Donyadideh v The Queen

[1992] HCATrans 266

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IN THE HIGH COURT OF AUSTRALIA

Registry No Cl4 of 1992

B e t w e e n -

ALI ASGHA DONYADIDEH

Applicant

and

THE QUEEN

Respondent

Application for removal of

cause pursuant to section 40 of

the Judiciary Act

BRENNAN J

DEANE J

GAUDRON J

Donyadideh 1 2/9/92

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY. 2 SEPTEMBER 1992. AT 11.34 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:  If the Court pleases, I appear with my

learned friends, MR J.F. LITTLE and

MR S.H. MACFARLANE, for the applicant. (instructed

by Maliganis Edwards Johnson)

MR J.I. FAJGENBAUM, QC: If the Court pleases, together with

my learned friend, MR P.A. COGHLAN, I appear for

the respondent. (instructed by M. Rozenes, QC,

Director of Public Prosecutions (Commonwealth))

MASON CJ: Yes, Mr Wendler.

MR WENDLER: If the Court pleases. Before I invite

Your Honours to an outline of contention, can I

just mention two matters of procedure. In the

application to remove book there is a copy of the

notice raised pursuant to section 78B of the

Judiciary Act. It is dated 8 July this year.

There is an affidavit in connection with that

notice. Briefly, it suggests that all notices were

issued to the Attorneys-General throughout the

Commonwealth informing them of the issue involving

the Australian Constitution Act or its

interpretation.

Last week another affidavit was filed in

relation to the return of those notices. I am not

sure whether Your Honours have had an opportunity

to read that affidavit which is dated 27 August.

What it does is just indicate that all the

Attorneys have responded and indicated that should an order be made removing the constitutional issue,

then they seek further instruction in relation to

that.

However, in paragraph 5 it is significant to

note that the Attorney-General for the Australian

Capital Territory has indicated that if an order is

made removing the constitutional issues into the

Court, then he would, in fact, possibly or

definitely intervene. It is interesting to note

that the Attorney of the Territory does not

indicate in what interest he would intervene.

Perhaps a submission may be made by him that "other
Federal courts", the expression where it appears in

the Constitution includes those courts created

pursuant to section 122. Perhaps that is always

what was intended. So if the Court pleases, that

is the first matter of procedure concerning the
notice.

The second matter is this: when my friends supplied me with a copy of their list of

authorities I detected that there may be a

submission advanced in this Court by them that this

application is incompetent in law in that the

Donyadideh 2/9/92

expression "cause" in section 40 of the Judiciary

Act does not mean committal proceedings, committal proceedings being in the nature of some

administrative process, and therefore it would be

constitutionally impossible for this Court to

entertain the cause in those circumstances.

Can I inquire of my friends if they propose to

make that submission.

BRENNAN J: Whether they propose to make it or not, what do

you say about it?

MR WENDLER:  The reason I have mentioned it is this:

because the submission would, in effect, be

suggesting that section 40 of the Judiciary Act is

in itself unconstitutional, which would suggest

that my friends would have to comply themselves

with section 78B if that were the effect of their

argument. That is why I mention it now.

BRENNAN J:  Do you say that this Court could entertain a

proceeding for the committal of a person to trial?

MR WENDLER:  Yes, that is my submission, if the Court

please.

BRENNAN J: Yes, all right.

MR WENDLER:  Does Your Honour want me to develop that? My

submission is that the word "cause" means criminal

proceedings. Criminal proceedings include the

committal process, and it is competent for this
Court to make orders removing the issues involving

the Constitution or its interpretation.

DEANE J: But "cause" in the Judiciary Act must be construed

in the context of the Constitution. If a committal

proceeding does not involve an exercise of the

judicial power of the Commonwealth and is

antagonistic to it, so far as this Court is

concerned, there would be no question of the
validity of section 40.	It would be simply it did

not encompass the removal of the committal

proceeding.

MR WENDLER:  It may well be the submission is that in some

way section 40 is ultra vires section Sl(xxxix) or something. I am not sure. But I detected this in

some of the cases mentioned in their list of

authorities. I have not seen an outline of

contention by my friends, but if that were their

inclination to make some -

BRENNAN J: It is not a question of their inclination. It

is a question of whether you can demonstrate

that this Court has jurisdiction to accede to your

Donyadideh 2/9/92

application, which is for the removal of committal

proceedings into this Court.

MR WENDLER:  Can I start then in relation to that ground by

inviting Your Honours to section 40 then of the

Judiciary Act. The term "cause", of course, is

also mentioned in section 2 of the Judiciary Act,

and it includes criminal proceedings. A convenient

starting point, Your Honours, is the decision of

Green v Jones, which is a decision of a single

justice in the Supreme Court of New South Wales.

BRENNAN J:	Do you have a copy available?
MR WENDLER:	Yes, I am about to give Your Honours a copy of

that.

BRENNAN J:	I think we have a copy, thank you, Mr Wendler.
MR WENDLER:	It is a decision of His Honour Justice Hunt, as

he then was. It appears in (1979) 39 FLR 428.

That is an authority which holds the term "cause"

in section 78B includes criminal proceedings and

encompasses committal proceedings. In short, it

has only been a matter of history really that

committal proceedings have had a description that

they are administrative in some way, or have a

description which historically suggests that they

are not judicial proceedings. However, the modern

situation must be that they might be described as

quasi judicial. Indeed, they are intimately
connected with the curial process, and this is the

way this Court treated the legal nature of a

committal hearing in Reg v Murphy,

(1985) 158 CLR 596.

