BHP Billiton Pty Ltd v Schultz & Ors
[2004] HCATrans 159
[2004] HCATrans 159
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S108 of 2003
B e t w e e n -
BHP BILLITON LIMITED
Appellant
and
TREVOR JOHN SCHULTZ
First Respondent
WALLABY GRIP LIMITED
Second Respondent
WALLABY GRIP (BAE) PTY (in Liquidation)
Third Respondent
WALLABY GRIP (NSW) PTY LTD (in Liquidation)
Fourth Respondent
AMACA PTY LIMITED (formerly James Hardie & Co Pty Limited)
Fifth Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 18 MAY 2004, AT 10.16 AM
(Continued from 4/12/03)
Copyright in the High Court of Australia
__________________
GLEESON CJ: Mr Walker and Mr Jackson, there is a certificate from the Senior Registrar saying that she has been informed by ACUITI Legal, solicitors for the second, third and fourth respondents, that the second, third and fourth respondents submit to any order of the Court save as to costs. She has been informed by Phillips Fox, solicitors for the fifth respondent, that the fifth respondent submits to any order of the Court save as to costs. Yes, Mr Walker.
MR WALKER: Your Honours, at the outset we have been served with an affidavit to which, out of more abundant caution, we have in turn prepared a responding affidavit. Bearing in mind the nature of these proceedings as an appeal by special leave, it occurred to us – and I have briefly discussed this with my learned friend Mr Jackson – that it would be as well to attend to the matter of the proper reception, if there can be any, of that material before we turn to the matter upon which the Court has sought further submissions.
GLEESON CJ: Who reads the affidavit of David Stuart Taylor of the ‑ ‑ ‑
MR JACKSON: I do, your Honour.
GLEESON CJ: Is there any objection to that affidavit?
MR WALKER: Your Honour, not by way of admissibility if it were received, but we draw to attention the question whether this is material that can be received. It is evidence of a subsequent occurrence which ‑ ‑ ‑
CALLINAN J: How is it relevant to the issue, anyway?
MR WALKER: I am not suggesting it is, except if it were properly received ‑ ‑ ‑
KIRBY J: If it is not relevant it cannot be received in any case, but when I saw it I averted my eyes, because this was receiving new evidence.
MR WALKER: That is right. That is the first point we raise, can this Court ‑ ‑ ‑
GLEESON CJ: Well, I looked at it and I lingered over it and stared at it.
KIRBY J: I had a shock when I saw this.
GLEESON CJ: The question that has been raised by Justice Callinan is one of relevance. We had better hear what Mr Jackson has to say about that. What do you say is the relevance of this?
MR JACKSON: Your Honour, could I indicate what we say it is not relevant to first, and then go on to the second aspect of that. So far as the first of those aspects is concerned, it does not affect the question whether the primary judge was correct or incorrect in the way in which he approached the matter. The issue raised by it arises only in relation to the relief that would be obtained from this Court and is relevant to two features in that regard. The first is, as your Honours will have seen, we have a notice of contention which asks the Court, if it takes the view that the primary judge was in error, to rule on the issue. The Court may or may not be inclined itself to do that. If the Court does it, it would then be deciding the matter, in our submission – I will come to the detail of this in just a moment – properly on the information before the Court at the time when the power comes to be exercised.
The second feature, your Honour, is that the Court may well take the view, if it is satisfied there was error by the primary judge, that the appropriate course is one for the Court itself not to decide upon the issue, but to remit the matter for hearing to the primary judge. If that be so, the material contained in the affidavit is material which would be germane to the question whether the Court would or would not adopt that course. As to the first of those matters, that is, the Court itself taking it into account, the general proposition, of course, is that on an appeal – this is Mickelberg and Eastman – the Court does not take into account matters others than those that were before the primary judge.
However, your Honours will see in Mickelberg v The Queen 167 CLR 259 that some matters were left open, and I refer particularly to the judgment of the Chief Justice, Chief Justice Mason, and there are two passages to which I wish to refer. The first your Honours will see at page 268 towards the bottom of the page where there is a reference to Lord Brandon of Oakbrook in Barder v Caluori. What was said in that passage was that there was:
a discretion to admit evidence relating to supervening events where refusal to admit it would plainly cause serious injustice.”
If I could pause there, your Honours, that passage was one that was then discussed by Chief Justice Mason, but not on the basis of their accepting it. Your Honours will see that discussion going on through pages 269 and 270. However, when one comes to page 270, what one sees at the bottom of the page is the paragraph commencing, “There is force in the argument”, and your Honours will see the principal argument set out, and at the bottom of the page:
Moreover, the division made by Ch. III between the original and appellate jurisdiction of the Court makes it all the more difficult to sustain this aspect –
that is the major argument –
of the applicants’ argument.
But then if one goes to the fifth line of page 271, your Honours will see his Honour saying:
However, it may be that the existence of a discretion to receive evidence of supervening facts on matters which were the subject of assumption or estimation in the courts below, as discussed in Barder v Caluori, is properly to be seen as an incident of the exercise of appellate jurisdiction.
Then they went on to deal with the constitutional cases, and his Honour said he did not decide that issue.
Now, you Honours, in our submission, when one has a situation where the Court itself is exercising a power, the nature of which is – and your Honours will recall a discussion of this in the previous argument – discretionary or akin to the exercise of a discretion, the earlier exercise of discretion having been set aside, it is appropriate for the Court at that point to take into account the material ‑ ‑ ‑
GUMMOW J:Assume it is contested.
MR JACKSON: Well, your Honour, could I say two things about that. The first is that, theoretically, rather than as a practical matter, in the ordinary practice of this Court, the position would be that the Court would have power to entertain whatever procedure was necessary in the Court to have the evidence tested.
GLEESON CJ: Let us assume that instead of moving to Broken Hill Mr Schultz had died and gone to heaven, we would receive evidence of that, would we not, for the purpose of deciding what order we would make in order to respond to that fact?
MR JACKSON: Certainly evidence of the former aspect, your Honour, yes. Your Honour, the position would be one would expect the Court to do it because it would affect – it may be different, your Honour, because it would affect the constitution of the proceedings, so there may be an element of difference, but if the position were that some other thing were to happen to him, it would be appropriate for the Court to do so, because what the Court is doing in the end is, at the point that the issue arises, itself making an order and it is appropriate, in our submission, that the Court’s powers extend to making an order which is appropriate to the circumstances as they then appear.
Now, may I just say, your Honours, one further thing – I did not quite complete my answer to your Honour Justice Gummow. Of course it would be unusual for this Court to have to resolve a factual issue, but that is why, in circumstances such as the present, the appropriate order would be that the matter be remitted to the Supreme Court to be determined in accordance with the evidence that would be before it at that time and, your Honour ‑ ‑ ‑
GUMMOW J: If that is the course to follow, why does one get into the affidavit?
MR JACKSON: Only because, your Honour, it demonstrates two things. The first, your Honour ‑ ‑ ‑
GUMMOW J: It demonstrates the wisdom if one got to the stage of sending it back.
