Campbell v Northern Territory of Australia & Anor

[2022] HCATrans 188

[2022] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D3 of 2022

B e t w e e n -

MARLEY CAMPBELL

Applicant

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

THE SUPERINTENDENT OF DON DALE YOUTH DETENTION CENTRE

Second Respondent

Application for special leave to appeal

GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 21 OCTOBER 2022, AT 3.26 PM

Copyright in the High Court of Australia

GORDON J:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR P.H. SOLOMON, KC appears with MR J.A.G. McCOMISH for the applicant.  (instructed by Ken Cush & Associates)

MR D.A. McLURE, SC appears with MR T.J. MOSES for the respondents.  (instructed by Solicitor for the Northern Territory)

GORDON J:   Yes, Mr Solomon.

MR SOLOMON:   If your Honours please.  Could I commence by sketching out just a few of the central relevant facts.  In October 2011, by court order, Marley Campbell was committed to a sentence of detention.  At that time, as evidenced in the trial judgment, a Mr Yaxley was the superintendent of the Don Dale Youth Detention Centre.  He had prescribed functions in respect of detainees.

Can I show your Honours those functions.  They are in the application book at page 282 and they are set out in section 151(3).  In respect of those functions, some were exercisable outside the geographic confines of the centre.  Among other things, that is recognised by section 152(3).  The Full Court, at paragraph 36, in reasons for judgment, recognised various circumstances in which a detainee may be outside the centre.  I do not need to go to the examples for the moment.

Importantly for present purposes, a particular function or responsibility of the superintendent is the transfer function.  That is at section 154, on page 284.  If I could stay with that just for a moment.  Where a superintendent holds the specified opinion, he or she can apply to a magistrate for approval.  Section 154(3) can conveniently be read as follows:

If the magistrate approves the transfer –

to be undertaken by the superintendent:

the superintendent may arrange for the detainee to be transferred from the detention centre to a prison.

If your Honours go to the trial judgment, pages 89 and 90 of the application book, your Honours will see that an order was made by a magistrate ‑ ‑ ‑

GORDON J:   And do you not challenge that order, do you, Mr Solomon?  That order was validly made.

MR SOLOMON:   We say that the order in its form was outside the function of the magistrate specified in section 154.

GORDON J:   And where do I find that in subject of complaint below?

MR SOLOMON:   Can I answer that question this way?  The Full Court in paragraph 46 at page 240 in the application book in the last sentence said:

In the present case, a magistrate ordered that the appellant be “confined separately at the Darwin Correction Centre” –

And that accurately records what the order said.  Our position has always been that the detainee’s status as a detainee was unchanged, and the relevance of the issue is in evaluating whether Marley Campbell became, for the purposes of section 5 of the Prisons Act, a “prisoner”, and if so – subject to the plenary power in section 6, subsection 2 of the Prisons Act.  The trial judge at 337 – if I could briefly go back to it – said this:

Magistrate Wallace made a positive order that the applicant be confined at DCC for a period not exceeding 24 Hours.

This appears to have exceeded the function imposed on a magistrate by section 154, which contemplated only the Magistrate giving approval for the transfer.  And then the trial judge said:

It was not suggested that anything turned on this.

And I think, Justice Gordon, respectfully, that would be a part of my answer to your Honour’s question, although it is not a direct response.  Our submission is that there was no court order made remanding Marley Campbell and the other two detainees in a prison.  The trial judge concluded that Marley Campbell was held in isolation and that it was the kind of isolation to which section 153(5) referred, and, framed at a high level of generality, the essential error of the Full Court for which we contend – and it is the subject of the first of our two proposed grounds – is that the Full Court lost or failed to place appropriate focus on the status of the detainee when transferred to the prison.  I want to seek to make that good, would your Honours go to ‑ ‑ ‑ 

GORDON J:   While you are making that good, Mr Solomon, could you address two points for me which, I think, directly involve the construction of 153 and 154 and the interaction of them.  The first is, is your argument really that they are concurrent, and they are not to be read in a way which somehow one transfers or takes the considerations in 153 into 154?  The second is, to address why that matters in the context, as I understand it, that this legislation has been repealed and 154 no longer exists?