Can I invite Your Honours to that decision

which is on our list of authorities as I propose to

read a passage from it at page 616. At 616 point 5

this Court said:

Traditionally committal proceedings have been

regarded as non-judicial on the ground that

they do not result in a binding determination

of rights. At the same time they have a

distinctive judicial character because they

are curial proceedings in which the magistrate
or justices constituting the court is or are

bound to act judicially and because they

affect the interests of the person charged. In short, the complexion of the committal

proceeding is such that it is intimately connected

to the curial process, and therefore, by a liberal

and efficacious construction of section 40 they are

proceedings which can come fairly within that

section. In other words, one considers the

Donyadideh 2/9/92

practicalities of the situation. It could not

possibly be that the intention of the Parliament

that every time an issue-involving the Constitution

arises in committal proceedings, this Court is

immediately shut out from coming in to entertain

important national issues at the earliest possible

opportunity. It could not possibly be as a matter
of practicality that a citizen engages in a long

committal process and an issue involving the

Constitution arises and it is not removed into this

Court, and at the end of the proceedings once an

indictment is raised and it goes off for trial in

another court; it comes before this Court and this

Court holds that by reason of some defect in law

the charge is set aside or quashed or whatever, six

months for nothing.

So in short, my submission is that section 40

does contemplate within its terms a removal when an

issue involving the Constitution or its

interpretation arises. And the issues in this

case will be concerning the categories in

section 75(i), (ii) and (iii) of the Constitution

which arise out of the charges the applicant is
facing.

So that is generally the first submission. Can I invite Your Honours now to the outline of

contention.

BRENNAN J:  If the Court were to accede to your application,

then the question of whether this Court has

jurisdiction to entertain it would itself be an

issue for determination.

MR WENDLER: Yes, Your Honour, an important issue, in my

respectful submission.

BRENNAN J; Well now, that would mean that the question

which you seek to have removed for determination

may not be reached, and that in turn raises a

question whether it is an appropriate case for the
removal.	How can you make it an appropriate case

for removal without being able to demonstrate

conclusively that the jurisdiction exists?

MR WENDLER:  I rely, if the Court pleases, on His Honour

Justice Hunt's construction of 78, and I rely on

the expressions by this Court, all of the members

of this Court, in Reg v Murphy, that there is an
intimate connection with the curial process.

Historically, there have been situations where a process which is so close to a curial process,

yet it can be entertained by, say, an

administrative body, but yet being so close to the curial process. It would not offend any principle

Donyadideh 5 2/9/92

of Australian constitutional law enabling this

Court to entertain it because it is so close to the

judicial process.

DEANE J:  If a committal order were made in this case, in

what courts would it be open to the prosecution to

bring proceedings, putting aside the constitutional

question?

MR WENDLER:  I am not sure I entirely understand Your Honour

Justice Deane's question.

DEANE J: What I am really asking you is: assume a

committal order is made. Does it automatically

follow that the trial will be in a Territory court?

MR WENDLER:  In this case, it does not automatically follow

in the sense that because the prosecution is being

conducted with the authority of the Director of

Public Prosecutions (Commonwealth), there would be

nothing stopping the Commonwealth Director laying,

as it were, informations or indictments in, for

instance, State courts and not processing the

matter in the Supreme Court of the Australian

Capital Territory.

DEANE J: That is what I was asking.

MR WENDLER:	That raises another problem as to whether or not, given that this is a challenge to
jurisdiction, the ACT Magistrates Court can commit
to a court which itself has no jurisdiction, and
that follows from the nature of this challenge.

DEANE J: The initial question is whether section 75 of the

Constitution vests original jurisdiction in this

Court to entertain committal proceedings. Assume

against yourself that that question is answered in

the negative and as being not arguable. The next question then is: do these committal proceedings

lead inevitably to proceedings in the court of the

Territory, because if the answer to that is "Yes",	the committal proceedings are aimed at getting a
consequence which you would say would be contrary
to the Constitution. But as I follow it, the
answer to that question is in the negative, which
means that if section 75 does not vest original
jurisdiction to entertain committal proceedings in
this Court, the questions you wish to debate may,
though not probably, turn out to be academic.

MR WENDLER:	That may be the case, yes.
DEANE J:	I do not know where that leaves things, but it is

a complication.

Donyadideh	2/9/92
MR WENDLER:	I appreciate Your Honour Justice Deane's

inclinations in that direction. Do Your Honours

have a copy of the applicant's outline?

DEANE J: Yes.

BRENNAN J:  The Court will adjourn briefly in order to

consider what course it will take.

AT 11.53 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.08 PM:

BRENNAN J:  Mr Wendler, if you would proceed to address the

rest of your argument.

MR WENDLER: If the Court pleases. Your Honours, this

application arises out of an incident which

occurred in early April of this year within the

precincts of the Embassy of the Islamic Republic of

Iran. On that day, the applicant and some 12

others, entered the Embassy and as a result of that

entry, were charged with various offences pursuant

to the Crimes (Internationally Protected Persons)

Act.	I propose now to invite Your Honours to a
copy of that piece of legislation.	I am handing up
the legislation in its entirety.	Do Your Honours
have a copy of that?

BRENNAN J: Yes, I think we have.

MR WENDLER: Could I also invite Your Honours to the

Diplomatic Privileges and Immunities Act.

Your Honours, can I just say something briefly

about the legislation, that is the Crimes

(Internationally Protected Persons) Act, before I

move to the section which concerns the charges.

In the schedule to the Act is set out the -

Convention on the Prevention and Punishment of

Crimes against Internationally Protected

Persons, including Diplomatic Agents. That treaty was signed by Australia's Ambassador to

the United Nations on 20 June 1977. The State of

Iran signed that convention on 11 August 1979.

That is when it became one of the State's parties

to that convention.

Donyadideh 2/9/92

In Article 1 of the convention there is set

out the definition of the description

"internationally protected person". In Article 2

is set out various criminal acts which the

convention identifies as being matters which come

within the prevention and punishment of crimes

against internationally protected persons. In

short, the Act implements the treaty.