MR JACKSON: Yes, your Honour. Could I say this, your Honour, we have, as your Honours would be aware, urged that the Court in any event confirm, as it were, the order that was made by the primary judge. That would be, as matters stand without the admission of the affidavit, on the material that was before the primary judge. Now, the Court may take a different view. If the Court were of the view that it was inclined to make an order which was the obverse of that which the primary judge had made, this would be material militating against the adoption of that course or militating in favour of the remittal of the matter to the court that dealt with it in the first place.
McHUGH J: Mr Jackson, the difficulty I have at the moment is that the exception that Sir Anthony Mason formulates seems to eat up, or go close to eating up, the rule itself. There would be very little left of the rule in Mickelberg if the court could hear evidence in relation to matters that were the subject of assumption or estimation in the courts below. It would mean, for instance, in certain compensation to relatives cases that the court would be able to hear evidence about remarriage in cases where the court had found that there was no particular disease, say as in Whisprun, that you would be entitled to hear evidence that subsequently there had been a diagnosis of a particular disease.
MR JACKSON: Your Honour, we would not be able in this case to say that the Court in determining whether there had been error, which is the first question, by the primary judge should take into account additional factors. The point to which our submissions are directed is to say that if the Court is of view that there was error, a question then arises about the appropriate course by way of its order for the Court to take, and I pick up my submissions on that. So, your Honour, could I just say ‑ ‑ ‑
McHUGH J: Your proposition really does not depend on anything in Mickelberg, does it?
MR JACKSON: No, your Honour. My reference to Mickelberg was simply to say Mickelberg does not cover the field, if I could put it that way.
GLEESON CJ: I thought that what Sir Anthony Mason was talking about was that issue that arises where, for example, damages have been assessed on the assumption that a person will live for 20 years and the person is run over by a bus the day after the award of damages.
MR JACKSON: Yes. Your Honour, that will sometimes involve a question whether the assessment of damages took into account all the prospects of which that was one. Sometimes it does not.
KIRBY J: Mickelberg is not the last word, of course. The Court has returned to this matter in Eastman.
MR JACKSON: I know, your Honour, yes. I remember it well, with respect.
KIRBY J: What causes Justice McHugh concern about the exception causes it to become much more attractive to me, because otherwise we are sometimes in appeals, as Eastman illustrates, in a situation where we are acting on absolutely false premises because we cannot receive evidence of something that has occurred.
MR JACKSON: Your Honour, I am not in this case seeking to overrule Mickelberg.
KIRBY J: No, I realise that.
MR JACKSON: It is a question of what Mickelberg stands for, in a sense. We submit that Mickelberg does not deny the Court the ability to look at the circumstances as they now exist when either the Court comes to exercise its own discretion or when the question arises whether the Court should or should not remit the matter for further hearing by a judge. Your Honour, I do not know if I can advance the matter beyond that. Those are our submissions on that point.
GLEESON CJ: Thank you. Yes, Mr Walker.
MR WALKER: Your Honours, in our submission, the way in which the matter is put would render this material relevant only if in fact the jurisprudence in this Court required this Court to exercise anew discretions, as it were, standing in the shoes of the statutory repository of the cross‑vesting power, namely, the Supreme Court. In our submission, Mickelberg and Eastman are simple demonstrations of the fact that that is not the case, that the appeal in the strict sense requires this Court to attend exclusively to the question as to whether the result below on the material before the court below can be maintained or not.
For those reasons, the prospect or spectacle of there being cross‑examination before this Bench of the respective deponents of the affidavits which have been filed today, in our submission, need never be confronted because to do so would be to have this Court embark upon the exercise of a jurisdiction that section 73 simply does not give it, the section 73 jurisdiction being purely and simply appellate and it being, as a matter of the course of decision, decided that that does not include the statutory creation of the appeal by way of rehearing.
KIRBY J: One of your arguments is that a relevant matter in approaching our constitutional problem is that the respondent is resident in South Australia. We now have this affidavit which suggests that that is a false premise.
MR WALKER: Your Honour, there still is not any restriction on people moving around the country. The possibility of moving is inherent in any decision. It may be musical chairs when a court comes to make a decision as to where a plaintiff is resident, but that is in the nature of adjudication. It happens at a time and at a place in a particular set of circumstances which the parties bring forward.
GLEESON CJ: Do we need, on Mr Jackson’s argument, to know anything more than that it is not common ground that Mr Schultz is still resident at South Australia?
MR WALKER: That would be a highly convenient way of avoiding the present difficulty. Whether that is consistent with principle though, is another thing altogether. It is now very difficult ‑ ‑ ‑
KIRBY J: The difficulty is that we must deal with it on the basis of the record.
MR WALKER: Yes.
KIRBY J: The record had him living in South Australia.
MR WALKER: Yes. Now that brings me to two only points remaining. The first is to identify what is the nature of what this Court would do were it to hold error by the court below and then to turn to the question which it must, in a strict appeal, what should the appellate relief be? We accept, in accordance with the long and numerous examples in the tradition, that that could involve either remitter or a simple reversal of the position, that is, to make the order which should have been made in the past below. That choice being present, it is very difficult, with respect, for us to resist the relevance as a matter of argument, that is, things that may rationally affect the correctness of that outcome.
GUMMOW J: Is that order made below a final order?
MR WALKER: Yes.
GUMMOW J: Forget about appeals, but is it the final order?
MR WALKER: Yes. It is a “once and for all” determination of that controversy between those parties constituted by the process and decision below, if that is a sensible definition of “final” for the purpose of your Honour’s question. That would not affect, of course, the position of
this Court because the task still remains, was the decision made properly. If not, what should now happen? In our submission, what should now happen does not raise the question of this Court stepping into the shoes of the court below so as to pretend, as it were, that there was a cross‑vesting application in an original jurisdiction in this Court to be determined on circumstances now obtaining.
One reason for that is that it would be rather odd, bearing in mind that - I do not think my learned friend puts forward this affidavit, we certainly do not put forward our reply affidavit as if we have a right to insist that the Court takes it into account as opposed to the Court having the power to refuse leave to receive it. That is not the hallmark of the exercise of original jurisdiction where the parties choose their material. Subject to admissibility, the Court is bound to take it into account.
For those reasons, we respectfully draw to the Court’s attention, by way, I suppose, of a form of objection, that it would appear that the Court’s authorities do stand in the way of receiving this at all. That does, as I say, raise the oddity that, in choosing between a remitter or a reversal of outcome by this Court itself, the material to which my learned friend refers by way of the proposed affidavit is, with respect, plainly relevant as to the merit of that decision.
It would appear that those two principles are in conflict and that on the authorities in this Court the first should prevail. May we point out that as a matter of principle the death of a party, or, indeed, the compromise between parties, stands in a different category altogether. As to the first, that is, the constitution of the litigation in this Court, it affects the identity of parties and it would need to be attended to as a matter of the way in which the suit is constituted. As to the second, it, of course, would destroy the existence of a matter if there was no longer a controversy and the matter had become moot.
