Bennett, Ex parte- Re Holloway

[1999] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Registry  No C 13 of 1999

In the matter of -

An application for Writs of Prohibition, Mandamus and Certiorari against STEPHEN HOLLOWAY

First Respondent

and

LIONEL WOODWARD

Second Respondent

Ex parte –

PETER BENNETT

Prosecutor and Applicant

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 2 AUGUST 1999, AT 9.31 AM

Copyright in the High Court of Australia

MR C.M. ERSKINE:   If your Honour pleases, in this matter I appear with my friend MR J.S. WILSON for the applicant prosecutor.  (instructed by Barker Gosling)

HIS HONOUR:   Yes, Mr Erskine.  Is there to be any appearance for the respondents?

MR ERSKINE:   They were notified, your Honour.

HIS HONOUR:   They were or were not?

MR ERSKINE:   They were, by my instructing solicitor, last week.

HIS HONOUR:   Yes, very well.  We will just have to proceed without their assistance.

MR ERSKINE:   Your Honour, normally I would say I would move on a notice of motion but in these procedures I think one moves upon an affidavit for applications for orders nisi.  The affidavit is of Peter Phillip Bennett sworn on 9 July 1999.

HIS HONOUR:   Do you read that affidavit?

MR ERSKINE:   I do, your Honour.

HIS HONOUR:   Yes. very well.  There is no need for you to do so.

MR ERSKINE:   Thank you, your Honour.  May I ask ‑ ‑ ‑

HIS HONOUR:   Is that the only affidavit?

MR ERSKINE:   It is, your Honour, yes.

HIS HONOUR:   And that refers to a number of annexures?

MR ERSKINE:   It does, your Honour.  The annexures run through to annexure K, which is a draft of an order nisi.

HIS HONOUR:   I think I have a J; I do not know that I have a K.  Oh yes, I do.  K is the draft order nisi.

MR ERSKINE:   That is so, your Honour.

HIS HONOUR:   Yes, I have all of that.  I have looked at it, though I cannot confess to have read every word in it, but I understand the nature of the matter.

MR ERSKINE:   Your Honour, to be honest, the issues that arise from this application are set out, certainly in outline form, from paragraphs 7 onwards, if your Honour has some familiarity with the facts that lead to the situation.

HIS HONOUR:   This is paragraph 7 of the affidavit?

MR ERSKINE:   Paragraph 7 onwards of the affidavit, your Honour, yes.  In essence, your Honour, what  has happened is this:  my client is a member of the Public Service.  He also holds a position as the President of an industrial association within the meaning of the Workplace Relations Act.  In the latter capacity, he took part in an interview on radio in Sydney on Graham Richardson’s programme which dealt with various matters relating to whether the Customs Service, by virtue of having had various cuts to its manpower over the years, was now able to carry on the important public task given to it and there was some discussion of things such as the effect of staffing levels in parts of Australia, on its ability to intercept the flow of illegal drugs and matters of that kind.

HIS HONOUR:   Where do I find the transcript of the radio broadcast?

MR ERSKINE:   The transcript, your Honour, ought to have been attached as part of the – I must say it ought to have been attached.  It was my intention that it would be.

HIS HONOUR:   There was an extract of a statement by Mr Richardson but is the full transcript before the Court or not?

MR ERSKINE:   The whole of the transcript was before the Inquiry Officer, yes.

HIS HONOUR:   But is it before me, because one of the matters on which you seek relief relates to the identification of the prosecutor in the transcript of the proceedings.  That is paragraph 3 of the order nisi, of the draft.

MR ERSKINE:   Yes, I have just realised that, your Honour.  It is referred to in a number of places in annexure B but whether it refers precisely to the matter your Honour has raised – might I, your Honour, hand up a transcript of the interview itself dated 19 November 1998.

HIS HONOUR:   I will mark that transcript exhibit A.

EXHIBIT:              Exhibit A…..transcript of interview dated 19/11/98

MR ERSKINE:   Thank you, your Honour.

HIS HONOUR:   I will just take a moment to have a look at this.  It is headed “Interview with Peter Bennett, Australian Customs Officers’ Association”  But is that said in the interview?  That is simply the heading to the document.  Was it actually stated in the interview as to what office he held?

MR ERSKINE:   Yes, it was.

HIS HONOUR:   This is on page 2, I think.  It says, “On the line now, Peter Bennett is the federal president of the Australian Customs Officers’ Association.  G’day, Peter”. 

MR ERSKINE:   Yes.

HIS HONOUR:   These are the familiarities of modern talk-back radio.

MR ERSKINE:   Indeed, your Honour, yes.  Certainly the introduction is on page 2 and it is our submission that, as one goes through the interview, there is nothing in that in which Mr Bennett explicitly identified himself as being an officer of Customs.  The Inquiry Officer seemed to lay some stress upon the use of the word “we” from time to time, referring to Customs, but that is about as high as it ever got.

HIS HONOUR:   But how else would the prosecutor know the matters that are recounted in the interview if he were not an officer of Customs?  It showed an intimate knowledge of activities within the Customs service, did it not?

MR ERSKINE:   Because he is the president of an industrial association whose members are officers of the Customs service.

HIS HONOUR:   But does not the title of the association, Australian Customs Officers’ Association, indicates that it is an association of officers of Customs?

MR ERSKINE:   Yes, but that does not necessarily mean, your Honour, that the president of it is a serving member of the Customs Service at the time.  One can be a professional union administrator or organiser.

HIS HONOUR:   What does it matter that he is a Customs officer or is not himself if, in fact, he is a Customs officer.  Is he not bound by the terms of the regulation?

MR ERSKINE:   He is, and your Honour has gone straight to the heart of the complaint that we make about the way in which the Inquiry Officer was going about his task which is that our contention is that regulation 7(13) of the Public Service Regulations is far too widely cast.  What it does is to cut across rights that public servants have to express their views, their opinions and information they may have from sources other than from their duties, for example from a public source, publicly available source.  Regulation 7(13), on the interpretation favoured by the Inquiry Officer, would impose, we would say, quite inappropriate burdens upon the rights of public servants to express themselves on political issues.  And we say, for that reason, it therefore falls foul of the implied constitutional guarantee.  One can also, we would contend, say that the regulation is completely disproportionate to the end of the regulation-making power in the Public Service Act in section 97 and one finds further support for the submissions that we will put to the Court from the Workplace Relations Act, sections 298K and L, which deal with the right of officers of industrial associations not to be interfered with in carrying out their duties. And, again, further support as referred to in paragraph 16 of the affidavit and annexure F, the International Labour Organisation Convention on the Freedom of Association and Protection of the Right to Organise, which Australia has ratified.