The applicant and others were all charged

pursuant to section 8 of the Act, in particular

section 8(2)(c), section 8(3)(a), section 8(3)(b).

Those charges were laid because they concerned

various criminal acts against internationally

protected persons and the premises where the
internationally protected persons were residing.

The three so described internationally protected

persons were all members of the staff of the

embassy.

BRENNAN J:  We do not need the facts of the case,

Mr Wendler. We only need to know what the nature

of the issues is that is to be raised.

MR WENDLER:  I was a little concerned as to how far I should

go in relation to facts in order to put

Your Honours in the picture of how these charges came about, but if Your Honours do not want me to go in that direction I will come straight to the

legal considerations.

Your Honours, the submission is this in

relation to the charges: that those charges which

Crimes (Internationally under any treaty within the meaning of

are brought pursuant to the

section 75(i) of the Constitution; (2) affecting

consuls or representatives of other countries

within the meaning of section 75(ii).	I pause
there for a moment.

The construction of section 75(i) of the

Constitution has only been considered as far as I

know on one occasion, in 1956 by a single justice

of the Supreme Court of New South Wales sitting in

the equity division of that court. The case I am

referring to is Bluett v Fadden, a case I will come

to in a moment. In relation to section 75(ii) of the Constitution, the meaning of that section has

never, as far as I know, been construed in this

Court. The submission also encompasses

section 75(iii) of the Constitution in so far as

the Director of Public Prosecutions is a person who is suing in the wider meaning of the term, suing on behalf of the Commonwealth.

Donyadideh 8 2/9/92

Can I return then to the section which concerns a treaty within the meaning of

section 75(i). Section 75(i) of the Constitution

does not read, "In all matters directly arising

under any treaty". It reads:

In all matters -

(i) Arising under any treaty.

The question is whether, in relation to these

charges, they are matters or controversies arising

under the treaty. In my respectful submission, the

charges pursuant to section 8 of the Crimes

(Internationally Protected Persons) Act come within the ambit of section 75(i) because in order for the

Act to be valid, the treaty must exist. The treaty

provides a legal chain, as it were, in the
prosecution of the offence under the Act, an

important legal chain. In short, no treaty, no

Act, no charge, no case.

The submission is that the Crimes

(Internationally Protected Persons) Act depends for

its validity on the existence of the treaty, and

accordingly, a matter arising under the Act arises

under the treaty indirectly, section 75(i) not

requiring that the matter arise directly under the

treaty. So that is the first sense in which, in my

respectful submission, the applicant comes within

the constitutional original jurisdiction of this

Court.

It is perhaps important to point this part out

as well. Your Honours, in section 16 of the Crimes

(Internationally Protected Persons) Act - can I

just invite Your Honours to that

section - section 16 has the legal effect of

amending section 38 of the Judiciary Act, in other

words to shut out any direct process into this

Court, because matters directly arising under a

treaty under section 38 of the Judiciary Act

attract the exclusive jurisdiction of this Court.

Section 16 appears to amend that.

The other sense, if the Court pleases, is that

the charges come within section 75(i) in what might

be described as the Bluett v Fadden sense. Can I

just invite Your Honours to this decision which

appears in (1956) SCR(NSW) 254. As far as I know,

this has been the only occasion where a superior

court has had occasion in the circumstances of the

case to construe at some level section 75(i) of the

Constitution. At page 261 of the report His Honour

Justice McLelland says this at point 5:

Donyadideh 2/9/92

It is the legislation which creates the

rights which are justiciable and I am of

opinion that, having regard to this fact, the

rights can only be said to arise under the

legislation and cannot be said to arise under

the treaty.

Section 75 must, I think, be taken to

refer to cases where the decision of the case
depends upon the interpretation of the treaty.

In such cases, the matter in question arises

under the treaty.

In this case, because the Act, section 3, tells you

to apply the treaty, it is a matter arising directly under the treaty, in my respectful

submission, because the definition of

"internationally protected persons" is in the

treaty, and that is a component of the charge.	The
charge cannot stand unless it is proved beyond a

reasonable doubt that the person who is alleged to
have been attacked within the meaning of section 8

is an internationally protected person, that is, a

component or element of the offence which has to be

proved. So in that sense, so far as section 3(3)

of the Act which reads:

Except so far as the contrary intention

appears, an expression that is used in this

Act and in the Convention has, in this Act,

the same meaning as in the Convention, whether

or not a particular meaning is expressly
assigned to it by the Convention and whether

or not the Convention has entered into force -

and so on. In other words, it is the Act telling

you to look to the treaty for various expressions

which concern the execution of the Act from time to

time. So in that sense, in my respectful

submission, the applicant comes within the original

jurisdiction of this Court.

I move now to the second limb of the

submission as to whether the charges come within

section 75(ii), the second part of the

constitutional original jurisdiction of this Court.

As I have indicated to Your Honours, the meaning of

this section has not been construed in the history

of this Court, and in a sense, perhaps this

particular application provides a useful vehicle

for an opportunity for this Court to construe a

matter of, in many ways, national importance.

DEANE J:  Is it implicit in your argument that the committal

proceedings in the magistrate's court are a matter

for the purposes of section 75 of the Constitution?

Donyadideh 10 2/9/92

MR WENDLER:  Yes, there could not be any doubt about that,

if the Court pleases. The pleading not guilty - it

is a controversy. All issues are joined in

relation to their alleged criminal responsibility

which arises out of the definitions in the Act.

DEANE J:  I hear you say that, but assume against yourself

that the proceedings in the magistrate's court are

an executive inquiry and not a judicial process.

MR WENDLER:  Yes.

DEANE J: The assumption that they are a matter seems a

rather large one to me.

