Dalton v NSW Crime Commission

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

LEIGH WILLIAM DALTON  APPELLANT

AND

NSW CRIME COMMISSION & ORS   RESPONDENTS

Dalton v NSW Crime Commission
[2006] HCA 17
10 May 2006
S334/2005

ORDER

1.        Appeal dismissed.

2.Appellant to pay the costs of the NSW Crime Commission.

On appeal from the Supreme Court of New South Wales

Representation:

J F Bleechmore for the appellant (instructed by Ellinghaus & Lindner)

M G Sexton SC, Solicitor-General for the State of New South Wales with K M Richardson for the first and third respondents (instructed by Crown Solicitor for New South Wales)

D M J Bennett QC, Solicitor-General of the Commonwealth with M J Leeming for the second respondent (instructed by Australian Government Solicitor)

C   J   Kourakis   QC,  Solicitor-General  for  the  State  of  South  Australia  with
J-A Lake intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office (SA))

M Sloss SC with C J Horan intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ, GUMMOW, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ.   This appeal from the New South Wales Court of Appeal[1] turns upon the validity of s 76 of the Service and Execution of Process Act 1992 (Cth) ("the SEP Act").  This statute replaced the Service and Execution of Process Act 1901 (Cth) ("the 1901 Act")[2].

    [2]The 1901 Act was repealed by s 3 of the Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992 (Cth).

    The SEP Act

  2. Section 76 of the SEP Act empowers the Supreme Courts of the States and Territories[3] to grant leave to serve certain subpoenas outside the relevant State or Territory.  The challenged provision appears in Pt 4 (ss 47‑80).  Part 4 is headed "Service of process of tribunals" and has four Divisions.  Division 4 (ss 75‑80) is headed "Service of subpoenas in the performance of investigative functions".  Division 3 (ss 56‑74) is headed "Service of subpoenas in the performance of adjudicative functions".  Reference will be made later in these reasons to Div 3, but this appeal is centred upon Div 4.

    [3]Section 5 of the SEP Act requires, with certain qualifications, each Territory to be regarded as a State. No question arises on this appeal with respect to the operation of the power conferred by s 122 of the Constitution to make laws for the government of the territories.

  3. The term "subpoena" is relevantly defined in s 47 as meaning in Pt 4:

    "a process that requires a person to do one or both of the following:

    (a)      to give oral evidence before a tribunal;

    (b)      to produce a document or thing to a tribunal;

    but does not include a process that requires…

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Details
Case
[2006] HCA 17
Decision Date

CaseChat Overview and Summary

The appellant, Mr. Dalton, appealed to the High Court of Australia against a judgment of the Court of Appeal of New South Wales. The dispute concerned the validity of a summons issued by the New South Wales Crime Commission, requiring Mr. Dalton to attend an inquiry. Mr. Dalton sought to avoid compliance with the summons, arguing it constituted an infringement of his liberty, and challenged the legal basis for its inter-State service. The High Court was therefore required to determine the constitutional validity of the *Service and Execution of Process Act 1992* (Cth) in relation to the coercive powers of State investigative bodies.

The central legal issue before the High Court was whether the constitutional power of the Commonwealth Parliament to legislate with respect to the service and execution throughout the Commonwealth of "civil and criminal process" extended to process issued by State bodies with purely investigative functions, rather than those in aid of an adjudicative function. The Court also considered whether this power was confined to the process of State courts. The appellant contended that the potential for infringement of liberty associated with extending such power to non-court bodies warranted a narrower construction of the constitutional provision, particularly given the proliferation of such bodies.

The High Court, in dismissing the appeal, reasoned that the term "civil and criminal process" in section 51(xxiv) of the *Constitution* was not confined to process issued by courts. The Court found that the *Service and Execution of Process Act 1992* (Cth) was a valid exercise of Commonwealth legislative power, and that a summons issued by a State commission of inquiry, such as the NSW Crime Commission, constituted "process" for the purposes of the Act. The Court rejected the argument that the constitutional meaning of "civil and criminal process" should be narrowed due to changing features of modern government, such as the proliferation of State non-court bodies. The Court affirmed the judgment of the Court of Appeal, holding that the appellant was required to comply with the Commission's summons.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellant to pay the costs of the NSW Crime Commission.

Background

Background to the litigation

By special leave, the appellant appeals to this Court against the judgment of the Court of Appeal. The appeal fails. The challenge to the constitutional validity of the federal SEP Act should be rejected. There is no need to consider questions as to the operation of the State Act, according to its own terms. The judgment of the Court of Appeal, reliant on the federal SEP Act, should be affirmed. The appellant must comply with the Commission's summons.The facts, legislation and constitutional provisions The facts: The facts were not in dispute. So far as they are relevant to this appeal, they are stated in the reasons of Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ ("the joint reasons")[63]. The appellant submits that the requirement, imposed on him by the terms of the Commission's summons (and the penalties for disobedience) constitute an infringement of his liberty. He seeks relief from them. Unless compelled by law, he is unwilling to submit to the investigatory processes of the Commission. It is a body created within the executive government of the State of New South Wales with large coercive powers from which he prefers to be free. Unless the summons served on him[64] is valid, that is his right.[63]Joint reasons at [10]-[15].[64]Pursuant to leave granted under the SEP Act by G R James J in the Supreme Court of New South Wales, ex parte on 17 March 2004. The legislation: The relevant provisions of the SEP Act[65], the State Act[66] and earlier laws for the interjurisdictional service of process within Australia[67], are also set out in the joint reasons. Mention is made there of the somewhat narrower language of the Service and Execution of Process Act 1901 (Cth) ("the 1901 Act"). It contained the provisions in force when questions of constitutional validity arose in earlier decisions of this Court[68]. [65]Joint reasons at [2]-[5].[66]Joint reasons at [6]-[8], [17] and n 9.[67]Especially the Australasian Civil Process Act 1886; the Australasian Judgments Act 1886 and the Australasian Testamentary Process Act 1897, all made under the Federal Council of Australasia Act 1885 (Imp). See joint reasons at [25]. See also Flaherty v Girgis (1987) 162 CLR 574 at 582. [68]The terms of s 16 of the 1901 Act are set out in the reasons of Mason P: Dalton (2004) 62 NSWLR 77 at 84 [31]. The provisions of the State Act are coercive. The principal stated objects of that Act are "to reduce the incidence of illegal drug trafficking" and "to reduce the incidence of organised and other crime"[69]. Proved involvement in either of those activities would potentially expose a person to criminal liability attracting, upon conviction, substantial punishment. Even if no offence inculpating the appellant himself were alleged, or established, participation in assembling evidence for use "in the prosecution of a person for a relevant offence arising out of any such matters"[70], the review of an earlier police inquiry into matters relating to such criminal activity[71] and other functions of the Commission could potentially involve him in risks and dangers. Perhaps because of this, and unlike the courts, by the State Act a hearing before the Commission is to be "held in private"[72]. [69]State Act, s 3A.[70]State Act, s 6(1)(b).[71]State Act, s 6(1)(b1).[72]State Act, s 13(5).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GUMMOW, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ (dissent) KIRBY J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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