David Glass (a pseudonym) v The Chief Examiner & Ors

[2015] HCATrans 339

[2015] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M114 of 2015

B e t w e e n -

DAVID GLASS (A PSEUDONYM)

Applicant

and

THE CHIEF EXAMINER

First Respondent

THE COUNTY COURT

Second Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS

Third Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2015, AT 1.19 PM

Copyright in the High Court of Australia

MR C.S. CARR:   If the Court pleases, I appear for the applicant.  (instructed by Theo Magazis & Associates)

MR R.M. NIALL, QC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear with my learned friend, MR A.C. IMRIE, for the first respondent.  (instructed by Office of Chief Examiner)

NETTLE J:   Yes, Mr Carr.

MR CARR:   Your Honours, I seek to establish three propositions, the first being that there is a question in relation to the operation of the principle of legality that is both sufficiently important and sufficiently uncertain as to justify the grant of special leave; secondly, that that issue is a significant one to the resolution of the question of construction that arose in the present case in the Court of Appeal; and thirdly, that if that question were resolved in the applicant’s favour, that it would make a difference to the outcome.

If I can go then to the first proposition, the importance of the uncertainty of the principle of legality, the passage that was cited by the Court of Appeal from paragraphs 313 and 314 of their Honours Justices Gageler and Keane in Lee v NSW Crime Commission gives rise, in my submission, to this issue.  Their Honours said there that the principle of legality:

at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked.

The difficulty, in my submission, with that proposition is that statutes commonly pursue a particular objective but a constructional choice arises at the stage of determining how far the legislature has gone in pursuing that objective.  That proposition makes the principle of legality and its rationale fundamental in that context because the rationale, as their Honours set out in Lee v NSW Crime Commission for the principle is the requirement for the legislature to express with clarity its intention to curtail or abrogate and to confront the political costs of curtailing or abrogating the particular right.

That rationale, in my submission, extends equally to a question of the extent of curtailment as it does to whether there is any curtailment at all.  So, in my submission, there is an issue that is uncertain and that this Court, in my submission, ought resolve, and it is an issue that is of importance because it is a principle regularly invoked and a principle that has long support and frequent operation in the interpretation of legislation.

So, dealing with the first proposition, in my submission, there is a question that merits a grant of special leave in that issue.  The second proposition is that that question arises from the question of construction that arose in this case, which was whether a coercive and extant coercive powers order was a jurisdictional prerequisite to the exercise of the powers pursuant to section 43 of the Act to make a non‑publication direction and therefore to revoke a non‑publication direction.

There is nothing in section 43 of the Act that could possibly give rise to that and so it is by reference to section 4 of the Act that, if there is a jurisdictional prerequisite for an extant CPO, then it arises from section 4.  So the question of construction was as to the construction of section 4 of the Act and, in my submission, there were two textual considerations, one which pointed in either direction and which therefore gave rise to the principle of legality having a decisive role to play.

The two textual considerations were these.  First, the point made by the Court of Appeal that there were four steps in the process.  At page 73 of the application book, at the end of that page, paragraph 50, there were four steps provided by the scheme of the Act:  the making of a coercive powers order, the issue of a summons to a witness, the examination of witnesses and the making of ancillary directions.

The textual point relied upon by the Court of Appeal in the following paragraph was that only in respect of that second step – the compulsory process for the attendance of a witness – was the prerequisite of an extant coercive powers order expressly made, therefore leading to an implication that there was no such requirement in respect of the other steps.

The textual consideration pointing in the other direction, in my submission, was this, that the legislature had imposed strict requirements, strict temporal limitations upon a coercive powers order which would be effectively subverted if there was no requirement for an extant coercive powers order, at least in respect of the third step, the examination of witnesses, because if there were no such requirement the examination of witnesses would not be limited to the 12 months, or maximum 12 months for which a Supreme Court judge can make a coercive powers order and could continue with adjourned examinations and the like almost ad infinitum.

