Eastman, Ex parte- Re Director of Public Prosecutions of the Act

[1999] HCATrans 65

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S178 of 1998

In the matter of -

An application for a writ of Habeas Corpus against THE GOVERNOR, GOULBURN CORRECTIONAL CENTRE

First Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS OF THE AUSTRALIAN CAPITAL TERRITORY

Second Respondent

Ex parte –

DAVID HAROLD EASTMAN

Applicant

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 25 MARCH 1999, AT 9.34 AM

(Continued from 24/3/99)

Copyright in the High Court of Australia

______________________

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I move on just to say something about the Jervis Bay Territory.  Your Honours will have seen that the Australian Capital Territory (Self-Government)(Consequential Provisions) Act 1988 by section 32 amended the Jervis Bay Territory Acceptance Act and what it provided in the section 4A of the amended Act was that the laws in force in the Australian Capital Territory were to be enforced in the Jervis Bay Territory, if they were not inconsistent with any ordinance made by the Governor‑General.  Your Honours, I should also say that by section 4B the Supreme Court of the Australian Capital Territory was to have jurisdiction in the Jervis Bay Territory as if it formed part of the Australian Capital Territory.

Your Honours, the ordinance-making power is to be found in section 4F but, your Honours, may I say one thing in particular:  the Jervis Bay Territory has not, in our submission, been part of the Australian Capital Territory.  What I mean by that, your Honours, can be seen from the document that was handed up to your Honours yesterday by our learned friends for the first respondent and, your Honours will see, under the heading, “Position of the Jervis Bay Territory”, there are two provisions at the bottom of page 2; the first of two provisions of the Jervis Bay Territory Acceptance Act 1915 is set out. One of them is section 4(2) which says that:

The territory so accepted shall be annexed to and be deemed to form part of the Territory acquired by the Commonwealth for the Seat of Government, to the intent that all laws ordinances and regulations.....which are from time to time in force in the Territory for the Seat of Government shall so far as applicable apply to and be in force in the territory so accepted.”

And section 4(3) applied those laws of the Australian Capital Territory which had been picked up from New South Wales law by the Seat of Government Acceptance

Act and the Seat of Government (Administration) Act, and one sees that section 4(3) used the expression that they were to:

apply to the territory as if it formed part of the Territory for the Seat of Government.”

Your Honours, could I turn then to another matter ‑ ‑ ‑

KIRBY J:   What is the significance you make of that?

MR JACKSON:   No, your Honour, the point I am making about it is that in the course of the argument yesterday, I think your Honour the Chief Justice may have said in reference to something that was said by one of the members of the court in Spratt v Hermes that it was correct to say that the seat of government and the Territory were not co-terminus, as it were, because - it was in fact correct because of the presence of the Jervis Bay territory.  Your Honours, it is a passing matter, I simply wish to mention.

Could I come, your Honours, to section 52(i) and in relation to section 125.  The expression “within”, of course, has a number of usages.  It is very commonly used to describe what is in the boundaries of property, and, for example, if one were to say “The seat of government shall be within the following metes and bounds”, the seat of government would, in the ordinary course of events, occupy the whole of the area.  And what section 125 was doing, in our submission, in using the expression “shall be within territory” was to recognise the fact that such a description could not be given because the actual place had not yet to be decided.

McHUGH J:   Why could they not use the word “constitute”, or “shall be constituted”?

MR JACKSON:   Well, they could have used a number of expressions, your Honour.  The one that they did use was “within”, but “within” is a perfectly apt term to describe the area which is to have that quality.

KIRBY J:   But the territory was described originally as the territory for the seat of government or something of that kind, which rather suggests that they had not yet hit upon the name, but that they were thinking of the territory as something different from the seat of government.

MR JACKSON:   I am sorry, your Honour is speaking of – your Honour said “originally”, I just was not sure when your Honour meant.

KIRBY J:   The original nomenclature was, “There should be a territory for the seat of government”, or words to that effect.  That rather suggests that from the very beginning, although they used the title “seat of government”, they were not confusing the territory with the seat of government.

MR JACKSON:   Well, your Honour, if one goes back to what happened in relation to the seat of government and the Australian Capital Territory, if one goes to the 1908 Act, that is the Seat of Government Act 1908.

KIRBY J:   This is the Acceptance Act.