HIS HONOUR:   Which annexure is that?

MR ERSKINE:   That is in annexure F, your Honour. 

HIS HONOUR:   It is paragraph 16 you refer to there, is it?

MR ERSKINE:   Paragraph 16, yes.

HIS HONOUR:   Article 16.

MR ERSKINE:   No, paragraph 16 of the affidavit, annexure F of the affidavit and ‑ ‑ ‑

HIS HONOUR:   I glanced at annexure F.  I could not see any particular article which was specific to the issues before the Court on the order nisi.  Which is the article you refer to?

MR ERSKINE:   Your Honour, article 2, article 3.

HIS HONOUR:    Article 2 relates to the right to establish organisations.

MR ERSKINE:   Yes.

HIS HONOUR:   There is nothing that has prevented your client from doing that.

MR ERSKINE:   No, but your Honour, what we say is that the effect of this convention is to combine various rights of members of industrial associations.  Article 2 provides obviously for joining.  Article 3 allows the organisations to set up their constitutions and rules and to organise their administration and activities and formulate their own programmes.  Then, in the second part of article 3, “The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.”  Now, when an official of the union makes a public statement about affairs related to the members of the union, we would say that is part of the activities and the formulation of the programmes of the association and article 3(2) then requires public authorities to refrain from interfering with that right. 

HIS HONOUR:   We are jumping over the place a bit, but has this convention been incorporated into domestic law?

MR ERSKINE:   No, it has not, your Honour, so that the highest I can put it is in the Teoh sense, that it is a matter to be taken into account in the interpretation of legislation.  But it has been ratified by Australia and it is therefore our submission that in interpreting the scope of regulation 7(13), one would have to have regard to the rights and obligations set out in that particular convention.

HIS HONOUR:   Leave aside what you call as the constitutional guarantee, which is language that I think has been used from time to time but, as explained in Lange and in Levy, is really in the nature of an immunity from law making which would be inconsistent with the implied right of free expression on political and other matters that is inherent in exercising the rights of electors under the Constitution, leave that to one side, there are a number of matters in the draft order nisi that concern me and which I would ask you to deal with seriatim. The first was paragraph 3 which related to the evidence that your client was himself a Customs officer. I understand how you put the argument, that he identifies as an officer of the association and that that does not necessarily indicate that he is an officer of Customs himself, but such a matter would not normally attract the attention of this Court. I mean it is simply an interpretation of a broadcast. Why would the Court grant an order nisi to examine the interpretation of a transcript of a radio broadcast?

MR ERSKINE:   For this reason only, your Honour, that the Inquiry Officer thought that it was a matter of some consequence.

HIS HONOUR:   I am missing half of what you are saying.  You will have to speak up.  This is a very big room.

MR ERSKINE:   I am sorry, your Honour.  The Inquiry Officer thought it was a matter of some consequence that Mr Bennett was an officer of the Customs Service and was identified as such and that in some way compounded the sin of what he had done in taking part in the broadcast.

HIS HONOUR:   But that would go to the penalty that was appropriate.  It would not go to the lawfulness of what Mr Bennett did.

MR ERSKINE:   It does also go, in the Inquiry Officer’s view, to the interpretation of liability under regulation 7(13) in the first place, that this is a duty cast upon someone who is identified as a public servant.

HIS HONOUR:   Is that right?  It says:

An APS officer must not, except in the course of his or her duties as an APS employee or with the Agency Head’s express authority, give or disclose, directly or indirectly, any information about public business, or anything in which the employee has official knowledge.

Now, that does not appear to refer to the APS employee speaking as such, it simply attaches to the fact that the person is the employee.

MR ERSKINE:   Yes.

HIS HONOUR:   So what is the relevance of the identification of the proposed prosecutor as a Customs officer?  It does not seem to be relevant.

MR ERSKINE:   Your Honour, to be perfectly honest, if we were engaging in an intellectual debate about that, I would entirely agree, with respect, with your Honour.  The fact remains that the Inquiry Officer thought it was a matter of some significance in the way in which he approached his task.

HIS HONOUR:   The prohibition is designed to deal with officers of the Commonwealth who have exceeded their jurisdiction.  It is not designed to fix up every little slip of the tongue that they have used in the making of their orders or performance of their duties.  So that I feel a bit disinclined to grant an order nisi on that ground.

MR ERSKINE:   Your Honour, I cannot elaborate any further on that.  It was simply picking up a matter that the Inquiry Officer thought was significant.

HIS HONOUR:   The test is, is it not, whether a point is fairly arguable?

MR ERSKINE:   Yes.

HIS HONOUR:   And if, in fact, it does not go to jurisdiction but is some infelicity of language, then it is not really a matter which would attract the intervention of this Court by way of the issue of a writ of prohibition.  And if it is not such, it would not attract an order nisi.

MR ERSKINE:   No.  Your Honour, if that were the only issue that arose out of this case, I think it would be fair to say that we would not be troubling the Court.

HIS HONOUR:   Yes, I am merely going through the list of matters that concern me.

MR ERSKINE:   I understand that, your Honour, yes.

HIS HONOUR:   The second matter was in paragraph 1(b) that regulation 7(13) was invalid as exceeding the power to make regulations under the Public Service Act.  Now, that would, if made good, arguably go to the jurisdiction of the person who is purporting to exercise functions under the regulation but I assume that the power under the Public Service Act is in the usual very ample terms.  What is your argument in relation to ‑ ‑ ‑

MR ERSKINE:   Your Honour, the regulation-making power is contained in section 97 of the Public Service Act and your Honour is, with respect, quite correct in saying that it is in the usual general terms in that it enables the making of regulations:

(aa)  required or permitted by this Act to be prescribed; or

(ab)  necessary or convenient to be prescribed for carrying out or giving effect to this Act;

It then goes on to refer with particularity to some other matters and, in particular, in section 97(1)(k) it says:

for making provision bout the duties and conduct of officers;

HIS HONOUR:   Just a moment.  I better have a look at this.

(1)  The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:

(k)  for making provision about the duties and conduct of officers;

MR ERSKINE:   Yes.

HIS HONOUR:   Now, why is regulation 7(13) not arguably within that paragraph?

