Dalton v NSW Crime Commission & Ors
[2006] HCATrans 6
[2006] HCATrans 006
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S334 of 2005
B e t w e e n -
LEIGH WILLIAM DALTON
Appellant
and
NSW CRIME COMMISSION
First Respondent
COMMONWEALTH ATTORNEY‑GENERAL (INTERVENING)
Second Respondent
NEW SOUTH WALES ATTORNEY‑GENERAL (INTERVENING)
Third Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 2 FEBRUARY 2006, AT 10.49 AM
Copyright in the High Court of Australia
__________________
MR J.F. BLEECHMORE: If the Court pleases, I appear on behalf of the appellant. (instructed by Ellinghaus & Lindner)
MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS K.M. RICHARDSON, for the first and third respondents. (instructed by Crown Solicitor for New South Wales)
MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MR M.J. LEEMING, for the second respondent. (instructed by Australian Government Solicitor)
MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS J‑A. LAKE, for the Attorney‑General for the State of South Australia intervening. (instructed by Crown Solicitor’s Office (South Australia))
MS M. SLOSS, SC: If the Court pleases, I appear with my learned friend, MR C.J. HORAN, intervening on behalf of the Attorney-General for the State of Victoria. (instructed by Victorian Government Solicitor)
GLEESON CJ: Yes, Mr Bleechmore.
MR BLEECHMORE: May it please the Court. Before commencing our submissions might I refer to the letter that was addressed to the parties from the Registrar which I received this morning shortly after 9 o’clock. It raised some matters which the Court wanted to indicate to the parties it would be assisted if there were to be submissions in relation to matters mentioned. I must confess that we had not considered those matters and we would be greatly obliged if we could have some little time to consider those matters.
GLEESON CJ: Yes, 14 days. Any submissions you want to make on that matter can be made within 14 days.
MR BLEECHMORE: I am greatly obliged, your Honour. We rely upon, obviously, our submissions and the reply which have been filed and which are before the Court.
GUMMOW J: Just explain to me what was going on in the Supreme Court.
MR BLEECHMORE: It was an application under section 76.
GUMMOW J: What is the initiating process which was in the court which was referred to the Court of Appeal?
MR BLEECHMORE: It was a multifaceted application, effectively, to impugn the summons of the New South Wales Crime Commission and the order that was subsequently made under section 76 of the Service and Execution of Process Act.
GUMMOW J: Where do we see it? There is an amended summons at 15.
MR BLEECHMORE: It was subsequently amended and then subsequently distilled to raise the sole constitutional point, the point which is presently before the Court.
KIRBY J: Where is the distillation? Is that in the application book or is that the document at 14 or 15?
MR BLEECHMORE: I do not believe it is.
GUMMOW J: It is at page 5, is it, in the judgment, line 20? Do we have that summons? “On 16 April 2004 Dalton filed a summons seeking orders”, et cetera. Is that the initiating process?
MR BLEECHMORE: There is a summons on page 1, your Honour. That is dated 12 March.
GUMMOW J: Exactly.
MR BLEECHMORE: No, I apologise, your Honour, that is the order that I referred to earlier giving leave under section 76 of the Act. I do not believe that Mr Dalton’s initial application is before the Court.
GUMMOW J: But is it sufficiently set out on page 5, line 20?
MR BLEECHMORE: Yes, your Honour.
GUMMOW J: Is that right?
MR BLEECHMORE: Yes, it is, your Honour.
GUMMOW J: Right. So that was an initiation of a constitutional case, was it not?
MR BLEECHMORE: Yes, it was, by subparagraph (a).
GUMMOW J: So the source of the Supreme Court’s jurisdiction was the Judiciary Act, sections 30 and 39, is that right?
MR BLEECHMORE: Yes, your Honour.
GUMMOW J: Then that was referred to the Court of Appeal, is that right?
MR BLEECHMORE: It is.
GUMMOW J: And hence it comes here?
MR BLEECHMORE: Yes, your Honour.
KIRBY J: There is no separate question that the State law is not picked up for the purposes of the Judiciary Act?
MR BLEECHMORE: The sole question before the Court is the constitutional validity of the relevant section of the Service and Execution of Process Act whether it is invalid to the extent that it permits or authorises the service of a summons of the Crime Commission outside the State in Victoria.
GUMMOW J: And notices were given under section 78B?
MR BLEECHMORE: Yes, your Honour. They are set out in the appeal book.
GUMMOW J: Justice Wood indicated that at page 13.
KIRBY J: There is an annexure to the submissions of the first and third respondents setting out a notice under the New South Wales Crime Commission Act?
MR BLEECHMORE: Yes, your Honour.
KIRBY J: Does that affect your client?
MR BLEECHMORE: I believe, I may be subject to correction here, that that is the notice that was attached to the summons that is required by the Act to be attached for the information of my client.
KIRBY J: That is, as it were, the initiating step that identifies what the management committee has decided and that sets in train the process of investigation?
MR BLEECHMORE: That is so, your Honour, yes.
KIRBY J: It says here:
certain persons named . . . usually of Anglo‑Saxon descent ‑ ‑ ‑
MR BLEECHMORE: Yes, I noted that. I am not able to say why it is there, your Honour. In response to a suggestion or contention in the case that section 51(xxiv) of the Constitution was limited to originating process, Chief Justice Barwick in Ammann v Wegener said, no, it is broader than that, and he said that:
No more is involved, in my opinion, in the notion of the civil and criminal process to which par (xxiv) refers than a document which may be served or an order which may be executed in relation to proceedings for the establishment of legal rights or the enforcement of the criminal law.
We say that his Honour was there setting out in fact a requirement. He was saying it is broader than originating process but it is a requirement and we say that that is something indicated by the use of the word “involved”, that it is a requirement that the document or order that the process be in relation to proceedings which form part of the administration of justice, and we say that what Chief Justice Barwick was referring to in stating that they were proceedings for the establishment of legal rights or the enforcement of the criminal law was effectively that, the process of the civil and criminal administration of justice. We submit, as our submissions I hope make clear ‑ ‑ ‑
KIRBY J: You do not challenge Ammann, I understand?
MR BLEECHMORE: We do not, your Honour, no. We are concerned with the ‑ ‑ ‑
KIRBY J: There are good reasons for saying that Ammann, especially the use of the definite article in the Constitution, took a very broad view.
MR BLEECHMORE: Yes, and perusal of the history of the proceedings through the Federal Council of Australasia Act and the syntax, too, but having given the matter careful consideration we felt that in any event the process in question was not a criminal and civil process of the States.
HAYNE J: As to the Federal Council Acts that you mentioned, I would be assisted if between them the parties and the intervenors could make arrangements to obtain copies of each of the three Federal Council Acts mentioned in the first schedule to the Service and Execution of Process Act 1901. In particular, I would be assisted to have a copy of the Australasian Testamentary Process Act 1897. The other Acts I think I have found but I would be assisted if, between them, the parties and intervenors could co‑operate to obtain copies of each of those three Federal Council Acts.
MR BLEECHMORE: Yes, your Honour. We submit that in identifying the link between process and the administration of justice, or the organs of the administration of justice, that Chief Justice Barwick was in fact referring to an essential feature of process and I use that term obviously in the sense familiar in the learning on the interpretation of the Constitution. A number of terms may be used to describe what is meant at various times by essential features but I simply mean, if I can put it in a simple way, that it is a fundamental part of the meaning of the expression “civil and criminal process”, that it is part of the core of the meaning, something which is not frozen in time at the time of the drafting of the Constitution, the framing of the Constitution, but which endures in time and determines its present meaning, its contemporary meaning, and the interpretation which should be given to the phrase, “for the present purposes”.
KIRBY J: The trouble is once you accept Ammann then civil and criminal process, both in the 19th century and throughout the 20th century, have included Royal Commissions, and Royal Commissions are somewhat analogous to a Crime Commission and the argument, which I fully understand that you raise and I think that Justice Mason in the Court of Appeal raised, of where will this all end up. Will it end up that departmental committees and every minor functionary of the State can oppress people throughout the nation with their summonses and so on. That falls away because one can see quite a good analogy between the Crime Commission and Royal Commissions which have long been part of the process of civil and criminal justice in this country.
MR BLEECHMORE: We would say that Royal Commissions do not administer justice and that all the cases ‑ ‑ ‑
KIRBY J: That word is not used in the paragraph of section 51, of course, “administering justice”. It just says “civil and criminal process”.
MR BLEECHMORE: No, that is our interpretation and we would submit the obvious interpretation of what Chief Justice Barwick meant by the term “proceedings for the establishment of legal rights or the enforcement of the criminal law”. He obviously did not mean that literally but, in our submission, what he intended could be crystallised by the expression, “the administration of justice”. The committal proceeding was part of criminal justice. That is effectively what the court was saying in Ammann.
KIRBY J: But we have to have some structure in this. If I can say so, your written submissions are very helpful but we have to, as it were, start at the beginning, a text of the Constitution, and then it would seem to go to the history and anything that was said in the Conventions and then to try and find this essence that lies at the heart of the paragraph. Was there anything said in the constitutional debates about what this paragraph was intended ‑ ‑ ‑
MR BLEECHMORE: What I intended to say in that context, not really developed in the submissions, was that putting that learning to the use which one is authorised to do by Cole v Whitfield that, I suppose one could say, the crystallisation or the best evidence of the movement of the colonies towards Federation appears in the Acts to which Justice Hayne referred a moment ago and that is the Federal Council of Australasia Acts.
If I could take the Court there now, that is I think tab 19 in the Commonwealth’s materials. The Court will well know that the colonies had determined, as part of the movement towards Federation, to entrust a federal body with certain of its powers and it is vividly set out in section 15 that there were, in fact, seven of those areas. It is noteworthy that three of the seven, looking at section 15, are devoted to the matters which are now enshrined in placitum (xxiv). Section 15 says:
the Council shall have legislative authority in respect to the several matters following . . .
(d) The service of civil process of the courts of any colony within Her Majesty’s possessions in Australasia out of the jurisdiction of the colony in which it is issued -
the service of civil process of the courts.
KIRBY J: The problem with that is that that seems a bit against you because that is anti-Ammann and when the Constitution was adopted, our Constitution, it did not stick to the language of the Federal Council of Australasia Act, which was an Act of the Imperial Parliament. It embraced a different phraseology which Ammann has said is not confined to the courts. I mean, I must say for myself I think there are very strong arguments in the structure, language, the definite article and so on for a different view, but you do not challenge it. That is the authority of the Court and so I will just go along with that.
MR BLEECHMORE: Your Honour, it says “The service of civil process of the courts”. Now, the court, at the time of Ammann - matters have moved on a great deal and Chief Justice Barwick was intending to make a flexible and purposive interpretation, namely one which did not give literal effect to the word “courts”. So he was looking in particular to see that the committal process was part of the administration of criminal justice. So while it cannot be limited to the court, it is limited. He is in fact saying to a body which is performing a function which is part of the administration of criminal justice – so it is, with great respect we would say, consistent with the intention or the evidence that is revealed about what the words meant at the time of this demonstration of movement towards Federation out of which the Constitution arose.
KIRBY J: It is just a juxtaposition between what was in the 1885 statute, which is unarguably confined to the courts and what was adopted and enacted as the Australian Constitution which has been held not to be confined to the courts, but is extended to the civil and criminal process of the States.
MR BLEECHMORE: Yes, we would submit that ‑ ‑ ‑
KIRBY J: The commas are put in a different place.
MR BLEECHMORE: Yes. There were two views about the syntax of placitum 51 and we have conceded that we are not going to seek to challenge Ammann. But we say that clearly what ‑ ‑ ‑
GUMMOW J: It is not just Ammann, is it? It is Aston v Irvine, is it not?
MR BLEECHMORE: Yes, your Honour, that is true, yes.
GUMMOW J: It goes back to Aston v Irvine.
MR BLEECHMORE: It does indeed, your Honour, yes.
GUMMOW J: In 92 CLR 353, which is what Justice Mason emphasised in Ammann at page 441 of 129 CLR.
MR BLEECHMORE: Yes. We felt we would have the utmost difficulty in persuading the Court to depart from that holding in Aston v Irvine. It would seem to be a retrograde step. But we can achieve the same result we feel with the submissions that we have which are founded upon Chief Justice Barwick’s lapidary statement as to what was involved in processing ‑ ‑ ‑
GUMMOW J: You keep talking about Sir Garfield – he was not the only judge in Ammann. Now, is there anything else you want to refer to in that case?
MR BLEECHMORE: Yes, your Honour. Indeed, your Honour, later on in the submissions - I do not propose to go through it in detail because it has been done, I hope, sufficiently comprehensively in our submissions where over five pages we seek to rebut what was said by the Chief Justice below, Chief Justice Spigelman, that no authority had been cited to the Court that suggested that process should be confined in the way that we contended for below. That simply was not so. We have given in our submissions examples of that including examples from all of the judgments in Ammann.
The centre of it, and where it is most clearly stated, is in that observation of the Chief Justice to which I have now several times referred and that indicates that literal limitations of the word “court” ought not to be applied in interpreting the placitum, but one should look to see what the function of the tribunal is and if it adjudicates on human rights, on rights of persons or is involved in the enforcement of the criminal law in the sense of the laying of charges in the hearing and determination of those charges.