MR JACKSON:   No, your Honour, it was the Seat of Government Act 1908. What one sees is that its title is “An Act to determine the Seat of Government of the Commonwealth”. That is the long title:

An Act to Determine the Seat of Government of the Commonwealth” –

And section 3 of it says:

It is hereby determined that the Seat of Government of the Commonwealth shall be in the district of Yass-Canberra in the State of New South Wales.

KIRBY J:   But that is not inconsistent with the notion that the seat of government is a metaphor for the institution and for the capital of the nation but it is within or in a territory, necessarily geographical.

MR JACKSON:   Well, your Honour, the territory is necessarily geographic. I mean, if one says “the capital” one is speaking of an area which is geographic. There may be difficulty in defining it in any particular case, and one sees that if one goes, for example, to section 14 of the High Court of Australia Act one sees that this Court, after proclamation is made, has to have its principal seat at the seat of government.

McHUGH J:   But, supposing instead of seceding the amount of territory that it did, New South Wales had ceded all the territory south of Sydney to the Murray River, would the whole of that area be the seat of government?

MR JACKSON:   Well, your Honour, it is very unlikely that would have happened but it is possible.

McHUGH J:   But your argument assumes that whatever New South Wales cedes to the Commonwealth or surrenders to the Commonwealth is the seat of government.

MR JACKSON:   Well, your Honour, I put it the other way; what the Commonwealth determines shall be the territory pursuant to section 125.

KIRBY J:   I must confess I am very influenced by Mr Ewens’ opinion.  he was really the successor to Sir Robert Garran as the Chief Drafter of the Commonwealth and he thought that they were distinct – there was the territory, there was the seat of government and seat of government is a sort of metaphor.

MR JACKSON:   Well, your Honour, when Mr Ewens was no doubt rather younger the ‑ ‑ ‑

KIRBY J:   Yes, he came as a very young man from Adelaide and he stayed all his life and he drafted an awful lot of Acts of the Commonwealth and he knew about these sorts of things.

MR JACKSON:   Well, your Honour, could I just say that at the time when the Seat of Government Act to which I just referred was enacted the Attorney-General of the day was Glynn and he wrote an opinion about it on 23 June 1909 – it is No 337 Volume 1 of the Collected Opinions of the Attorneys-General of Australia – and your Honours will have, I think, copies of that and one sees that at the top of page 430, the second page, he expressed the view that the exclusive legislative jurisdiction of the Commonwealth would apply to it under section 52(i). Now, your Honours, that ‑ ‑ ‑

KIRBY J:   Implying over the whole Territory.

MR JACKSON:   Well, your Honour, that seems to be the case.  Now, it may be that what he is saying - and this is something I am going to come to next - is perhaps to draw the distinction, on the one hand, to say there is a difference between seat of government and the Territory for it but, your Honour, if that is so, then we would submit why does not the part of it that is not the seat of government at any time fall within the other half of section 52(i), but I will come to that in a moment if I may.

Now, your Honours, what we would seek to say is, in effect, that whether the term “seat of Government” in section 125 refers to a metaphor which, in effect, then becomes a place as institutions of government are put on it or not, whether it refers to the capital, whether one can say the capital is in some way different from the Australian Capital Territory, the terms of section 125 do refer to the Territory as having been, if I could take your Honours to the words, “acquired by the Commonwealth”.

GLEESON CJ:   So your argument is that a possible point of view is that the Australian Capital Territory is made up of the seat of government and, as to the rest, a place acquired?

MR JACKSON:   Yes.

GLEESON CJ:   This is an argument in reply, is it?

MR JACKSON:   Well, your Honour, that is in our written submissions in the first place.  What I am seeking to say in relation to it is that one sees that section 52(i) is divided up into two parts, one part being laws with respect to “The seat of government of the Commonwealth”, the other being laws with respect to “all places acquired by the Commonwealth for public purposes”.  Now, if one goes to section 125, what one sees in the first paragraph of section 125 is that the Territory, if I can use that expression, is “acquired by the Commonwealth”.

McHUGH J:   That would have to comply with section 51(xxxi), would it not?