So subsequent events in terms of the death of a party or compromise between the parties should and can – must we would submit – be received by this Court in order to attend to the integrity of its proceedings and to observe its own jurisdictional limits, that that is not an exception to the rule, that is simply the application of a quite different rule. May it please the Court.
GLEESON CJ: Thank you. Mr Jackson.
MR JACKSON: Yes, your Honour. May I say two things, your Honours. First, in relation to the question raised by your Honour Justice Gummow, “Are the proceedings interlocutory in the Supreme Court?”, our submission is that they are. Your Honours, we refer to this issue in paragraph 23 of our first submissions in the other proceedings. It is paragraph 23 and also footnote 33 ‑ ‑ ‑
GUMMOW J: Just a minute, Mr Jackson.
MR JACKSON: It is the submissions, your Honours, called “FIRST RESPONDENT’S SUBMISSIONS” and filed on 25 November 2003.
GUMMOW J: Yes, paragraph?
MR JACKSON: Paragraph 23. It is the first clause there and there is a reference then to footnote 33. May we say two things about that, your Honours. The first is that the proceedings under section 5 of the Cross‑Vesting Act are proceedings which do not determine the claim. What they determine is simply which of the courts the matter should be heard in. The second feature in relation to it is that if one goes to the terms of the Cross‑Vesting Act itself, and in particular to section 5, one sees that under subsection (7):
A court may transfer a proceeding under this section on the application of a party to the proceeding, of its own motion or on the application of the Attorney-General of the Commonwealth or of a State or Territory.
Now, the description of the order as being a transfer of the proceeding suggests that it is not a final determination of the proceeding. Certainly it determines for the moment that the proceeding will not go ahead in that court. But, your Honours, the other feature which one notices about section 5(7) is that the ability of the court to transfer of its own motion is one that, assuming the court were to say, “Cases of this kind or these cases will be transferred from this court to another”, one would expect a party to have the ability at least to come to the court to say that order is one which the court should not have made or, not having been heard, the order is one which should be set aside, which militates in favour, in our submission, of the notion that this is a step in the proceeding as distinct from the determination of it. Your Honours, that is the first aspect of it.
GLEESON CJ: Does it follow from that that if there is a material change in circumstances after an order has been made a party can apply to the court to make a different order?
MR JACKSON: Yes. Your Honour, that is the point I would seek to make about that. The second feature, your Honours, in relation to our learned friend’s submission, is this ‑ ‑ ‑
GUMMOW J: Well, all of this suggests that if there is any point in this Court, it may…..rescinding special leave, and a pleasant prospect though that would be.
MR JACKSON: Yes, your Honour, there is a prospect. That is not a submission which I would presently make, but that is a possibility, your Honour. In relation to that, if it came to that, we would adopt everything we said on the application for special leave.
GLEESON CJ: Yes. Well, this evidence in the form of the affidavit of David Stuart Taylor of 14 May 2004 is rejected. Yes, Mr Walker.
MR WALKER: Your Honours, so far as concerns the activities of a New South Wales court in South Australia – using that expression deliberately vaguely at present – there is no doubt that under the presently exclusive regime provided by the Service and Execution of Process Act 1992 (Cth), South Australian residents can be made liable to obligations in the nature of compulsion exerted against them for the purposes of proceedings in a New South Wales court. There is no doubt that ultimately that may include the issue of warrants for their physical apprehension which will be executed by officers of the South Australian executive.
So that in the case posited by the arguments of our opponents derived from the facts of this case, there is no doubt that there is, in effect, in this country a regime by which South Australian residents can be compelled or coerced to participate, for example, as witnesses or as the sources of documentary evidence, in those New South Wales proceedings. It is also clear from the Service and Execution of Process Act ‑ ‑ ‑
KIRBY J: That is part of the constitutional design, is it not?
MR WALKER: Yes.
KIRBY J: We start from a premise that a New South Wales court can have extraterritorial jurisdiction and therefore that it can, as it were, mobilise the executive officers of South Australia to enforce its orders. What is so unusual?
MR WALKER: Nothing is unusual about this at all. In the Service and Execution of Process Act, when one looks, for example, at the language of section 82 in relation to warrants, one is referring to warrants which have been issued “in a State” – on the hypothesised facts derived from this case, a warrant issued in New South Wales for execution in South Australia by dint of the authority granted by the Commonwealth legislation to be executed by the enlisted South Australian officers.
The same thing is true of section 105 in relation to judgments. A judgment rendered in New South Wales by dint of the Commonwealth legislation is registered and enforceable by the officers of South Australia on a deemed basis, as if it were a South Australian judgment. So that what might be called the “plain vanilla” approach to what Justice Kirby has, with respect, correctly identified as a form of extraterritorial operation of the jurisdiction of a New South Wales court involves, as one might expect in a Federation, the legislation of three polities, the Commonwealth – the centralising force – and the two relevant State polities.
HAYNE J: The very expression “extraterritorial jurisdiction” carries within it an assumption which lies at the heart of the issue.
MR WALKER: Yes.
HAYNE J: What is entailed by it?
MR WALKER: I hope your Honour will forgive me. The epithet “extraterritorial” does need teasing out, in our submission. With great respect, we accept that depending upon what noun it is qualifying, it will mean quite radically different things. When one talks about extraterritorial legislative competence, for example, even there there are distinctions which context requires to be drawn, to which we will very rapidly come.
The point of my starting with remarks about the “plain vanilla” approach is this. Our opponents’ arguments, with all their variance, do have this one similarity, that, with varying degrees of confidence concerning the way in which coercion may be exercised to help the New South Wales court in South Australia, they all say nonetheless that SEPA is unnecessary. It follows that the concurrent power given by 51(xxiv), which happens currently to be exercised in a way which by 109 is exclusive, is unnecessary.
The logical extension is that the co‑operative or complementary system of State legislation, which precedes Federation and was exhibited between the colonies, and, indeed, between different self‑governing parts of the Empire – that that, too, was unnecessary. They say that because of what they dub the extraterritorial legislative competence of New South Wales. They say that such competence is well established by the authorities, which are not in question and certainly not under challenge by anything that we are going to say. In our submission, that is an intuitively surprising result, not least because it derives from law all of which is 19th century. There was no discovery in Union Steamship, for example, which was for the first time discovered in that case.
KIRBY J: That was because in the 19th century they had the imperial theory that the Imperial Parliament had this Empire-wide jurisdiction and everyone else had to just stick to their own little bailiwick.
MR WALKER: Your Honour, there are, no doubt, differences in the views which may now be accorded to the jurisprudes and judges of the 19th century, certainly under the influence of a real empire, compared to, for example, the Court in Union Steamship ‑ ‑ ‑
HAYNE J: But that also must take account of Engineers and the view then expressed in Engineers 28 CLR 129, particularly 152, where it is said that:
Though the Crown is one and indivisible throughout the Empire, its legislative, executive and judicial power is exercisable by different agents in different localities, or in respect of different purposes in the same locality –
So that I am not sure that 19th century views would have had it that throughout the Empire territory was an irrelevant consideration.
