Eastman, Ex parte- Re Director of Public Prosecutions of the Act
[1999] HCATrans 62
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 WEDNESDAY, 24 MARCH 1999, AT 10.29 AM
(Continued from 23/3/99)
Copyright in the High Court of Australia
______________________
MR JACKSON: Your Honour, may I have leave to say one thing to correct something I said yesterday in answer to your Honour Justice Kirby about the prerogative of mercy. What I suggested, I think, was that it was not dealt with by the Self‑Government Act. It is in fact by section 72.
GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Game.
MR GAME: We have prepared a document which addresses some of the questions raised and left unanswered yesterday. If I could provide the Court with copies of that document.
GLEESON CJ: Thank you.
KIRBY J: I notice that the Supreme Court was originally established by the Seat of Government Supreme Court Act 1933, so presumably the Parliament there thought they were acting under the seat of government power.
MR GAME: I do not know that it follows that they thought that they were acting under the seat of government power. That really turns on what they thought they were acting under in respect of the seat of government legislation.
KIRBY J: But the invocation of the words “Seat of Government Supreme Court Act” rather suggests that that was the power that they assigned the establishment of the Supreme Court to.
MR GAME: I think your Honour would have to go back to the Seat of Government Acceptance Act and the Seat of Government (Administration) Act to see what intention lay behind ‑ ‑ ‑
KIRBY J: But I think you conceded yesterday that they dealt with the entirety of the Territory and not just with the Constitution triangle in its then primitive state.
MR GAME: That is true but they ‑ ‑ ‑
KIRBY J: And, indeed, until 1927 there was no parliamentary building here.
MR GAME: That is true, but if one goes back to the Seat of Government Acceptance Act, section 4 referred to, it said:
It is hereby declared and determined that the Seat of Government shall be in the Territory described in the Second Schedule –
and, if one looks at the Seat of Government (Administration) Act, section 4, it clearly contemplates that there would be a polity. That would be the Territory.
GLEESON CJ: When did the Australian Capital Territory get its name?
KIRBY J: Have you looked at Mr Ewens’ article? Mr Ewens was First Parliamentary Counsel for 30 or 40 years. Did he express any view on where the seat of government was or what it was in relation to the Territory?
MR GAME: Mr Gageler tells me that he expressed the view that section 122 and not section 52 was the source of power, your Honour.
GLEESON CJ: When did the Australian Capital Territory get its name?
MR GAME: Where or when?
GLEESON CJ: When?
KIRBY J: It was originally called “the Federal Capital Territory, was it not?
MR GAME: You are asking me questions, some of which I do not know the answer to. Can I give you that answer, your Honour?
GLEESON CJ: Yes, of course.
MR GAME: Could I just say this. With respect to the tenure of judges, at this point we have been unable to obtain an actual commission from a judge appointed under the 1933 Act, so we do not know what the terms of the commissions were but by the time one comes to 1971 it is clear from paragraph 3 of those notes that the judges were being appointed in a way which would not comply with Chapter III of the Constitution, so that it would be fair to say that at least at that point and consistent with Spratt v Hermes, appointments were being made for judges in such a way that did not comply with Chapter III and needless to say, Spratt v Hermes was a case about magistrates and magistrates were never appointed in accordance with Chapter III and that is a situation which subsisted, clearly enough, after Spratt v Hermes, not merely in the ACT but elsewhere.
With respect to the passage on - portion on page 2 concerning the power of the Governor‑General to make ordinances, and this relates to a question about whether or not the offence arises and is made under a law arising under a law made by the Parliament, paragraph 5, that is the position as we understand it to have been in place at the time the offence was committed and relating to the Crimes Act ordinance in force in the ACT at that time, the offence having been committed on 10 January 1989. And we have extracted some material relating to the Jervis Bay Territory and some portions of the convention debates relating to the seat of government.
A further matter arising from yesterday: your Honour Justice Gummow asked a question about Papua New Guinea. If I could just refer very briefly to a short portion from Halsbury in volume 6 of the 4th Edition, paragraph 959:
Papua New Guinea: status and government. Papua became a protectorate (known as British New Guinea) on 6 November 1884 and a colony on 4 September 1888. In 1902 it was placed under the authority of the Commonwealth of Australia, and Australian administration of the territory, known as Papua, commenced on 1 September 1906.