GUMMOW J: How do you explain the Royal Commission situation?
MR BLEECHMORE: It is completely different, your Honour, because as I said earlier, the Royal Commissions do not administer justice. That appears from Rogerson. They are investigative bodies. Investigating policemen do not administer ‑ ‑ ‑
GUMMOW J: What I am putting to you is, before 1901 one thing the colonies had in common was a great interest in Royal Commissions. Now, it seems to be accepted that the activities of the Royal Commissions would fall within 51(xxiv). Do you say they would not?
MR BLEECHMORE: No, because the Royal Commission cases all underline at every point the independence of process for the administration of justice and the very limited function of Royal Commissions which were to inquire into certain questions and to report the results of those inquiries. One can go back to Coke’s Reports to find reports of cases of commissions that sought to go beyond the confines of inquiry and report that sought to, for example, exonerate persons or to punish persons and they have long been held to be unconstitutional, that the Crown did not have the right pursuant to the prerogative to set up a Royal Commission which did more than inquire and report.
GUMMOW J: It could inquire into anything?
MR BLEECHMORE: Yes, your Honour.
GUMMOW J: Royal Commissions with the relevant Act can inquire into anything. The object of this body, though, in section 3A is linked to criminal conduct, is it not? The object in the New South Wales Crime Commission Act principally is the incidence of illegal drug trafficking and secondly, incidence of organised and other crime.
MR BLEECHMORE: Yes. It is nothing to do with civil law, if I can put it that way. It is criminal law. The way it is put in the submissions against us is in this way. First of all, it is submitted that it is process. The word is taken out of its context and it is suggested that this is process because of the nature of the document, as it were, and its function rather than its link.
As a secondary submission, it is put that this is criminal process for the reasons adverted to by your Honour Justice Gummow, that the function of the commission is criminal and that it is part of the enforcement of law because investigating officers of the law are called law enforcement officers and also because one of the functions of the commission is to assemble evidence that may be relevant and adduced in a prosecution, and therefore it is a criminal process.
But we would say that that is an entirely illicit extension of the borderline and the concept of the criminal process using “process” confusingly perhaps in the other sense; criminal procedure, the administration of criminal justice.
GUMMOW J: The first question is whether it is process. The phrase “civil and criminal” is simply describing what is seen as the universe. Do you see what I mean? All process will be either civil or criminal, that is the assumption. The question is is this process?
MR BLEECHMORE: With great respect to your Honour and to our learned friends, we would say that is not a good argument. One cannot take the word “process” and then dismiss the other words of universality. They do not sound like words of universality. They sound, with great respect, much more like a reference to the twin pillars of administration of justice in the sovereign State, namely, the administration of criminal justice, the administration of civil justice.
Whether one looks at the contemporaneous meaning or the contemporary meaning it is ineluctably linked to the administration of justice and that is why the Royal Commissions stand outside and why the New South Wales Crime Commission also stands outside the administration of justice. It has an entirely different function to perform and the essential feature of this definition is that it renders efficacious the processes of the administration of justice, that it is the means of communication to the parties by the organs of the administration of justice. That is what “process” means.
KIRBY J: Is it your submission that paragraph (xxiv) read with (xxv) is limited to the process of the judicature of the Commonwealth in the Constitution?
MR BLEECHMORE: That is another way of putting it, your Honour, yes.
KIRBY J: And that it might or might not be convenient to have enforceable interstate process by way of subpoena to get people before Royal Commissions or Crime Commissions or other Executive Government bodies but that is not what the paragraph is intended to do?
MR BLEECHMORE: Precisely so. Whether it is a good thing or not to extend it is irrelevant, of course.
KIRBY J: Is that not Ammann by a backdoor? Is that not, as it were, putting the commas so that all of paragraph (xxiv) is limited to “of the courts of the States”?
MR BLEECHMORE: No, for this reason, your Honour, that the administration of justice or the judicature may extend beyond courts to other bodies, such as tribunals, that have adjudicative functions.
KIRBY J: Is the Crime Commission not in some of its activities a tribunal of the State?
MR BLEECHMORE: It is a tribunal, yes, in the sense that it conducts hearings, but ‑ ‑ ‑
GUMMOW J: It is more than that.
MR BLEECHMORE: ‑ ‑ ‑ it does not adjudicate. I do not think anyone is going to say to this Court that it does anything but investigate and report on the results in various contexts of its investigations.
KIRBY J: If the argument of the States is correct, does (xxiv) extend to designating police officers of the States officers of the States for the purpose of having people brought before them to answer questions?
MR BLEECHMORE: One wonders, indeed, your Honour, for this reason, that if we are wrong that the link to the administration of justice is not the essential feature, that raises the question, what is or what are the essential features? That difficulty has confronted those who oppose us at every point and no satisfactory answer has been given even now to that question.
KIRBY J: Mention is made in the submissions that if the argument of the States is correct that it means that you can have subpoenas requiring people to come before law reform bodies in respect of their law reform activities and local council committees and so on but the issue, if there is an issue of constitutional policy in determining how far paragraph (xxiv) goes, is whether or not it would permit any officer of the Executive Government to be designated a person before whom a citizen could be brought to answer questions. That is something which is, on the face of things, not immediately very congenial.
MR BLEECHMORE: Alarming, indeed, we would say, your Honour.
KIRBY J: So you then put your emphasis on process. You say in the context of process and a paragraph that refers to “judgments of the courts” it is a narrower concept than would permit subpoenas before purely Executive Government bodies?
MR BLEECHMORE: Yes, your Honour.
KIRBY J: I am just wondering how that can be reconciled with Ammann.
MR BLEECHMORE: Because they are not ‑ ‑ ‑
KIRBY J: Your immediate answer was it is not just courts; it is also tribunals which are making decisions as between parties.
MR BLEECHMORE: So what your Honour has in mind is that an Executive officer who has coercive powers to someone to give evidence in relation to a matter affecting the rights of that person, in which there are adjudicative functions, will arguably, if that is so, if there is posited in that example an adjudicative function of the Executive officer equipped, clothed with these powers then, yes, it could then be said that is part of the extended system for the administration of civil justice in the State and does come within the expression “civil and criminal process”. But having said that, that is not the case before us. The case before us is one in which no one is going to say that there is any adjudicative function or that, to put it bluntly, that the Commission administers justice and that the expression, therefore, “civil and criminal process” must be confined to a body of that kind, whether it is a court or not.
KIRBY J: Of course, in Europe, with the different civil law tradition, bringing people before Executive functionaries to answer questions is the commonplace of everyday life.
MR BLEECHMORE: But, your Honour, it is mainly for a purpose of inquiry and reporting. Such bodies, as I understand it, do not engage in the process of adjudication.
KIRBY J: I am not sure about that. I think the investigating magistrate wraps it all up in the one person.
MR BLEECHMORE: I see.
KIRBY J: But that is not our tradition. The Constitution does envisage an integrated judicature. It does not seem to envisage an integrated Executive Government of the Commonwealth – of the various States and Territories.
MR BLEECHMORE: Yes. If I could then finish what I wanted to say about history by saying that the reference to the earlier Acts of the Federal Council throws light on, as I have indicated, the movement of the Constitution and the contemporary meaning of the term which I also then say is the present meaning for the reasons that I have urged. If one looks at Quick and Garran, at The Annotated Constitution, then one looks in vain for any reference to process of anybody other than a court which indicates, to the extent that it is relevant, that no one at the time was considering that the process referred to in placitum (xxiv) might extend to investigative bodies such as Royal Commissions which were, as everybody agrees, well known and long known at the relevant time. As to the other bodies such as bankruptcy ‑ ‑ ‑
KIRBY J: Did you look at the Constitutional Convention Debates?
MR BLEECHMORE: No, I have not, your Honour.
KIRBY J: Do you have time to do that?
MR BLEECHMORE: Not yet, your Honour.
KIRBY J: Because it could be of interest to see whether in those debates there was any mention of tribunals or commissions. I do not think they would have been really troubled by what we have later invented and that is that committals are not strictly judicial or the issue of a summons by a justice is not a judicial function, but is an Executive function. I think they might well have, in the 19th century, regarded that as civil or criminal process and connected with the courts.
MR BLEECHMORE: Yes.
KIRBY J: But Royal Commissions stand outside that loop. They were a feature of the 19th century as well as of the 20th century. It would be of interest.
MR BLEECHMORE: Yes, I understand that. Our process of thinking was that the text of the Act and what appeared in The Annotated Constitution of Quick and Garran led us to believe that there will be very little chance. There appeared, in other words, to be a universal belief that the process was that of the courts, the civil and criminal courts, and that we did not think that there was any significant chance of finding a reference.
KIRBY J: But your problem is that all of that argues that Ammann was wrong, that it is all really connected with the courts of the States, and you do not mount that argument.
MR BLEECHMORE: No, we concede that a flexible and purposive interpretation, but one faithful to the text, takes it beyond the courts, but we are not a court. The New South Wales Crime Commission is not a court and does not administer justice, so it does not adjudicate rights and it does not enforce the criminal law.
KIRBY J: You have to say it is not a court or a court‑like body.
MR BLEECHMORE: Exactly so, your Honour.
KIRBY J: It is not confined to courts, but it is confined to courts and tribunals that administer justice and determine rights and that is what the process is in aid of.
MR BLEECHMORE: Exactly so, your Honour, and that is why we have used the expression “administration of justice” which, of course, is a convenient way of summarising. If it was a body of that kind, it would play a part in the administration of justice.
GUMMOW J: Just look at Quick and Garran at page 617 for a minute, paragraph 208. It may bear out what Justice Kirby was putting to you as to how they looked at committal proceedings:
Process . . . A summons from a judicial officer to appear and answer a criminal charge is a process. A warrant issued by a judicial officer, directing the arrest of a person on a criminal charge, is a process.
This phrase “judicial officer” is fairly elastic.
HAYNE J: And finds reflection in the 1901 Service and Execution of Process Act where the hinge about which many of the provisions turned was, for example, section 18, warrant issued by any court or judge or Justice of the Peace. The notion of courts or judicial officers being the hinge about which the operation of the provision should turn is one adopted in the 1901 Act.
MR BLEECHMORE: We do not shrink from that, your Honour.
CRENNAN J: Can I add to that, Mr Bleechmore, that section 3 of the Evidence Act (Vic) has a definition of “person acting judicially” and that includes persons who are authorised by law to receive and examine evidence.
MR BLEECHMORE: That would be for a particular purpose, with respect, your Honour, and one would be surprised if that definition, relevant in what is after all the Evidence Act, were to be adopted as a general definition of the nature of the judicial function.
CRENNAN J: That definition follows a definition of “legal proceeding” which includes any inquiry as well as any civil, criminal or mixed proceeding.
MR BLEECHMORE: For the purposes of the Evidence Act an inquiry in which evidence is adduced may well be characterised as a proceeding. But we say, nonetheless, by reference to other learning that those proceedings are not proceedings in which justice is administered and that that is what Chief Justice Barwick was referring to in the passage that I have referred to and that should guide the resolution of the matter at the present day.
KIRBY J: But given the decision in Ammann and the step that was taken by the Court then, given that this is a Constitution, given that it is intended to endure from age to age, given that it is not limited to what it meant in 1901, given that we are searching for the essence of it, you have to get the word “process” to do an awful lot of work given that in the 20th century, and into the 21st century, the role of the Executive Government and the inquiry into matters that are relevant, directly or indirectly, to civil and criminal process has expanded and now includes, no doubt because of the imperfections and defects of court process unaided, the power of bodies like the Crime Commission, in the manner of Royal Commissions, to do things which are in aid of the criminal and civil process. What is your answer to that, that we are not locked into 1901?
MR BLEECHMORE: That your Honour has adverted to all sorts of practical considerations which may make it desirable for the States in our Commonwealth to agree that the process of bodies that are not organs of the administration of justice but inquisitorial investigative bodies, process of such bodies should be treated in the same way as process of courts and court-like bodies. But no matter how desirable or practical it may be, no matter how flexibly and purposively you wish to interpret the Constitution, one must be, I respectfully submit, faithful to the text of the Constitution.
KIRBY J: That is true, but the text uses the word “process” and a subpoena is a well-known process.
MR BLEECHMORE: With respect, your Honour, it uses the expression “civil and criminal process”. Those are not words of universality. They are words that refer to what the framers of the Constitution had in mind, the administration of justice in the colonies and subsequently the States.
In my submission, one cannot take the word “process” out of its context. One has to look at the whole of placitum (xxiv) and to consider the light that is thrown on the meaning of the central term “process” by each of those components, and the most important of them is “civil and criminal”. If “process” was to extend to universal process of any kind, then those are not the words that would have been used, in my respectful submission. The words that would denote such a width would be words such as “process of any kind” or “process of any kind whatsoever” once it is clear that it is process of the States rather than of the courts. It simply does not say that. So one cannot take the word “process” and divorce it from the qualifying expression “civil and criminal”. In the same way, your Honour, the words that come after “process” must be given their due weight because they throw light on the expression as well.
KIRBY J: But why can it not be said that the investigation of organised crime, how it happens, how it can be dealt with and any specifics that come out of it, is incidental to criminal process, including later criminal process in the courts?
MR BLEECHMORE: The ways of dealing with it are not incidental ‑ ‑ ‑
KIRBY J: The Commonwealth relies on the incidental power as well.