MR JACKSON:   No, your Honour.  There is no particular reason, with respect, why that should be so.  Section 125 is a distinct grant of power to acquire it.  It is not something that necessarily attracts section 51(xxxi).  That does itself raise the question whether ‑ ‑ ‑

McHUGH J:   In Newcrest it was said that 122 was not the source of power to acquire property because of 51(xxxi).  If that is right, why should we draw a different conclusion in respect of 125?

MR JACKSON:   Your Honour, assuming that is so, then in that case in due course, as such Crown leasehold and private lands as are in the Territory were acquired by the Commonwealth, they were areas in respect of which the Commonwealth made various payments and ,your Honour ‑ ‑ ‑

McHUGH J:   But 125 does not seem to me to be a source of power but a description of something that has occurred.

MR JACKSON:   Well, your Honour, whether that is so or not does not, with respect, really matter because, if one is looking to see – if one says that the Territory is territory which, one way or the other, has been acquired by the Commonwealth and is territory to which section 125 applies, there is no reason why, the second half, why it does not fit exactly within the second half of section 52(i).

McHUGH J:   That may be, but there seems to be a distinction between “granted to” and “acquired”.  In this case was the land acquired by the Commonwealth or was it granted to it?

MR JACKSON:   Your Honour, some has been granted to it, some acquired by it.

McHUGH J:   Acquired in what sense?  By expropriation?

MR JACKSON:   Yes, your Honour.  In some cases by the expiry – because the leases, for example, came to be held from the Commonwealth rather than from the State.  I am sorry, your Honour, what I am seeking to say is if one looks at – no doubt section 125 is speaking of “acquiring” in at least the sense of sovereignty in the first place, then afterwards one has the acquisition of property which occurs from the State of New South Wales so far as it is Crown land.  Section 125 contemplates that.  In respect of other land, it is land that was acquired over time.

GLEESON CJ:   If that is right it would make it clear that this Territory could not have representation in the Parliament.

MR JACKSON:   May I say something about that in just a moment because I am going to come to that. 

The position which obtains in relation to section 125 and section 52(i) – I am speaking about the second half of 52(i) for the present ‑ is that if one says that the seat of government is not of the whole of the Territory then, in our submission, one could not regard any part of Australia as having been more acquired for public purposes than the rest of the Territory.  That it is acquired for public purposes is manifest by section 125.

GLEESON CJ:   All that argument proceeds upon the assumption, does it not, that the seat of government is a locality that can be defined by metes and bounds - that you can walk around the perimeter of the seat of government.

MR JACKSON:   It works on the assumption that part of the Territory is the seat of government.

GLEESON CJ:   Which is not necessarily the same thing as saying the seat of government is in the Territory.

MR JACKSON:   Not necessarily, your Honour, but Parliament is empowered to determine the seat of government. One sees, for example, that I referred before to section 14 of the High Court of Australia Act, which says that the principal seat of the Court is to be in the seat of government.  No doubt, we are at this moment, in a place that is the ‑ ‑ ‑

KIRBY J:   One textual argument for that is that the section 125 starts with the seat in government.  It says it:

shall be determined by the Parliament, and shall be within territory –

And then there is that adjectival phrase:

and shall be vested in and belong to the Commonwealth –

Now, “vested in and belong to” would suggest that it is talking in terms of a grant in respect of land.

MR JACKSON:   Yes.

KIRBY J:   That suggests unless that governs or is governed by a territory that it is the seat of government which is vested in and belongs to the Commonwealth.  The structure of the sentence suggests that those words “and shall be vested in and belong to the Commonwealth” refer back to the seat of government.

MR JACKSON:   There are really two ways of looking at the provision, your Honour, as obvious from the arguments.  One is that the first clause in effect of section 125 says:

The seat of Government of the Commonwealth shall be determined by the Parliament –

and then goes on to say:

and shall be within territory –

and the several phrases which follow that all qualify the expression “territory”.  Now, that is one view.  The other is the one your Honours put to me.  Either of them in a sense would suit us, if I can put it that way.

KIRBY J:   The word “and” rather suggests that it is breaking it up and referring back to the seat of government as distinct from all part of an adjectival clause qualifying “territory”.

MR JACKSON:   Yes, your Honour.  One sees, however, that the expression “territory” when one goes to the next paragraph of section 125, when it speaks of “Such territory shall contain an area” and then such portion of that territory “as shall consist of Crown lands”.  That seems to be referring to the territory rather than the seat of government if one draws the distinction.