MR SOLOMON:   Yes.  I will seek to contend for error, and then I will deal with each of those two questions.  If your Honours – if that is convenient for your Honour Justice Gordon.

GORDON J:   Yes, thank you, Mr Solomon.

MR SOLOMON:   If your Honours would go to paragraph 44 in the Full Court.  We contend that the errors in the Full Court central to the Full Court’s conclusion are these:  in the last sentence of paragraph 44, the Full Court concluded that:

a detainee becomes a person detained … and subject to the control of the Director under s 6(2) –

That can be so only if the detainee is, for the purposes of subsection (2) of section 6, a prisoner.  And for the detainee to be a prisoner, he or she – in this case he – needs to be:

committed or remanded by a court and in lawful custody or a person under a sentence of imprisonment –

for relevant purposes.

STEWARD J:   Mr Solomon, is that quite right?  Section 6(2) gives, really, two powers.  One is to control the prison and the other is the custody of the prisoners.

MR SOLOMON:   Yes.

STEWARD J:   Could not the intention of your client in the prison be a part of the way the director controls the prison?

MR SOLOMON:   We would say that in synthesising coherently the legislative regimes, if Marley Campbell retained a detainee, that control spoken of in section 6 needs to be read subject to the relevant constraints or, framed from the other end, protections of the individual in section 153.

STEWARD J:   But they are constraints on the superintendent, are they not?

MR SOLOMON:   Yes, and they are constraints in respect of the detainee.  So, if the detainee does not become a prisoner for the purposes of the Prisons Act, we submit, and submitted below, that the protections afforded to him under section 153(5) remain.  That is the essence of the controversy between the parties; whether or not the prospect of some form of control under section 6(2) arises.

STEWARD J:   Do you say that the director steps into the shoes of the superintendent for 153 purposes when the detainee is transferred to a prison, or do you say that the superintendent must continue to actively perform its functions for the detainee once transferred?

MR SOLOMON:   We say the latter and we recognise that there can be a delegation, if your Honour pleases.  In paragraphs 45 and 46, the essence of the Full Court’s finding against us that Marley Campbell became, for the purposes of what I will call the Prisons Act, in shorthand, a prisoner, a section 5 prisoner, and thereby within the plenary control of section 6(2) insofar as it speaks to prisoners, and we accept that if that is so, correctly so, it is likely, even if not certain, to follow that control in the prison qua prisoner will be outside section 153.

Our case, the essence of the dichotomy of the fight, is that Marley Campbell did not become a prisoner –  he did not become a prisoner under any authority spoken of in section 154.  He was not remanded in a prison.  He was not committed to a prison.  He was not under a sentence of imprisonment.  He was, and remained, a detainee, afforded protections as such, and that they remained.

Justice Gordon, you asked me two questions.  I want to deal with them now.  Concurrency is a suitable way to describe the way we see sections 153 and 154 intersecting.  The protections afforded to the detainee, and the fetter on the power of the superintendent in 153(5) – the time fetter and the circumstance fetter – stayed in place.  As I observed to Justice Steward a moment ago, it was open for the power of isolation to be delegated, and practically that may be a step that should, or ought, or could occur, that is in any way the way in which the circumstance of isolation on a detainee would here be attended to.

I want to attend to the why matters.  Your Honour is, of course, correct that in the Northern Territory, the legislation no longer exists.  We have collected in our outline, in four States and another Territory, the provisions which speak to two circumstances:  the circumstance which recognises detention of minors and isolation thereupon, including the protections thereby afforded to minors; and the circumstance in four States within which there are existing transfer powers.

If in this case the body politic did not correctly make an order and apply the provisions, of course it is true, as put against us, that in the Northern Territory there is now a different regime – still with isolation, but a different regime, the circumstance which presents the isolation in solitary confinement in an adult prison of a youth detainee is, of its nature, of public importance.  And it continues to apply in other States where there are the twin circumstances of isolation powers for youth detention, and transfer powers in the circumstances respectively specified in each Act.