Now, if I could return to that aspect of the argument concerning the seat of government and if I could take the Court to some of the passages in the judgement in Spratt v Hermes at 114 CLR. We have given the Court the references to where it is dealt with in each of the judgments, but I am proposing to take the Court to two passages from two judgments. First, Justice Menzies’ judgment at page 271, the paragraph which begins with the words “Furthermore, I have not found it necessary”, but then the next sentence which reads:
If that power extends to the whole of the Australian Capital Territory –
that is to say the section 52 power –
that circumstance does not, in my opinion, exclude that territory from the operation of s. 122.
His Honour goes on to consider whether or not there has ever been determined in accordance with section 125 the seat of government and then he indicates that whether or not that is the case does not matter because in the concluding words:
However this may be, I do not think that any limitation on s. 122, so far as the whole of the Australian Capital Territory is concerned, can be derived from the grant of legislative power made by s. 52(i).
KIRBY J: What is the reason though? He does not think so, but what are the reasons?
MR GAME: Well, because section 52(i) does not mean exclusive of any other power. Section 52(i) means exclusive to the Commonwealth. That is consistent with other cases such as ‑ ‑ ‑
KIRBY J: Yes, but it is a source of power and if it is a source of power that is used even in a small particular then it would seem to attract the obligation to establish the judicial power for the seat of government or seat of government matters, or matters arising out of the seat of government power within Chapter III, not under section 122.
MR GAME: Your Honour, so long as you have both, so long as you have the 122 power then you have all that you need, in our submission.
KIRBY J: Your have all you need but do they have very significant potential different consequences for the judiciary that you create and if you create a judicature that – or if you create a court that has to exercise power in relation to seat of government matters it has to be a Chapter III court which makes the argument that the section 122 courts are of a different quality less persuasive.
MR GAME: Your Honour, that is the very argument that is rejected in Spratt v Hermes, and ‑ ‑ ‑
KIRBY J: It may be that the other Justices expresed some reasons but you saying that you do not think that it is so, does not seem to be very convincing.
MR GAME: Could I just take your Honour to the other passage that I was going to refer to, which is in Justice Windeyer’s judgment at page 273. The passage begins about point 2 in 273:
The source of its power is in my opinion s 122.
The passage that I rely on – I will not read the whole of it – but, it is the whole passage down to the bottom of the page, finishing with the words “city of Canberra”, and his Honour placed particular reliance upon the word “within”. Without reading it again, we would relate that back to the words in section 4 of the Seat of Government Acceptance Act, namely that:
the Seat of Government shall be in the Territory –
We rely on the whole of that passage there.
KIRBY J: That is addressed, as I read it, to the question of whether you needed section 52, and his Honour was of the opinion that you did not, but it is there and it has different consequences for the judicature.
MR GAME: But he is saying something more than that, your Honour. He is saying that section 52 is quite constrained in its operation and that is the very view that was also accepted in Svikart, that I read yesterday and, as I said, it may or may not be the case, but if section 52 operated in the way in which is suggested to the exclusion of section 122, that may have consequences for representation and cases, such as Queensland v The Commonwealth (1977) 139 CLR 585, would themselves be questionable authorities.
GLEESON CJ: There is a proposition of fact by Justice Windeyer about six tenths of the way down the page. He says:
the seat of government and the Australian Capital Territory are not co‑extensive in fact.
What is the basis for that proposition?
MR GAME: Well, there never has, as I understand it, been a determination of what particular area is identified in the seat of government.
GLEESON CJ: Does the additional information that you gave us this morning, about Jervis Bay, show that Jervis Bay is part of the Australian Capital Territory?
MR GAME: Yes.
GLEESON CJ: Well then, unless it is also part of the seat of government, presumably that proposition of fact must be true.
MR GAME: Yes.
KIRBY J: What weight do we give to the fact that the Parliament considered, in 1933, when it established the Supreme Court for the Territory, that it did so in the name of a seat of government Supreme Court Act. That is just a slip of their part, is it, or names do not matter?
MR GAME: I can only say, your Honour, it is consistent with the language which was used in the Seat of Government Acceptance Act and the Seat of Government (Administration) - - -
KIRBY J: I realise that, but that all seems to run against your argument, because it all seems to assimilate, in the case of this particular Territory, for its particular purposes and with its particular history of antecedents in Canada and in United States of America, that it will have a special place in the constitutional arrangements.