Could I just say, your Honours, in passing, your Honour the Chief Justice asked me was this point, in effect, being taken for the first time in reply.  You will see it in paragraph 48 of our written submissions, and a reference also there to Quick and Garran and an opinion of Sir Robert Garran.

McHUGH J:   One point that seems to be against your construction is that the power under section 52 could surely operate before any territory had been acquired under 125.

MR JACKSON:   In relation to?

McHUGH J:   In relation to 52(i).  Why would not that paragraph have authorised the temporary seat of government in Melbourne, for example?  After all, I do not know when Canberra was acquired – well, 1909, was it not - but there was nothing acquired for eight years.  Why could not under 52(i) the Parliament have authorised Melbourne to be the temporary seat of government?  Why would that not be a law with respect to the seat of government pending operation of 125?

MR JACKSON:   Well, your Honour, what section 125 contemplates is that Melbourne is to be the temporary place at which the Parliament is to sit, but it goes on to say that - the earlier parts of it say, the seat of government is to be within territory in New South Wales. Now, until that happens, there is nothing that is the Seat of Government of the Commonwealth and one could use the expression “seat of government” in a loose sense, but not in a constitutional sense, because the Constitution says, that is where it is to be, rightly or wrongly, but that is what it said and, in relation to that, when one is speaking about ‑ ‑ ‑

McHUGH J:   Well, let me give you another illustration:  why could not the Parliament under section 52(i) have authorised the holding of a referendum among the people as to which part of New South Wales should be, or which of a number of sites in New South Wales should be the seat of government?

MR JACKSON:   Well, it could have, your Honour; it could have done under, for example, section 51(xxxix) and, your Honour, if it did it would not matter, with respect.  In the end, of course, it was just a referendum, if one is not talking about a constitutional referendum, but just simply a plebiscite as it were and, in relation to that, that may well be a law with respect to the seat of government.  It would not matter whether it was or was not, with respect.

GAUDRON J:   One thing that might be put against you is the difference in wording of section 52(i) and that of section 122, because section 52 is to:

make laws for the peace, order, and good government for the Commonwealth with respect to –

and section 122 is:

laws for the government of –

and presumably the creation of a court is more accurately described, if you look perhaps to the creation of the court, as a law for the government of a Territory rather than a law with respect to the “peace, order, and good government of the Commonwealth”.

MR JACKSON:   Well, with respect, your Honour, if I could say in relation to that first of all one sees that section 52(i) and, of course, the provision that has been most often discussed has been the second half of section 52(i), is a very, very wide grant of power, and that ‑ ‑ ‑

GAUDRON J:   Well some people have taken the view it is not a grant of power at all or not primarily a grant of power.

GLEESON CJ:   It is the negative aspect of it that is important.

MR JACKSON:   Well, your Honour, that view, though advanced, with respect, does not seem to have prevailed and I rather though your Honour had recanted from that in Allders International Pty Limited v Commissioner of State Revenue (Victoria) (1996) 186 CLR 630. Your Honours, in that case, and if I could perhaps give your Honours the references without going to the passages, Chief Justice Brennan at pages 638 to 640 and Justices McHugh, Gummow and Kirby at pages 669 to 670 and 673, deal with the ambit, and the very wide ambit, of the power, emphasising that it is not just a power to make a law about a place, but it is a:

power to make laws for the peace, order, and good government of the Commonwealth with respect to –

those places; it is a very wide power.  The ambit of the opening words is no narrower than the ambit of the opening words of section 51.

Your Honours, if one takes the decision in Allders as meaning, as it does, as does Worthing and the cases before it, as meaning that one looks to see in the case of a competition between a State law and a Commonwealth law, for example, purportedly made under section 51 – if one looks to see whether the Commonwealth could have enacted a law pursuant to section 51 in the same terms as the relevant State law, then it is apparent that the State law is one which is invalid.  All I am trying to say in relation to that, your Honours, is that the exclusive power under section 52(i) does allow, in our submission, all the aspects in relation to the territory or in relation to areas falling within it, the Parliament to do whatever it might have done under section 122 - I will leave aside the question of representation for the moment but in terms of the government of the Territory.