MR BLEECHMORE: It is because it is a process of an entirely different kind and that is what the united High Court in Rogerson was saying when it was saying that the process of investigation is not part of the course of justice. Justice is not administered and process has a particular function of rendering efficacious the administration of justice. Here, it is doing something else and it may be desirable that it perform that function, but that is not what the framers of the Constitution had in mind and it is not the present meaning, although it may be concededly in the process of evolution, of the term “process” either, but that is to say “civil and criminal process”.
One could describe, we have to conceive, what happened to my client in this case, the issue of the summons, as the issue of process and the execution or the purported service of that process in Victoria as something that happened to “process”, but it is not, we would respectfully submit, “civil and criminal process” within the meaning of the term in placitum (xxiv).
HAYNE J: But do you make any separate argument, understanding the emphasis you give to the reading of the expression “civil and criminal process” together, do you make any separate argument that a summons to witness is not a form of process for the purposes of section 51(xxiv)?
MR BLEECHMORE: I am not sure I entirely understand what your Honour is saying. I have just conceded that in current legal usage, it would appear that lawyers and other persons – and we have to take into account legal usage and understanding – would understand the process in this case, as I have just said it, as process.
HAYNE J: Yes.
MR BLEECHMORE: Yes.
KIRBY J: But as I understand it you go on to say that it has to be looked at in the context for constitutional purposes whether it is a civil and political process in the context of a provision which is giving an exceptional, and in some ways potentially coercive power to importune individuals throughout the Commonwealth to enact a law that would burden citizens and others throughout the Commonwealth?
MR BLEECHMORE: Exactly so.
KIRBY J: That is one side of the coin. The other is to assist in the effective operation of criminal process throughout the Commonwealth by ensuring that investigative bodies which have been now set up can perform their function so the criminal process throughout the Commonwealth will be effective and will be able to tackle criminal cases and relevant civil cases as well?
MR BLEECHMORE: Yes. Our submission is that it may be practically desirable but it involves a departure from the constitutional text seen in its context of the whole of placitum (xxvi) ‑ ‑ ‑
KIRBY J: The question then becomes, is it a departure or is it a natural evolution of the Constitution to deal with the new‑found issues?
MR BLEECHMORE: Indeed, your Honour, yes.
KIRBY J: After all, in the 1930s in the United States they began investigations and bodies that are in the lineage of the Crimes Commission and that because the individual process was not found to be effective and hence this is adjunct to and supportive of criminal process.
MR BLEECHMORE: With respect, your Honour is quite right. That is the issue whether the evolution has taken place that would justify such an interpretation. We would say, however, that that does involve a departure from the text and that is impermissible no matter how desirable it may be in the interests of our society that that development take place.
HAYNE J: Let me understand a little better what you say the textual foundation for this is by reference to this example. Failure to attend is a criminal offence, is it not, section 18 of the New South Wales Crime Commission Act?
MR BLEECHMORE: Yes, your Honour.
HAYNE J: Section 18AA of the Act permits the commission to issue a warrant for the arrest of such a person. Is the warrant for arrest civil or criminal process?
MR BLEECHMORE: No, your Honour.
HAYNE J: Why not?
MR BLEECHMORE: It sounds like it, it looks like it.
HAYNE J: It is process in aid of or arising out of the commission of an offence, is it not?
MR BLEECHMORE: No charge has been laid. The criminal process commences with the laying of a charge by information or otherwise.
HAYNE J: That then seems to tip you off onto the horns of a dilemma in this way. A summons to witness issued under this Act, like a summons to witness issued by a Royal Commission, is not enforceable by processes of contempt, is that right, as a subpoena in a court may be enforced?
MR BLEECHMORE: Yes, your Honour, yes.
HAYNE J: Rather, the summons to witness has its effect because if you fail to obey it without reasonable excuse you commit an offence. Is that right?
MR BLEECHMORE: Yes, your Honour.
HAYNE J: If you are right in your contention that 51(xxiv) does not extend to authorise federal law regulating and authorising the issue of these documents, a summons to witness issued by a body like the New South Wales Crime Commission could by State law be served by post. Is that right? Indeed, here it can be?
MR BLEECHMORE: But that is because of the statutory mandate that permits service.
HAYNE J: Yes, the State statute.
MR BLEECHMORE: This body ‑ ‑ ‑
HAYNE J: Just let me finish the example. And there is no federal intervention or federal law intervening, on your hypothesis, but if the person fails to attend without reasonable excuse that person commits an offence and the prosecution for the offence undoubtedly would engage the criminal processes, would they not, leading to the consequence that SEPA is engaged and the man is dealt with, is that right?
MR BLEECHMORE: I am struggling to see how all of this assists my case which ‑ ‑ ‑
HAYNE J: Indeed, because it seems you go a bridge too far. Your contention is that there is no federal power to regulate the issue of documents of this kind. Say, for example, you attack the validity of the provision which says it shall only be done with the leave of a judge who is satisfied of certain things. The consequence seems to be that it is left untrammelled for State law.
MR BLEECHMORE: Yes.
HAYNE J: Why in interpreting 51(xxiv) should we adopt an interpretation that leads to this diversity of State provision?
MR BLEECHMORE: It is a paradox that the summons could be clearly not part of the administration of criminal justice but the warrant might be if a charge had been laid and the warrant then is issued. Then, as your Honour correctly points out, there is a criminal charge, like any other criminal offence that had allegedly been committed and the processes that will ensue are part of the administration of criminal justice, so there is perhaps a paradox there.
KIRBY J: But there may not be a paradox if the assumption of the need for section 51(xxiv) is that if you get a summons from the Crime Commission and you are resident in Victoria you can just tear it up and put it in the WPB because you have not had a valid federal law to require you to attend it. If you do not attend you have not committed an offence. That may be an offence for somebody in New South Wales but it is not an offence for somebody in Victoria.
MR BLEECHMORE: I see. So the argument might be a bootstraps argument, or the hypothesis might be.
KIRBY J: That, as I understand it, was what the Federal Council of Australia was getting at by making the provision for process into colonial and what the Constitution was getting at was making the provision for service of process interstate.
MR BLEECHMORE: Yes, your Honour.
CALLINAN J: Mr Bleechmore, is it relevant that under section 6(1)(a) of the Crime Commission Act and section 10 of the Criminal Assets Recovery Act that the respondent could be both a litigant against you as well as an investigatory body? I am talking about the assets recovery provisions. The Commission can apply for an order. Indeed, the Court must make an order in the first instance on the application of the Commission. The Commission could well be a litigant against a person – the same person as it has had a summons issued against it.
MR BLEECHMORE: Yes, and in that application which would be part of the ‑ ‑ ‑
CALLINAN J: It emphasises the Executive nature of the body as a creature of the Executive and it is distanced from a court.
MR BLEECHMORE: Yes. If that process envisages an application by the Commissioner, as your Honour says, as a litigant, and a respondent to that application, and the adjudication of the application on its merits, then the process that would be ancillary to that application would be processed within the definition given it by Chief Justice Barwick and we would have to concede would be process within the administration of justice and therefore within placitum (xxiv).
CALLINAN J: That is unusual though, is it not? A body that can be a litigant against you has all sorts of compulsive power.
KIRBY J: This is not so unusual nowadays. I think that is one of the complaints I have seen ventured in the press about the corporations regulator, that they can do both things. This is something you can ‑ ‑ ‑
GLEESON CJ: The Trade Practices Commission and its successor had that power.
KIRBY J: An Executive Government can do all sorts of things that judges and courts cannot.
MR BLEECHMORE: Yes, but the example that was put to me was - your Honour Justice Callinan had in mind no doubt that this was a proceeding in which the Commission was a party and that one could not therefore say its function was purely inquisitorial.
CALLINAN J: It says something about the nature of the body as a creature of the Executive and part of the Executive, but generally speaking, certainly even in States there is a tendency to keep, or has been, to keep Executives separate from judicial bodies. But there are many instances, as the Chief Justice has just pointed out, including the Trade Practices Commission.
MR BLEECHMORE: If the Commission made an application in the Supreme Court as an applicant, then the process of that court in aid of that application would clearly be process, and civil and criminal process.
KIRBY J: I think you point out that the Crimes Commission of New South Wales has law reform functions and therefore presumably they can use this summons process to get people to come before them for law reform purposes as well as any investigatory or judicatory activities.
MR BLEECHMORE: Well, indeed so, we are indebted to your Honour.
CALLINAN J: Those were the facts in Ainsworth to some extent which came here. The Criminal Justice Commission was conducting not an inquiry, but it was making a report and it was very critical of Mr Ainsworth who was never given any opportunity to deal with it. He, of course, lived in New South Wales, not in Queensland.
MR BLEECHMORE: Yes, your Honour.
CALLINAN J: I think the word used in the Criminal Justice Commission Act in Queensland was “proceedings”.
MR BLEECHMORE: In the way that the concept of process, taken out of its constitutional context has expanded, so has that of proceeding and one can talk quite naturally in common legal usage about proceedings before the Commission. But, of course, as your Honour Justice Kirby has pointed out, the functions of the Commission go beyond the assembling of evidence that is relevant to a prosecution and it may be that the purpose of it is purely law reform or the making of other recommendations to other bodies in the investigative process and it would be very odd if some process of the Commission could be described as criminal process, but not other process, depending upon the function which the Commission was exercising at that time, which is a reductio ad absurdum argument to support out contention that it cannot apply to any process of the Commission acting as the Commission and, pace Justice Callinan, not acting as a litigant.
I have indicated that the expression should be used in its context and I have referred, of course, to the term “civil and criminal process”, but in addition, the expression “and the judgments of the courts of the States” must be given their due meaning and due weight. We would submit that the reference “civil and criminal process” “and the judgments of the courts of the States” narrows the process that would be civil and criminal process for the purpose of the placitum.
It would be strange with the reference “judgments of the courts of the States” to suppose that the drafter had in mind all kinds of process including processes of investigative and other bodies, Royal Commissions and the like. That fortifies, we would say, our argument that if there were to be words of universality in process was intended in the broadest sense that that reference to “the judgments of the courts of the States” would dictate that words such as “all process of the States” would have been used by the drafters.
I have indicated very briefly that the difficulty which the respondents and the interveners on behalf of the respondents have is identifying the essential features. They have attempted to do that. The first and third respondents sought to do so in paragraph 8.2 of their submissions. What the first and third respondents say at paragraph 8 is:
The Summons is “process” within s 51(xxiv)
8.1The first and third respondents submit that the adjectives “civil and criminal” are words of universality; such that the term “process” in s 51(xxiv) is intended to cover all types of “process”.
8.2As to the meaning of “process” in the context of s 51(xxiv), the authorities stand for the following propositions:
(a)It is not limited to documents which commence proceedings . . .
(b)Rather, it extends to any “document which may be served or an order which may be executed” in proceedings conducted under the authority of a law of a State.
(c)Since Ammann there is no doubt that the word “process” extends to a subpoena . . .
(d)The word “process” is not confined to process of courts . . .
(e) The word “process” includes a subpoena or summons –
We would respectfully submit that that does not confront the question of what are the essential features of the core meaning or the connotation of “civil and criminal process” and that they are all inclusive statements or exclusive statements which say that it must extend beyond this but it is not satisfactory as an identification of the outlying borders of the term “process”.
I understand that it is not the question for the Court and it is said that good judicial method involves in answering the question before the Court and no other. But logically, of course, the Court may see that if one cannot identify the outer limits then that weakens the argument for any extension beyond a certain point. It is put as a reductio ad absurdum that if the respondents deny that the qualification that I have sought to contend for is the essential feature then it is incumbent upon them, at least in the process of argument of supporting their contention for extension, to identify what those features are.
GUMMOW J: One criterion may be what is put forward as the process is backed by a criminal sanction, on the one hand, or, on the other hand, the sanction of contempt of court, and you have it here.
MR BLEECHMORE: But they are not all civil process. But to ignore civil process, your Honour – originating process does not involve a contempt.
GUMMOW J: I realise that. Why can you not say this is processes because, true enough, it is not backed with a contempt power of a court but it is backed with a criminal sanction in section 18?
MR BLEECHMORE: But there is no sanction in the case of orders or ‑ ‑ ‑
GUMMOW J: No, with this particular process here. It is backed with section 18, is it not?
MR BLEECHMORE: I am sorry, your Honour, which?
GUMMOW J: It is a criminal offence. Section 18 of the New South Wales Act creates a criminal offence if your client does not turn up.
MR BLEECHMORE: Yes.
GUMMOW J: If he does turn up, he has the same protections as a witness would have in the Supreme Court under section 23.
MR BLEECHMORE: That is certainly a provision in the Act but it does not render the Commission ‑ ‑ ‑
GUMMOW J: Why does not that give the summons the character of “process”?
MR BLEECHMORE: It does not give it the character of “civil and criminal process”. I have already conceded that one could describe this form of process as “process”.
KIRBY J: Remind me, is that the way Justice Mason fell into disagreement with his colleagues, that he said the colour to the process? It is not enough to say a subpoena is a process – of course it is a process – but to colour the process with the constitutional words “civil and criminal”, as it were, locked it into the process of a court or a tribunal?
MR BLEECHMORE: Indeed, he did, your Honour, yes, and we perceive that we are making an argument which is entirely consistent with the approach.