MR ERSKINE:   Your Honour, one of the tests of whether a regulation is within the power granted to make regulations is whether it is proportionate to the end or to the purpose contained in the Act.  Regulation 7(13), in our submission, goes far wider than the attainment of the purpose or end as setting out the duties of officers in that if the Inquiry Officer’s interpretation of it is correct, then regulation 7(13) would, for example, prevent an officer of the public service from talking about a matter that was already on the public record.  It would, for example, prevent an officer of the public service, at any time, howsoever identified, from discussing a matter of public significance and therefore, in its terms, goes far wider than is actually necessary in order to set out a code of conduct for public servants to protect the integrity of the public service and protect the confidentiality of government information.

HIS HONOUR:   But there is nothing in (k) that says “make provision about duties and conduct of officers when they are performing functions in the interests of the Australian Public Service”.  It is in perfectly general terms.

MR ERSKINE:   It is, your Honour, but we would submit that – in effect, we are arguing the case dealing with the constitutional issue under a different head at this point, because it is much the same point that is being made.  It is our submission that when one looks at what section 97 permitted by way of regulations dealing with duties of public servants, it was not enough for a regulation simply to say, “A public servant may not do a particular thing simply because they happen to have the status of a public servant."” There must, in fact, be some further connection with the duties and activities of the public service to give rise to the creation of duty under the regulations.  So that one interprets section 97, while it is expressed broadly, as nevertheless having some limits. 

We would submit that regulation 7(13) has well and truly exceeded those limits by prohibiting public servants from taking part in discussion - for example, when they do not even identify themselves as public servants – because, on its face, and on the interpretation favoured by the Inquiry Officer, regulation 7(13) would prohibit a public servant, even if they did not identify themselves as such, from taking part in a discussion of some matter of public importance.

It is also our submission that when one is dealing with the disclosure of information, which must be one of the functions of regulation 7(13), there needs to be some connection made between the confidentiality of the information and the disclosure that has happened.  So that if the accusation against a public servant is that he has released information that is already in the public domain, for example, it is contained in a speech of a Minister in Parliament or has been reported in the media or something of that kind, then it cannot be, in our submission, a reasonably proportionate end of the establishment of duties of public servants to nevertheless prohibit them from further debate ‑ ‑ ‑

HIS HONOUR:   But would one not then say that that is a question which would be determined in the way in which the regulation was interpreted and implemented but that in this case, what was said by your client was not something that was in the public domain in any way; it was something which he was revealing and which, at least upon one view, in certain respects revealed operational activities of Customs which, on any view, would be a matter relevant to the duties and conduct of officers and thus within the matter for which the making of regulations was validly conferred by the Parliament?

MR ERSKINE:   Your Honour, in the material that went to the Inquiry Officer from the applicant, it was said in a number of places that the information that he had provided was already information on public record.  Information, for example, to do with staffing levels, information to do with the ability of Customs to intercept ‑ ‑ ‑

HIS HONOUR:   I was thinking of the statements in relation to times of arrival and likelihood of searching and the number of containers which are searched by officers of Customs.  Information of that kind would, at least arguably on my understanding of the matter, be operational matters which might reasonably be aspects of the duties and conduct of officers which are regulated by Customs in order to ensure that operational information is not provided to the public at large.

MR ERSKINE:   Would your Honour pardon me for one minute?  Your Honour, I am instructed that in fact it was all public, the information that was referred to by my client.

HIS HONOUR:   You are getting there into the merits of the matter as distinct from the jurisdiction which is raised by the application for prohibition.

MR ERSKINE:   We are, your Honour, but may I add one other matter though, your Honour, which is this:  part of our submission in relation to the interpretation of regulation 7(13) is that it was incumbent upon the Inquiry Officer to ask the question whether the information was on the public record or not.  In other words, was the applicant disclosing matters that would give rise, perhaps, to some concern, as your Honour has just articulated?  The Inquiry Officer thought it unnecessary to even ask the question.  So that as far as the Inquiry Officer was concerned, the interpretation of regulation 7(13) simply required that there be a matter of public business being discussed, even if it was a matter absolutely notorious, as far as information is concerned.

HIS HONOUR:   But I think I read that he said that matters that were in the public domain or conversations with one’s spouse or partner would not ever be the subject of any complaint under the regulation and that, therefore, the suggested extreme cases to which the prosecutor was arguing the regulation would attach were simply unrealistic and that that was not the present case.

MR ERSKINE:   Yes.  Your Honour was referred to paragraph 22 on page 4 of annexure B, in particular, in which the Inquiry Officer debates in writing this suggestion of having a discussion with his spouse.  He does preface it by saying, “Without wishing to enter a debate on the outer reaches of the operation of regulation 7(13), the example is not related…..to the sort of information revealed by you in the course of the interview.”  So that he does not purport to be saying, discussions with one’s spouse must be outside the scope of the regulation.  He is, on our reading of it at any rate, suggesting that there is a definite distinction to be drawn between that example and what he regards as being the gravamen of the offence committed by my client.  But the fact that at no stage did he ever ask the question whether the information that was being disclosed – or perhaps, better still, being debated by my client in the interview - was already on the public record  means, in our submission, that he has not asked a question that would be fundamental to a reasonable interpretation of regulation 7(13) but addressed, in particular, the sorts of concerns your Honour has articulated a few minutes ago.

HIS HONOUR:   Help me, will you, with the next matter that I am concerned about, and that is the Workplace Relations Act. I do not think I have a copy of that Act with me so you have to tell me what sections 298K and 298L state. Is the contention that, by reason of a subsequent enactment by the Parliament, it has overridden the regulation and that the regulation has, to that extent, been repealed by the Act of Parliament or is it some other contention?

MR ERSKINE:   In essence, your Honour, yes, and I have to say this is very much by way of subsidiary argument.  It provides further reinforcement, we would say, of the proposition that regulation 7(13) is too wide because ‑ ‑ ‑

HIS HONOUR:   I realise that, but I have to be satisfied before I issue an order nisi that there is an arguable point.

MR ERSKINE:   I understand that, your Honour. Section 298K is headed, “Dismissal etc. of members of industrial associations etc.” It says that:

An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

And one of those is:

(b)  injure an employee in his or her employment;
…..
(e)  Discriminate against another person in the terms or conditions on which the employer offer –

Sorry, not (e), I beg your pardon, your Honour.  Then 298L deals with “Prohibited reasons”.

(1)  Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee –

and then if one passes on to (n):

as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:

(i)  lawful; and
(ii) within the limits of an authority expressly conferred on the employee…..by the industrial association –

HIS HONOUR:   But that is all posited on the act being done because the person is a member of an industrial organisation, whereas the designated officer, the Inquiry Officer, was at pains to make it clear that he drew no distinction on that basis whatsoever.