Your Honour, if one is saying, is a law for the seat of government or the territory the area acquired pursuant to section 125, is a law which sets up a court system for that area to exercise jurisdiction in that area, is that a law for the peace, order and good government of the Commonwealth with respect to those areas then, in our submission, it plainly would be.  Your Honours, it would only be by some form of expressio unius or rule that one would take a different view but the expressio is in section 52(i).

KIRBY J:   Is your theory of the constitutional arrangement that there are territories and there is the seat of government and that the general provision in 122 does not apply to the seat of government, it must find all source of legislative power in 52(i)?

MR JACKSON:   Well, your Honour, I do not need to go as far as that, with respect.  What we do say is that whilst there may be power under section 122 in relation to it, at the same time it is clear that there is also an exclusive power under section 52(i).  Now, your Honour, it may well be that the result of those submissions is that the appropriate view would be not to regard the Australian Capital Territory, the section 125 territory, as a territory to which the first part of section 122 applies because other provision is made by section 52(i), but that in relation to the representation of it, it is a territory for the purposes of that part of section 122.

KIRBY J:   I see why you would want to say that, but it is pretty hard to divide 122 up.

MR JACKSON:   The other, your Honour, is of course, simply to take the words of section 125 and to treat the “territory” referred to in section 125 as being and remaining in the State of New South Wales.

GLEESON CJ:   It seems that whichever way you look at it, Mr Jackson, it is not a seamless robe.

MR JACKSON:   Well, your Honour, it does not have a lot of buttons, with respect. What I am seeking to say about it that one sees in the Constitution a specific power in section 52(i) which picks up the terminology, as it were, of section 125. It would be very surprising, your Honours, if the legislative power in section 52(i) which is perfectly apt to apply to section 125 did not apply to it.

KIRBY J:   I say it is difficult to split up section 122 because it is one sentence.  It is “and may allow” and it is “representation of such territory” which is a reference back to the earlier part of the section.

MR JACKSON:   Yes.

KIRBY J:   It is a very uncomfortable notion.  It may, of course, have been the notion that they held at Federation that the seat of government territory would not have votes in the national election, there would be a neutral enclave of pure and devoted public servants and others who would not be concerned about the politics of the nation.

MR JACKSON:   Yes, your Honour, that is ‑ ‑ ‑

KIRBY J:   I mean, apparently that was the case in the District of Columbia.

MR JACKSON:   I should just note in passing, your Honours, that the view – that the second half of section 122 could apply to residents of the territory - it was expressed perhaps a little tentatively in Quick and Garran at page 974.  If I could move on to another topic, I think I gave your Honours yesterday a reference to section 72 of the Self-Government Act as being the provision which contained the prerogative of mercy. 

Could I come then, your Honours, to, and I will do so very briefly, to something more concerning the Australian Capital Territory Supreme Court?  What we would simply seek to say is that one sees that the Supreme Court was brought into being by an enactment of the Parliament.  The Parliament’s enactments allow some amendments to be made by the Legislative Assembly to the Supreme Court Act but there has to be a supreme court.

It has to be able to exercise the jurisdiction referred to in section 48A(1) of the Self-Government Act, an enactment of the Parliament, and, your Honours, there is a specific qualification – and this is the entrenchment to which reference was made yesterday – there is a specific qualification on the Territory’s legislative power contained in the words of section 22(1) which, at the time when Part VA which contained section 48A was brought in, added the words “Subject to Part VA” and we would say that the creation of the court is to be seen in section 3 of the Supreme Court Act, that is an original provision, it was numbered section 6 originally, but by the Transfer Act, the Commonwealth Act, it was renumbered as section 3 – that is section 14(3) of that Act that effected that.

Could I turn then to another matter and that is the relationship of section 122 to the remainder of the Constitution and one of the themes in the arguments put against us is that section 122 stands apart from the division of powers contained in the first three chapters of the Constitution.

Your Honours, we would submit that that assertion, and it really is, with respect, an assertion, is of very doubtful validity.  One notes in the first place that section 122 confers a legislative power, and not every provision conferring legislative power is to be found in Chapters I to III.  In Chapter IV - perhaps I could simply give your Honours a short list of these – one sees “legislative power” referred to in sections 94, 96, 101, 105, 105A(2) and (3).