MR WALKER: No, and, with great respect, your Honour anticipates the next point to which I was to come, and that is it would not be accurate, however, historically or conceptually, to attribute to what is wrongly bundled together as some lump of 19th century thought as if it was all the same, it would be wrong to attribute to that a view that there was nothing extraterritorial which could be the subject of colonial legislative dictate. In our submission, that there has been a shift should not be doubted, but that the tectonic extent of the shift should be doubted between the 19th century authorities and, for example, Union Steamship, and I will be going to a particular short passage in Union Steamship to make that very point good.
However, in relation to what I will call co‑operative or complementary schemes, one of those which we do not for a moment doubt, in our submissions, is entirely within the power of two States to legislate so as to create, could I take your Honours to the description of that history in Aston v Irvine 92 CLR 353 at 363. A warrant endorsed in Victoria for the apprehension of suspected offenders in South Australia was described at the foot of page 363 as having been endorsed pursuant to a ministerial power, and then:
The legislative power exercised is conferred by s 51(xxiv) . . . The nature of this power, as well as the prior history of the subject to which it relates, provides strong ground for interpreting it as enabling the federal legislature to regulate the manner in which officers of the law in one State should act with reference to the execution of the process of another State. It is a legislative power given to the central legislature for the very purpose of securing the enforcement of the civil and criminal process of each State in every other State.
We interpolate that would appear to be a completely unnecessary matter according to the height of the arguments combined by our friend.
GUMMOW J: What did Ray v M’Mackin decide?
MR WALKER: Ray v M’Mackin is a Victorian decision which decided that a New South Wales statute authorising what I will call the deportation of undesirables could not authorise the trespass to person involved in the custody beyond the limits of New South Wales. I should add another reference, complementary as it were, which apparently reverses that result but which should be read because it includes some members of the same Victorian court, R v Call; Ex parte Murray (1881) 7 VLR (L) 113. In particular, there is an interesting set of reasons from Justice Higinbotham ‑ ‑ ‑
GUMMOW J: Yes, but what did he say?
MR WALKER: In that case, it was held that, for the purposes of Victorian litigation, it was Victorian law which would determine what were the rights and obligations between the parties, and that there were territorial limitations to the capacity of other legislatures to dictate the outcome of a contest of rights and obligations in the home territory, that is, the territory of Victoria.
Now, the first of those cases is specifically referred to in this passage in the High Court, as exemplifying what is called a “difficulty”, and the difficulty – to return to Justice Kirby’s question – the difficulty did derive from what was perceived and can be illustrated in, for example, Ray v M’Mackin, as being a perceived territorial limitation as to how the legislature of one colony could dictate, by its legislation with purported extraterritorial effect, the outcome of a quarrel in another territory as to the rights and obligations between the persons purportedly affected by the extraterritorial legislation.
Now, in our submission, the article by Salmond, to which the Court has drawn attention, noted the requirement for a distinction to be drawn, which is to be found, I think, in nearly all the authorities which have turned to consider this question. The way we would put it, relevantly, for present purposes, as between the New South Wales and South Australian territories and their respective legislatures, is as follows. One must distinguish between a New South Wales law which gives efficacy, in this case, to the regularity of the judgment reached by the Dust Diseases Tribunal, notwithstanding evidence received outside New South Wales, and distinguish that from a New South Wales law which would purport to assert the authority of the Dust Diseases Tribunal to administer justice outside New South Wales and in South Australia.
The former is unexceptionable and is in a long line of provisions such as those which were gradually nibbled away at and diminished the importance of venue within the same law district. Clearly, the long‑established habit of truly foreign countries, as well as self‑governing colonies within the Empire and States within the Federation, of enacting complementary legislation to assist each other in the taking of evidence on commission outside their respective territories is but an example of that. Evidence may be taken outside the territory in which the court sits to be fully effective as evidence within the territory where the court sits, so as to yield a proper court hearing for the purposes of that court. The compulsion for that witness to attend in the place outside the State or territory comes from the legislature of the person of the place where that witness is to be compelled.
KIRBY J: What about making an order disposing of the proceedings, even by consent?
MR WALKER: In our submission, it is highly significant that there is simply no statute in any complementary scheme that we have been able to find which even begins to contemplate that that should be done. Just as is significant, that in the Service and Execution of Process Act, section 82, there is talk of a warrant being issued relevantly, in New South Wales for execution in South Australia, not being contemplated that a court of New South Wales would sit in South Australia to issue a warrant in South Australia under New South Wales law.
KIRBY J: So there they are over there, the judge is sitting, the barristers are before them, one of the parties comes and says, “Well, we agree that this is a proper case, and your Honour make an order”. You say they have to say, “No, no, no, we’re in the Commonwealth, but we have to go back to New South Wales to do this.”
MR WALKER: They should not be sitting there as a court at all, is our whole point.
KIRBY J: But if they are receiving evidence – they are there to receive evidence and then the affidavits are shown, and the party says, “Well, we’ve got to throw this in, we can’t win this”.
MR WALKER: Your Honour, the simple ‑ ‑ ‑
KIRBY J: It seems a little artificial within Australia, is it not?
MR WALKER: No, not at all. It is quite concrete in terms of being in a place which concretely and as a matter of law, is under the legislative fiat of another Parliament, a Parliament to which the South Australian courts are responsible, just as the New South Wales courts are responsible to the New South Wales Parliament.
KIRBY J: I could understand your argument if you said courts are one of the branches of government.
MR WALKER: We do say that.
KIRBY J: Courts, like Parliaments, cannot sit in another State. They have to do everything they want to do, query what happens with video links, but they have to do it in their own State, but once you allow that they can go there to receive evidence, it seems very artificial then to say, well they cannot receive a consent order to enter a judgment in the case.
MR WALKER: No, there is no ‑ ‑ ‑
HAYNE J: Well do you allow they can go there to receive evidence, that is, do you allow that the court can go there to sit to receive evidence? I thought you denied it.
MR WALKER: The identity of the officer who constitutes the court, in this case a judge, is in our submission, immaterial to the propriety of the Commissioner or other person by whatever name, foreign authority is a name to which we will come, who can sit to receive evidence. It is as a court that is holding court in another place, in our submission, is beyond the pale.
GUMMOW J: Now, we have to get down to specifics. Do you say section 13(7) of the Dust Diseases Tribunal Act is invalid?
MR WALKER: Yes.
GUMMOW J: Invalid ‑ ‑ ‑
MR WALKER: Or should be read down so as to apply only to those things which in this case South Australian law itself authorises and your Honours have seen. In other words, it would survive to have this effect ‑ ‑ ‑
GUMMOW J: What is the constitutional principle then, which sustains it, if there is legislation in South Australia, but does not sustain it in the absence of that South Australian legislation?