MR WENDLER: If Your Honour sees it as correct, yes. That

would undermine the submission entirely.

DEANE J:  I could understand an argument that in committal

proceedings a question might arise which, if

isolated and removed into this Court, would be a

matter which could be dealt with by the Court in

the discharge of its judicial functions but it seems to me the question whether the committal

proceedings themselves are a matter for

constitutional purposes is a different question.

MR WENDLER: Yes, it is a different question. Indeed, if

Your Honour's invitation is to assume against

myself - - -

DEANE J: No, what I was wondering really was whether, in

your argument on section 75, you may be pushing at

a door in relation to which there was not much

resistance, and ignoring an impediment before you

reach that door.

MR WENDLER: Is Your Honour suggesting that - - -

DEANE J:  I was really wondering if the committal

proceedings are a matter, is it contested that they

would come within one or other of

section 75(i)(ii)(iii)?

MR WENDLER:  I do not really know.

MR FAJGENBAUM: Yes.

DEANE J: Well it is contested.

MR FAJGENBAUM: It is, if the Court pleases.

DEANE J: In that case, I am unnecessarily delaying you on

that aspect.

MR WENDLER:  Can I move, if the Court pleases, to the

second, as it were, limb of the submission as to

Donyadideh 11 2/9/92

whether or not the charges come fairly within a

matter pursuant to the constitutional original

jurisdiction in this Court in 75(ii).

Can I just invite Your Honours to a paragraph

from the learned authors' great work on the

Constitution. I am referring to Sir John Quick and

Mr Garran's book. At paragraph 322 point 9,

page 771 of the work, there appears this

suggestion:

It seems, however, that the words of the

Constitution are broad enough to cover cases

where the consul or other representative is

not a party, but may be affected in interest.

In other words, there appears to be an inclination

that it is not necessary for the representative of

the sending State to be a party to any form of

litigation but rather some diplomatic interest is

affected.

In short, the submission is that all of the

alleged victims of this attack - indeed, all of

them being regarded and are today regarded by the

Commonwealth as representatives of the Islamic

Republic of Iran, one of them whose title is a

third secretary, another's title is that he is some

administrative assistant to the embassy and so on.

This is a conceded fact. Indeed, at the committal

hearing documents were tended by virtue of the

Diplomatic Privileges and Immunities Act attended

and raised through the office of the Department of

Foreign Affairs and the Minister for Foreign

Affairs, that these persons who were attacked have

a diplomatic status of some form.

In short, it is conceded that they have the

sort of status which, in my respectful submission,

is contemplated in the description in

section 75(ii).

Indeed, one of the issues - important issues -

in relation to 75(ii) is that because the

convention confers special protection, as it were,

upon these people and sets up special procedures

when that protection is invaded in some way, what

is under consideration is the scope of that special

protection in the Act. So, in that sense, in my
respectful submission, the charges and the

applicant come fairly within the description in the

original constitutional jurisdiction of this Court.

Can I move now to the third category in which,

it is respectfully submitted, the charges come,

that is section 75(iii). A scrutiny of the

Director of Public Prosecutions Act - do

Donyadideh 12 2/9/92

Your Honours have a copy of that Act because I have

made copies of the relevant sections of that Act.

BRENNAN J:	I think you had better hand that up, if you would, please, Mr Wendler.
MR WENDLER:	Your Honours, by virtue of the combined

operation of sections 6 and 8 of the Director of

Public Prosecutions Act, it is quite clear that the

Act sets up this office or functionary, described

as the Director of Public Prosecutions, who is

empowered to carry on the prosecution of offenders,

or rather in relation to offences committed against

the laws of the Commonwealth. Section 8 of the Act

clearly suggests that he, that is the Director, is

under the control of the Attorney. In other words,

the Attorney - I am not suggesting he orders him

around, but the Director of Public Prosecutions is

subject to some direction by the Attorney.

In my respectful submission, the Director is

in effect suing, if Your Honours accept my

submission that the expression "suing" includes

.criminal process as well, that he is, in a sense,

prosecuting these offences on behalf of the

Commonwealth as he is empowered to do under the

DPP Act. So, in that sense, it is respectfully submitted that the applicant comes within

section 75(iii) of the Constitution.

If Your Honours are of the view that these

charges come within any one of the three categories

I have mentioned in the constitutional original

jurisdiction of this Court, then the next question

becomes this, and this concerns the legal

relationship between Chapter III and section 122.

. It has been conclusively established, in my

respectful submission, that courts created, pursuant to the Commonwealth's authority in section 122 of the Constitution, the Territory's

power, are not federal courts within the meaning of

Chapter III, nor do they exercise federal

jurisdiction within the meaning of Chapter III.

Their jurisdiction, or the sole source of their

jurisdiction, is from section 122. Whatever one

says about what has not been established in Spratt

v Hermes and Capital TV & Appliances, that much has

been established and affirmed.

The question then becomes, how do you channel

the High Court's original jurisdiction set out in
section 75 and the additional original jurisdiction

in 76, how do you channel that into courts other

than the courts within the category of section 77?

The difference that this application has, or the

way to contrast it between what is happening here

Donyadideh 13 2/9/92

and the circumstances of Spratt v Hermes and

Capital TV, was that the consideration was what

legal effect does section 122 have on Chapter III.

Can 122 increase or enlarge the ambit of the

original jurisdiction of this Court? This is the

reverse consideration. How do you channel that

original jurisdiction down into Territory courts,

given that Territory courts do not exercise federal

jurisdiction within the meaning of Chapter III nor

are they federal courts within the meaning of

Chapter III.