In Chapter V, section 120 of course, in the concluding words, confers a legislative power on the Parliament of the Commonwealth.  In Chapter VI, there are sections 121 and 123 as well as section 122.  We would submit there is no special reason to take the view that section 122 is the provision that somehow stands on its own.  We would also seek to say why does section 111 not have the effect, or not have the operation, of bringing into play the several jurisdictions of the Commonwealth.  There is no doubt that it brings into play the executive power and laws made, we would say, under section 122 are surely laws of the Commonwealth for the purposes of section 61 to be executed by the Governor‑General, and why does not section 71 similarly apply.

We would seek to say that that produces the very simple result that there are this Court, the federal courts, and the State courts.  This Court’s original jurisdiction is section 75 together with the jurisdiction that may be conferred under section 76.  We would seek to say the federal courts are then dealt with by section 77(i) and (ii); the State courts by section 77(iii).

GAUDRON J:   Is not the essence of what is put against you that the words “other courts created by the Parliament” refer to courts created pursuant to Chapter III, and if section 122 is a full plenary power, there can be courts created pursuant to 122 but not necessarily pursuant to Chapter III.

MR JACKSON:   Well, your Honour, to put it that way is really to put one answer, in effect, in the form of a question.  What we would seek to say is that that involves an assumption as to the meaning of section 122 and does not give full effect to the terms of section 111.

Now, your Honour, what I would seek to say also is this. One of the things that the operation of section 111 brings into play is the judicial power of the Commonwealth in section 71. In doing that - one sees in Chapter III the provisions of the Constitution that are relevantly picked up by section 111 and then, when one is dealing with laws made under section 122, they are laws to which, we would submit, section 76(ii) applies. Other provisions may apply as well, and they simply fall within federal jurisdiction. And what we would seek to say also, your Honours, that one completes the picture by saying that there is an appeal pursuant to section 73(ii) in such cases because the Territory courts would be Federal Courts, subject, of course, to Parliament’s power under the opening words of section 73. Your Honours, in the end it becomes a question of which view one adopts.

Your Honours, could I just mention something in relation to something said by my learned friend, the Solicitor-General for the Commonwealth.  He referred yesterday to line 1285 of our argument, and may I just take your Honours to it for a moment, it was on the first day.  And your Honours will see that I had there used in 1284, 1285 the expression, “They were the most likely courts which the Parliament was to create.”, and my learned friend cavilled at that, referring to the prospect there might be bankruptcy or specialised jurisdiction courts created by the Commonwealth.  Your Honour, if one takes what I said there in isolation, no doubt, the criticism is well made.  But, your Honour, it is part of, however, a submission which commences on the previous page, at 1239, and what your Honours will see between 1240 and 1245 was that I was seeking to say that if one looked:

at the position as at Federation the only courts which the Constitution would require or be likely to require the Parliament to create were –

and your Honours will see it goes on from there.

The population of Canberra, if I could say something, your Honours, of it as at 1909 and the history of Canberra generally, can be seen in a book by Mr Watson, who was editor of the historical records of Australia, it is called “History of Canberra” 1927.  The relevant page is page 132.  In the 1911 census there were 1714 persons in the Australian Capital Territory, many more sheep and other ‑ ‑ ‑

KIRBY J:   Yes, but it was envisaged by Griffin’s plan that it would be a mighty capital with cathedrals and pleasure gardens and all the other paraphernalia of capitals, some only of which have been achieved.

MR JACKSON:   It has many of those things but, your Honours, one hopes it will see all of us out and be even larger.

GLEESON CJ:   Like Xanadu?

MR JACKSON:   There is more Xanadu in the direction behind me, I think, your Honour, than here, certainly something makes the flag fly.  Your Honours, in relation to the Crimes Act, the Crimes Act was not an enactment at the time of the offence.  This is the submission I was endeavouring to make in a halting way when I started replying yesterday.  The offence occurred on 10 January 1989.  The Crimes Act was an ordinance at that point, referred to in Schedule 3 to the Self-Government Act.  By virtue of section 34(7) of the Self-Government Act it would not become an enactment until 1 July 1992 and, in fact, there were various amendments to the ordinance made by the Governor-General between the date of the offence and the time when it became an enactment.  The law creating the offence was not made, to put it shortly, by the Territory legislature.