MR WALKER: It is not given ‑ ‑ ‑
GUMMOW J: Forget about the 19th century.
MR WALKER: It is not given force by South Australian legislation or, for that matter, by silence of South Australian legislation. It is given force for the governmental purposes of New South Wales so that it will, for example, permit ‑ ‑ ‑
GUMMOW J: Yes, but what is the constitutional principle deriving out of the textual structure of the Constitution.
MR WALKER: Your Honour, the first Constitution is the New South Wales Constitution, and that leads immediately to 106 and 107, and those combine, in our submission, to permit New South Wales to legislate so as to give full force and effect to the outcome of court proceedings which have included an excursion elsewhere to take evidence, or even perhaps to hear argument. So there is an extraterritoriality, that is, significance is given as valid judicial proceedings to matters which include dealings outside New South Wales.
HAYNE J: It seems to me once you take that step, the argument fails, that is, as soon as you take the step that there can be a valid judicial proceeding outside New South Wales, the argument falls apart.
MR WALKER: I do not take it quite that far. We say that you can do things outside New South Wales ‑ ‑ ‑
GUMMOW J: Who is the “you”?
MR WALKER: The New South Wales court. The New South Wales Parliament can authorise the New South Wales court ‑ ‑ ‑
GUMMOW J: Well that is the first step, is it not? It is not the court of its own motion going off to these places.
MR WALKER: No.
GUMMOW J: There is this law of the parliament which has to be valid or invalid.
MR WALKER: No, this is all about legislative validity. My task, obviously, in relation to Justice Hayne will be to persuade your Honour that this does not destroy the rest. We do not doubt the proposition, for example, that there can be laws for the taking of evidence on commission outside New South Wales. We do not doubt that. That is extraterritorial in the sense that, for the purposes of the government of New South Wales, the courts of New South Wales are authorised to deliver judgment by reference to material which is being gathered, and heard even, outside the territory.
The second proposition, however, is that what happens outside the territory, certainly within the Federation – and that is all we have to address, within the Federation - is by reason again of 106 and 107 and of the respective State Constitutions referred to, also governed exclusively, we submit, within that territory as it happens by the law of that territory, that is the State locality. It is also, of course, governed by Commonwealth legislation to which I have already made reference because the Service and Execution of Process Act has to be taken into account in this argument, but in our opponent’s argument is not.
Now, it happens in this case that there is a provision to which attention has been drawn which permits an answer to the question: whose law governs? It is section 67AB of the Evidence Act 1929 (SA), the relevant part of which is extracted in paragraph 13 of our supplementary written submissions. As it happens, not surprisingly, there is complementary legislation throughout Australia. We can illustrate simply in New South Wales, section 26B of the Oaths Act 1900. They use the evocative expression “foreign authority”. Now that is just a matter of drafting, perhaps, but it certainly demonstrates what is afoot and that foreign authority includes, amongst other things, not simply judicial bodies, but does include a judicial body, being in this case the Dust Diseases Tribunal of New South Wales.
KIRBY J: Is the Dust Diseases Tribunal a foreign authority? Is it defined?
MR WALKER: Yes, it is. Furthermore, the authority ‑ ‑ ‑
KIRBY J: Well, where is the definition?
MR WALKER: It is in subsection (3), your Honour. Furthermore, that authorisation is to do things which are part of, though not the whole of, the adjudicative process, the judicial process, to take evidence and, importantly, to administer an oath. So in answer to the question whose law governs in relation to integral or, at least vitally necessary aspects of judicial proceedings in our systems, the taking of evidence and the administration of an oath, the South Australian Parliament has clearly purported to govern the matter by giving a permission.
In our submission, it could not be said, consistently with 106 or 107 and with the basally territorial notion of legislative competence, which after all is necessary in order to build on this extraterritorial competence requiring some kind of nexus, it is impossible, in our submission, for there to be any successful submission to the effect that 67AB either does not have effect according to its tenor so as to authorise, or secondly is supererogatory, that is unnecessary, because New South Wales could authorise its court to do exactly that in another authority’s territory.
GUMMOW J: It is said against you that if you read 67AB, a priority conferred by the Act on the foreign court to “take evidence” or administer oaths carries with it all that is necessary to permit that to happen. There you are. The court is sitting there.
MR WALKER: I think by that your Honour is referring to the notion of coercion.
GUMMOW J: Yes.
MR WALKER: If one refers to coercion, we submit that coercion really is the litmus test in this argument.
GUMMOW J: Yes, or to take evidence – not to take evidence because people want to give it but because they can be coerced.
MR WALKER: I think your Honour is emphasising the word “taking”.
GUMMOW J: Yes, not receiving, taking.
MR WALKER: In our submission, no. The taking of evidence in that compulsory sense involves subpoenas or the laying on of hands. It ultimately comes down to the physical apprehension without any doubt by reason of warrants for defiance of a subpoena or for contempt.
GUMMOW J: But just assume that interpretation is correct. That is the end of the case, is it not, on your theory?
MR WALKER: If that interpretation were correct, then this is a law which would presumably also ‑ ‑ ‑
GUMMOW J: Which reduces or yields such sovereignty as the States may have under the constitutional structure in favour of this exercise by New South Wales and it is ‑ ‑ ‑
MR WALKER: And it must include, bearing in mind the machinery of the New South Wales court, the New South Wales sheriff coming in to lay hands on somebody in Whyalla. Why not? It must be New South Wales police as well who are authorised to execute warrants. Indeed, section 21 of the Dust Diseases Tribunal Act authorises that court to appoint any person to execute the warrant. In our submission, what that amounts to is an argument that between the lines of 67AB and by one of the ‑ ‑ ‑
GUMMOW J: Just stopping there for a minute, we have to keep the constitutional bedrock, I am afraid. You do not say it is beyond the competence of one State to yield what one might call its sovereignty by a law which permits this to happen in its territorial area?
MR WALKER: Subject to a qualification I want to utter in relation to sovereignty, no. Part of our argument is that two States can, by complementary or co‑operative legislation, make all manner of schemes. They cannot at the moment because of SEPA, which purports to exclude such laws, but in the absence of such a 109 effect, then they could legislate, they would be competent to legislate, and one State may well say, “The New South Wales court is welcome to come in here. We authorise it to sit here, we authorise its sheriff’s officers to commit what would otherwise be torts or perhaps crimes by physically apprehending people. In other words, as a matter of South Australian law, we authorise these other people to do these things because we say that will be for the government of South Australia to permit this kind of controversy to be determined, for example, in favour of our own residents by this other organ of government of a neighbouring State”.
HAYNE J: But it comes to that, does it not, whether ‑ ‑ ‑
MR WALKER: That is an exercise of its sovereignty though.
HAYNE J: ‑ ‑ ‑ the compulsive exercise of judicial power exemplified by but not limited to the taking of evidence extending, for example, to dealing with people for contempt is sufficiently given and then whether, if sufficiently given, is validly given by the South Australian Act, 67AB? Do you say that 67AB ‑ ‑ ‑
MR WALKER: No.