GUMMOW J: Then you join issue with 8.1 of the submissions of the first and third respondents?
MR BLEECHMORE: Yes. We say that if 8.2 and 8.3 are attempts to define the essential features, they fail because they are logically inclusive statements, statements as to what may be denoted by the term, but they are not definitional statements. In the submissions of the Attorney‑General for the Commonwealth there is also an attempt to define the process in paragraph 25, the outer limits of process, and what our learned friends say:
In the light of the foregoing the Commonwealth Attorney’s primary submission is that the meaning of “process” should be determined by the nature and function of the document (rather than its connection with establishing legal rights or enforcing the criminal law). Service of the “process of the States” includes any document that requires attendance under authority of law before a State officer or authority, with adverse consequences attaching to non‑attendance (such as a penalty or, in the case of originating process, an adverse decision on the merits). This requirement ‑ ‑ ‑
KIRBY J: That is what Justice Mason says at paragraph 91 on page 46 – you do not have to go to it. That is exactly what he says. That is obviously the holding that he favours.
MR BLEECHMORE: Again, your Honour, it is not a definitional statement. The service of the process includes that, but at no point in the submissions have we been able to perceive a definition of “process” that defines and then identifies the outer limits of the term. So one is left then merely with an argument that it certainly covers the process of the New South Wales Crime Commission but the Court is not able to be enlightened as to what the outer limits are, and what documents issued by or under the authority of State bodies are process.
While it is now argued as a primary argument that the summons of the Crime Commission is process and as a subsidiary or secondary argument that it is criminal process, as I understand the argument, the decision of the court below, which we perceive to be largely a purposive one which emphasised the practical merits of this interpretation, was not so much that the summons was process but, rather, that it was criminal process. The only statement made by Chief Justice Spigelman that adverted to the question of a natural and ordinary meaning of the term was that it was criminal process for the reasons of the close association between the function of the Commission and the criminal law.
KIRBY J: What is wrong with that?
MR BLEECHMORE: Well, in a sense, it is a new argument to say that it is process. It is only necessary to argue that it is criminal process. There is nothing wrong with it, your Honour.
KIRBY J: Why can it not be seen as criminal process as expanded to meet the needs of crime today which is now global, cyber crime, crime involving people in movements in foreign countries as well as our own country? Now, given that the Constitution has to speak from age to age, why could not one say that this is now part of criminal process?
MR BLEECHMORE: For two reasons. Because no matter how flexibly and purposively you interpret the Constitution, the Court must be faithful to the text. Every time there are statements in the cases about flexibility and practicality in a purposive construction there are ‑ ‑ ‑
KIRBY J: But arguably the suggestion is it is faithful to the text. It is a form of criminal process as seen with the eyes of the 21st century dealing with the crime of the 21st century. It was not so perhaps in the 19th century, although even then they had fugitive offenders within the Empire, but in the 21st century we have very complex crimes, cyber crime, hackers. There was a very interesting program on television last night about hackers and how they got into NASA, Australian hackers. That is the sort of crime we have nowadays, so we need new weapons.
MR BLEECHMORE: Yes, and we need more sophisticated and subtle law enforcement techniques. No one can argue with that. But the use of the term “criminal process” by your Honour lends substance to the implicit statement that the process of investigation is part of the administration of justice.
KIRBY J: You have a mantra. You say do not divide it up, do not just take the word “process”, do not just even take the words “criminal process”, you have to take “civil and criminal”, and that puts you well and truly within an adjudicative system of rights, which is courts and tribunals. It is not the Executive Government.
MR BLEECHMORE: Yes.
KIRBY J: That is the anchor of your argument.
MR BLEECHMORE: Yes, your Honour.
KIRBY J: You said you had two reasons.
MR BLEECHMORE: The second is that it is a departure from Ammann. It would require a statement from the Court that “process” goes beyond the processes concerned with the administration of justice, and the Court would not lightly do that.
KIRBY J: Well, not necessarily. You could say that this is now what is needed for the administration of justice, in this case criminal justice, because of the complexities of crime today. It is not just ordinary rushing into a store and stealing a banana. It is now very complicated issues of global crime and drug and syndicated crime as well as cyber crime, terrorism.
MR BLEECHMORE: But that does not draw the increasingly refined processes of investigation under the umbrella of justice, no matter how sophisticated and refined they may have to become in response to new challenges. They do not become part of the administration of justice. That requires a departure in principle and a departure from the essential meaning of the term “process” in its context.
Your Honour, I mentioned some time ago that we had collated references to authorities in the case of Alliance as well as the case of Ammann where it was suggested – and this was to contradict the statement of Chief Justice Spigelman, to contradict the statement that no authority suggested that the term “process” should be confined in the way for which we contend. I do not propose to go through those. They are set out with the relevant extracts in the submissions at pages 10 to 15 of the appellant’s submissions, merely to indicate that Alliance is entirely consistent with Ammann and that Chief Justice King in that case said quite clearly that arbitration as a process associated with arbitration came within the ambit of placitum (xxiv) because an arbitration is a proceeding for the establishment of legal rights.
KIRBY J: For 55 years of the Commonwealth it was committed in the federal sphere to a court and everyone thought it was so, a civil process, but then in the Boilermakers’ Case it was held for technical constitutional reasons it was not, but Justice Zelling appeared in that case to draw a distinction between adjudicative‑type functions of arbitration and creation of new rights‑type arbitration and said the latter would fall outside the process.
MR BLEECHMORE: Yes, indeed, and that was the purpose I intended to draw attention to Alliance Case on my feet in addition to the reference in my submissions because, yes, Justice Zelling, indeed said we do not really have a submission here within the meaning of the South Australian Arbitration Act and therefore we do not have a claim or dispute and therefore no adjudication process. The arbitrator was merely carrying out his contractual duty to fix a price at the commission of the parties.
So, again, in dissent, in finding on that narrow point on which Justice Wells, it should be noted, agreed with him, a process of reasoning by the way identified by President Mason in the court below as well, that
the court saw it as the cornerstone or the turning point that the question whether the proceeding, arbitration or otherwise, did involve a claim or dispute and therefore the adjudication of rights. So that clearly emerges as the discrimen in a way which is entirely consistent with Ammann’s Case.
Your Honours, in the process of answering questions I have in fact covered all the matters that I intended to cover.
GLEESON CJ: Thank you very much.
KIRBY J: I know that in your mantra you essentially say just stick to the text and give the text meaning, but assuming that the text is ambiguous, as often in new issues with no authority on it that it is, is there any constitutional mischief that you can point to in the broader view that is taken in the majority in the Court of Appeal that has not already been mentioned, that is to say, the power is a power that is burdensome on individuals and therefore should not be extended unduly beyond its warrant in the language of the Constitution and if you do then you will end up with every Executive body of the States having the power to oppress people throughout the Commonwealth with process to come before them and to impose criminal sanctions on them under the federal statute?
MR BLEECHMORE: No, I am not able to identify any additional mischief other than that already identified. I can only put the matter in the way that we have, which is to frame the submissions outside of the practical considerations of the kind that your Honour has adverted to.
GLEESON CJ: Yes, Mr Solicitor for New South Wales.
MR SEXTON: If the Court pleases. I wanted to start by making some response to the Court’s letter received yesterday and then to make some submissions about the constitutional questions. In relation to that first matter, could I ask your Honours that we also have leave to file some written material, if we so choose, within the next 14 days in response to the letter?
GLEESON CJ: Yes.
MR SEXTON: If the Court pleases. Your Honours, the letter refers to the proper construction of the provisions of the Crime Commission Act which deal with the service of documents and asks whether those provisions are territorially limited in some respect. Our answer to the question of whether they are territorially limited is no.
Can I take your Honours to the relevant provisions, which are sections 16 and 36 of the Crime Commission Act. Section 16 gives the Commission the power to summon a person to appear before it at a hearing to give evidence and to produce documents and section 35 deals with the service of documents and sets out a number of ways in which that might be done.
We would say that in the context of this legislation there is no reason why it would not be construed as allowing such a summons to be served on a person in another Australian jurisdiction. If one looks at the functions of the Commission which are set out in section 6 of the Act, the first is:
to investigate matters relating to a relevant criminal activity –
and that is picked up in the definition section and leads to the definition of “relevant offence” and they are set out in that, “serious drug offence”, an offence that involves fraud in certain circumstances and other offences where the management committee is satisfied that the investigation is in the public interest and the use of the Commission’s functions may be necessary to investigate it.
So, in our submission, in that context it would be contrary to common sense to think that there would not be persons in other Australian jurisdictions on occasions who would be able to supply information concerning the commission of offences, even if those be confined to offences against the law of New South Wales.
HEYDON J: Do you rely on section 6(2)?
MR SEXTON: We do, your Honour, yes. I was just about to add that, even if one were to confine the operation of legislation to offences against New South Wales, we would still make that submission but, as his Honour Justice Heydon points out, section 6(2) envisages that information concerning offences against Commonwealth law or other State or territorial laws may be obtained in the course of investigations and allows the Commission to refer that to the relevant State, Territorial or Commonwealth authority.
GLEESON CJ: Does the Independent Commission Against Corruption have similar powers?
MR SEXTON: I do not know the answer to that, your Honour. I think that it does, to serve out of State, but we can check that.
KIRBY J: I understand what you say about utility, though I notice that (d) is:
to disseminate investigatory, technological and analytical expertise –
and I think there is a law reform function somewhere in here.
MR SEXTON: In (c), the one that precedes that, your Honour.
KIRBY J: Yes, but the problem is this, that it is said that the composite phrase, the history, the context, the context within section 51 and so on all suggest that this is incidental to adjudication of rights in courts and tribunals and not, as it were, the Executive Government which has its own commitments and functions which traditionally or typically courts and independent tribunals do not have. They have a more neutral function and that this is therefore a very substantial increase in the coercive power of the Executive Governments throughout the Commonwealth. Now, what is the answer to that?
MR SEXTON: I am going to come to that, your Honour, when I deal with the ‑ ‑ ‑
GUMMOW J: Before you do that ‑ ‑ ‑
MR SEXTON: I am sorry, I was just going to say to your Honour Justice Kirby that at the moment I am just looking at the Commission’s powers under its own legislation and I have got to come to that question that your Honour raises.
KIRBY J: Yes, but, as the Chief Justice points out, there are now lots of commissions and bodies with coercive powers. I mean, an enormous number of them throughout the nation, and what we decide in this case, you always have to look down the track, that then becomes relevant to a whole range of coercive bodies.
MR SEXTON: I am going to address it, your Honour.
CRENNAN J: What they have in common, of course, is the coercive powers are in relation to their having been authorised to assemble evidence.
MR SEXTON: Yes, your Honour, and in the course of an investigation.
GUMMOW J: If you are right about the New South Wales Act, does it then have to be, as to its reach – the section you have just been taking us to, as to the reach of the New South Wales Act, does it then have to be read with 8(4) of the federal Act, which seems to exclude State law so you cannot have a duality?
MR SEXTON: Yes, we accept that, that if 8(4) – assuming that the Service and Execution of Process Act or the relevant provisions are valid because of the constitutional arguments that we make, yes, that one would have to proceed under it and not have the ‑ ‑ ‑
GUMMOW J: But then if it is invalid or does not apply to the federal Act your opponent is not advanced because the State Act will operate.
MR SEXTON: That is right, your Honour. We say that it could happen in that way. That was not the way it happened here.
GUMMOW J: No.
MR SEXTON: But that would be an option.
GUMMOW J: That would be the sequel to this case.
MR SEXTON: Well, we hope not, your Honour. Now, can I just add for completeness on that first question, it is true of course that in the Interpretation Act (NSW) section 12 says that:
(1) In any Act . . .
(b) a reference to a locality, jurisdiction, or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.
That is subject to section 5(2) which says that the Act applies “except in so far as the contrary intention appears” in the relevant statute. In our submission, one would not get to section 12 in this case because section 16 and section 35 are not really engaged by the notion of reference to locality, jurisdiction or matter or thing. That would, for example, be apposite in relation to the word “offence”, for example, which occurs in some parts of the legislation and would normally be confined to an offence in New South Wales, subject to the matter that Justice Heydon raised.
In any event, we would say that the contrary intention implied by the underlying context of this legislation and its purposes and its policies, those being the investigation of crime and that it might be assumed that there would be persons in other jurisdictions that could contribute information on that subject, in other words, it would be fanciful to assume that they would all be confined to New South Wales. So, your Honours, that is what we would say and I should say perhaps because the letter referred to Gosper v Sawyer that ‑ ‑ ‑
GUMMOW J: Well, 8(4) looks like a response to Gosper, 8(4) of the current Federal Act.
MR SEXTON: Yes, and it ‑ ‑ ‑
GUMMOW J: In other words, you cannot have two regimes if the federal regime applies.
MR SEXTON: Yes, well Gosper initially considered the question of the power of the Commission to issue under its own statute and said that that was not present although the Court seems to have assumed that that deficiency could be remedied by the Commonwealth legislation. At any event, we would say it is a very different statute from the one that - the Commission was acting akin to a court. Whether it was actually sitting in court session is not entirely clear. It was acting akin to a court and traditionally, of course, as the letter indicates, courts without a statutory basis have not been able to exercise long‑arm jurisdiction but we would say ‑ ‑ ‑
KIRBY J: This is consistent with the appellant’s argument, I think, because they say alliance is fine, that is an adjudicative type body and the Commission, at least in many of its aspects and particularly in proceedings under section 88F, it is an adjudicative body, a court-like body.