MR ERSKINE:   He did not, your Honour, except that it is our submission that paragraph (n) of 298L says the prohibited reason is the doing of “an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association”.  Now, the doing of the act or thing in this case was the giving of the interview with Graham Richardson.  If that is the matter that is the prohibited reason, then it was precisely that.

HIS HONOUR:   But it is only prohibited, as I understand the reading of the section 298L, if it is because the employee is an officer and the whole point of the Inquiry Officer’s contention was that the regulation attached to your client whether he was an officer or not. It attached to him in his capacity as a member of the Australian Public Service and the fact that he was a member of an industrial organisation was simply irrelevant to its attachment to him in that capacity.

MR ERSKINE:   Your Honour, there is a separate reason altogether which is paragraph (a) of 298L, which is a prohibited reason of the person being or proposing “to become an officer, delegate or member of an industrial association”, so that the way in which 298L expresses the reasons that may be prohibited are, first of all, that somebody is an officer of an association or, in the alternative, in (n), that in their capacity as an officer of an association, they have done something for the furtherance of the industrial association.  So that the spotlight there in (n) is not upon whether they are doing it because they are an officer of the association but the spotlight is upon what they have actually done.  When the spotlight is on what they have actually done, we then cross over, we would submit, into the disciplinary charge laid against the applicant.

HIS HONOUR:   But if we are talking about spotlights, the spotlight here is upon jurisdiction.

MR ERSKINE:   Yes.

HIS HONOUR:   And you have to raise this argument, which may be a perfectly legitimate forensic argument in the course of elaborating other grounds, to the point that you are saying that because of the terms of sections 298K and 298L of the Workplace Relations Act, that the Parliament has in some sense repealed or overridden a regulation made under section 97(1)(k) of the Public Service Act.  That seems a very hard argument to run.  I am not presently satisfied that that is a matter that goes to the powers of the Inquiry Officer.  I can see how you could advance forensically an argument that when one is interpreting the section you keep in mind the international convention and the provisions of Australian domestic law that prohibit discrimination against people in their capacity as officers of industrial organisations, but it hardly seems to strike at the validity of what the Inquiry Officer did.

MR ERSKINE:   Your Honour, I can only say, in furtherance of our submission on this point, that if regulation 7(13) prohibits along the way something which section 298K and L say should not be prohibited, then our submission is that to that extent at least regulation 7(13) has to be invalid. Whether it can be read down or reinterpreted is another issue. But if, in fact, the regulation is inconsistent with the prohibition contained in 298L then, in our submission, it cannot stand. Whether or not it is a former regulation or a post-regulation.

HIS HONOUR:   The next matter related to paragraph 5(a) which concerns the interpretation of regulation 7(13) whether or not the prosecutor was “disclosing information from government sources”.  What is that point?

MR ERSKINE:   Before I answer that, your Honour, I think in fairness, because we have no respondent here this morning, I should draw your Honour’s attention to an argument that has been put on the part of the putative respondents in correspondence in relation to 298L(n), your Honour will recall that as I read the paragraph out I said that the act or – I will read the particular part again, your Honour:

as an officer or member of an industrial association, has done…..an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:
(i)  lawful; -

The contention that was put to my client by the respondents was that it was not in fact a lawful thing that he was doing if it fell foul of regulation 7(13).  So the contention that is put against us on that – and I think in fairness I do have to raise it with your Honour – is that inside paragraph (n)  ‑ ‑ ‑

HIS HONOUR:   It has its own self destruct so far as this argument is concerned.

MR ERSKINE:   Yes.  Now, we have answers to that but I think I have to draw it to your Honour’s attention.

HIS HONOUR:   Yes.

MR ERSKINE:   Now, I have to say, your Honour, that I must now return to the matter that your Honour raised with me.

HIS HONOUR:   Paragraph 5(a).  This is disclosing information from government sources.  That is a complaint, as I read it, that the Inquiry Officer wrongly found something in relation to regulation 7(13).  How does that affect his jurisdiction?

MR ERSKINE:   Sorry, your Honour, 5?

HIS HONOUR:   Paragraph 5(a).

MR ERSKINE:    Your Honour, 5(a) is directed to the second respondent. 

HIS HONOUR:   There seems to be a measure of repetition in some of these grounds in the ‑ ‑ ‑

MR ERSKINE:   The second respondent is Chief Executive Officer of the Customs Service.  There are, in fact, two things that have happened in recent times involving my client.  The first and most serious of them is the disciplinary charge and the findings made, but the second has been that my client has asked the Chief Executive Officer of Customs for authorisation under regulation 7(13) to disclose certain matters.

HIS HONOUR:   He received a limited authorisation which meant, in effect, that he could disclose matters to his members but not to the public at large.

MR ERSKINE:   That is so, your Honour.  So paragraph 5 is going to those authorisations and not to the first respondent who is the Inquiry Officer who found my client guilty of a disciplinary offence and imposed a penalty upon him.  Having said all of that, your Honour, I have to say I have forgotten the question.

HIS HONOUR:   The question related to how it is contended that paragraph 5(a) goes to power or jurisdiction of the second respondent as distinct from merely the way in which he has determined that he should exercise his power.  Prohibition does not run simply by way of an appeal.  The Court does not grant prohibition simply because it would have taken a different view of the exercise of the power which is within the province of the officer of the Commonwealth concerned.  It goes, and is a salutary remedy, against the usurpation of power or the purported exercise of power which does not exist.  Now, how does 5(a) fit within that principle?

MR ERSKINE:   Because, in our submission, the second respondent’s interpretation of regulation 7(13) is too wide.  So if I could perhaps step back from that precise detail, because your Honour is quite correct, with respect, in saying there is some repetition of issues between the first and second respondents.  At the first level of argument that we would seek to put to the Court in due course, we would be contending that if one accepts the Inquiry Officer’s interpretation of regulation 7(13), then for various reasons it is invalid as a regulation because it has exceeded power, it is invalid under the constitutional limitations and so forth.

HIS HONOUR:   If you win on that, then all other matters disappear, do they not?

MR ERSKINE:   The alternative argument, your Honour, is that the interpretation favoured by the Inquiry Officer is wrong, that the regulation does not in fact mean what he thought it did.  Now, logically one should in fact do the first of those first, because until one knows exactly what the regulation means one does not know whether it has gone too wide or not under the various powers.

HIS HONOUR:   Is that not a matter that would be proper to be dealt with in the Federal Court, rather than in this Court, because if, in fact, there has been a misinterpretation of the regulation, then that takes away the constitutional argument and it is a general principle of constitutional construction that you first find what the law which is challenged means before you consider whether or not it is in breach of the Constitution. Many constitutional problems which look bright and optimistic disappear when you actually do the job of construction.