Is the position this, and I make the

submission rhetorically, that section 77 of the

Constitution provides a complete category of those

courts capable of exercising the High Court's
original jurisdiction in 75 and 76. If that is the

position, if that is the constitutional structure
that has to be preserved, then we are left with the
question, in my respectful submission, can

section 122 be utilized constitutionally in such a

way that the High Court's original jurisdiction in

section 75 - and I am concentrating this submission

on section 75 - that they are matters of national

importance really in many ways in 75, that is the

original jurisdiction conferred by the Constitution

and that is contrasted with section 76, that is

that irremovable original jurisdiction. Can it

ever be the position that the Territory's power can

be used or may be used in such a way that this

Court's original jurisdiction in relation to 75(i),

(ii) and (iii) can be channelled to that court from
whence there is no constitutional right of appeal.

In other words, it is not beyond, to use the expression of the learned Chief Justice,

Justice Barwick, in Spratt v Hermes, it is not

beyond the assail of Parliament.

Can I move back now to section 15 of the

Crimes (Internationally Protected Persons) Act. Can

I invite Your Honours to that and just move on now

to this submission concerning that. Section 15 is	headed Jurisdiction of Courts. It would appear on
a reading of section 15 that locality, in relation
to the offences, is not an impediment as to where
the offences are tried. It would also appear from
a scrutiny of this Act that it appears to, first,
identify the offences and then set up a ·
jurisdiction in which to try those offences. That
is different from the circumstances in both
Spratt's case and Capital TV. There the
jurisdiction came from 122 laws rather than the
general law that was being considered.

Here the situation is that the jurisdiction of

a Territory court, if one looks at 15(2) and if one

can construe section 15 in such a way that it

Donyadideh 14 2/9/92

purports to confer jurisdiction on a territory

court, then there is nothing stopping a person, for

instance, committing an offence on an

internationally protected person, away on holidays

up there in northern Queensland or something, being

snatched back to the Territory and tried there. In

other words, it would appear from the overall

complexion of this piece of legislation that it is

a law really with respect to external affairs -

5l(xxix).

If it is a law which relies upon a general

head of power in section 51, section 51 can never
be used to channel federal jurisdiction into a

Territory court. If that is the position, then section 15 may itself suffer from a submission that it is unconstitutional in so far as it attempts to

do this.

The other submission which I propose to make

is this: that in order for it to be a law in

respect to a Territory, it must have some immediate

or close intimate connection with the

proper administration of the criminal justice

administration of justice in the Territory.

system in a Territory to enact a law which is

indifferent as to whether or not the offender or

the offence takes place in the Territory.

Recently the ACT Assembly Act, which came into

operation in the Territory, was amended to create

the Supreme Court of the Australian Capital

Territory. The jurisdiction given to that court

by - I would invite Your Honours to this part of

this legislation because it ties up - section 48A

is the submission. It talks about the jurisdiction
~elevant or connected to the administration of the

Territory.

Now, that particular section is designed in

such a way as to reflect this notion that there

must be some immediate and close connection with

the Territory before Acts which occur in the

Territory can be tried in the Territory. So, in my

respectful submission, section 15 is not, of
itself, available to channel this original

jurisdiction to a Territory court. That is the

first limb of that submission. The second limb of

it - - -

BRENNAN J: Would you just repeat that again, why it is that

15 is not available?

MR WENDLER:  Because in its nature it is a law which has as

its parentage, if you like, section 51 of the

Donyadideh 15 2/9/92

Constitution if it has any validity. Section 51 -

you trace this Act back to section 5l(xxix) - - -

BRENNAN J: Why is that? Why does one have to say that it

is only 51(xxix)	which supports any provision of a
law if there are	other constitutional supports for
that provision?

MR WENDLER:  Yes, I understand that. My submission is that

51 - because it suggests that it does not matter

where the offence took place. A person can be

taken back to a Territory and tried there, it may

well - - -

BRENNAN J: Even if (2) should fail, what do you say about

15(3)?

MR WENDLER:  I had some difficulty even understanding

exactly what that means, in a sense, the way it is

drafted:

The trial of an offence against this Act not

committed within a State may be held by a

court of competent jurisdiction at any place

where the court may sit.

Whatever that expression "court of competent

jurisdiction at any place where the court may

sit" - it may well be that that section intends to

cast a very wide net in relation to jurisdiction,
irrespective of where the offence took place, so

long as the offence did not take place in a State.

BRENNAN J: This is a case of an offence that did not take

place in a State. So the jurisdiction is vested in

this case in the court of competent jurisdiction,

whether State or federal or Territory.

MR WENDLER: Yes, if, in fact, that is the construction that

can be put on section 15(3). Nevertheless, if its

intention is to confer jurisdiction on a Territory

court, it does so in relation to an offence or

matter arising within the constitutional original

jurisdiction of this Court, and that is really, as

it were, the central issue in this whole

application, whether, as it were, section 15(3) can
be used to channel this constitutional original

jurisdiction into a court of a Territory which then raises the next question: is 122 the vehicle which

is so plenary that it can do such a thing.

The bottom line of this whole application,

Your Honours, concerns the relationship between

Chapter III and 122. Its development over the last

70 years has been, to put it politely, ambiguous.

It is appropriate that this Court consider, perhaps

even go right back and consider the history of this

Donyadideh 16 2/9/92

expression, "other federal courts" in Chapter III.

It may well be that the position, as it was and

always was intended to be, that that expression
encompassed courts created by use of the Territory

power in section 122. If that were the case, then I would stop talking immediately, I would not have

any case at all. But it may well be appropriate to

look again at the way the Territory's power in

relation to the judicial power of the Commonwealth

has developed over the last 70 years.