MR GAME: Your Honour, the Commonwealth Parliament is entitled to rely on any head of power which is available, regardless of what particular ‑ ‑ ‑
KIRBY J: Yes, Mr Game, but if one head of power has a consequence for the type of judicature that can operate and another has a different consequence, as I understand you to be arguing, a view which need not necessarily be accepted, but if it be accepted, then that has significance for assigning the power under which the Parliament is in fact objectively acting.
MR GAME: That is true.
GUMMOW J: Mr Game, I am not sure you correctly answered the Chief Justice as to the status of Jervis Bay. It seems to me from the material that you handed up that the Jervis Bay Acceptance Act is still extant but it was amended in 1988 and that Territory institutions and laws apply as if the Jervis Bay Territory forms part of the ACT. That is a different proposition.
MR GAME: That is true. It was, that is correct. As at the time of Spratt v Hermes it was part of the ACT.
GUMMOW J: Well, I am not sure about that either.
MR GAME: I am sorry, your Honour. If I could take the Court to the decision in Svikart 181 CLR, there are two passages that I wish to refer to. The first is at the bottom of page 562 beginning with the passage – this is a case about whether or not a person could be guilty of a blood alcohol offence committed in a place acquired under section 52(i). At the bottom of the page:
On the other hand, it would be a curious result, to say the least, if s 52(i), in making exclusive the power of the Parliament to legislate with respect to Commonwealth places, were to reduce the scope of s 122 which, particularly when read with s 111, was clearly intended to confer upon the Parliament a largely unfettered as well as an exclusive power to legislate with respect to the government of a Territory.
I will not read the rest of it but we rely upon the rest of the passage to the conclusion of the judgment.
KIRBY J: I realise the care that one must use with the expressio unius principle, especially in the Constitution written in such brief language, but would not one normally say that where you have a particular provision for a head of power to make laws with respect to the seat of government and you have a general provision in relation to Territories, that at least those matters which are relevant to the governmental operation of the seat of government, ie, including the courts, would be assigned to the seat of government power which is exclusive to the Commonwealth, is particular and has very special purposes, historical antecedents, and you would leave other matters of a general character to be dealt with under the territories power.
MR GAME: I am not sure that this is a complete answer to your question, your Honour, but in the section 122 sense, the governmental – that which lies behind the power to make laws with respect to offences such as murder in the Territory, we would submit, is not authorised or necessary.
KIRBY J: Are we focussing on the power to make laws with respect to murder or on powers to make laws with respect to the establishment of a court?
MR GAME: I appreciate the distinction, your Honour, but what I am saying is they are clearly not coextensive. The other passage from this judgment to which I wish to refer was back at page 561 beginning with the words at about point 3:
There is now a Territory, the Australian Capital Territory, within which the seat of government has been located, although its limits have not been precisely determined by the Parliament. The seat of government is, however, not co-extensive with the Territory in which it is located nor, under s. 125 is it intended to be. The Parliament must rely upon s. 122 for the power to make laws for the government of that Territory. That power is not made subject to the Constitution as is the power to make laws with respect to the seat of government under s. 52(i).
Now, your Honour, that is reasoning which follows directly from Spratt v Hermes and it is reasoning upon which all winds of government and its systems of administration have been fashioned.
McHUGH J: There is an even more important passage later on the page which I have thought showed the distinction between 52 and that is the fact that as later on in 561 we pointed out that 52 is:
a power to make laws for the peace, order and good government of the Commonwealth.
And not merely the Territory, and that is referred to. So, it rather looks as if the seat of government has to make laws with it in its national aspects rather than as a Territory as such and that is what seems to be the train of reasoning of Justice Kitto in Spratt v Hermes.
MR GAME: I can only say we adopt that reasoning and we ask the Court to accept it.
GLEESON CJ: It is very important to your argument, is it not, that the seat of government is not coextensive with the Territory. Once you accept, if you accept it, that the seat of government is not coextensive with the Territory, then the power pursuant to which the court was established has got to be section 122, not section 52(i).
MR GAME: Yes.
KIRBY J: Is that necessarily so, or may it not be that in respect of some of the functions of the court it was necessary to rely on section 52? After all they ‑ ‑ ‑
MR GAME: It will not be for the peace, order and good government of the Commonwealth.