HAYNE J: You fill in the question, Mr Walker.
MR WALKER: Whatever it was going to be, I knew that “no” was the proper answer, your Honour. No, I do not say that 67AB is an exercise of sovereignty by the South Australian Parliament so as to give efficacy in South Australia with all the rights, obligations and immunities to the suite of provisions in the Dust Diseases Tribunal Act, including section 21, the warrants, to which I have just referred. That is, my first step is to maintain that it is for the South Australian Parliament, hence the importance of 67AB, to regulate what may be done by way of physically compelling and restraining and forcing people to answer, and punishing if they do not, in South Australia. That is a territorial matter and it derives from a constitutional principle predating the federal compact but being part of it – see 106, 107 and the argument we put on the previous occasion. It is cognate with the maxim no doubt misleadingly summarised as “all crime is local”.
It is subject to exceptions similar to that maxim, namely, that there has to be a sufficiently strong nexus with the territory of the constating or legislating authority.
McHUGH J: That is a bit strong, is it not, “sufficiently strong”? Did we not say in the Union Steamship Case that even a remote and general connection between the ‑ ‑ ‑
MR WALKER: Will be sufficiently strong.
McHUGH J: Yes.
MR WALKER: Will be sufficiently strong. I am not suggesting ‑ ‑ ‑
McHUGH J: No, “will suffice”, I think we said.
MR WALKER: Which means it will be sufficiently strong. Your Honour, the point in this case is what happens when we are not talking about sea cases? Union Steamship 166 CLR 1 at 12 ‑ ‑ ‑
McHUGH J: Page 14 it is.
MR WALKER: Page 12 is the citations I am about to refer to; 14 is the passage to which your Honour was referring to. Page 12 contains two brackets of citations. They are what I call sea cases, surf cases, and tax cases. Now, tax cases are of no problem to our argument at all. That matters out of State can be part of the scheme by which tax is payable in the State and to the State is not remarkable and involves no assertion that one’s arms of government extend and operate outside the territory of your Parliament.
The sea cases similarly present no difficulty for the argument which we are constructing in relation to what happens between the land territories governed by their own Parliaments and with part of their arms of government being their own Supreme Courts who are in the Constitution – see section 73 – and their own courts – see section 77 – arms of government. In our submission, those authorities do not touch upon the problem which has been at least twice observed in this Court as one which may or may not arise. I will come to those passages very quickly in one moment.
In final answer to your Honour Justice Hayne’s question, no, 67AB or a provision of that kind, in our argument, could most certainly effect, by way of co‑operation or complementarity, the capacity for a New South Wales court – and for that matter an arm of the New South Wales Executive – to act in South Australia in ways which would have real governmental effect on people in South Australia; thus, for example, the capacity to be physically apprehended or detained, punished. But that would be by the will of the South Australian Parliament.
That does mean, with great respect to your Honours Justices Gummow and Hayne, that I do have to confront whether 67AB has done just that. The question is how much has it carried in by that word “take”, or by the expectation that a court taking evidence has usually an armoury of means by which that is not a matter of a voluntary discussion but, rather, a compulsory interrogation and attendance. In our submission, it is difficult to spell out of 67AB where the specifics are to take ‑ ‑ ‑
GUMMOW J: Not only compulsory attendance, but attendance in terrorem of contempt power.
MR WALKER: Yes, hence punishment coming up as a possibility. For example, does 67AB require South Australia to house in its gaols contemnors of the New South Wales DDT, being contempt committed in South Australia?
HAYNE J: To whom does the judge direct his or her ‑ ‑ ‑
MR WALKER: Direct the warrant for commitment. Second, and perhaps worst still, alternatively, what are the provisions that one reads between the lines of 67AB or teases out of that ambiguous word “take” in “take evidence” by which there could be a transfer of prisoners from South Australia to New South Wales, being contemnors that the South Australian prisons will not take. In our submission, the simple textual answer is that 67AB does not contain language in the two specific items of permission which it extends to a foreign authority to carry with it everything which that foreign authority’s own legislature has given to it by way of its coercive powers.
In our submission, the fact that there are concurrently existing provisions in all the States for lending assistance to other States’ courts – by the issue of subpoenas to compel somebody to come along and have their evidence taken, for example – is a conclusive demonstration that there is nothing in terms of necessity for 67AB to be construed as carrying with it the subpoena, contempt, committal, immunities and privileges aspects of what occurs in a New South Wales court – taking evidence or administering an oath being the only two specifics mentioned in 67AB.
GLEESON CJ: Would an arbitrator be a foreign authority within the meaning of this legislation?
McHUGH J: This is in paragraph (b).
MR WALKER: I think it is. Yes, your Honour, probably (b):
any body or person authorised under the law of a place outside this State –
relevantly, New South Wales –
to take evidence –
It suggests that taking evidence is not something which, as a matter of language, imports coercive powers in the person ‑ ‑ ‑
GLEESON CJ: That is what I had in mind.
MR WALKER: ‑ ‑ ‑ because the summons is not issued by the arbitrator.
GUMMOW J:You have 67AB(2). You need the authority of the Attorney.
MR WALKER: Yes. New South Wales’s equivalent, for example, gives to the Chief Justice a vetting power on non‑judicial foreign authorities, rather than the Attorney‑General. Certainly, in answer to your Honour the Chief Justice, the words “take evidence” – the expression is ambiguous, the notion of it being a compulsive abstraction of information together with the necessary attendance is one possible understanding of the language. “Taking evidence” is also a familiar legal phrase, which really has no particular difference between it and “receiving evidence” or “giving evidence”.
McHUGH J: But you do not need any statutory authority simply to take evidence in the sense for which you would contend, do you? I mean I could go over there and take evidence.
MR WALKER: It would not, however, then form part of the record of the court. That was the point with which I started. There are three legislatures who are involved in the usual exercise. The New South Wales legislation is necessary so that it is not just a matter of ‑ ‑ ‑
GUMMOW J:It is administering the oath, is it not?
MR WALKER: Yes.
GUMMOW J: Is that not a violation of the sovereignty?
MR WALKER: Yes, it is. The Oaths Act makes it clear, with great particularity, as to who can administer oaths and makes offences for doing that without authority.
KIRBY J: Do we have the Oaths Act (SA) provision?
MR WALKER: Yes, we have referred to it in paragraph 12 of our supplementary submission, for example.
CALLINAN J: Mr Walker, there is also section 32O to the Dust Diseases Tribunal Act, which confers privilege upon a mediator or a neutral evaluator appointed by the Dust Diseases Tribunal. I imagine there may not be statutory law, though there could well be statutory law in South Australia governing privilege from defamation. Is there a South Australian Defamation Act?
MR WALKER: The Wrongs Act, relevantly, relates to it.
CALLINAN J: So there is probably legislation in relation to privilege.