Can I briefly turn, if convenient to the Court, to the second error for which we contend?  In respect of the first error, the period of – we say unauthorised – imprisonment was 28 December to 2 January.  On the case against us there is no limitation argument because there is no function being exercised by a person spoken of in the limitation provisions.  Insofar as the period of 2 January to 9 January is concerned, the trial judge found – and it was not challenged on appeal – that there was an unauthorised act by the Northern Territory.

A limitation defence was taken and succeeded, and we want to say just this about that issue.  It is secondary but not unimportant and, respectfully, not without interest.  At page 192, in the trial judgement – 192, section 215 is set out.  This is the provision that has been repealed.  Section 215(4) provided that:

No proceedings may be commenced in relation to an act done or omitted –

as specified:

more than 6 months after the act was done or the omission occurred.

The subject matter of that provision, as the trial judge found at 839, was:

civil and criminal proceedings.

The new provision is set out in paragraph 841, we say this:  the Full Court erred in concluding that the latter provision applied.  They erred in concluding that section 215(4) had no operation; they erred for the reasons that we have set out in some detail in our submissions, most carefully evaluated in Yew Bon Tew, but in a series of other cases commencing in 1957 which say that there is a substantive defence available once a limitation period expired, an accrued right under legislation.

In this case, that accrued right existed at the time at which six months had passed.  And it was therefore not correct to allow the respondents to rely on section 215B, and the respondents relying on the wrong section meant that there was no occasion for my client to apply to extend it.

The issue of accrued rights in relation to a statutory provision, speaking of proceedings, is, of itself, of some interest.  In any event, the essence of our submission is that the detainment in isolation of a youth detainee is of significant importance.  It is at least arguably wrong on the analysis of the Full Court focusing on status as a prisoner.  We ask for special leave.

GORDON J:   Thank you, Mr Solomon.  Mr McLure.

MR McLURE:   Thank you.  Your Honours, can I start by emphasising that proposed ground of appeal 1 is only utile if proposed ground of appeal 2 is successful because, of course, the consequence of ground 1 being accepted is that the limitation in period in section 215(4) or section 215B, as the case may be, would then be applied.

Can I deal with the question your Honour Justice Gordon asked my learned friend about whether or not there was a challenge to the approval made by the Magistrate to the transfer.  Could your Honours please turn to page 103 of the appeal book, paragraph 393.  The answer to your Honour’s question is, no, there was no challenge before the primary judge.  In fact, your Honours will see in the third line:

counsel for the applicant confirmed that the applicant did not challenge the validity of the approvals –

That was not agitated before the Full Court, and there is no agitation of that issue by the proposed grounds of appeal in this application for special leave.  Now, our learned friend – we respectfully submit – correctly acknowledges that if the conclusion of the Full Court that the applicant was a prisoner within the definition of section 5 of the Prisons Act is correct, then ground 1 would fail.  Can I ask your Honours please turn to page 298 of the appeal book, where your Honours will see the definition of “prisoner”.

GORDON J:   Mr Solomon, I just might ask you to please go on mute.  I would be very grateful, thank you.

MR McLURE:   Definition of “prisoner” at page 298, your Honours.  The first part of the applicant’s argument in relation to the definition is that a person transferred to an adult prison under section 154 is not under a sentence of imprisonment within the meaning of subparagraph (b).  That is obviously correct.  The second part of the applicant’s argument is, to give a narrow meaning to the term:

committed or remanded by a court and in law custody –

in subparagraph (a).  The applicant’s contention is that should be understood to mean committed or remanded by a court pre‑sentence, that is to say, someone who is not granted bail.  We submit that cannot be correct because when your Honours see the paragraph that proceeds under subparagraph (b), an example is given of a person who is defined to be a prisoner but is neither a person committed or remanded in the sense contended for by the applicant, that is, not on bail and nor under a sentence of imprisonment, that is to say:

a person in custody under the Migration Act 1958 (Cth).

Your Honours can envisage that there are a variety of classes of people who could be in lawful custody in a prison who are neither on remand in the sense contended for by the applicant, or under a sentence of imprisonment.  Two examples would be a person who has been found not guilty by reason of mental impairment and is then sentenced to a period of supervised custody; and secondly, a person detained under legislation such as the Serious Sex Offenders Act.  That construction of the definition of “prisoner”, we submit, is supported by – if your Honours turn over the page and see section 10(2), in the second line which recognises that prisons may be used for:

keeping of prisoners or other persons who are otherwise detained in lawful custody.