KIRBY J: Why not? Why is it not for the peace, order and good government of the Commonwealth that at its seat of government there be a Supreme Court? I mean, you cannot have a seat of government – there will be disputes in and over the seat of government. I am not suggesting this is a simple matter and I am not suggesting that it is beyond argument, but clearly somebody in the Parliament back there in 1933 when they established the Supreme Court thought they were acting under the seat of government power, it seems to me. That is what they call the Act.
MR GAME: I have said this before, but the seat of government is the description of the legislation. It does not necessarily tell you anything about the source of power for that legislation.
GLEESON CJ: In 1958 they called the Act the Australian Capital Territory Supreme Court Act.
MR GAME: In 1909 they said that the seat of government will be in the territory or in territory in section 4.
GLEESON CJ: It was that nomenclature of the 1958 Act that led me to ask you when the name “Australian Capital Territory” first came to be used.
MR GAME: It was inserted in 1938 in the – it was added by Act No 12 of 1938 section 2, “The territory shall be known as the Australian Capital Territory”. But the Administration Act of 1909 clearly contemplates that there will be a polity which is to be the territory.
GLEESON CJ: Until 1938 did it have a name?
MR GAME: It was called the Territory for the Seat of Government which would ‑ ‑ ‑
GLEESON CJ: Now we know why they did not call it the Australian Capital Territory Act in 1933. There was no such name.
MR GAME: Well, that being so, I would submit that the argument that your Honour Justice Kirby puts to me falls away in its substance because it really is nothing more than a description of the territory or of the locus of the legislation.
KIRBY J: Mr Ewens says that Justice Dixon clearly thought that section 52(i) and not section 122 was the source of power in laws with respect to the Australian Capital Territory and refers to Laristan.
MR GAME: It is true that Laristan proceeds on that basis, but there are passages in Spratt v Hermes which expressed the view that Justice Dixon was wrong in Laristan, particularly Justice Owen’s judgment at – I will just give the Court that passage - at page 281. We would submit that it must follow from Spratt v Hermes that Justice Dixon’s judgment in Laristan was wrongly decided. Again, I will not read from it, but it is the passage at page 281 concluding with the words:
I cannot, with all respect, agree.
Although the other Judges do not specifically say that Justice Dixon was wrong in Laristan, in our submission, it must follow from their reasoning, including that of Justice Kitto, that the view taken by Justice Dixon in Laristan was wrong.
GLEESON CJ: Mr Game, you do not have to answer this question now, but it would be convenient if at some stage you could give us a reference to some work on the history of the Australian Capital Territory.
MR GAME: I will happily do that, but I am not in the position to do so at this moment.
GLEESON CJ: No hurry.
MR GAME: Can I just refer the Court to Berwick v Gray 133 CLR. The judgment of Justice Jacobs at page 609 says there were some particularly unattractive facts when a company incorporated in New South Wales was claiming to be a resident of Norfolk Island for the purposes of obtaining tax relief. The judgment of Justice Jacob, as I said, at page 611 – we rely upon that for identifying in its full sense the plenary nature of the power in section 122. Similarly, in Justice Mason’s judgment at page 607, the paragraph commencing, “The short and compelling answer”, and across the page, the passage commencing with the long paragraph with the words, “The appellant further submits”.
MR GAME: Now, that is all I wanted to say about the seat of government argument. If I return to – the concluding proposition that we put in relation to section 122 was a proposition that I put yesterday which was that section 122 is the source of power to create Territory courts, and that is a proposition – as I said yesterday – which has never been questioned.
GUMMOW J: I am sorry, could you say that again, Mr Game.
MR GAME: Yes, it is section 122 is the source of power to create Territory courts.
GUMMOW J: Now, do you say there has to be a creation of a Territory court system?
MR GAME: That there has to be?
GUMMOW J: Yes, in respect of any Territory within 122?
MR GAME: No, your Honour, not necessarily.
GUMMOW J: They can do without courts?
MR GAME: Well, maybe they could.
GAUDRON J: And although you say it, is the judicial power that is invoked in respect of Territory matters the judicial power of a Territory?
MR GAME: Yes, your Honour.
GAUDRON J: Given that – as I said yesterday - sections 111, 122 and 125 refer consistently to the Commonwealth and, in particular, in section 111 there is a reference to the “exclusive jurisdiction of the Commonwealth”. Why is it not part of the judicial power of the Commonwealth for the purposes of section 71?
MR GAME: Because the judicial power of the Commonwealth is that which brings together the States at Federation that is that polity of which the territories at that time have no part and may never ‑ ‑ ‑
GUMMOW J: They belong to it.