MR WALKER: There are subtle differences that may not particularly matter in most cases, but there are differences ‑ ‑ ‑
CALLINAN J: The point is, South Australia has legislated to cover that field.
MR WALKER: That is right. As to the tort of defamation committed within South Australia, although one could be forgiven for thinking otherwise, not even our opponents say that that is governed – if committed within the hearing room of the DDT – by New South Wales law. Now, maybe their argument requires that logically, and the fact that they will not take that step explicitly is a sign, not only intuitively, but logically, that their whole premise is wrong.
CALLINAN J: But there is a special statutory conferral of privilege on a person appointed by the court in this part, effectively, of the machinery of the Dust Diseases Tribunal.
MR WALKER: Yes. The argument against us involves the proposition that conduct which would otherwise be criminal, administering an oath or an assault, or a tort, defamation or an assault is authorised in South Australia not by dint of South Australian law - indeed, that is the whole point of their emphasis on extraterritorial competence - but because there is, they say, more than adequate nexus within the Union Steamship sense.
This is to do with proceedings to be determined by a New South Wales court. What could be more integrally related with the government of New South Wales, and so they say, armed with that argument, which we submit is chop logic and uses the sea cases in a way they were never intended to be used, armed with that argument they say the New South Wales court can tramp all over the country never needing permission and being able, it would appear from the logical extension of their argument, to exercise coercive powers. Alternatively, the arguments against us draw short of arguing that the coercive powers are exercised proprio vigere as New South Wales law in South Australia.
GLEESON CJ: What about the tort of negligence?
MR WALKER: Similarly, the tort of negligence in relation to what may or may not be legislated, for example, concerning advocates or legal practitioners.
GLEESON CJ: Or judges or witnesses.
MR WALKER: Or judges or expert witnesses. May I just continue that line of thought before going back to where I was. One has in section 19 of the Dust Diseases Tribunal Act, for example, rights of audience given to persons who are described in ways which are defined in the Act so as clearly to be New South Wales legal practitioners. The definition section makes it clear by reference to practising certificates that we are talking about New South Wales practitioners.
However, until the happy advent of the mutuality now to be seen, I think, in all the Legal Profession Acts around the country, every State claimed in its Legal Practitioner Acts to render it an offence to practise law unless you were admitted in that State and gradually, as your Honours know, that has, by exercise of their several sovereignties, been extended so as to welcome interstate practitioners, but by their own legislate fiat, not by the fiat of the Parliament under whose law the visiting practitioner claims to be entitled so to act.
So what was formerly an offence and could certainly be very serious professionally, namely, practising law in South Australia, until very recently, one would have the question would section 19 of the Dust Diseases Tribunal Act permit New South Wales barristers, who never bothered to be admitted in South Australia, to turn up and argue cases, cross‑examine and argue propositions of law, which is the practise of law, in a room in South Australia, to which the short answer is no. That room does not become Alsatia, a little bit of New South Wales, trailing immunities from the general law applicable within the territory, which is as vulgarly physical as the land mass of South Australia.
There is no doubt that there is much which is extraterritorial in what we submit is the plain vanilla approach because New South Wales does give meaning for New South Wales judicial proceedings to the taking of evidence elsewhere. It becomes part of the record of that court and that is a very great extraterritorial reach. The simple question in this case is how much else is taken over so as to apply of its own force and, in our submission, not a single thing applies of its own force. That efficacy to which I have referred applies in and only for New South Wales, as it happens, then given in a Federation whose Constitution included 51(xxiv), then given efficacy all throughout the Commonwealth by reason, nowadays, of the Service and Execution of Process Act 1992.
HAYNE J: But the extraterritorial reach of the New South Wales courts and all State courts to which you have referred – is there any aspect of that extraterritorial reach to which you would point as being a compulsive step taken beyond the territory in accordance with, and only in accordance with, the authorising State’s legislation, as distinct from SEPA or some other federal legislation?
MR WALKER: No. It would appear our opponents’ arguments – I hope I am neither travestying them nor homogenising them – on our examination of them, they do not explain whether, and if so how, the coercive powers which the Dust Diseases Tribunal Act plainly does give to that Tribunal, apparently, wherever sitting – they do not explain whether or how they apply of their own force outside New South Wales.
McHUGH J: Yes, but that is not the point, is it? You seem to me to be setting up a straw man. The question is whether or not New South Wales has the constitutional power to give one of its courts jurisdiction to sit outside the State. I would have thought it was as plain as a pikestaff that it can. If it does so, and the court purports to operate in a State unsupported by that State’s law, all sorts of problems in tort and crime may arise. For instance, if they issue a contempt warrant and try to serve it in South Australia, the subject of the warrant may have an action in tort for trespass to the person. But what has it to do with the sufficiency of the territorial connection between the State law and the court’s extended jurisdiction?
MR WALKER: My answer to your Honour’s question is as follows. First, we submit that the intuitive response is that extraterritorial legislative competence does not produce the immediate answer that New South Wales can authorise its courts to sit elsewhere, leaving to be worked out, according to the criminal laws and the laws of tort, the consequences of somebody taking up that authority and acting under it for the following reasons.
McHUGH J: New South Wales could certainly authorise any public servant to go to South Australia, could it not, to interview people? Would that be a valid law of the State Parliament?
MR WALKER: Yes, there is no doubt about that.
McHUGH J: Why can it not authorise a court to do the same thing?
MR WALKER: The short answer is, a voluntary interview by a public servant of a person anywhere in the world involves no claim to be exercising authority in another territory, to be doing no more than that which any private person can do, ask a question. In the Full Federal Court, that very matter, with respect, underlay the decision of the court in Boath v Wyvill (1989) 85 ALR 621. The particular passages start at 635, line 31, with references, as your Honours will see on that page and pages 636 and 637 to the top of 638, to the extraterritorial competence in question. But there was no suggestion – indeed, to the contrary – that the coercive powers were simply carried over. See 637, lines 40 to 45, where the questions are set out. Then, as to the coercive question, the way in which it was either not decided or simply noted as a matter that did not arise in its full form is referred to. The ordinary presumption applies to the coercive powers given the commissioner. Once so construed, no question of invalidity arises and 118 had not been argued.
HAYNE J: But that was a point of statutory construction, was it not?
MR WALKER: Yes, and the so‑called ordinary presumption is a phrase that their Honours described in proposition 4 on page 636 at line 40.
GLEESON CJ: Can I come back to a question of privilege that was raised with you a little earlier. Suppose a medical practitioner gives evidence in South Australia in a Dust Diseases Tribunal proceeding and says, “I think the plaintiff is a malingerer”. Now, that presumably gives rise to the same potential problem that exists whenever somebody takes evidence on commission in another jurisdiction. What is it that protects the witnesses from an action for defamation arising out of the evidence they give, or an action for negligence, or whatever? What is it?