Is 122 totally immune from Chapter III? That

is the rhetorical question that I am putting to

Your Honours, and the reason that justifies this removal is that in Spratt v Hermes or Capital TV,

there is not really any uniform jurisprudence on
matters of fundamental principle concerning the
relationship between these two important parts of
the Constitution. Indeed, by way of a shorthand

submission, as I read the judgment of the learned

Chief Justice, Justice Barwick, in Spratt v Hermes,

it appears that His Honour was of the view that

Chapter III was not inapplicable in its

relationship with 122.

It appears that Mr Justice Menzies is

suggesting that section 122 overrides Chapter III

and can confer original jurisdiction beyond that

which is specified in section 76. His Honour

Mr Justice Windeyer appears to suggest that the authority in 122, to make laws for the territories,

is not independent of and untrammelled, to use

His Honour's expression, by other provisions of the

Constitution. His Honour Mr Justice Owen does not

really, in my respectful submission, come to a
concluded view in relation to this special

relationship either way.

GAUDRON J:  Mr Wendler, could I interrupt you. Does your

argument entail the consequence that no court,

except perhaps this Court, has jurisdiction to hear

charges with respect to offences against the laws

of the Commonwealth if those offences were

committed in a Territory?

MR WENDLER:  No, it does not, if the Court pleases. The

category of courts - I am just taken to its logical

conclusion, this idea that Territory courts do not

exercise federal jurisdiction and are not federal

courts in the meaning of Chapter III - - -

GAUDRON J: What courts have jurisdiction if the - - -

MR WENDLER:	In relation to this offence, either federal courts, or indeed this Court - this action could be
commenced in this Court subject to it being
remitted - federal courts and State courts

Donyadideh 17 2/9/92

exercising jurisdiction; in other words,

section 77 courts from which there is a

constitutional right of appeal in section 73. The

jurisprudence which suggests that 122 authority is
without restriction and not affected by other parts
of the Constitution must necessarily also suggest.

The suggestions concerning, as it were, the plenary nature of 122 because it is non-specific

and non-specific authority, must also carry with it

the suggestion that there is a possibility of
investing jurisdiction in Territory courts within
section 75, in matters of national importance in a

court from which there is no constitutional right

of appeal and no way that this Court can supervise'

the development of those matters, and in that sense

it is worthy, in my respectful submission, that

this matter be removed, to sort out this

relationship.

BRENNAN J: Perhaps this might be a convenient time,

Mr Wendler. We will adjourn until 2.00 p.m.

AT 12.52 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.59 PM:

BRENNAN J: Yes, Mr Wendler?

MR WENDLER: If the Court pleases. Prior to the luncheon

adjournment, Your Honours, I was about to conclude

my submissions by reading a very short passage from

the judgment in Spratt v Hermes, in particular from
the judgment of the learned Chief Justice,

Justice Barwick. At page 241 of that report,

(1965) 114 CLR, there is this passage which, in my

respectful submission, is a statement of a very

important principle. At page 241 at about point 7,

His Honour says this:

That was a view which in effect imported into

the language of s 75 -

of the Constitution -

limitations which, in my opinion, are

unwarranted and which are in truth

inconsistent with the evident purpose of

giving to this Court by the Constitution

itself - and thus placing beyond the assail of

Donyadideh 18 2/9/92

the Parliament - such significant powers as

those of which s 75 speaks.

All the categories in the High Court's

constitutional original jurisdiction in section 75 that jurisdiction into a court, from which there is

are matters of great and significant importance.

no constitutional right of appeal in section 73 of

the Constitution, does not put a Territory court

beyond the assail of Parliament.

Your Honours, this application under

section 40 is of a different quality and different

situation than an application for special leave to

appeal, it does not have to confine itself to the

criteria in section 35A of the Judiciary Act. In
short, it is eminently arguable that the
relationship between section 122 of the

Constitution and Chapter III is such that, no, there has not been really uniform statements of

principle concerning those two important sections

of the Constitution. Therefore, in my respectful

submission, this is an appropriate vehicle to make

orders removing those matters which concern the
Australian Constitution Act, in so far as the
charges laid pursuant to the (Internationally

Protected Persons) Act are concerned.

If the Territory court in which the applicant

and others is not a federal court within the

meaning of Chapter III, and if that court which

proposes, in due course, to make an order

committing the applicant and others to a court

which also is not within the description of

section 77 of the Constitution, then, in my

respectful submission, it is open and eminently

arguable that section 77, that is section 77

courts, from which there is a constitutional right

of appeal, are the only courts in the present

situation concerning 122 which are capable of being

invested with this Court's constitutional original

jurisdiction in section 75.

In my respectful submission, these are matters

of national importance and I am inviting
Your Honours to make the appropriate orders.

Unless there is anything else, if the Court

pleases, that is the end of my case.

BRENNAN J:  Thank you, Mr Wendler. Mr Fajgenbaum?

MR FAJGENBAUM: If the Court pleases. Our first proposition

is that section 40 has no operation in a case such

as this. Although cause is defined in section 2 of

the Judiciary Act in very general terms to include

suits and criminal proceedings, however, because

Donyadideh 19 2/9/92

the operation of section 40 is to remove into the

original jurisdiction of the High Court matters

which begin elsewhere, and because section 40

operates in the identical manner in respect of both

territorial courts, on the one hand, and on the
other hand State courts exercising federal
jurisdiction and federal courts, it would follow,

in my respectful submission, that the only causes

that are capable of being removed, and the only

causes that the section intends to be made

available for removal, are those causes which

constitute an exercise of the judicial power. And

that, to the extent that a committal proceeding is

not an exercise of the judicial power, and a
proposition which we say is made clear by the

decision of this Court in Grassby's case, there is

no cause capable of being removed. The committal

is not a cause in respect of which section 40 of

the Judiciary Act has any operation.