MR SEXTON: Well, as your Honour knows -I just have to make a submission about that but I was just going to finish dealing with the letter and then I will come to those matters. The second question in the letter asks:
whether the validity of the impugned provisions of the Service and Execution of Process Act 1992 (Cth) is essential to demonstrating that a person who receives, outside New South Wales, a summons to appear as a witness before the Commission, but fails without reasonable excuse to attend as required, commits an offence -
Well, I have already I think answered Justice Gummow that the answer is in a sense, no, because we would say that the offence would be committed under the Commission’s legislation in any event and if of course the Commonwealth legislation, which as my learned friend contends is invalid, then the Commission’s own legislation, we would say, would justify and authorise the service and ultimately lead to the commission of the offence but of course we contend that the federal legislation is valid.
Your Honours, can I then move to the constitutional questions. We make three submissions in relation to 51(xxiv) and I will make them in what can be described as descending order of breadth, perhaps. The first, and therefore the broadest, is that in our submission – this is our basic submission – that once it be accepted that the term “process” in 51(xxiv) is not confined to the process of courts, and we say Ammann and Aston makes that clear, but extends to process of the States, there is no reason to limit the kind of process to which the provision is applicable beyond the requirement that it emanates from a body established by State statute.
Of course, the Commonwealth Parliament can and has placed limitations on that broad category and in the case of tribunals established by State legislation, like the Crime Commission, the process must be issued in connection with the performance of investigative or adjudicative functions and it is necessary to obtain the leave of the relevant Supreme Court to serve.
GUMMOW J: The real question here is, is it not, as to the validity in section 47 of the federal Act of the definition of “subpoena”? At the end of the day that is what is valid or invalid or has to be read down and it is a question of measuring that definition against what you put as content of process, is it not?
MR SEXTON: We would say that what happened here meets the definition in 47, your Honour.
GUMMOW J: Does this word “require” have within it the notion of sanction for failure? I am not sure it does. I do not know. Is this phrase “oral evidence” defined anywhere?
MR SEXTON: I do not think so, your Honour. No, we would say that 47 meets the circumstances here.
GUMMOW J: The notion of “oral evidence” does that have with it a component of oath or affirmation?
MR SEXTON: We would say not, your Honour, although there is, of course – it is done on oath in this case – or affirmation.
GUMMOW J: It may be that the definition is wider than it need be to support the present case.
MR SEXTON: I think that may be so, your Honour, yes. Still making that our first submission in relation to 51(xxiv) we would say that even if one were to consider the meaning of the term “process” in 1901 it would have extended to the issuing of a subpoena to compel the attendance of a witness at a Royal Commission, whether that body was inquiring into the commission of criminal offences or into civil questions. Justice Dixon in McGuinness (1940) 63 CLR 73 and at 99 – I will not take your Honours to the passage but Justice Dixon simply notes that in every State general legislation had existed for a long time, arming commissions of inquiry with the powers of compelling testimony.
But we would say that as the cases in relation to section 80 of the Constitution indicate it is permissible to look at the purpose of the relevant constitutional provision to ask what are the essential elements of a concept that is referred to in the original document.
KIRBY J: Is this your second submission, or is this part of the first?
MR SEXTON: Still the first of the submissions about section 51(xxiv), your Honour.
GUMMOW J: Can we just go back to the definition of “subpoena” in section 47. We have to look at the definition of “tribunal”, have we not, and that answers the question about oral evidence, I think. “Tribunal” is defined in section 3.
MR SEXTON: Yes, your Honour.
GUMMOW J:
authorised by or under a law of the State to take evidence on oath or affirmation ‑ ‑ ‑
MR SEXTON: Yes, (a) would presumably cover a royal commission and (b) a body such as the Crime Commission.
GLEESON CJ: Your argument, as I would understand it, is that compulsion to attend to give evidence before or to produce documents to a body is itself a form of process?
MR SEXTON: Yes, your Honour, yes. The issue of a subpoena is a form of process.
GLEESON CJ: The compulsion is the State process. The document that effects the compulsion is the State process.
MR SEXTON: The summons to give evidence, yes, certainly, your Honour, yes, and as has already been referred to, a warrant that ultimately was issued by the commission for the arrest of someone who did not attend would be another form of process.
KIRBY J: But Gosper and the history of the Constitution suggest that it does not have coercive power beyond the State except by force of the federal law made under the Constitution. It does not have coercive effect of its own function. It needs the federal law to give it that coercive effect, is that not correct?
MR SEXTON: Ultimately, even if assuming that the Commission Act gives it the power to issue the, as we say it does, summons outside of the State of New South Wales, ultimately the enforceability is dependent on federal law, either in the form of a warrant to arrest somebody which is provided for in sections 91 and 92 of the federal legislation or finally the criminal process to make out – to prosecution of an offence, which would also be constituted by a failure to attend.
Your Honours, I just mention section 80 of the Constitution and the notion of looking at the essential elements of the concept, and in this case, process and we would say that given that the purpose of 51(xxiv) is to facilitate the service of process outside the jurisdiction of the individual States, we would say that – and your Honour Justice Kirby has already referred to this – the growth in investigative and judicial and adjudicative tribunals over recent decades, we would say, supports a broad construction of the term “process” that would encompass these bodies.
Perhaps if I just take your Honours to two passages from the cases. 51(xxiv) is not of course unlike, in a sense, a number of the other provisions about the division of powers between the - combined with section 109 - the division of powers between the State and federal spheres. It is a facilitating power. Your Honours, in Aston at 364, the Court at about point 2 said that:
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 rather broad sentence.
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. It is given to the central legislature because before federation it had been found that territorial limitations upon colonial power made the effective reciprocal action of the colonies in this field difficult, to the point of impossibility ‑ ‑ ‑
GLEESON CJ: What page is that?
MR SEXTON: Page 364 of Aston, your Honour, and then there is a reference to Quick and Garran and the Court added:
It is a power to be exercised in aid of the functions of the States and does not relate to what otherwise is a function of the Commonwealth.
Then similarly, we would say, in Ammann at 422, where Chief Justice Barwick said at about point 3:
Section 51(xxiv) must be construed against that background. Its meaning as the expression in condensed form of a head of constitutional power must be sought in no pedantic manner but with that amplitude of application which befits the interpretation of an organic instrument.
Then finally, your Honours, at 437 of Ammann, Justice Gibbs at point 1 said:
Moreover, if it is thought that the words of the paragraph are ambiguous, strong reason exists for them giving them the broader construction of which they are capable. The prior history of the efforts of the Australian colonies to provide for the enforcement in one colony of the process of another had revealed, as was said in Aston v Irvine, that “territorial limitations upon colonial power made the effective reciprocal actions of the colonies in this field difficult, to the point of impossibility”. The apparent object of par (xxiv) was to enable the Parliament to remove the grave difficulties that had existed before Federation in enforcing the process of one colony in another, and the paragraph ought to be given a liberal construction so that its apparent object is fully secured.
Your Honours, we rely on those passages particularly.
Your Honours, perhaps the only sentence in all the authorities that might be taken to support the kind of limitation that is proposed by my learned friend, Mr Bleechmore, is a sentence of Sir Garfield Barwick’s in Ammann that the process must relate “to proceedings for the establishment of legal rights or the enforcement of the criminal law”.
KIRBY J: We were referred to a reservation by Justice Mason.
MR SEXTON: There is. Justice Mason said the question of whether it applied to Royal Commissions and such bodies was a matter that he did not decide. He simply left it. I mean it obviously did not need to be decided in that case but ‑ ‑ ‑
KIRBY J: That was in Ammann, too.
MR SEXTON: Yes, it was, your Honour, but my learned friend relies particularly on the statement of Chief Justice Barwick which, however, we would say was made in the context of rejecting an argument that the process was limited to that issued in any civil or criminal trial or proceedings, to use the term that was then present in the federal Service and Execution of Process Act.
As it happens, we would say, and I will come to this, that the subpoena issued in this case was issued in relation to the enforcement of the criminal law but we would also say that Chief Justice Barwick’s statement was not intended to rule out a summons issued, for example, at the time of Federation by a Royal Commission and would not have been concerned with the establishment of legal rights or it might perhaps, however, have been concerned with the enforcement of the criminal law in the sense in which we make that submission shortly.
If it were to be taken literally, and we would say out of its context, Chief Justice Barwick’s statement would exclude also, for example, from the notion of “process” a bill of discovery long in existence prior to 1901 designed to establish the identity of a proper defendant because that is not a process undertaken in relation to the determination of legal rights or the enforcement of the criminal law.
KIRBY J: Why is it not in relation to enforcement of rights, at least ultimately?
MR SEXTON: It just identifies the defendant and then it is a question of what ‑ ‑ ‑
KIRBY J: Unless you identify the defendant. First identify the defendant.
MR SEXTON: Of course, your Honour, yes, and now most – that is, of course, all States. Territories have rules of court that provide for pre‑trial discovery. At any rate, in relation to that statement of Chief Justice Barwick we would say that to confine the meaning of “process” to documents that might be served or orders that might be executed in relation to proceedings for the establishment of legal rights or the enforcement of the criminal law is to effectively accept the limitation which was rejected in Ammann that the relevant process must be of the courts given that the establishment of legal rights or that at least direct enforcement of the criminal law are essentially functions of the courts and not of non‑judicial bodies. So we make all those submissions about that statement which is heavily relied upon by my learned friend.
Now, your Honours, our second submission on the constitutional question in the alternative is that if the relevant term is not “process” but “criminal process” - in other words, if “civil” and “criminal” are not meant to be words of exhaustion and universality – it may be noted that the summons issued in this case was for the purpose of securing the attendance of the appellant at a hearing before the Commission in relation to an investigation into the commission of serious drug offences, money laundering, larceny offences and interference with the justice process. We attach the notice that was served to our written submissions.
KIRBY J: What is an “Anglo-Saxon person”? I thought only the French used that expression, and then pejoratively.
MR SEXTON: It is not often used today. I noted it there. I noted that the Celts were excluded seemingly, your Honour.
KIRBY J: We cannot have that, can we, Mr Sexton?
MR SEXTON: But if one – I will not take your Honours through the notice but the investigation – the offences are so described and it was also a purpose as emerges from the notice of the investigation to identify offenders and to obtain evidence for use amongst other things in criminal prosecutions and one of the statutory functions of the Commission, section 6, is to assemble evidence that might be used in a prosecution arising out of criminal activity that it has investigated and that was one of the purposes of this investigation.
KIRBY J: Potentially prosecutions including prosecutions of himself?
MR SEXTON: I would not make that assumption, your Honour. Of course, that is ‑ ‑ ‑
KIRBY J: But that can happen under the Act. Is there a provision under the Act for refusing to answer questions on the grounds of incrimination?
MR SEXTON: Yes. There is not - it is not a ground of refusal but the material cannot be relied upon. The answers given cannot be later relied on.
CALLINAN J: As with Royal Commissions.
MR SEXTON: Yes, so that we would say that ‑ ‑ ‑
KIRBY J: This is the modern equivalent of the Star Chamber. A little bit of torture is applied but it is done in the most discreet way.
MR SEXTON: Well, if cross‑examination can amount to torture, your Honour, I suppose it can fit within that category.
KIRBY J: If you cannot take the basic human right of not answering questions that would incriminate you - that is what it appears to be.
MR SEXTON: Well, it has happened in a number of areas, your Honour, but in the case that his Honour Justice Callinan points out in the Royal Commission Acts of the various States it is normally done but ‑ ‑ ‑
GLEESON CJ: There is nothing modern about it. It has happened in the examination of insolvent people and examinations in the affairs of corporations for 100 years. In the course of those examinations you could say or could claim the privilege and that that did not produce the consequence that you did not have to answer the question but it inhibited the use that could later be made of your answers. It was an important way of extracting information.
MR SEXTON: And that is what happens here, your Honour.
KIRBY J: Is it part of the breakdown of the accusatorial system of criminal justice though.
MR SEXTON: Well, as his Honour Chief Justice Gleeson points out ‑ ‑ ‑
GLEESON CJ: Well, the main thing is not to represent that it is modern.
MR SEXTON: No, your Honour.
KIRBY J: I was talking in terms of the centuries, having just a read book on England in the time of James I. There they just put people on the rack.
MR SEXTON: Yes, there was ‑ ‑ ‑
GUMMOW J: Not a golden age of the law, the time of James I.
KIRBY J: The King James Bible came out of it.
MR SEXTON: Now, your Honours, we would say that in the same way a Royal Commission with coercive power to aid its investigations in order to determine, for example, whether criminal offences had occurred although not making a determination of guilt, or innocence, of course, we would say that that would also be encompassed by the term “criminal process” if that is a composite term that is different from “process”. On that subject of Royal Commissions in the BLF Case (1982) 152 CLR 23 – I will not take your Honours to it in detail – Chief Justice Gibbs referred at 52 to:
the long‑standing practice in England and Australia to hold commissions of inquiry into criminal conduct.
Justice Mason noted at 88 that:
“From time immemorial it has been the practice of the Crown to appoint persons to enquire into suspected crimes”.