So there was a textual consideration point in favour of a coercive powers order being ‑ an extant coercive powers order, rather, being a jurisdictional prerequisite for at least the third step of the four steps.  That then leads to how that prerequisite might be – or where it might be found and, in my submission, it could only be found in section 4.

Section 4 is extracted perhaps most conveniently at page 106 of the application book at the top of the page, and if one reads that provision through the prism of the principle of legality, in my submission, it is appropriately read as imposing a requirement that a coercive powers order be in force in order to authorise the use of those powers provided by the Act as well as the limitation that the purpose for which those powers provided by the Act may be exercised is:

for the purpose of investigating the organised crime offence in respect of which the order is made.

GORDON J:   So, just so that I am clear, is your submission that a non‑publication direction is a power which falls within the terms of section 4?  That is, is it your submission that it is a power provided by the Act “for the purpose of investigating the organised crime offence”?

MR CARR:   In my submission, I do not need to go that far because the concluding clause “for the purpose of investigating the organised crime offence”, in my submission, what that does is it designates the permissible purpose for which the preceding five words – “powers provided by this Act” – may be exercised.  So, in my submission, “for the purpose of investigating the organised crime offence” identifies the permissible purpose for which the powers provided by the Act may be exercised.

So, the question, in my submission, is not whether the making or revoking of a non‑publication direction is a power provided “for the purpose of investigating the organised crime offence”; rather, the question, in my submission, is whether it is a power “provided by this Act” – it plainly is – in which case, the limitation that flows is that it may be exercised “for the purpose of investigating the organised crime offence in respect of which the order is made”.

The reason that, in my submission, that provision provides a jurisdictional prerequisite if read through the prism of the principle of legality is that “A coercive powers order authorises” ‑ the opening words of the section ‑ in my submission, must mean if one takes the principle of legality approach, that it authorises whilst in force because otherwise when it is no longer extant it could not have that effect.

GORDON J:   So we are told that we must read the statute as a whole.

MR CARR:   Yes.

GORDON J:   Does that submission cut across the way in which sections 14(1), 15(1) and 18(1) are written, and how would we seek to resolve that inconsistency?

MR CARR:   That is the textual point that I accept is against me.  In my submission, it is not a conclusive textual point.  It is a point that points in favour of a manner of those particular provisions being drafted that is one suggestion that only those provisions ‑ applying the expressio unius maxim, it is an indication that other provisions are not subject to the same prerequisite.

But, as I submitted earlier, there is a contradictory indication in the legislation which is that there is a strict temporal limit placed upon the powers by force of the requirement for a coercive powers order to be limited to no more than 12 months and for oversight by the Supreme Court by way of extension or variation, and that would be inconsistent with the possibility of examinations occurring long after the coercive, or after at all the coercive powers order has expired.  So, those are my submissions on that second proposition.

The third proposition that I seek to make good is that resolution of that issue in favour of the applicant would make a difference to the outcome is made good, in my submission, by this fact.  The applicant’s loss on that point before the Court of Appeal cascaded into each of the other issues that the Court of Appeal dealt with and determined against the applicant because it was by reason of the loss on that issue that the Court of Appeal determined that the proposed substantive judicial review proceeding had only weak prospects and therefore that the learned associate justice erred in the applicant’s favour in finding that it was arguable and therefore also that – and that point also went to the Court of Appeal’s decision that it would have in any case refused an extension of time because of the weakness of the proposed underlying judicial review proceeding.

So, in my submission, this is an appropriate vehicle for the resolution of the question of principle.  The question of principle, in my submission, is a significant one and there is uncertainty around that issue which this Court ought resolve.

NETTLE J:   We need not call on you, Mr Niall.  Thank you.

In this matter the Court is of the view that the applicant’s sole proposed ground of appeal does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal.  Accordingly, the application for special leave is refused.

MR NIALL:   I seek an order for costs, if the Court pleases.

NETTLE J:   The application is refused with costs.  Thank you, gentlemen.

AT 1.35 PM THE MATTER WAS CONCLUDED