MR ERSKINE:   Yes, your Honour.  We would say two things to that.  The first is ‑ ‑ ‑

HIS HONOUR:   Do you have a right under the Judicial Review Act to challenge the decisions of the officers of the Commonwealth here?

MR ERSKINE:   We would certainly have a right to challenge the first respondent under the AD(JR) Act. It would certainly be strongly arguably that we would have a right to challenge the second respondent because he would be giving an authorisation under a power given to him under regulation 7(13), one would think. If one did not, one would certainly under section 39B of the Judiciary Act be able to use the prerogative writs to much the same end, even assuming there were some defect in jurisdiction with the AD(JR) Act. 

HIS HONOUR:   I will ask you, in due course, whether or not, given that that is a remedy that would have been available to you, and given the high desirability of having matters of construction of federal regulations and legislation determined in the first instance by the Federal Court, and given the general convenience of having another court pass upon these matters, why it would not be appropriate for all such questions to be remitted to the Federal Court.

MR ERSKINE:   Does your Honour wish me to answer that one now?

HIS HONOUR:   Well, at some stage you will have to do so.

MR ERSKINE:   Perhaps I might address that one now, your Honour, because it is in the forefront of my mind.  The first thing we would say is that regulation 7(13) is very widely expressed.

HIS HONOUR:   I understand that argument and I understand your argument of a constitutional character and it may be that at some time this Court may have to pass upon that. I do not know the history of regulation 7(13) of the Public Service Regulations but it appears in its breadth to antedate the general moves for a relatively open communication of issues in Australian society. I say that without prejudgment, but it is broadly expressed, and therefore, at some stage, the issue of its validity when measured against the Constitution may have to be considered. The question is one of convenience; whether it is not more convenient to this Court for us to come to it after it has been interpreted and any factual questions of the kind that you seem intent on arguing passed upon by a judge of the Federal Court who will refine issues that make it easier for this Court to deal with the questions.

MR ERSKINE:   Your Honour, the reason for saying that regulation 7(13) was widely expressed was, perhaps in part, to argue against my subsidiary argument which is, in fact, the first one logically that has to be dealt with in that we would have to concede that a great deal of work would have to be done in interpreting regulation 7(13) to narrow its scope on its face because of the extraordinary width with which it is drafted.

HIS HONOUR:   When was the regulation made?  Have you done a study of the history?

MR ERSKINE:   It is in the 1990s, your Honour.  It replaces the old regulation 35 – in fact I am told it is 1998 regulation 7(13) was incorporated.  The old regulation 35 had been around for a very long time.  It is in similar but not identical words, so that somebody actually did go to the trouble of rewording regulation 35 to fit it into regulation 7(13).

HIS HONOUR:   It has resonances with the Official Secrets Act of the United Kingdom and it certainly raises a number of questions in my mind, but the issue still remains one of convenience.  You have raised a whole series of arguments, there is a long history of disputation here, you have about 10 grounds, if you dissect them, of complaint, some of those are of a constitutional character, some of those are of an interpretive character and some of them of a factual character; and putting it quite bluntly, it would be better and more convenient if this Court were to come at those of a constitutional character after the issues of interpretation and any factual disputes such as that in paragraph 3 have been dealt with by another court.

MR ERSKINE:   I understand that, your Honour.  The thinking that lay behind coming directly to this Court was this:  first of all, the issue as to the scope of regulation 7(13) would have to be addressed in a number of different arguments but it would certainly have to be addressed if our constitutional argument has some validity to it as an issue.

HIS HONOUR:   Yes, but the Constitution is part of the law of the land. We have got rid of the principle that any slightest mention of constitutional issues has to bring a case up to this Court.

MR ERSKINE:   Yes.

HIS HONOUR:   Constitutional questions in this country, unlike some others such as South Africa, have to be dealt with in Magistrates’ Courts, District Courts, Supreme Courts and Federal Courts and it is just part of the law, and the Federal Court of Australia, which is the only court to which one would consider remitting a matter of this kind, being concerned with federal law, is quite accustomed to applying the Constitution, it does so every day.

MR ERSKINE:   The second matter, your Honour, that then exercised our minds as to coming directly here was that if we were to begin the matter in the Federal Court, had we, for example, commenced it by way of an AD(JR) proceedings, we would of course have to have notified all of the Attorneys-General under 78B of the Judiciary Act and there seemed to us, rightly or wrongly, a fair likelihood that there would be an application to remove it to the High Court, given the significance of the constitutional issue for resolution.

HIS HONOUR:   Would you not have to notify the Attorneys-General anyway of the constitutional issue?

MR ERSKINE:   Indeed.

HIS HONOUR:   So that you are going to have to notify them ‑ ‑ ‑

MR ERSKINE:   It was not the notification problem, your Honour.  It was that it seemed to us, rightly or wrongly, that there was a fair prospect that the Federal Court might accede to an application to have the matter removed from it to the High Court.

HIS HONOUR:   Would it not be one course that would be open for this Court to reserve to itself grounds such as 1(a) and 4(a) of the draft order nisi but remit the other matters and reserve consideration of grounds 1(a) and 4(a) until the questions of interpretation and factual issues are determined by the Federal Court?  That has been done on many occasions.

MR ERSKINE:   Yes. That, your Honour, is also an option. I suppose all that I can really say to your Honour is this. We are confronted here with a case which raises, on the one hand, some issues of some significance under the Constitution, we would submit. On our list of authorities we referred your Honour, for example, to the de Freitas decision in the Privy Council last year, and that grappled with similar issues to do with the rights of civil servants to speak out and referred to some jurisprudence from the European Court of Human Rights and from the Supreme Court of Canada on the same topic, so that it would appear to be, as a matter of principle, a very significant issue for a very large number of people.

HIS HONOUR:   I am not denying that the issues may have real substance and that there may well be a reasonable constitutional argument to be addressed here.  What I am concerned with in performing my duties today is to lay the ground for the convenient and efficient coming at those questions by this Court, because we do not want to get into questions such as did the evidence in the transcript sufficiently identify your client as a Customs officer, or have the first and second respondents correctly interpreted regulation 7(13)?  That is a matter that is much more conveniently dealt with by a judge or judges of the Federal Court, and then in the light of that, you may have rights of appeal which you would wish to exercise which could be consolidated, if the Court so thought, with the constitutional issue which was reserved to be determined in the light of the elucidation of the facts and the elucidation of issues of interpretation.