He was quoting there from a New South Wales case, but he added that:
it has long been accepted in Australia that a commission can be established . . . for the purpose of inquiring into and reporting on the commission of criminal offences ‑ ‑ ‑
GLEESON CJ: Does this Commonwealth legislation cover notices of the kind that revenue authorities, State and federal, issue to people requiring them to disclose information?
GUMMOW J: It would not be a tribunal, would it? You would have to have a tribunal.
MR SEXTON: Yes. A tribunal is defined as a person appointed by the Governor of the State or a body which ‑ ‑ ‑
GUMMOW J: To take evidence on oath or affirmation.
GLEESON CJ: If some of the submissions before us about the meaning of “process” are right, this legislation does not exercise the power to its full extent.
MR SEXTON: That may be so, your Honour, yes. As I said at the start, there may be some debate as to what are the outer limits of the term “process”. We would say that this particular instance is pretty comfortably inside the notion.
KIRBY J: That is why the appellant says that this is a critical moment. It is not unknown in this Commonwealth for the law to take a modest little step first, usually with the resistance of the States, and then to go a little bit further and then to go a long way further, and we stand at the gateway. That is why issues of this kind have to be determined correctly.
MR SEXTON: Your Honour, it is completely within the power of the Commonwealth Parliament as to what the limits will be, subject to the meaning of the term “process” in the constitutional provision.
KIRBY J: If your argument is right, every constable in the nation could be designated a tribunal – could be – and people could be summoned from all over the nation to give evidence before constables as to their crimes and doings, and that is the type of oppression which is the outer limit. I mean, it is not in the Act at the moment but we have to consider that possibility if you are right.
MR SEXTON: Your Honour, we would say that the term “process” as it is used in 51(xxiv) does envisage quite a broad concept. It may well be that what your Honour says could theoretically occur but that could only occur if the Commonwealth Parliament authorised it.
GLEESON CJ: But there is nothing in the least modern about revenue authorities issuing notices to people requiring them to give information about their assets or their income. Are notices of that kind a form of process?
MR SEXTON: Is it a notice that requires someone to attend, your Honour?
GLEESON CJ: I suppose the Commissioner of Land Tax of New South Wales has power to issue you a notice requiring you to inform him of all the land that you own in New South Wales, or owned at midnight on 31 December last year, or whatever the case may be. Is that notice itself a form of process?
MR SEXTON: It may be, your Honour, I am not sure that – as I say, if it does not have a notion of attending, at least at some stage, it may be that – there is a personal element in notions of subpoenas and warrants for arrest and so on. I presume the notice that your Honour talks about can be responded to by letter really.
GLEESON CJ: Yes.
MR SEXTON: Arguably, it can be a form of process, but I think that is uncertain.
CRENNAN J: Have you looked at the Evidence Act (Vic), Mr Sexton, on this point?
MR SEXTON: No, I have not, your Honour.
CRENNAN J: Because that would suggest “process” might encompass, as well as adjudicative proceedings, also proceedings which involve two markers: one, that the person or body conducting them has been authorised by Parliament to assemble evidence and, secondly, the summonses and the like are subject to sanction if disobeyed.
MR SEXTON: We would certainly put that in the category of “process”, your Honour. Your Honours, the third and final submission that we make on the ambit of 51(xxiv) is that even if it be accepted, which we do not, that the relevant process must be – I think this really comes out of Chief Justice Barwick’s statement which I have already, in a sense, dealt with – but even if one accepts that the relevant process in this instance must be directed to or associated with the enforcement of the criminal law, we would say that that is met by the Commission’s role in assembling evidence that might be used in a prosecution arising out of the criminal activity that it has investigated.
CALLINAN J: To use Justice Gibbs’ words, become an established or integral part of the criminal process.
MR SEXTON: We would say that there is quite a close connection there. Where the evidence is assembled, it is given to the Director of Public Prosecutions who then decides whether or not to bring charges and that the whole purpose under the Act or one of the purposes of the Commission is to engage in that very exercise.
CALLINAN J: The Commonwealth says that trial by jury is an evolutionary concept and by parity of reasoning perhaps these special commissions have now by an evolutionary process become an integral part of the criminal justice process.
MR SEXTON: We would make the same point, your Honour, and in the sense that this could have been said, we would say that this was true in 1901 about a Royal Commission that was looking into whether criminal offences had been committed and then referred its findings to the prosecuting authorities.
GLEESON CJ: Some of these bodies are really just like standing Royal Commissions. You think of the Police Integrity Commission, for example.
MR SEXTON: Yes, and the Independent Commission Against Corruption to some extent as well, your Honour. That is why we stress the analogy, which is a longstanding example, with Royal Commissions because, as your Honour points out, there is quite a similarity – in fact, a very strong similarity – in the case of the bodies that your Honour mentions.
CALLINAN J: With some special additional powers to meet the particular complexities which have been demonstrated to be occurring in organised and other crimes.
MR SEXTON: Yes, that is so. I see the time, your Honours, but we ‑ ‑ ‑
GLEESON CJ: We will sit until 1 o’clock.
MR SEXTON: I was going to say that those are our submissions, your Honour.
GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for the Commonwealth.
MR BENNETT: May it please the Court. Might I start by putting this case into context by handing up to your Honours a diagrammatic illustration of the issue in this case.
CALLINAN J: I think “a roadmap” is the fashionable term.
MR BENNETT: A roadmap, yes, your Honour.
HAYNE J: We are going from roadmaps in legislation to roadmaps in submissions, are we, Mr Solicitor? This is a new terror.
MR BENNETT: Well, your Honour, I was thinking of it as a – four quadrants of a square is another way of putting it. It is slightly different to a roadmap.
HAYNE J: It is in black and white, Mr Solicitor, not even colour.
MR BENNETT: Well, your Honour, I was going to suggest that one analogy to the words “civil and criminal” is black and white. A black and white television contains shades of grey as well as black and white. The use of the two words encompasses all the borderline areas between them.
KIRBY J: Well, the question is, is this very dark black or very light grey?
MR BENNETT: The point of the diagram is very simply this, that ‑ ‑ ‑
GUMMOW J: Well, you say that the appellant’s insistence upon adjudication of rights is not a complete description of the judicial function at any time.
MR BENNETT: Well, it is not, your Honour.
GLEESON CJ: Of which the Coroners Court is an excellent example.
GUMMOW J: A prime example, the Coroners Court.
MR BENNETT: Yes. What we have done here is say if one divides the universe horizontally into courts and tribunals and vertically into adjudicative and investigative functions, in the top left-hand quadrant everyone agrees that courts doing their adjudicative things are covered by placitum (xxiv). If one takes the bottom left, the appellant accepts, as follows from Ammann, that tribunals doing adjudicative things are covered, and that includes arbitrators and so on. We then go to the investigative side and the appellant submits in the bottom right-hand corner that the placitum does not extend to tribunals engaged in investigative or other non‑adjudicative functions. What the appellant ignores in its submissions of course is the top right-hand quadrant, the examples of courts exercising investigative functions.
KIRBY J: But in our tradition courts do not engage in investigative functions in determining the guilt of people of criminal offences.
MR BENNETT: No, they do not at that point, but then – we have given a few examples here. There are examinations of bankrupts, examinations of judgment debtors, which of course both go back well before Federation both of which are purely investigative, and one could add to those two, although we have not put it here, the examination of directors and officers of companies under companies legislation of the type that was involved in one of the cases, Cheney v Spooner (1929) 41 CLR 532. Your Honours do not need to go to it. Then there were bills of discovery in equity, which goes back for centuries, there is the Coroners Court and there is modern pre‑trial discovery, which is really an extension of the original bills of discovery in equity. All those are examples ‑ ‑ ‑
GUMMOW J: What is interesting about Cheney though is that it was under the 1899 New South Wales Act.
MR BENNETT: Yes, I am indebted to your Honour for pointing that out. Although, of course, the examination of directors in liquidations, both court and non‑court liquidations, goes back before the 1899 Act.
GUMMOW J: Yes.
GLEESON CJ: Adjudication and investigation do not cover all the jurisdiction of New South Wales courts, do they? The Licensing Court, for example, has for a long time exercised functions that might not be described as either adjudicative or investigative.
MR BENNETT: That is so, your Honour, and in some respects the admission of legal practitioners, although in some respects that may involve adjudicative functions but in practice it is a substantial administrative function which only becomes adjudicative if the Law Society or Bar Association objects to someone.
HAYNE J: Just staying a moment with Cheney v Spooner at 537 Justices Isaacs and Gavan Duffy point out or reject the proposition that:
the term “evidence” is appropriate only where some issue of fact is raised for judicial or quasi‑judicial determination.
That gathering evidence in the sense of gathering information which may later be used for particular purposes is the obtaining of evidence.
GUMMOW J: And the supervision of charitable trusts, for example, is administrative rather than adjudicative, cy‑près schemes and that sort of thing.
MR BENNETT: Yes, and process issued or subpoenas issued in relation to any of those matters, and perhaps originating documents in relation to any of those matters, would, in my respectful submission, clearly be process within the meaning of placitum (xxiv).
The ultimate submission which I make from this diagram is if it applies to the three quadrants, the two left‑hand quadrants and the two upper quadrants, why does it not apply to the bottom right‑hand quadrant? If investigative is all right and tribunals are all right, what is wrong with investigative and tribunal, putting it bluntly?
KIRBY J: What at least potentially I can see is wrong with it is that it undermines the accusatorial system which is a very important defence of our liberties in criminal matters. Any constable throughout the nation could be designated with the power to insist and require that people come, under penalty of criminal offences, to another State of the Commonwealth to answer questions concerning their guilt of criminal offences, and then we just throw out our system of accusatorial criminal process.
MR BENNETT: Your Honour, what would undermine it, or might go towards undermining it, in your Honour’s example, is the State law. It would have that effect within the State. All placitum (xxiv) does is say what States do. What their process is can in certain circumstances have effects outside that State.
KIRBY J: There is still the Kable principle. The State courts are parts of the integrated judicature of the Commonwealth.
MR BENNETT: Precisely, your Honour, and it is in that area that one would mount one’s attack if there was to be an attack, but the attack would not lie on the scope of placitum (xxiv) which is merely designed to say that whatever States do in relation to what their process is, they can serve people outside the State and in some circumstances enforce orders outside the State and so on.
GLEESON CJ: There has for a long time been a law in New South Wales that says that if a functionary sends you a notice requiring you to identify the driver of a motor vehicle at a particular time you are bound to provide that information, if you are the owner of the motor vehicle. That might be part of an investigation into manslaughter or some very serious occurrence but the law equips that functionary with the capacity to require all owners of motor vehicles to identify the drivers of the vehicles.
MR BENNETT: And that, your Honour, would be the process of the State, but may I just ‑ ‑ ‑
KIRBY J: But we are not interpreting the Dog Act here, we are interpreting the Constitution of the nation and particular exceptions may not be a good foundation for a jumping‑off point for what at least concerned Justice Mason in the Court of Appeal as a potential which is quite considerable. So many Executive bodies now have coercive functions.
MR BENNETT: Yes, but, your Honour, if I can just come back to the central answer I put to your Honour’s proposition and it is this, that placitum (xxiv) does not concern itself with the desirability of particular State laws. A State might have a particular rule of substantive law which makes a defendant liable to a plaintiff in particular circumstances that might be thought to be grossly unjust. Placitum (xxiv) allows a judgment to be enforced outside the State in relation to that and one does not read into placitum (xxiv) anything that prevents that.
KIRBY J: Well, the argument is – and it found favour with the President of the Court of Appeal – that the combination of words “civil and criminal process” in the context of a paragraph of the Constitution that refers to the process of the courts is sufficient to lock it into an adjudicative type function and not to permit its extension to purely Executive functions. If you look at Quick and Garran – and I accept that that does not bind us a century later – that is all they appear to have been thinking about in 1901.
GUMMOW J: That cannot be quite right, because we have now been supplied with the Enforcement of Testamentary Process Act of the Federal Council and that was dealing with the reseal probate situation.
MR BENNETT: Yes, if one looks at the Convention Debates, that is all they discussed. The only issue discussed under this placitum in the Convention Debates is probate and whether you have to reseal probates interstate and what happens if States impose probate duties and so on?
KIRBY J: That is a traditional function of courts. It is not something in the Executive Government.
MR BENNETT: Well, your Honour, first of all, the actual grant of probate in common form does not involve any adjudication, unlike probate in solemn form. But, secondly, even leaving that aside, the discussion was largely about States wanting to impose probate taxes against residents of other States based on there being property in their States and so on, and that did not necessarily involve the adjudicative process of courts at all. So it is not quite fair to say that the founders were only concerned with adjudicative processes of courts.
What we submit is very simple. It is if we accept that the placitum applies to tribunals and if we accept that the placitum applies to investigative processes of courts, no one would dispute that a summons for the examination of a judgment debtor would not be process of the State issued by the court. If we accept those, what is wrong with the fourth quadrant? Why does the combination of it being a tribunal and it being investigative or non-adjudicative take it out when neither of those elements on its own does? There is simply no basis for it. What has to be said is that there is nothing wrong with process being investigative, there is nothing wrong with process being a tribunal, but it cannot be both, and one has to say why.
