaps not precisely.

GUMMOW J:   The common law test is a blue pencil test.

MR WALKER:   Yes, it is, your Honour, but it is a blue pencil ‑ ‑ ‑

GUMMOW J:   That is why these sections were introduced to make it more sophisticated.

MR WALKER:   It is a blue pencil test which asks whether what is left is sensible, not only in a syntactical sense but also in what I call a functional and to a very limited degree a purposive sense.  We would like to emphasise that you do not defeat severance by saying that if you take out the invalid bit, what is left is not what they wanted.  Of course it is not.  That is because they wanted something invalid.  That does not defeat severance.  It is what is left.  In this case, whatever other difficulties there are in other cases of severance, whether one is applying common law or statutory tests, by the happy event shown in item [2] on page 49 of our annexure 1, the omission of subsection (3) for the insertion of the invalid portion is exactly the same as leaving the former subsection (3) in place.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  We will reserve our decision in this matter and adjourn until 10.15 tomorrow morning.

AT 3.30 PM THE MATTER WAS ADJOURNED