MR ERSKINE:   Yes, and I can say, your Honour – which does not quite address what your Honour has put – but I can say that if that were the only matters of which there were complaint we would not be here.  We would be directly in the Federal Court.  It is only because of the other issue, and only because of what we saw as being a problem, that wherever we started there was going to be a question whether it should go to the other of the two possible courts one could begin.

Your Honour, I can only add this to the question of convenience.  If the matter is to remitted, logic says it should be remitted to the Federal Court in its Canberra Registry.  The current state of the Canberra Registry with his Honour Justice Finn as the sole judge is that the likelihood of getting a hearing date inside 12 months is almost zero, so that even on the limited ‑ ‑ ‑

HIS HONOUR:   But the Federal Court judges have all been released by reason of the cross-vesting decision.  I have been told that they have nothing to do.  That may be a slight exaggeration, but ‑ ‑ ‑

MR ERSKINE:   That may the case.  Your Honour, I can only go on the state of the list the ACT and, of course, the ACT is in a unique position as a result of the recent decision that your Honour refers to.

HIS HONOUR:   I do not know if the practice is different here, but in Court of Appeal I would never interfere with the administration of a court to which a matter was remitted.  That is a matter for that court to deal with and I do not think it is for this Court to remit matters to particular registries of the High Court.  That is a matter for the Federal Court to sort out itself.  All one would do in this case would be to remit the matter to the Federal Court of Australia.

MR ERSKINE:   It would, in fact, end up in the Canberra Registry because the applicant and the respondents are all Canberra based.

HIS HONOUR:   But would you not have an opportunity to move that court to transfer the matter to another registry so that is can be dealt with?  I just do not think it is seemly for the High Court of Australia to be assigning a matter to a particular registry of the Federal Court.  It smacks of this Court becoming involved in the internal administration of the Federal Court which I would not want to do.

MR ERSKINE:   Your Honour, I was not suggesting that your Honour would be.  I ‑ ‑ ‑

HIS HONOUR:   I understand the reasons for it, but I do not think that it is appropriate for us to assign registries of the Federal Court.  I think that is a matter that you have to take up within the Federal Court.

MR ERSKINE:   Yes.  But, your Honour, I suppose all I can really address is the fact that if in all likelihood it goes to the Canberra Registry, then there will be a delay of something in the order of 12 months. 

HIS HONOUR:   That would be quite wrong in this case, given the nature of the issues and the need to have those issues determined relatively quickly, and in particular if the matter were to come back to this Court.  You could indicate to the Federal Court that that would be my opinion.  The matter should be dealt with with a fair degree of expedition, given that there is a constitutional question which I think should be reserved for this Court, but not to be come at until the issues of interpretation and factual questions have been dealt with by the Federal Court.

MR ERSKINE:   Yes.  Your Honour, I cannot say anything more in relation to the remitter question.  If it is a course that attracts your Honour, then we would certainly appreciate some comment, if your Honour thought it appropriate, to the Federal Court about the desirability of expedition, though one cannot put it ‑ ‑ ‑

HIS HONOUR:   What is the power of remitter?  Where do I find that, please?  It is in the Judiciary Act, I think, is it not?

MR ERSKINE:   It is in the Judiciary Act, your Honour, 44.

HIS HONOUR:   Now, there would be no doubt, would there, that the Federal Court has jurisdiction with respect to the subject matter and the parties?

MR ERSKINE:   None whatsoever, your Honour.

HIS HONOUR:   The only remaining question is whether it may be appropriate to make orders in this matter after calling on the respondents to make submissions to assist the Court on the orders that should be made.  They might, for example, support your suggestion that the matter or some larger matter than the constitutional question should be retained in this Court. 

MR ERSKINE:   Yes.

HIS HONOUR:   Has there been any discussion with the respondents to that end or not?

MR ERSKINE:   No, your Honour.  They certainly have been aware of the proceedings for some little while.  I understand they have the affidavit that I have read to your Honour this morning.

HIS HONOUR:   They were notified of the proceedings before me today, were they?

MR ERSKINE:   I am told they were notified, your Honour, yes.  It may have been that they took the view that because it was an application for an order nisi in which technically there are no parties until and unless the Court grants an order nisi, that they could at best be only spectators.

HIS HONOUR:   I find that hard to believe because it is not at all uncommon, if they turn up, to hear them on these applications, and it is not uncommon for the agencies of the Commonwealth to wish to be heard on these applications.

MR ERSKINE:   Yes.  I cannot take that part any further, your Honour.

HIS HONOUR:   Yes.  I am inclined to retain the constitutional questions in this Court, but to remit the other questions to the Federal Court without indicating any final conclusion on whether all of those questions are reasonably arguable.  Do you wish to say anything more in relation to those indications?

MR ERSKINE:   Would your Honour pardon me just for one minute.  The only issue I can say, your Honour, is this, that my client has reminded me that particularly in relation to the second respondent, there is an ongoing question which is that in his capacity as president of the association, he wishes to be able to explain all sorts of matters to his members and to engage in debate with them, and the way ‑ ‑ ‑

HIS HONOUR:   I understand that the determination of the second respondent is to the effect that he could do that, that is to say he can explain things to his members but not to the public at large.

MR ERSKINE:   Yes, within considerable limitations, your Honour, and of course as, for example, this case wends its way onwards, there may have to be requests back to the CEO for further authorisations to deal with ‑ ‑ ‑

HIS HONOUR:   This matter is in a public court, and it is before the constitutional Court of the country, and it is a matter where the doors are open and where it does not depend on Mr Woodward or anybody else to authorise the publication of the doings of this Court.  That is a matter that is the Court’s business, and the public’s business.  It belongs not just to Mr Woodward, or to the Australian Customs Service or to Mr Bennett, it belongs to the people of Australia. 

MR ERSKINE:   Your Honour, speaking from the bar table personally I, with great respect, would not disagree with a word that your Honour has said, but the way in which regulation 7(13) is being interpreted by the second respondent in the granting of authorisations would appear to be taking a somewhat more restrictive approach.

HIS HONOUR:   But your client has not said anything, except through you, and he has not, as I understand it, disclosed any information about public business in these proceedings.

MR ERSKINE:   No.

HIS HONOUR:   So that I cannot see that the proceedings before the Court today would in any way attract regulation 7(13).