Next, if your Honours turn to page 301 of the application book, section 60, that the powers of the director are not confined to prisoners but are confined to maintaining “the security and good order” of prisons, which would necessarily encompass people in prisons who do not meet the definition of “prisoner”.

In any event, we submit the applicant was committed into lawful custody when he was sentenced to detention.  As we have said in our written response at paragraph 9, upon being sentenced to detention a warrant of commitment was issued under the Youth Justice Regulation 75(4) and it was the existence of that warrant of commitment that gave rise to one of the circumstances necessary for the transfer order to be made under section 154.

Could I address your Honour Justice Gordon’s question to our learned friend in relation to concurrent operation and give one demonstration of why we submit sections 153(5) and 154 are not capable of coherent concurrent operation.  If your Honours would turn to page 338, there your Honours will see section 153.  A detainee transferred to a prison will always be isolated from any other detainee who remains at the detention centre.

The only circumstance where a transfer order made under section 154 would not immediately result in a detainee being immediately isolated from other detainees is if either, one, the detainee was the only detainee in the youth detention centre, or two, the detainee happened to be transferred to the prison with other detainees.  It is a most unlikely basis on which to construe sections 153(5) and 154 to rely on the happenstance of either of those things occurring.

On the applicant’s construction – just turn over the page to section 154 – even where an order is made under section 154 for the transfer of a detainee to a prison, it is still nevertheless necessary for the superintendent to give, or the director to give, his or her approval for isolation under subsection (5), which requires adding in a layer of approval process in section 154(4), which is not expressed.  But, more fundamentally, if your Honours are looking at section 154(7):

(7)The period of the transfer of the detainee must not exceed 24 hours.

(8)However, the superintendent may apply to a magistrate for an extension of the period –

And there is no express limit in section 154(8) for the number of extensions a magistrate may approve whilesoever the emergency situation set out in subparagraph 1(a) exists.  But, on the applicant’s construction, there would be, by reason of section 153(5), an absolute limit of extensions to 72 hours.  That requires adding a limit to section 154, which would defeat at least one object of that provision, which is to allow extensions to occur for so long as the emergency situation exists.

Could I move, then, to ground 2?  Our principal submission is that the limitation period in section 215(4) was not repealed in 2014.  It was renumbered, and the text was amended in a way that altered its form but not its substance.  If your Honours, please, could turn to page 341 of the application book.  Going over from 341 to 342, your Honours will see section 215 in the form it was at the time of the events giving rise to the proceedings.  Relevantly, your Honours will see subparagraph (1) deals with application; subparagraphs (2) and (3) deal with an immunity based on good faith; and subparagraph (4) deals with the six-month limitation period.

If your Honours then turn forward to page 352 of the appeal book, you will see sections 215, 215A, and 215B, in the form they were amended following the 2014 amendments.  So, relevantly, your Honours will see, in 215, the application provision in subsection (1) and the immunity provisions in (2) and (3) remain as they were.  However, 215B separates out the limitation period and puts it in its own provision.

It is not said and could not be said that there is any substantive change to the limitation per se.  That is, there is no change to the six-month limitation period.  However, your Honours can see there was an addition to 215B by adding in that:

subsection (1) does not prevent a court exercising its jurisdiction under section 44 of the Limitation Act.

Now that did not change the substance of the law as found by the primary judge, and this was not challenged, either, by the applicant.  If your Honours would turn, please, to page 212 of the application book.  At the foot of the page, paragraph 890, could I invite your Honours please to read in the second‑last line, near the end of the line, where it begins “there is a settled line of authority” through to the end of that paragraph over the page.

GORDON J:   Is the short point here, Mr McLure, that there was no application for extension?

MR McLURE:   That is also correct, no application for extension was made, but the point I was addressing here was that there was no substantive change to section 215(4) when it was removed from that provision and put into 215B.