It is not to deny the proposition, however,

that a committal proceeding is a proceeding in

respect of which power might be conferred upon a

court, nor is it to deny that the committal
jurisdiction may not be incidental in certain

circumstances for the exercise of a judicial power, but in this case, where all that is being sought to

be removed is a committal proceeding, it is simply

the case that as an exercise of administrative or

administerial power the proceeding does not involve

any cause, any matter within the meaning of

sections 75 and 76 of the Constitution.

The second point to be made is that my friend,

as I apprehended what he was saying, does not seek

a reopening of Spratt v Hermes. There are some

difficulties that he identified in working out some

of the principles of Spratt v Hermes, that may be so, but there are two propositions, with respect,

that Spratt v Hermes stands for and which have not

been shown to be manifestly wrong, or have not been

shown to cause any great deal of difficulty,

inconvenience in the administration of justice in

this country, and the propositions established by

Spratt v Hermes are these - Spratt v Hermes, I

should say, read together with the Capital TV case.

The first is the proposition that my learned

friend concedes or referred to, is that the

territorial courts, including the courts of the

Australian Capital Territory, are not Chapter III

courts, they are not federal courts, they are

created by an exercise of the legislative power to

be found in section 122 of the Constitution. But

just as much as Spratt v Hermes established that

first proposition, it also established a second

proposition, that courts of the Australian Capital

Donyadideh 20 2/9/92

Territory can by the laws of the Commonwealth

Parliament be given jurisdiction in matters of the

kind described in sections 75 and 76, and arising

under general laws intended to operate throughout

the Commonwealth, laws which on one part, in their

general aspect, might be referable to an exercise

of power under section 51 of the Constitution, and
laws which, to the extent they operate in the

Territories, might be referable to the legislative

power in section 122.

I am not saying that the source of the power

to confer such jurisdiction on territorial courts

is to be found in section 75 and 76; rather it is

found in section 122, but there is no exclusive

relationship between them. The matters, in other

words, in respect of which jurisdiction can be

conferred upon territorial courts by virtue of

section 125 include all the matters referred to in

sections 75 and 76. And my friend does not in any

way, as I apprehend him, seek to have recanvassed

that proposition. In any event, if implicit in his submissions is that Spratt v Hermes was wrong, with

respect, he has advanced no sound reason why it

should now be reopened, having regard to the

principles spelt out by this Court in Queensland

v Commonwealth, being the principles by reference
to which the courts will reconsider settled

decisions.

And, finally, with respect, these are criminal

proceedings and no good cause, with respect - I am

referring to the language of section 40 - or no

sufficient cause, having regard to the language of

section 40 and having regard to the nature of the

committal proceedings, has been shown why these
proceedings should be removed into this Court. This

Court is a most inappropriate court, with respect,

in which to conduct committal proceedings in

respect of offences against the law of the

Commonwealth.

DEANE J:  I have not quite followed why it is that Spratt

v Hermes decides that jurisdiction can be conferred

on a Territory court in respect of section 75

matters. The answer might be quite simple;	I just
have not quite followed the statement.

MR FAJGENBAUM: With respect, one of the questions for

decision has identified - Your Honour, it perhaps

follows, for example, from the proposition of the

Chief Justice at page 248, where agreeing with

Mr Justice Kitto he says:

I entirely agree with the reasons he gives -

Donyadideh 21 2/9/92

this is in the penultimate paragraph of his

judgment -

for deciding that a territorial court having
the appropriate local jurisdiction may enforce
in relation to acts occurring within the

withins 51 of the Constitution and intended

territory in question a law made by the

to operate throughout the Commonwealth.

Perhaps if we go to Mr Justice Kitto's judgment at

page 251, in the first sentence beginning in the

third line:

The exercise of the judicial power which is a

function of government of a territory is

within the unrestricted authority thus in

terms conferred.

Now, stopping at that point, the legislative power

able to permit the conferral upon territorial courts of the range of jurisdiction so described.	contained in section 122 is so generous as to be the jurisdictions spelt out in sections 75 and 76.
In other words, there is nothing, with respect, in sections 75 and 76 that says the class of matters there spelt out are matters in respect of which
jurisdiction can only be conferred by the federal
Parliament upon the High Court, or State courts when they are invested with federal jurisdiction,
or federal courts. Perhaps I misunderstood
Your Honour.

DEANE J:  I do not understand that as saying anything at all

to the argument put against you in this case, which

is that section 75, in defining particular original

jurisdiction of this Court, is obviously referring

to federal jurisdiction in the dichotomy sense.

MR FAJGENBAUM: Yes.

DEANE J: Now, if that is so, I simply do not see anything

in Spratt v Hermes that deals with the argument

that in that context, when you have a matter in

section 75, section 77 is the section which deals

with how that original jurisdiction of the High

Court can be conferred on other courts.

MR FAJGENBAUM: With respect, it is not that Spratt v Hermes

says that that original jurisdiction is to be

conferred upon other courts by reliance upon the

power in section 77; it is rather a proposition

that section 122 is a distinct source of

legislative power which enables the federal

Parliament to confer upon territorial courts all

Donyadideh 22 2/9/92

the jurisdiction that is appropriate in its view to

be conferred upon the territorial courts. There is

no need to refer back to sections 75 and 76 for

that proposition. But that jurisdiction may

include jurisdiction in respect of the matters set

out in those two sections.

DEANE J: That seems to me to beg the question. I mean,

assume you have a matter arising in the Australian

Capital Territory in which New South Wales and the

Commonwealth are parties on one side and Victoria

is a party on the other side. Your argument is

that section 122 enables the Parliament to confer jurisdiction on the courts of a Territory without

going through section 77.

MR FAJGENBAUM:	Yes, that is so, although because of the parties involved in the matter, if the parties are
the Commonwealth or the States, the jurisdiction of
the High Court under section 75 cannot be denied.