MR ERSKINE:   Your Honour, the reason for referring to the continuing problem as exemplified by the second set of orders that are sought against the second respondent is that not only is there the present dispute between the parties, but there could in future be all manner of other disputes in which the scope of regulation 7(13) needs to be ‑ ‑ ‑

HIS HONOUR:   Quite so, but it is enough for me to deal with the disputes that have arisen to date. 

MR ERSKINE:   Quite.

HIS HONOUR:   I know that the High Court has great abilities and great powers of prescience, but for us to look into the future and to solve all your future problems, as well as your current problems, is asking a bit much.

MR ERSKINE:   Quite so, your Honour, but guidance from the High Court as to the scope of ‑ ‑ ‑

HIS HONOUR:   We do not give advisory opinions.  We deal with issues that are joined between parties in a matter, and that is what you have brought to the Court and that is what I am going to deal with.

MR ERSKINE:   Yes, but, your Honour, in the course of exploring the issues that are brought to the Court, it is likely that the Court would provide some guidance and shed some light for those who have to interpret the regulation in the future.

HIS HONOUR:   That is a reason for expedition of the hearing of the matter which is joined between the parties at the moment, and I have already indicated, and I will indicate, that I consider the matter has some element of urgency.  It would be pointless to have the issues of construction elucidated and facts determined, and to come back to the constitutional issues if it is still relevant in 12 months or more time, because the caravan would have moved on.  There will be other developments, one would expect, so that the sooner the Federal Court could get to these issues, I would have thought, the better.

MR ERSKINE:   That is so.  Your Honour, I cannot say anything more than that.  Your Honour is clearly alive to the need for expedition of the matter and I cannot say anything further in relation to the orders that your Honour suggests might be appropriate.

HIS HONOUR:   But you will understand that it is not for me, in the exercise of my powers, to grant expedition in the Federal Court.  That is something you will have to seek from the Federal Court.

MR ERSKINE:   That is understood also, your Honour.

HIS HONOUR:   Yes, very well.  Is there anything else you wish to say?

MR ERSKINE:   I think only one other small matter, your Honour, which is that in terms of the need for evidence and determining any factual questions in this matter, it would be our submission that that is extremely unlikely to give rise to any disputation between the parties as to the core facts.

HIS HONOUR:   That might be so, but I have already referred to paragraph 3 which says:

The First Respondent erred in law and exceeded his jurisdiction in finding that the Prosecutor and Applicant had identified himself as a Customs officer in the course of his radio interview with Graham Richardson on Radio 2GB on 19 November 1998.

Now, that poses a factual question.

MR ERSKINE:   But with facts whose existence is not in dispute.  It is a case of taking the transcript and reading it to see whether or not the Inquiry Officer erred in the way in which he approached it.  So that in terms of actually, for example, the provision of affidavits and calling of witnesses and so on, it would be extremely unlikely that this will be such a case.

HIS HONOUR:   Yes, I understand that, but I would not be disposing of any factual orders for the taking of facts or the filing of further affidavits which would seem proper to the Federal Court, not the least because I do not have respondents before me.  They may themselves wish to file affidavits.  They may contest some of the facts, but then it would be for a judge of the Federal Court to determine how those factual disputes should be resolved.  That is not something I can determine today.

MR ERSKINE:   Quite so, your Honour.  I was simply responding to the proposition, though, that this is a case that may involve some factual ‑ ‑ ‑

HIS HONOUR:   It looks unlikely that it would ‑ ‑ ‑

MR ERSKINE:   Yes.  I cannot put it higher than that, but ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ because in most of the, shall I say, gavotte of dealings between your client and officers of the Australian Customs Service has been conducted by correspondence which, at least on occasions, looks as if it came out of a novel by Charles Dickens, so that it is not likely that there are going to be rude factual disputes, but I cannot say because the respondents have not filed any affidavits.

MR ERSKINE:   No, I understand that, your Honour.  I can only put it in terms of likelihood as well, that this is not a case that looks as if it is going to have serious factual matters to be sorted out before whichever court it is gets to the legal issues.

HIS HONOUR:   Yes.

MR ERSKINE:   Your Honour, beyond that, I do not think there is anything further I can usefully add, unless there is some other matter with which I can assist you.

HIS HONOUR:   No, thank you very much.

Mr Peter Bennett is an officer of the Australian Customs Service, a federal agency, and thus of the Australian Public Service (APS).  He is also the Federal President of the Customs Officers’ Association.  That Association is an industrial association within the meaning of Part XA of the Workplace Relations Act 1996 (Cth). On 22 December 1998 Mr Bennett was charged with a number of disciplinary offences. The charges were laid pursuant to section 61 of the Public Service Act 1922 (Cth). They arose out of a broadcast interview which Mr Bennett gave to a Sydney radio station which enjoys a large audience.

Application on constitutional and non constitutional grounds

Mr Bennett contends that the Inquiry Officer who decided the charges against him found him guilty on the basis of an erroneous interpretation of reg. 7(13) of the Public Service Regulations.  More fundamentally, he complains that the subregulation is inconsistent with federal statutory law and also with the Australian Constitution.  The Inquiry Officer was Mr Stephen Holloway, who is the first respondent to the proposed proceedings in this Court. 

The second respondent, Mr Lionel Woodward, is the Chief Executive Officer (“agency head”) of the Australian Customs Service. Mr Woodward made a subsequent determination, purportedly also made pursuant to reg. 7(13) of the Public Service Regulations. By that determination he purported to authorise Mr Bennett to give or disclose information about the public business of Customs but only to members of the Association who are employed in Customs and only provided that such information did not misrepresent matters relating to Customs’ public business and otherwise conformed to the standards of communication applicable to public servants. Mr Bennett also complains about this determination. He contends that it too would have the effect of prohibiting public discussion by him in a way that would be inconsistent with federal law and with the provisions of the Constitution. The constitutional challenges in respect of the actions of Mr Holloway and Mr Woodward are contained in paras 1(a) and 4(a) respectively of the draft order nisi for prohibition and other relief relied on by Mr Bennett.

The constitutional entitlements which Mr Bennett invokes in support of his contentions are those which have been found to be implied in the exercise by electors of the Commonwealth of their right to discuss freely matters of political and social concern necessary for the proper working of the form of government which is established by the Australian Constitution.  See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559-562; Levy v Victoria (1997) 189 CLR 579 at 593, 618, 626, 737-638. Cf Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 137.

The sub-regulation in question is certainly expressed in broad terms.  It states:

“An APS employee must not, except in the course of his or her duties as an APS employee, or with the agency head’s express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.”