The consequence of there being no substantive change is your Honours would be entitled to accept what the primary judge held and what we contend for, which is that there was no repeal of the limitation provision, it was just renumbered – or to use the primary judge’s expression, “rebadged”.  As to that, could we just draw to your Honours’ attention what the primary judge said about that at paragraph 874, which is on page 208 of the appeal book.  Going over onto page 209, on the third line, his Honour found that 215B(2) – that is, the new provision – was only “clarificatory in nature”.  Paragraph 875, in the last three lines:

It is more realistic to regard s 55 –

That was the amending provision:

as continuing the existing six month limitation period.

Then, in paragraph 876, the last four lines:

the limitation period specified in s 215 has continued without interruption –

I will let your Honours read to the end of that paragraph.  So, on that process of reasoning it is not necessary to consider whether or not section 215B had retrospective effect, because it had continuous operation; it was only relabelled.  This is the implicit basis, we submit, on which the Full Court rejected this ground, but in the alternative, if it is appropriate to consider whether or not section 215B had retrospective effect, the same conclusion is reached by the same matters to which I have just addressed, that is to say, there was no substantive change to the provision.

Lastly, the applicant’s written submissions in reply demonstrate that all that is really at stake here is a pleading point.  The respondents identified the limitation law in their defence by pleading section 215B.  The applicant does not and could not contend that section 215B changed the rights of any party to any proposed proceeding under the Youth Justice Act.  Instead, the applicant says that the respondents should have identified the limitation law by using its earlier section number – 215.

This, we submit, is not a matter that would justify special leave of this Court, bearing in mind the significance of the issue only arises because the applicant made the deliberate forensic choice – which the primary judge, we respectfully submit, correctly described as “astonishing” – to abandon his application to extend time under section 44.

If the Court pleases.

GORDON J:   Thank you, Mr McLure.  Mr Solomon, anything in reply?

MR SOLOMON:   If your Honours please.  Your Honours, my learned friend took your Honours to paragraph 393 of the trial judgment.  The position – and I think it is an agreed position – is that there has never been, and continues not to be, a challenge to the approval of the transfer, the satisfaction of the preconditions in 154(1) and the like.  There has never been agreement that the order outside the scope of the section caused Marley Campbell to become a prisoner for the purposes of sections 5 and 6 of the Prisons Act, and at 337 the trial judge agreed that that was not a point in the case.

Second, it is of enormous consequence whether Marley Campbell here and other individuals in other cases are “prisoners” for the purposes of the Prisons Act or are other persons.  We do not for a moment say that in prison there is not a degree of control exercisable over Marley Campbell or a visitor to the prison or a worker in the prison or otherwise.  Our contention is that the coherence of the two regimes ought to cause your Honours to place focus on the status of Marley Campbell, a detainee, and continue to afford him the 153(5) protections.

Third, my learned friend responded in respect of sections 153 and 154, contending that they are not, to take Justice Gordon’s term, concurrent.  They each use very similar language in different places.  In addition, I want to deal with one matter raised.  It is not inhibitory under section 154 that in section 153(5), isolation can only occur for 72 hours.  The transfer to an adult prison of the youth can be extended.  It might be relevant that there can be isolation only for 72 hours, but it is not a prohibition on the transfer being extended for the two provisions to be read together, coherently, as we propose.

Lastly, we joined issue in reply, and I want to join issue again on the submission that our ground of appeal 1 is only utile if 2 is successful.  The language of the limitation provision speaks to a person who is exercising a power under the Youth Justice Act.  On the hypothesis put against us, that is not the case for Marley Campbell when in a prison.  It is open for us to succeed by establishing error in Marley Campbell’s status, and if we do so, it will not be met by a limitation defence.

If your Honours please.

GORDON J:   Thank you, Mr Solomon.  The Court will adjourn to consider the approach it might take.

AT 4.03 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.06 PM:

GORDON J:   The application for special leave to appeal does not identify a question of principle.  It concerns the construction of legislative provisions which have since been repealed or amended and has insufficient prospects of success.  Special leave to appeal is refused with costs.

Adjourn the Court to 10.00 am on Tuesday, 8 November.

AT 4.07 PM THE MATTER WAS CONCLUDED