CALLINAN J: Mr Solicitor, does the Commission Act– I should have asked Mr Sexton this – require that the rules of natural justice be applied? You may want to look at it.
MR BENNETT: Your Honour, it is ‑ ‑ ‑
GUMMOW J: The doctrine of the court would assume it unless it said otherwise.
CALLINAN J: Exactly, following from Ainsworth which was in relation to precisely such a commission as this.
KIRBY J: But by clear legislation they can quickly get out of that.
MR BENNETT: There certainly are provisions dealing with a conflict of interest by the Commissioner or presiding officer and there certainly are provisions dealing with the effect of answering questions that may incriminate and so on, and there are provisions about legal representation and payment for it and so on.
The rules of natural justice of course are not normally applicable in non‑adjudicative situations. One associates rules of natural justice with adjudication rather than with investigation. There are obviously rules of fairness such as the, “Have you stopped beating your wife?” question, which may be an unfair question, although not contrary to the rules of natural justice perhaps. There may be issues like that arising out of fairness, but there is certainly nothing express about the rules of natural justice ‑ ‑ ‑
CALLINAN J: I see section 13B gives the Commission power to exclude legal representation.
MR BENNETT: Yes. It is particular legal representation rather than legal representation generally.
KIRBY J: Looking more and more like James I.
MR BENNETT: Your Honour, that is dealing with the lawyer who may be thought to be involved in some of the activities being investigated perhaps.
GUMMOW J: What section is this?
CALLINAN J: The legal representation, section 13B.
MR BENNETT: Yes. Well, that is probably an implied power of courts in any event in some cases, but one does not need to consider ‑ ‑ ‑
CALLINAN J: The courts can tell you you cannot be represented by a particular qualified legal practitioner.
MR BENNETT: Your Honour, we had that case involving Aboriginal land claims where the courts can require that the lawyer be of the one sex or the other because of particular matters being dealt with which are of sensitivity and not intended to be heard by members of the opposite sex. So there are situations where courts or tribunals are able to say, for good reason, a particular lawyer may not represent a particular party before it, but that is not something we are concerned with here.
GLEESON CJ: Is that a convenient time, Mr Solicitor?
MR BENNETT: Yes certainly, your Honour.
GLEESON CJ: We will adjourn until 2.00 pm.
AT 1.03 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.05 PM:
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: If the Court pleases, there are six matters remaining for me to deal with. The first is the matter your Honour Justice Hayne raised about the Federal Council legislation; the second is a further matter in answer to Justice Kirby’s question this morning; the third matter is the word “process”; the fourth is the words “civil and criminal”; the fifth is the phrase, “criminal process” and the sixth is the Court’s letter. I would expect to be less than half an hour dealing with those matters.
Now, your Honour Justice Hayne asked about the Federal Council of Australia legislation and there are three Acts. One of them is The Australasian Testamentary Process Act 1897, 60 Vic No 2, and I understand from the library your Honours have copies of that. Unfortunately, I have not had time to make copies for my learned friends but I am having that done. What is important about this Act, and I am grateful to his Honour Justice Hayne for bringing it to our attention, is that it provides a remedy for this situation.
Where a Supreme Court of a State in its probate jurisdiction makes an order that a person bring in any copy of the will of a deceased person that the person may have, this Act makes provision for that order to be served interstate and to be read as if it required the person to produce it to the Registrar of the Supreme Court of the colony in which the person is in.
KIRBY J: It is all adjunct to a court?
MR BENNETT: It was a court, your Honour, but a court exercising what certainly then would have been regarded as a basically administrative or almost investigative function ‑ ‑ ‑
KIRBY J: But it is a traditional function of a court?
MR BENNETT: It is a traditional function, it is, your Honour.
KIRBY J: That is not what we are dealing with here?
MR BENNETT: No, it is not, your Honour, but the relevance is that it was regarded as falling within the double‑barrelled power at the time although it related to a basically non‑adjudicative step. Now, in one sense, of course, the grant of a probate even in common form is adjudicative but only in a very tenuous manner, and calling people to produce any copy of a will the person might have one might regard as much closer to investigative than determinative of the rights of parties.
The second matter is your Honour Justice Kirby’s question. Might I just add one thing to my answer. Your Honour asked about ‑ ‑ ‑
KIRBY J: Which one of my questions?
MR BENNETT: Yes. Your Honour asked about a State Act which gave police officers power to give notice to people to attend before them and answer questions without regard to self‑incrimination. Of course by including that situation within this placitum the Commonwealth is enabled to control that. It could say no order of a constable under the Tasmanian Constable Empowerment Act shall be served under this Act, or it could say if such a notice is served the person must have the right to have a lawyer and to have a privilege against self‑incrimination. The Commonwealth could impose conditions.
A State Act which says you can serve documents by post might be subject to provisions in a Commonwealth Act which require personal service. In other words, the Commonwealth is able by having this power to mitigate any unfortunate effects of draconian State legislation about the effects of service.
KIRBY J: That is possible but there have been events in the history of our nation where cosy agreements between the Executive Governments of Commonwealth, State and Territory have not always been tender to the liberties of the citizens and that is why our job interpreting the Constitution and not a Dog Act is to stand at the gateway but look down the years.
MR BENNETT: Yes. Your Honour is familiar with the passages which say that one does not – if asked whether a power extends to something, one does not imagine an extreme and undemocratic application of the power.
KIRBY J: Unfortunately, this does not require a lot of imagination.
MR BENNETT: Your Honour, in my respectful submission, where it is merely facilitating the effect of service, there is no reason to limit the overall power. The third matter concerns the word “process”. My learned friend, Mr Bleechmore, criticised us and the other parties on my side of the Bar table and indeed the majority below for failing to provide a full definition of the word “process”. Now, of course, in constitutional debate one does not need to do that. The question is, does the present fall within it, not in the broader sense, what is everything that is or is not included, but let me answer his challenge in this way. The internal key to the meaning of the word “process’ above everything else is the word “service”.
This placitum is about the – for relevant purposes because we are not concerned with execution – service of process and in that context what one would have thought that process would mean would be something where a person’s rights or obligations are altered by virtue of service of a document on that person. One obvious example, and the example in this case, is where service of the document creates in the recipient an obligation to do something, namely, to attend before a body and give evidence.
Another example and a very clear example might be a provision of a State Act authorising the Registrar‑General to serve notice on a caveator that unless the caveator commences proceedings defending the caveat within 14 days the caveat will lapse. That would be classic process. It is something where the person’s rights are affected by the service of the document. What this placitum is doing is enabling the States to achieve service where their laws require service on a person if the person is outside the State.
In my respectful submission, if one relates the word “process” to “service” in that way its meaning becomes very clear and the present case where the service imposes an obligation enforceable under the criminal law to attend is a classic case where we would submit the service affects the person’s rights and therefore the service being what is important the placitum facilitates the service of the document.
HAYNE J: Does that argument go so far as to say that any document that is to be served is a form of process?
MR BENNETT: Well, when your Honour says “to be served”, it depends whether it is the service of the document which affects the person’s rights.
HAYNE J: Or on one view a summons to witness issued by a Royal Commission or tribunal of this kind is of a kind radically different from a subpoena.
MR BENNETT: No, your Honour, because in both cases the effect of service under the State law within the State is to affect the person’s legal rights and obligations by imposing an obligation to attend. Because of that, the service is an important act, an act which alters rights. The rights and liabilities of the person before and after the process server hands the document across are different and it is that which defines the process that has to be served. One does not serve a normal letter of demand. But if there is a statute saying that you are only liable to pay the debt if the document from the State is served on you first, then it becomes process. It is process because it is the service which affects your rights.
HAYNE J: Thus the council order to make good a dilapidated dwelling is a form of process.
MR BENNETT: It would depend, your Honour, whether the service of the document affected the person’s rights. If it was merely an invitation to attend and get some natural justice ‑ ‑ ‑
HAYNE J: No, no, the compulsive notice from the local municipality that says Blackacre is dilapidated, repair it. That is a form of process, is it?
MR BENNETT: If the obligation is different before and after the document is handed to the person, yes. If it merely records the person’s obligation and informs the person of it without in any way affecting that obligation, it is not. That is the test, in my respectful submission. That is a logical test because it ties the word to the concept of the placitum and what the placitum seeks to achieve. It is not seeking to make it easier to serve letters that tell people about things. It is seeking to enable, where one’s rights or obligations require service, to have that done outside the State.
Now, I do need to withdraw the last sentence of paragraph 25 of our submissions which suggest that the previous sentence is the only way the word “process” can be satisfied. Would your Honours simply, on my application, delete that sentence?
HAYNE J: Do you say that a statutory demand given under what used to be the old State companies legislation is a form of process?
MR BENNETT: That is not process of the State, your Honour, because that is ‑ ‑ ‑
HAYNE J: Yes, I see.
MR BENNETT: Yes. But if the statute had had a specific provision about a debt owing to a State and that debt was only payable if a demand was served first, or if an assessment of land tax were only payable if the assessment was served, then it would be process. But if it is merely ‑ ‑ ‑
GUMMOW J: What do you actually get out of the words “of the State”? Can you just look at that for a minute?
MR BENNETT: That the document is one issued by the State or an authority of the State under State statute. It may not be a statute of course. It could be parliamentary. There might be a State Parliamentary Committee which issues some sort of subpoena and that, we would submit, would be picked up as well, although we do not need to decide that in this case fortunately. Your Honours do not need to decide ‑ ‑ ‑
GUMMOW J: So “of the State” can include done by a non‑State body, can it, but under the authority of a State statute?
MR BENNETT: No, your Honour. If the State statute merely authorised a demand under the companies law ‑ ‑ ‑
GUMMOW J: That is what I am worried about, yes.
MR BENNETT: No, that would not be a process of the State, your Honour. That would be a private process.
GUMMOW J: So how close does one have to get to the notion “of the State”?
MR BENNETT: Well, your Honour ‑ ‑ ‑
GUMMOW J: I am thinking of section 75 obviously.
MR BENNETT: Yes.
GUMMOW J: Where bodies that are not quite the Commonwealth are the Commonwealth. Is that sort of thinking involved here, in the expression “of the State”?
MR BENNETT: It might be, your Honour. It is not a matter that has to be decided in this case. I would answer it by ‑ ‑ ‑
GUMMOW J: No, but I was scared about these terrifying possibilities, that is all.
MR BENNETT: I would answer it by the familiar proposition about day and night, that there are borderline cases of course but that does not mean that one cannot say that the Ministry is the State and something else is not. I do stress that your Honours do not need to decide on that definition which I have offered. It is delivered in response to my learned friend’s challenge as a possibility, but your Honours do not need to decide that in this case.
All one needs to decide here is that a subpoena, or summons, to attend before an investigative tribunal and give evidence is process, and that is a much easier question. We would submit that whichever of the elements one looks at, certainly the combination of “issued by a State authority”, “compulsorily requiring attendance on pain of breach of the criminal law”, in order to attend and give evidence in something preparatory to a possible criminal charge, with all those elements it is certainly on the process side of the line. If one had to formulate a test, the one I have suggested would be, we would submit, appropriate and is the only test which has regard to the context and looks at the word “service”.
The fourth matter is the words “civil and criminal”. We say two things about that. The first is that it is frequent in the use of English to take two words at opposite ends of a spectrum and use those words cumulatively to cover themselves and everything in between. I facetiously referred this morning to black and white television, which includes a lot of shades of grey, but one could have a lot of other examples. If one talks about the city and the bush, one probably intends to include outer suburbs and country towns. One nominates the extremes as including everything between them. In my respectful submission, there is nothing surprising about that usage. In relation to this sort of context, the words “civil and criminal” cover between them most of what the law talks about. Most things can be characterised as one or the other.
We do point out, however, that the boundary between civil and criminal is not necessarily a bright line. Now, there are a number of cases ‑ ‑ ‑
KIRBY J: This is exemplary damage as - have you lost your document, have you?
MR BENNETT: No, your Honour, I have mine. I was looking for copies to hand to your Honours.
GUMMOW J: We have it.
KIRBY J: We already have them.
MR BENNETT: Yes, your Honour.
KIRBY J: We are sitting here with bated breath.
MR BENNETT: Your Honour, those instructing me and working with me are more efficient then I gave them credit for and for that I apologise. What this document makes clear is that there are many areas where there is no clear division between civil and criminal. The passages we have referred to in Gray v Motor Accident Commission and in Collector of Customs v Labrador Liquor and I will not read those to you, your Honours – they are passages which say at some length what we have said in one sentence; that there is no clear bright line division between civil and criminal.
Many things straddle them or lie between them or are on the borderline between one and the other and the examples are fairly obvious ones. Civil penalties, exemplary damages, contempt of court, customs prosecutions are all things which have elements of one or the other and maybe one for one purpose and another for another purpose. It is not an absolute bright line distinction and that is important when one puts the words in a context like this.
One reason why they were put there, no doubt, is that the prior legislation had separated the two and it was desired to bring them together and to make it clear that everything was covered and they were no doubt thought between them to cover a universe. It would be a very clumsy way of inserting an unstated requirement that there be an adjudicative function associated with the process before it fits within it. This would be a very cumbersome way of achieving that result and it is unlikely that it was intended to be achieved in that way.