That then renders it of signal importance to observe some of the terms of the Act which is said to have this extraterritorial effect as a law. For example, section 10(1) of the DDT Act uses the word “exclusive” in front of the word “jurisdiction”, being a word that your Honour Justice Gummow asked to have, as it were, more precisely glossed. The jurisdiction referred to in section 10(1) is said to be exclusive, which has to be read in light of the fact that in Goliath it was made clear that that was jurisdiction to hear and determine matters which would ordinarily clearly be within the jurisdiction of other courts, all of whom can – certainly, South Australia, and the South Australian tort or breach of contract in this case is clearly within the South Australian jurisdiction.
So what does this word “exclusive” mean in section 10(1)? That could not be an extraterritorial competence. In our submission, that and section 11(1), with a similar provision forbidding other courts to hear such cases, clearly are directed only to matters within New South Wales; hence the significance, of course, of the provision of section 10(3), stipulating that:
The Tribunal has, wherever sitting, jurisdiction throughout New South Wales.
GLEESON CJ: Well, nobody I presume suggests that section 11 has any extraterritorial operation.
MR WALKER: No one has suggested that because, with respect, it would be absurd, but if one took the argument in the basics that have been presented, one starts with this way. There is a clear nexus with New South Wales concerning the operation of its courts. That will include the description of its jurisdiction. Exclusivity of a jurisdiction is a common attribute of jurisdiction. Therefore, cadit quaestio, New South Wales can extraterritorially deprive other polity’s courts of jurisdiction for torts foreign in New South Wales but local in those other polities. It is absurd, with respect, and it is absurd because it takes extraterritorial legislative competence as being that which drives the question of power rather than territorial competence as that which defines the zone of governmental influence distributed by the Constitution, by texts that include 106 and 107.
CALLINAN J: And would deprive defendants of limitation defences available in other jurisdictions.
MR WALKER: Yes, your Honour.
CALLINAN J: And of the power to legislate with respect to limitations defences.
MR WALKER: Yes, your Honour, yes. It was put by my learned friend, Mr Jackson, section 45 of the Supreme Court Act (SA) was somehow reciprocal in a way which informed validity or power in this case. It clearly does not. There is no “tit for tat” doctrine applicable. The reciprocity that one talks about is the complementarity of legislation where one State authorises a judge to travel to take evidence and another State says, “Welcome, we will give you the facilities.”
That is precisely what 67AB does and it is precisely what the Attorney in the Hansard supplied in the first respondent’s original submissions said at 2079 of the House of Assembly’s Debates of 16 November 1978. It is:
a new section which will allow interstate and foreign courts to visit South Australia and take evidence on oath for the purpose of proceedings conducted in those States or countries.
Now, with the usual caveats, in our submission, that was an entirely appropriate way for that provision to be seen and it was in a 19th century tradition.
Your Honour Justice Gummow raised what might be a third way of understanding section 13(7), particularly by reference to the convenience which is one of the touchstones for the President’s opinion before giving such a direction. That really did raise the same matter as the British Columbian Case raises, that is, this notion of a valid law which happens to be ineffective. In our submission, if the law is valid, then because it is a law, it will be effective. For those reasons, the question is, do sections 19, 20, 21 apply when, pursuant to section 13(7), the Dust Diseases Tribunal travels? For the reasons we have already put – and I do not want to repeat – the answer is no, from which, in our submission, it can be seen that they are ineffective because they purport to do something governmental where only South Australia or the Commonwealth can do it and there is no distinction relevantly, therefore, between invalidity and ineffectiveness.
In particular, under the federation, 106, 107, one would not promulgate a doctrine of what might be called a “suck it and see” approach to the promulgation of extraterritorially effective legislation, waiting to see exactly what problems are caused for private citizens by being faced with conflicting or inconsistent commands or prohibitions or liberties – liberties being particularly important.
CALLINAN J: Or uncertainties as to their rights.
MR WALKER: And uncertainties. Your Honour Justice Hayne asked for examples of compelled steps outside a State, that is, compelled outside the State, the compulsion being dependent only on State legislation and not on a 51(xxiv) law. There are none, in our submission. The pattern of colonial and federal, that is, post‑Federation State statutes for cooperation really highlights that nobody has thought there should be. It is also here of significance to note that 51(xxiv) is not a placitum that authorises laws to authorise the sitting of State courts anywhere they like or anywhere throughout the Commonwealth. That is an answer to the matter that was raised about 77(iii), in relation to the effects upon matters which have been obviously the subject of assumption in section 39(2) and sections 79 and 80 of the Judiciary Act.
My learned friend, the Commonwealth Solicitor’s example of the drinking policeman would be met by the fact that to turn up to duty under the influence is an offence in New South Wales. The fact that the imbibing was done elsewhere has nothing to do with anything. That is a classic example of locating the prime by reference to the law in question quite precisely. It is not extraterritorial in any relevant sense. See Chief Justice Gleeson in Goliath, the passage I have already referred to. Also see Salmond’s article at 125, 126 to 127, in relation to the breaking of the customs seals, a Privy Council decision from Australia, to which reference is there made.
It follows from everything that we have put that the notion the Commonwealth Solicitor advanced of an offence being committed against New South Wales law by cheek perpetrated in Adelaide against a New South Wales judge is one that we would reject for reasons which start with the proposition that all crime is local and that there is no New South Wales law, including section 26 of the DDT Act which could, consistently with section 12 of the Interpretation Act and the constitutional norms upon which we have been basing our argument, have such an extraordinary effect.
In relation to venue, it is significant that section 130 of the Service and Execution of Process Act when it turns to questions of locality is concerned only where locality where process may be served. There is no purported expansion of jurisdiction apart from doing away with provisions stipulating a locality where process may be served; query whether under 51(xxiv) there could be any such effect on jurisdiction in any event.
Finally, in relation to my learned friend the Solicitor for South Australia, we accept entirely that the question of power of the New South Wales legislature cannot depend, does not depend in this case on the existence or not from time to time of any putatively inconsistent legislation in South Australia in the facts which apply in this case. We
simply say that there is no power in limine to provide for the functions of government of New South Wales to operate outside New South Wales.
In particular, in relation to the coercion which is an integral and drastic part of the exercise of judicial power by the judicial arm of government, we submit that there is no power whatever, by force of the New South Wales legislature alone, to imprison, for example, South Australian citizens as a matter of New South Wales law only. Clearly enough, however – we return to where we started – none of that prevents what has clearly been thought, pre‑Federation and post‑Federation and appears to be unanimous at the Bar table, to be highly convenient – the taking of evidence on commission and related activities.
On that point, with respect, we accept the stricture uttered by Justice Hayne earlier today. There is a distinction between taking evidence on commission and hearing a matter. The fact that one tenders usually, traditionally, the transcript of evidence taken on commission at a resumed hearing of the proceeding is but a practical demonstration of that, and we accept that stricture. May it please your Honours.
GLEESON CJ: Thank you. We will reserve our decision in this matter, but parties that have indicated they wanted to file further written material have 14 days within which to do so. We will adjourn until 10.15 tomorrow morning.
AT 5.00 PM THE MATTER WAS ADJOURNED
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