MR GAME: But they may not. They may or may not. But ‑ ‑ ‑
GAUDRON J: They belong to the Commonwealth.
MR GAME: But they may not exist. They may not be identified. They may have not been surrendered.
GUMMOW J: But they are required by the Commonwealth, amongst other things, under 122.
MR GAME: Yes they are, but the point about section 71 is that it takes you back to the compact between the States, and the ‑ ‑ ‑
GUMMOW J: You say that, but why?
GAUDRON J: You have to read in those words of “the Commonwealth proper”, as has been done in some of the judgments in this area ‑ ‑ ‑
MR GAME: It is just that – sorry.
GAUDRON J: ‑ ‑ ‑ but “the Commonwealth proper”, I would have thought, even if you read that in, has exclusive jurisdiction, at least in respect of a Territory surrendered by a State or any part of a State that is surrendered, which, of course, is the Northern Territory.
MR GAME: Well, your Honour ‑ ‑ ‑
MR GAME: Was the ACT surrendered, or granted?
MR GAME: Yes. Surrendered.
GAUDRON J: Surrendered.
MR GAME: Except for some Crown land that was granted and there was a debate about whether or not they had to pay for it, and that is referred to in the agreement between New South Wales ‑ ‑ ‑
GUMMOW J: Well, section 125, second paragraph, “no payment”.
MR GAME: Yes. They had an argument about whether they had to pay for part of it. But to answer your Honour Justice Gaudron’s question, Justice Kitto, in his judgment in Spratt v Hermes ‑ ‑ ‑
GUMMOW J: But can we get away from what has been said in previous judgments; I know we cannot ultimately, but for the purposes of answering her Honour’s question, and look at the text.
MR GAME: Well, I am really trying to say it by way of putting an argument, but I will leave out – if one said, not the Commonwealth, but the United States of Australia there, then the argument would go away. The Commonwealth is used in ‑ ‑ ‑
GAUDRON J: Well, would it? It would depend whether the United States of Australia had become a new entire polity, and that is what this argument of yours, it seems to me, seems to miss. There was constituted a new polity, the Commonwealth of Australia. It was made up of perhaps its States - well, it was made up of its States if you like, but it was to have exclusive jurisdiction over, by section 111, any surrendered Territory.
MR GAME: That is true, but it does not follow that that thing, which is to be called the judicial power of the Commonwealth, would include every single exercise of judicial power under the Commonwealth. For example ‑ ‑ ‑
GAUDRON J: Why not?
MR GAME: Well, your Honour, because in section 71 the judicial power of the Commonwealth does not include the jurisdiction of State courts, except to the extent that they are invested with federal jurisdiction, so State courts are not part of the judicial power of the Commonwealth ‑ ‑ ‑
GAUDRON J: No, but they are not under the exclusive jurisdiction of the Commonwealth either.
MR GAME: Well, your Honour, that is true.
GAUDRON J: And somebody – I mean, judicial power has been said to be that power which every sovereign must possess to determine justiciable controversies. Well, somebody had to have that power when the Territories were surrendered. Who had it?
MR GAME: The States.
GAUDRON J: At the moment after surrender who had the sovereign power?
MR GAME: Well, the Commonwealth but the States had not – I have said this before, but the States had not surrendered any more than they had to and they were only conscripted, having regard to section 106, to the extent that section 77 enabled them to be conscripted. That is what brings them into the judicial power of the Commonwealth, but the judicial power of the Commonwealth is a closely identified thing. It is not the judicial power throughout the Commonwealth, it is not general jurisdiction, it is not domestic or local jurisdiction and it is jurisdiction with respect to the matters identified in sections 75 and 76.
GUMMOW J: Your fundamental proposition is though that the administrator himself in this period in the twenties and thirties, if there was an administrator, or whoever the head of the executive was – perhaps the Minister for the Territory - could have exercised judicial power in relation to controversies between citizens and the ACT over matters of contract and tort. Is that right?
MR GAME: Well, if he were unable to do so by – yes. If he was not able to do so, he could make laws for the peace, order or good government, just like a district officer.
GUMMOW J: Would there be any appeal from that determination by the Minister or the administrator or executive officer?
MR GAME: No, there would have to be a repealing enactment from the Commonwealth legislature. But, your Honour, could I say that the converse would be that if you brought in, shall we say, Fiji which was the possibility contemplated, or if you brought in Papua, then it means that Chapter ‑ ‑ ‑
GUMMOW J: I am looking at section 111 at the moment.