The fifth matter concerned criminal process. All I need to say in relation to that is to adopt what has been said by my learned friend, the Solicitor for New South Wales, but merely to add this; that if “civil and criminal” are mere labels which were intended to make it clear that everything was covered because it is one or the other, and one has to say, which box does this fit into, it clearly fits into the criminal box. It is connected with the criminal law. If what those words add is there must be some connection of some sort with civil or criminal law, that is easy. This is connected with the criminal law. There is no reason, again, we submit, to impose the requirement that it be the adjudicative aspects of the criminal law.
We stress the point made in our submissions and the learned Solicitor’s submissions many times. It is made so often that repeating it does not add to it and that is that the remarks which fell from members of the court in Ammann v Wegener and to a lesser degree in Alliance are remarks about the facts of those cases and they should not be taken as being absolute limits being laid down as to the scope of the placitum.
The final matter concerns the letter from the Court and I can be fairly brief in relation to that. I, like my learned friends, seek leave to put submissions in writing in relation to it and that will very much shorten what I wish to say.
GLEESON CJ: Yes.
MR BENNETT: What I do wish to say is this. In relation to Gosper, one has, of course, always in this area to separate the effect under the law of the State within the State and the practical ability to enforce it or make it work in relation to a person outside the State. They are separate matters. What Gosper was concerned about, like Laurie v Carroll was the doctrine of English law which appears in a string of cases in the 19th century with which your Honours are no doubt familiar.
I will not give your Honours all the names or all the references but the leading cases are Schibsby v Westenholz and Singh v Rajah of Faridkote. There was an earlier case involving Tobago called Buchanan v Rucker. I have not given your Honours the references to those. I can do that if your Honours wish to have them, but they are a line of cases which culminated in this Court in Laurie v Carroll which are concerned with the importance of service of a writ within the jurisdiction to establish the jurisdiction of the Court.
One of the consequences which emerges in those cases is that if England has a long‑arm statute which says the High Court of Justice can act on the service of process outside the United Kingdom in certain situations, a foreign country has an identical provision and the foreign country uses that identical provision to assert jurisdiction over someone in England in relation to an event entirely in the foreign country, the English court will not enforce the default judgment. That was also, and still is, the law in Australia. If an Australian stays at a hotel in London and does not pay his bill the London hotel sues in London, serves outside the jurisdiction under a long‑arm statute because the contract was made there and services performed there, the default judgment cannot be executed in Australia.
That is to do with this rather quaint doctrine of the court which has been developed by the English common law about service as a means of the courts establishing jurisdiction. It is what is in a pejorative way always referred to at The Hague Conference meetings as “tag” jurisdiction and it is regarded as a great deficiency of English law which the Europeans laugh at. That set of principles and ideas is something which is peculiar to courts. It does not apply to tribunals or statutory powers. For example, if we take my hypothetical of a Real Property Act under which the Registrar-General can give notice to a caveator that unless proceedings are commenced within 14 days the caveat will be removed, there is no rule of law which would prevent that being served outside New South Wales and having practical effect and legal effect within New South Wales.
The Gosper line of cases and Laurie v Carroll and so on have nothing to say about that document. They do not say the registrar’s jurisdiction is only New South Wales so it cannot be served in Melbourne; that is something which only limits courts.
GUMMOW J: That is what we had in mind in CSL.
MR BENNETT: Yes. So we would submit that it is purely a matter of construction of the New South Wales Act whether it, as a matter of New South Wales law, permits service interstate and, if it does, of course, all the consequences the Act dictates apply. Now, the enforcement of those consequences outside New South Wales may require the use of other provisions of the Service and Execution of Process Act and, in our respectful submission, they are available. I will not take your Honours through them, but one can thread together strings of provisions which enable them to be used for enforcement in that type of case.
Now, I need to answer where that takes the appellant in relation to the implied suggestion in the letter that the proceedings might in some way be moot. Let it be assumed that if the Crime Commission had not proceeded on the route it has proceeded on, using the Service and Execution of Process Act, and if my learned friends were to succeed in this Court, that nevertheless the Commission could achieve the same result by using the New South Wales legislation alone, let me assume that that proposition is correct, that does not make this case moot.
HAYNE J: It may affect the relief which the appellant is entitled to because the appellant seeks relief by way of declaration that he is not bound to attend.
MR BENNETT: Yes, it would certainly affect that, your Honour, and I accept that. But the fact that the Commission might have proceeded or might proceed in the future in a different way and achieve the same result ‑ ‑ ‑
HAYNE J: But one way of viewing these proceedings is simply as an action for declaration of invalidity.
MR BENNETT: Yes.
HAYNE J: And there having been an order made under section 76 which concerned this appellant, and there is no point about standing, none is evident to me, I do not think, from my part at least, any question of mootness arises, but it does go to what form of relief.
GUMMOW J: It is really declaration (iv) on page 52.
MR BENNETT: Yes, well, yes. That certainly would seem to go further on any view ‑ ‑ ‑
HAYNE J: It may also bear on declaration (i), cast as declaration (i) is, in absolute terms summons not validly served which may be thought as framed to carry with it conclusions about the operation of the New South
Wales Act which, on the appellant’s hypothesis, presumably is alive and well despite invalidity of the federal Act.
MR BENNETT: Your Honour, our only concern is that to submit that the validity of the Act in the manner argued for by the appellant is a live issue between the parties and falls for decision by this Court, and I have given your Honours the general submission about how we would seek to distinguish Gosper v Sawyer.
The other way one can distinguish Gosper v Sawyer is much simpler. That case, like Laurie v Carroll, depended on the absence of a provision authorising service out of the jurisdiction. Here the question would be, which your Honours do not have to answer, although your Honours have asked it, whether, as a matter of construction, the New South Wales Act does authorise service outside the jurisdiction for the purpose of its own consequences. One would have thought it does. It is significant that section 6(2) of the New South Wales Crime Commission Act refers to:
evidence that would be admissible in the prosecution of a person for an indictable offence . . . against the law of . . . another State –
So the Act certainly contemplates, as one would expect, that the investigation may extend beyond the borders of New South Wales. The Court could take judicial notice perhaps that drug offences and major crime takes place frequently across borders and one would expect ‑ ‑ ‑
KIRBY J: In Quick and Garran it says that they are dependent in the United States on the co‑operation of the Executive to return a person from one State to another. They did not have a provision like ours and at least, arguably, the assumption on which section 51(xxiv) is built is that without it you had a real problem in coercing people because of the notion of territoriality of boundaries at that time.
MR BENNETT: Very much so, your Honour. Many things, not just things courts do, depend on service of a document on a person as creating the right or obligation. All placitum (xxiv) does is say where you need to have service to achieve that sort of result under a State law, the Commonwealth can legislate to enable that to take place in another State, to make Australia borderless for the purpose of service of process. We would submit that is the approach that should be taken. Those are our submissions, your Honour.
GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for South Australia.
MR KOURAKIS: If the Court pleases, I adopt the submissions of the respondents and rely on our written submissions. I make only two other brief points. The first is a matter concerning the construction of the Crime Commission Act and whether, indeed, hearings and summonses are available to it for the purposes of its functions such as law reform functions, a matter raised by your Honour Justice Kirby. In our submission, as a result of applying from section 13 and the definition of “investigation” hearings and, accordingly, the power to issue summonses are limited to referrals of the investigation of relevant offences by the management committee pursuant to section 25 and so the summonses that would come to fall within the terms of the Service and Execution of Process Act would be limited to those summonses in the course of those investigations.
Next, your Honours, I simply make the point that if the New South Wales Crime Commission was given a power similar to the power exercised by coroners at the turn of the century to commit for trial if the evidence collected in the course of an investigation established a case to answer, then, in my submission, there could be no question but that the subpoenas or summonses issued by the Commission were criminal process just as the subpoena in Ammann is criminal process. In our submission, it is an artificial distinction to say that those summonses cease to be process if a structure is determined upon which separates the collection of evidence function from the exercise of the discretion or power to place on trial. If the Court pleases.
KIRBY J: Do all of the States have Crime Commissions?
MR KOURAKIS: South Australia does not. New South Wales is not alone, but South Australia does not.
GLEESON CJ: Ms Sloss.
MS SLOSS: If the Court pleases. We have filed written submissions and also a short book of extrinsic materials which I understand the Court has. There are two minor errors in our written submissions and we just hand up replacement pages to correct that if that is possible, simply correct it because the Court has made reference to coroners and there is a provision, both in paragraphs 9 on page 3 and paragraph 21 on page 7, where reference is made to the provisions of the Service and Execution of Process Act upon its inception and we say that it included coroners from the start. Well, the formal words of the Act, in fact, did not. It is an error on our part and we have handed up the replacement pages, so paragraph 9 and paragraph 21 have now been amended to correct that. We have also included with that a copy of the 1958 amending Act – that is on its way now. It will show that coroners were formally included in 1958.
Just in terms of the cases that your Honours have been referred to, that of course is after the decision of this Court in Aston v Irvine but before the decision in Ammann v Wegener so that perhaps when your Honours are reading those cases your Honours will now be more alert to the error that we made. It does not change anything that we have said and the submissions otherwise remain the same.
It is interesting, however, to note that in the second reading speeches at the time the 1958 amending Act was introduced, both in the Senate and in the House of Representatives reference was made to the same kind of – for want of a better word I will call it “evil” that was sought to be corrected by 51(xxiv) in the sense that what was being looked at was the inability to serve or effectively serve upon a person in another State process of the State which was conducting the investigation. In the case of coroners some doubts had been raised, particularly in Western Australia, about the difficulties of serving out and the amendment was formally made in 1958 to correct any doubt that might have been there.
KIRBY J: Does Victoria have a Crimes Commission?
MS SLOSS: We have a Major Crimes Investigation. We do not have a Crimes Commission exactly the same as the one that is in New South Wales, no, but we do have an Act that is referred to in our submissions at paragraph 38 – the Major Crime (Investigative Powers) Act 2004.
The Chief Justice before lunch queried whether revenue authorities of the States have the ability to exercise similar powers. For our part in Victoria we do have the Taxation Administration Act 1997 which both has power to serve a notice to require a person “to attend and give evidence” – that is section 73(1)(b) and section 73(4) says that:
The Commissioner may require evidence . . . to be given on oath –
So in terms of the definition of “tribunal” under the Service and Execution of Process Act (Cth) a process issued by that State revenue authority might well qualify as a tribunal, assuming it is process for the purposes of the Act it would be issued by a body that would be capable of qualifying or coming within the description of a tribunal as defined in the Commonwealth Act.
We have mentioned also in our written submissions in paragraph 41 provisions of the Evidence Act (Vic) to which Justice Crennan made reference also before lunch. We have referred specifically to a number of boards and commissions which get their powers from the Evidence Act. Two examples are given, the Ombudsman Act and the Whistleblowers Protection Act. There is a fairly long list of different Acts that pick up and
use those powers. If it would be of assistance to the Court, we can provide that.
KIRBY J: How does that cast light on the pre‑existing federal Constitution, the fact that the State has gone ahead and made lots of laws that cannot alter the content of the federal constitutional power?
MS SLOSS: That may well follow, your Honour, yes. Those powers have been picked up and many have them have been around for a very long time in the same way that the Royal Commissions have been used in the State of Victoria. The powers go quite widely. They go to bodies that include things like Warden’s Courts, for example, but we can give you a list if that would be of assistance. It comes under sections 14 and 17, effectively, of the Evidence Act 1958.
GLEESON CJ: Yes, thank you.
MS SLOSS: We will provide that. May we also have 14 days to put in any written submission we might determine to file in respect of the matter that was raised by the Court last evening by fax?
GLEESON CJ: Yes, certainly.
MS SLOSS: If the Court pleases, those are our submissions.
GLEESON CJ: Thank you, Ms Sloss. Yes, Mr Bleechmore.
MR BLEECHMORE: If the Court pleases, I have a very brief reply focused really only one point that was made by my learned friend, the Solicitor for the Commonwealth, in referring to his four‑square diagram and, in particular, the right‑hand top corner of it and providing examples of bodies which do not strictly engage in an adjudicative function and arguing, therefore, that from that, as it were, thin end of the wedge, that one is justified in expanding the definition of “process” to cover the process of bodies such as the New South Wales Crime Commission.
My point made on behalf of the appellant is simply that if one looks at the bills of discovery in Equity or the Coroners Court or processes of pre‑trial discovery, they are very much part of the system for the administration of justice. They are part of it. It may be that – well, as indeed in the case of the committal hearing in Ammann itself, that there may be processes and, indeed, even bodies within the processes for the administration of justice which do not engage in strictly adjudicative functions but they are, nonetheless, still part of the system for the administration of justice.
The Coroners Court formerly, of course, acted in much the same way as a committal court and had the power to commit a person for trial in certain circumstances. The Coroners Courts now do not have that power and the separation, but the long history of the Coroners Court back, indeed, I believe to the 12th century, meant that it was regarded as a court and as part of the system for the administration of justice. Those are the only submissions by way of reply, your Honour.
GLEESON CJ: Thank you, Mr Bleechmore. We will reserve our decision in this matter and adjourn until 9.30 tomorrow in Sydney.
AT 2.49 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Administrative Law
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Civil Procedure
Legal Concepts
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Judicial Review
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Standing
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Jurisdiction
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Procedural Fairness
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Abuse of Process
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Stay of Proceedings
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