Now, your Honours, can I come then to say something very briefly about the status of the territories.  One can readily understand, perhaps sympathise with, the aspirations to statehood of those who reside in territories capable, in either population or constitutional terms, of becoming States, but the core factor of course is that until that happens they are not States.  And as the exercise of legislative power by the Commonwealth in the enactment of the euthanasia laws shows, the territories, self-governing or not, are territories of the Commonwealth no less, but no more.

If, by their legislation, they make claims or pretensions with which the Commonwealth disagrees it can take away, if it chooses, root and branch, the constitutional foundation upon which that claim depends.  That is why, in our submission, the doctrine which is said to be established, even in its application to this case by Capital Duplicators [No 1] cannot be too far extended, because that doctrine really derives from an underlying political notion that the government conferring the responsible government, which is effected by the instruments constating the colony or body, is unlikely to be, itself, affected.  That is certainly not true here.  It is also a case, your Honours, of a written constitution containing a protection for the people of the nation.

Could I turn, your Honours, to the de facto officer’s doctrine?  May I say two things about it?  The first is that we have endeavoured to put in writing a submission about that – and I will give that to your Honours in just a moment – but may I say something about it first of all?  Your Honours, the doctrine is one which is advanced by South Australia and, I think, Western Australia in their joint submission.  No such point, in fact, arises in the case because the parties who might take the point, if it exists, choose not to take it and one can understand perfectly well why they might not.

Those giving instructions, those who have political responsibility for the circumstances surrounding litigation to which a relevant polity is a party might well say, “It is quite wrong for us to raise a defence which would have the effect that a person who did not have a trial according to law should remain in prison as a convicted murderer for years”.  Persons having political responsibility might also say, “If we let that happen, she or he will become a martyr.  The pressure for release will become greater and at the same time the longer it goes on the more difficult it will be to have a retrial.  Memories fade, witnesses die.  Let us resolve it as quickly as possible.”

Your Honours, the approach taken in the submission made by the interveners means, of course, that the view adopted by the parties in that regard is undercut.  One person in a State in relation to a constitutional case has an idea, ergo, it becomes a point which the Court has to decide, even though it has not been taken by a party whose choice was to take it or not.  Your Honours, that, in our submission, is a trend which should not occur and it should be stopped and in original jurisdiction it really brings the court very close indeed to advisory opinions.

Your Honours, in appellate jurisdiction also, it gives rise to a host of potential problems.  Often a party strictu sensu could not take a particular point on appeal because of the manner of conduct with the case below.  Are intervening Attorneys-General to be exempt from those considerations?  Your Honours, I said ‑ ‑ ‑

HAYNE J:   Is there not a jurisdictional point which is masked by debate about de facto officers, namely, whether habeas goes in relation to a warrant of a superior court of record?  For my own part I would be assisted by any reference you might later be able to provide to any case in which habeas has gone in face of a warrant, apparently issued by the court, in circumstances where the officer holder, as opposed to the office, has not been invalidly appointed or created?

MR JACKSON:   Well, your Honour, I will endeavour to do that ‑ ‑ ‑

HAYNE J:   I have in mind cases from the admittedly very different context of unitary systems of government, such as Re Aldridge 15 NZLR, the cases dealt with by Sir Owen Dixon in his article on de facto officers and the like.

MR JACKSON:   Yes, very well, your Honour, we will endeavour to do that. Could I just say, however, one thing in relation to it at this point, and that is that each of the statutes which brings about the relevant consequences is a statute of - body which is created by the Parliament, one way or another, and that is, something that is brought about pursuant to the Constitution, and that is so whether one looks at the law, which is made and which provides for the warrant to which your Honour refers, or whether one looks at the law which creates the court, and none of those things, your Honours, can rise above the Constitution and, I do not want to use a stream and its source, but your Honour will appreciate what I mean.

HAYNE J:   I understand the point, but I would be assisted by some development of it.  The other case to which reference might usefully be made is Willianson v Inspector General of Penal Establishments (1958) VR 330, where Mr Justice Smith collected a number of the older authorities on the issue.

MR JACKSON:   Yes, your Honour.

GUMMOW J:   It may be a question of remedy rather than right.

MR JACKSON:   Yes.