MR GAME: I am sorry, I thought that I was looking at section 71.
GUMMOW J: That is why I referred to the Territory, the ACT.
GAUDRON J: And the same is true of the Northern Territory.
GUMMOW J: The Northern Territory too and, if we have to have it, Jervis Bay.
MR GAME: Whether or not we are looking at section 111, if I could just take section 71 a little more broadly, it would follow that as soon as and whatever system of government existed, whether it be Fiji or Papua, Chapter III would immediately apply to the administrator who exercised functions that went far beyond the judicial and far beyond the administrative and it would mean that in a Territory which may or may not have any representation – and I am coming to this shortly – that all of the requirements of section 72 would apply. So that a magistrate ‑ ‑ ‑
GAUDRON J: But, you see, what this argument overlooks is that there may well, if you want to go to Fiji, if you want to bring it in, there may well be courts there. We are talking about the courts created by the Parliament, in a sense.
MR GAME: But, your Honour ‑ ‑ ‑
GAUDRON J: And, indeed, there could have been. It is theoretically possible even with respect to the ACT and the Northern Territory that there were pre-existing courts. We know there were not but there could have been. If there had been pre-existing courts I think a different consideration may have arisen because of the exclusive jurisdiction aspect of section 111, but you have got to read it all together.
MR GAME: But, your Honour, the same would apply to magistrates in the Northern Territory, if you are looking at creation of courts, or, your Honour, to take the example that arose yesterday, the conscription of – it does not quite relate to “creates” but the same would apply to the conscription of New South Wales inferior courts, which are not Chapter III Courts, which occurred over a substantial period of time in this Territory.
GAUDRON J: Well, again, that may not have any difficulties if you treat the judicial power involved as being the judicial power of the Commonwealth because it can invest State courts with that jurisdiction.
MR GAME: That is true.
GAUDRON J: It is only if you take it outside the judicial power of the Commonwealth that you then have to look for a source of power to do that.
MR GAME: Our submission is that, just as in Capital Duplicators, where the ACT self-governing Territory legislates - is not exercising the legislative power of the Commonwealth, and the same would apply for the executive under section 61, the Commonwealth can exercise Executive power in the ACT, and Johnson v Kent is an example of that, but when the ACT Executive exercises executive power in the ACT it is not exercising the executive power of the Commonwealth.
GUMMOW J: Is that right? Is that what Kent says?
MR GAME: No, Kent does not say that. Kent is an example of the Commonwealth exercising the executive power in the ACT.
GUMMOW J: Under section 61.
MR GAME: It runs, yes. It is under section 61. I am applying Capital Duplicators’ reasoning to Kent and to the judicial power argument and I did not intend to suggest that Johnson v Kent said that. Now, when one comes ‑ and, of course, section 72, as Justice Gaudron has pointed out, is only concerned with courts created by the Parliament so that it is not necessary – it may be necessary to address ‑ ‑ ‑
GUMMOW J: Say that again.
MR GAME: Section 72 is only concerned ‑ ‑ ‑
GUMMOW J: 72. 71 is not, though.
MR GAME: No, section 71 is not. In an ‑ ‑ ‑
GUMMOW J: But if there had been courts in Papua at the time referral was required or placed under the Commonwealth there is no reason, is there, why the Parliament could not have taken those courts under 71 and invested them with federal jurisdiction?
MR GAME: No; that is true, your Honour. That depends on what the power is that they are exercising, and it has to be said that Capital TV is contrary to the proposition that territory courts are courts invested with federal jurisdiction. That is essential to the decision, because of its basis in section 73 of the Constitution. Because that court is exercising federal jurisdiction, it was held that the Australian Capital Territory Supreme Court was not ‑ ‑ ‑
GUMMOW J: We know what it decided, Mr Game.
MR GAME: I am sorry, your Honour, I am saying it by way of ‑ ‑ ‑
GUMMOW J: You have to assume that when you develop an argument, I think.
MR GAME: It is true, but what I am ‑ ‑ ‑
GUMMOW J: Assume some knowledge.