There is no difficulty with that, with

respect. Matters which occur within the
territories, for example, may be within the

original jurisdiction of the High Court. There is

nothing in Spratt v Hermes that says, of course,

that that is not so, and indeed, a substantial part

of Spratt v Hermes was concerned to overrule

Mr Justice Fullagar in Waters's case.

DEANE J:  I was not suggesting there was anything in Spratt

v Hermes that said it was not so. I was merely

querying your statement that Spratt v Hermes

decided that it was so, and I just cannot see it.

MR FAJGENBAUM:  I say to the extent that territorial courts

can be vested with jurisdiction in all matters

arising under Commonwealth law.

DEANE J: But you add "to the extent that it is appropriate"

which immediately raises the question under a

Constitution which in section 75 defines the jurisdiction of this Court, and section 77 provides

vested in.other courts. Does section 122 just ride	for jurisdiction in relation to those matters to be
roughshod over them?

MR FAJGENBAUM:  No, and the matters that Your Honour refers

to are some of the consequential problems that

Spratt v Hermes leaves unresolved.

DEANE J: That was really all I was suggesting.

MR FAJGENBAUM: Yes. They are unresolved questions, but

nevertheless, for our purposes, it is sufficient to

say that Spratt v Hermes permits of territorial

courts being given jurisdiction in respect of

Donyadideh 23 2/9/92

matters arising out of the treatyi matters

affecting consuls or other representatives of other countries or matters in which the Commonwealth is a party.

DEANE J: That is the question. Perhaps the question does

not arise unless and until the stage is reached

when criminal proceedings are taken in the Supreme

Court of the Territory.

MR FAJGENBAUM:  Yes.

DEANE J: But at that stage it is not apparent to me that

there is no question that will arise.

MR FAJGENBAUM: With respect, if I can add this point. A

matter in this case that is said to arise under a

treaty arises under a Commonwealth law which finds

its reference to some extent in section 51 of the

Constitution, in the foreign affairs power. Now, that law operates in the Australian Capital

Territory, because it is intended to operate

throughout the Commonwealth and one either goes to
the foreign affairs power or section 122 as the

result of that; and what Spratt v Hermes says,

with respect, is that the courts of the Australian

Capital Territory can be given jurisdiction in

respect of those matters which arise under

Commonwealth law intended to operate throughout the

whole of Australia.

At page 259 of Mr Justice Kitto's judgment, about point 7 of the way down the page, the second

sentence of the last paragraph beginning on the

page:

The prosecutor contends that any court which

adjudicates upon a matter arising under such

as general law exercises a part of the

judicial power of the Commonwealth to which

Chap III applies. In my opinion the answer is

of having committed in a territory an offence	that jurisdiction to try a person on a charge	against such a law necessarily falls within
that judicial power which is a function of
government in respect of the territory and not
within federal judicial power. This is not
due simply, or directly, to th& fact, though it is a fact, that the law under which the
charge is laid operates in the territory by
force of s 122 as a law for the government of
the territory, whereas it operates in the
Commonwealth proper by force of s 51(v.) as a
law for the peace, order and good government
of the Commonwealth. It is due to the fact
that what is charged is conduct in the
territory which the operation of a law in

Donyadideh 24 2/9/92

force there makes an offence; for an offence

in the territory against a law of the

territory is in its.nature triable in exercise

of that judicial power which appertains to the

government of the territory and not, unless

there be some federal factor in the case, to
the judicial power which appertains to the

government of the federation of States.

And that is, if I have apprehended Your Honour's question, what I had in mind when I said that

Spratt v Hermes stands for a proposition that power

can be conferred under section 122 on territorial

courts to try offences arising under Commonwealth

law intending to operate throughout the

Commonwealth.

DEANE J:	I follow the way you put it, Mr Fajgenbaum.
MR FAJGENBAUM:	In any event, if the Court pleases -

perhaps I should also add this - under the Act in

question - that under section 15(3) of this Act

there is no legal certainty that if there is to be

a committal that there will be a committal to the

Supreme Court of the Australian Capital Territory and not to some other place, because under

section 15(3) jurisdiction is conferred upon

competent courts throughout the Commonwealth in

respect of these matters. They are the submissions

for the respondent, if the Court pleases.

BRENNAN J:  Thank you, Mr Fajgenbaum. Do you have any

submissions, Mr Wendler?

MR WENDLER:  No, I do not have anything else to add,

Your Honours.

BRENNAN J: Without finally deciding the question, we are

not presently satisfied that committal proceedings

are a "cause" for the purposes of s. 40 of the

Judiciary Act 1903 (Cth).	In any event, the Court
is of the opinion that it would be inappropriate to

make an order under s. 40 for the removal of the

committal proceedings into this Court.

Accordingly, the application is refused.

MR FAJGENBAUM:  I seek an order for costs.

BRENNAN J: What do you have to say to that, Mr Wendler?

MR WENDLER:	Traditionally this Court has not ordered costs in matters which are criminally based, as it were.
They are criminal proceedings.  I can take that
further if Your Honours want some authority in
relation to that question, but this Court did not
make an order for costs last year in a matter where
there was a challenge to the ACT Assembly at the

Donyadideh 25 2/9/92

stage where it had not gone to trial in the

Australian Capital Territory. The Chief Justice of

this Court would not make an order for costs

because it was not - a criminal matter. This is

also a criminal matter.

BRENNAN J:  Mr Fajgenbaum, have you got anything to say in

reply?

MR FAJGENBAUM:  I am seeking instructions, if the Court

pleases.

BRENNAN J: Yes.

MR FAJGENBAUM:  We have nothing to add further on that

matter, if the Court pleases.

BRENNAN J: In the exercise of the Court's discretion, costs

are refused.

AT 2.27 PM THE MATTER WAS ADJOURNED SINE DIE

Donyadideh 26 2/9/92