If the only matter which were raised in the draft order nisi were the contentions in paragraphs 1(a) and 4(a) that the actions respectively of Mr Holloway and Mr Woodward and their interpretations of the sub‑regulation were inconsistent with the implied constitutional guarantee of freedom of political communication, it might be appropriate to reserve the matter to this Court and to direct that Mr Bennett move a Full Court by notice of motion so that that issue could be determined in this Court.  However, Mr Bennett also wishes to advance a number of other arguments concerning the validity and meaning of reg. 7(13).  For example, he contends that the subregulation is beyond the power of the regulation-making authority under the Public Service Act 1922 (Cth) and, in particular, that power which is granted by section 97(1)(k). He also contends that the regulation is inconsistent with sections 298K and 298L of the Workplace Relations Act 1996 (Cth).

Reservation of constitutional grounds to the High Court

It is ordinarily appropriate, before questions of constitutional law are determined, to clarify other questions about the validity of the law in issue and the meaning of that law. Normally, it is only when such questions are determined that the constitutional issue properly falls for resolution. Therefore, because there are questions as to the validity of the regulation otherwise than under the Constitution, and because there are some possible factual issues that need to be determined (eg that raised by ground 3 of the draft order nisi), it seems appropriate to me that all of those issues should first be decided by the Federal Court of Australia. By section 44 of the Judiciary Act 1903 (Cth) I have the power, in respect of a matter originally commenced in this Court, of my own motion, to remit to the Federal Court the entire matter or part of the matter. That is a power which I intend to use.

However, the constitutional questions which are raised by grounds 1(a) and 4(a) should, in my view, be reserved to this Court to be dealt with, if necessary, after the other complaints of Mr Bennett have been determined by the Federal Court.  One possible outcome of the resolution of those complaints may be that the sub-regulation complained of will be found otherwise to be invalid.  In that event it will be unnecessary for this Court to pass upon its constitutionality.  If, however, as a result of the outcome of the proceedings remitted to the Federal Court, the constitutional questions raised by proposed grounds 1(a) and 4(a) of the draft order nisi are still alive, that will be the occasion for this Court to decide them.  The advantage of taking this course is that this Court would then have the considered opinion of the Federal Court upon all other matters in contention.  It would have the resolution of any outstanding factual issues, both the one raised by Mr Bennett in his application or any further factual questions that may be raised by the respondents, Messrs Holloway and Woodward. 

Although notified of the proceedings before the Court today, the respondents have not appeared nor sought to be heard upon them.  The proceedings have therefore been heard ex parte.  However, I do not consider that before making orders it is necessary to afford the respondents the opportunity to be heard.  They can advance any arguments they may have in the Federal Court.  In the event that the matter returns to this Court, that will be time enough for them to be heard in relation to the constitutional questions, should they then still remain.

Severance of issues, venue and expedition

I have given consideration to whether the constitutional issues raised by grounds 1(a) and 4(a) of the draft order nisi are so intertwined with the other considerations going to the validity of the subregulation that it would be inconvenient or unrealistic to sever them and to retain them, so severed, in this Court.  Nevertheless, I consider that it would be preferable that this Court retain the constitutional questions on the basis that it is likely, if they were raised in the Federal Court proceedings, that application might be made there to return the entire proceedings to this Court.  Convenience suggests that it is possible to sever the constitutional issues from the other issues.  And, as I have said, it may be that the other arguments will resolve the controversy between Mr Bennett and the respondents.  Time will tell.

I have been informed that, in the ordinary course of events, an order remitting these proceedings to the Federal Court of Australia would result in their being returned in the Registry of that Court for the Australian Capital Territory.  I have been told that delays in that Registry are such that the hearing of the proceedings in the Federal Court would not be listed for many months, perhaps a year.  For this reason it was submitted that the order that should be made, remitting the matter to the Federal Court, should specify another registry of that Court.  However, in my view, it is not appropriate for a Justice of this Court to make orders nominating a particular registry of the Federal Court.  That is a question internal to the administration of the Federal Court.  Any application to change the registry of the Federal Court is one which should be made to that Court by Mr Bennett or the other parties.  Orders might then be made by a judge of the Federal Court who would know the allocation of business within that Court.  This is something of which I am completely ignorant.  I will not, therefore, transfer the matter to any particular registry of the Federal Court.  I will leave it to the parties to make such application to that Court as they may be advised.

This said, it appears desirable that these proceedings should be heard with a measure of expedition.  They affect public law questions.  They concern the ongoing activities of an officer of the Australian Customs Service and APS.  They also affect the ongoing activities of an industrial association under the Workplace Relations Act.  Such activities always have a potential to present continuing problems.  This case is no exception.  In saying this, I do not purport to exercise the jurisdiction of the Federal Court to order expedition in that Court.  That, again, will be a matter for a judge of the Federal Court to consider.  But if this Court is to come to the constitutional issues which are to be reserved to it, and if these issues are still relevant when the other issues have been decided by the Federal Court, it would be desirable, having regard to the nature of those issues, that they should be dealt with with all appropriate speed.

In the nature of the orders which I am now to make, I have not finally determined whether each and every one of the other grounds upon which the order nisi is sought presents an arguable case for the issue of one of the constitutional writs or the issue of a writ in the nature of certiorari in support of the constitutional writs.  It is possible that, upon further consideration of the proposed grounds for relief which are remitted to the Federal Court, a judge of that Court may decide that one or more of the proposed grounds do not raise questions of jurisdiction that are fairly arguable.  That is a matter that can be determined by the Federal Court when the matter is remitted to it. 

Orders

The orders which I therefore make are:

1.Remit to the Federal Court of Australia the application by Peter Bennett commenced in this Court by matter No C13 of 1999, save for grounds 1(a) and 4(a) thereof.

2.Grant leave to the prosecutor and applicant or any other party to the proceedings to apply to the Registrar for the relisting of the proceedings in this Court upon grounds 1(a) and 4(a) upon 28 days notice to the other parties.

3.Reserve the costs of the proceedings before this Court today.

4.Certify that the matter was a matter proper for the attendance of counsel in chambers.

Any other orders that you seek, Mr Erskine? 

MR ERSKINE:   No, your Honour.

HIS HONOUR:   They therefore are the orders of the Court.

MR ERSKINE:   May it please the Court.

HIS HONOUR:   You do not want me to embellish any further what I have said about expedition?

MR ERSKINE:   No, your Honour, I think the reasons will be sufficient when transcribed for the purposes.

HIS HONOUR:   Very well.  Thank you for your assistance, Mr Erskine.  The Court will now adjourn until 2.15 today.

AT 10.56 AM THE MATTER WAS CONCLUDED