MR GAME: I assume more than some knowledge, your Honour. What I am actually saying is that is a different question, and it is not essential for this case to address the invested aspect. It is only necessary to address the create question. We start with the proposition in respect of section 71 that federal courts are the things created in section 71, doing some or all of the things identified in sections 75 and 76, and that could be doing any number of them, but sections 75 and 76 does not tell you whether or not it is a Federal Court. The source of creation is that which tells you that it is a Federal Court, and that must be section 71.
GAUDRON J: But section 72 does not refer to federal courts, either. It refers only to the other courts created by the Parliament.
MR GAME: Yes, your Honour, again it has been accepted – and we would argue that it should continue to be accepted – that those are the courts created - are the courts referred to in section 71, and that is a natural reading of section 72. But, in addition ‑ ‑ ‑
GAUDRON J: It is only a natural reading of section 72 if you proceed from the basis that the territories are not part of the Commonwealth; the territories are outside the Commonwealth; the territories are not part of the Commonwealth proper.
MR GAME: No, your Honour, we ‑ ‑ ‑
GAUDRON J: The territory power is disjoined from the Constitution. Even when you accept that proposition, the very moment you say that section 122 enables the Parliament to create courts in and for the territories, then one would have thought there was every reason to say that the omission of the word “federal” in section 72 was deliberate.
MR GAME: The courts which the Parliament creates in the direct proximate sense is the Federal Court. Now, if one looks to the things that are required under section 72, it naturally follows that it has that proximity about it which would be quite uncharacteristic of a self-governing territory, for example ‑ ‑ ‑
GAUDRON J: It is uncharacteristic of a self-governing territory perhaps if it has courts created by somebody else. We are not worried about the situation really of a court created by a self-governing territory.
MR GAME: We may be, depending on ‑ ‑ ‑
GAUDRON J: If we are then different arguments apply, I should have thought.
MR GAME: Well, if an acceptance of the decisions such as Burah and Hodge such as it was in Capital Duplicators is applied which related to the Indian legislature, then these are courts created by the Governor-General in Council and they are not courts created by the Commonwealth Parliament, but that is a different argument. But we would submit, and we have submitted in our written submissions, that applying those cases and the legislative history that occurred here and relying on Capital Duplicators, they are not courts created by the Parliament.
But in any event, your Honour, if one tries to find some symmetry about this and one does have a self-governing territory with courts which may or may not have representation subject to section 128, which I will return to in a moment, we have the question – and I should just say this, each of the requirements in this case would be breached: appointment, removal, remuneration and tenure; the case has really got nothing to do with acting judges in the appointment guise, each of those four requirements are breached in this case by provisions either of ACT legislation or Commonwealth legislation and those provisions have already been pointed out.
But if we take the example of removal from office, this would mean that upon a question in which the Parliament of the Commonwealth was not exercising its legislative function but, in effect, acting as a judge to determine removal of a judge, in exercising that function and at the time of the enactment of section 72 or at 1901, which there certainly could be no suggestion that there would be any representation, both Houses of Parliament sitting to determine an issue, let us say in relation to the removal of a magistrate – an errant magistrate – with no legal qualifications, from some territory, would require a sitting of both Houses of the Federal Parliament in the same session.
KIRBY J: Well you say that but it does not shock me; I mean, first of all it is the provision in the New South Wales Constitution Act, but secondly, a magistrate is a judicial officer. Your theory of the Constitution is that this very important principle, which was thought to be necessary to put into the Constitution and which historically traced its way back to the glorious revolution in England, gives no protection – there is no protection for the judges of the Territories, even though they are the Commonwealth’s responsibility. Now that seems a very unusual thing, that founders, the framers, have gone to the trouble of putting it into the Constitution for federal judges, but it will not apply to the Territory justices.
MR GAME: Well, they have such protection as the Parliament determines, just as they will have such representation as the Parliament ‑ ‑ ‑
KIRBY J: Yes, but the very point of putting it in the Constitution was to say, well, this is something that is going to be constitutionally protected; it is not going to depend upon the vagaries of Parliaments, it is going to depend on the Constitution.
MR GAME: But the provision is to safeguard the federal system. In our submission that is a quite distinct thing.
KIRBY J: That is right, and that is why we are looking to see whether the Territory judges are within the federal system. I mean, your theory, for example, of section 73, which is the appeal system, is that subjects of the Queen who, in 1901 in what is now the Australian Capital Territory, then New South Wales, or in what is now the Northern Territory, then part of South Australia, who had rights of appeal to this Court and to the Privy Council, somehow fell out of that system, and that is a very strong indication, it seems to me, that that was not intended, that the section was intended to ensure that all Australian subjects of the Queen, all Australian citizens would have rights of appeal. Instead, you have to have an invention and call appeals original jurisdiction and do contortions with the Constitution, when its clear purpose of section 73 was to provide that everybody had the appellate rights to Privy Council and to this Court.