GUMMOW J:   I am thinking in terms of the Judiciary Act, the case being founded on section 30(a) obviously, thinking of 33(1)(d), which is in the nature of quo warranto really, whether that has got the appropriate remedy in aid of the constitutional position.

MR JACKSON:   Yes, of course the office holder, as it were, is no longer ‑ ‑ ‑

GUMMOW J:   That is the problem.

MR JACKSON:   On any view, but, your Honour, it may be that it is a case to which section 32 has an application.

Could I finally hand your Honours the copy of the submission we want to make on the de facto officers doctrine.

GLEESON CJ:   Thank you.

KIRBY J:   Just whilst we are waiting for that, do you face squarely the, what seemed to be very, very troubling consequences of your arguments for the orders of courts in the Northern Territory and in the Australian Capital Territory, and possibly other Territories, affecting very large numbers of prisoners and with the consequence that it would be extremely difficult, if not impossible, to simply have a statute validating them, because that would be invasive of the judicial power; you would have to have opportunities to be heard and opportunities perhaps for re-trial?  Do you accept all that as a consequence and say, well, let the heavens fall, if that is the consequence, because it is a matter that makes you pause to depart from the authority of the Court, before making orders that would have that result?

MR JACKSON:   Your Honour, can I just say that I recognise that the consequence of our submission is that there would be an invalidation of perhaps a significant number of, for example, convictions and maybe other judicial orders.  In relation to that there are no doubt some measures that could be adopted to endeavour to mitigate the effect of that and I endeavoured to mention some of the possibilities yesterday.

Your Honours, if one is looking at the situation from the point of view of today, one is able to say that no doubt that causes some inconvenience but if one is looking at the situation for the future as well, one is not just looking at the last 98 years; one is looking, of course, for the ensuing future.  If it be right to say that the provisions of Chapter III really do reflect a constitutional value which is to remain for the people of the Commonwealth in relation to federal jurisdiction, then, your Honour, a time comes when it is appropriate for the Court to adopt that course.

Your Honour, if in the end it came to the point where it was necessary for there to be a constitutional amendment to cover the situation, appreciating the difficulties that there have been in relation to constitutional amendments in some areas in the past, one area where there does not seem to have been great difficulty is in doing something in relation to the courts.

KIRBY J:   Do you know what happened in the United States when the territory courts in the District of Columbia were struck down?  What happened for the orders of that court?

MR JACKSON:   Your Honour, I have not got an answer to that yet, as it were, but we will endeavour to give your Honour ‑ ‑ ‑

KIRBY J:   If that can be found it may - because there must have been very significant consequences.

MR JACKSON:   Yes, although I suppose, your Honour, no doubt, whilst there are many people in Washington, as it were, a great many of the people who are in Washington do not live in Washington because of the relatively small area of it and perhaps the numbers of things ‑ ‑ ‑

KIRBY J:   There is a lot of crime in Washington.  I do not know about in the 1930s.

MR JACKSON:   The people in Washington say it is caused by the people outside.

GUMMOW J:   I am not sure any of these courts were struck down.  I think the reasoning was put on another basis.  It has to be looked at.

MR JACKSON:   Yes.  Well, perhaps, if I can endeavour to give your Honours a piece of paper saying what happened in relation to it, what the situation was.

GLEESON CJ:   Now, are you going to hand us those documents?

MR JACKSON:   Yes.  One is our submission, the other is a copy of an article that is referred to in them.

GLEESON CJ:   Thank you.

MR JACKSON:   Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  We will reserve our decision in this matter.

MR GAME:   We have some further material.  Could we provide that to the Court at this time as well, your Honour.

GLEESON CJ:   You can provide it through the associate.

MR BENNETT:   Might we have leave to do so as well, your Honour.

GLEESON CJ:   Yes.

MR BENNETT:   We have some early copies of the High Court Rules which talk about the seat of government of the States which we wish to hand up.

GLEESON CJ:   Thank you.

KIRBY J:   Do you have conveniently, Mr Jackson, that opinion of Attorney-General Glynn?  I think you gave us a reference and also mentioned an opinion of Mr Garran, as he would have been then.  If they could be photocopied and sent in.

MR JACKSON:   Yes, I think your Honours will have a copy of the Glynn opinion.  I will get your Honours the other one.

GLEESON CJ:   Thank you.

AT 10.25 AM THE MATTER WAS ADJOURNED