MR GAME: Well, your Honour, with respect to section 73, at the time of the referendum in 1977, which also brought in section 128 concerning representation, which we submit is significant, the Parliament knew, not only about Spratt v Hermes, but they new about Capital TV, which is ‑ ‑ ‑
KIRBY J: This is a myth, this is fiction. The Court has said so many times, most recently in Svikart, that you are to construe statutes on the basis that Parliament is sitting down there reading carefully everything the courts decide. You have got to go back to the text and its purpose.
MR GAME: But, your Honour, it is a much more fundamental point than that. We have a situation where in 1915, 1926, 1965 and 1971 a series of cases – and that is only several of the more important of the cases – have established a line of thought in this Court about the relationship between section 122 and Chapter III upon which an entire system of government has been established upon which many thousands of decisions, sentences imposed by magistrates, all of which would be invalid, have been made, upon which the Constitution has been amended without concern about those propositions. Now it is being said those decisions and all of them were wrong, the system of government so called does not exist, the judgments imposed and the sentences given in all of the cases were invalid. One cannot gainsay, in our submission, the fact that section 72 has been back to the people in a circumstance where those who drafted the amendments, in our submission, at least understood by the fact that they were passing legislation that dealt with the ACT.
KIRBY J: But the notion that the people can change – people vote on referenda that are put to them. The points you make are points that argue for great caution in changing a course which has been settled - and, if you are going back to Bernasconi, settled for a long time – but this Court is faced with an application to reconsider them and we are duty bound to reconsider them. When we look into the structure of the Constitution and in particular the hypothesis of section 73 that all appellate jurisdiction would come together in this Court and in those days in the Privy Council but could only do so if the Territory courts are Federal Courts and your hypothesis that somehow they slip out of that unified legal hierarchy and are just not provided there and may not have any right of appeal, that is very difficult to reconcile with the language and purpose of the Constitution.
MR GAME: Well, if that is – I am really not sure that I can take a response to that much further, your Honour. But, can I say this: we are concerned under section 72 with courts created by the Parliament. We are not concerned with courts invested with federal jurisdiction. However, our argument could still stand if the Court adopted the line of reasoning suggested by your Honour Justice Gaudron in GPAO, although Capital TV would have to have been taken to have been wrongly decided to follow that line of reasoning. But it would work in this way: that courts invested with federal jurisdiction could include Territory courts to the extent that they were invested with, for example, jurisdiction in respect of matters passed under laws under section 51 of Constitution. But then if one came to section 73, they would be courts exercising federal jurisdiction, so your Honour Justice Kirby’s concerns would be answered because they would be in certain respects exercising federal jurisdiction ‑ ‑ ‑
GUMMOW J: Now, this administrator or minister that we were talking about back here, who makes these unappealable decisions, would he be an officer of the Commonwealth for 75(v)? Sir Garfield Barwick would say yes, would he not, in Spratt v Hermes?
MR GAME: Yes, he said yes.
GUMMOW J: So the only form of review would be by a writ under 75(v)?
MR GAME: Yes.
McHUGH J: If that is the case now, there are no rights of appeal to the Privy Council or to the this Court from the Northern Territory Supreme Court, except as the Parliament gives them. So, on one view, the unfortunate citizens of the Northern Territory do not have access to this unified legal system.
MR GAME: Well, we submit that that is an inevitable consequence of the provisions of Chapter III but we also submit that there is nothing ‑ ‑ ‑
McHUGH J: Unless, on one view, you overrule Capital Duplicators.
MR GAME: Yes.
KIRBY J: How could that possibly be, Mr Game? How could you possibly have – how could we at the brink of a new century look at our Constitution and say, “The citizens of the Territories do not have a constitutionally guaranteed right” when one construction of the Constitution provides them that guaranteed right that is immutable and cannot be affected by politicians that come and go, it is there in the Constitution?
MR GAME: But they do not have a constitutionally guaranteed right to any particular form of representation. New States do not have the protections of section 24 of the Constitution.
KIRBY J: Yes, but we are talking about the judicature, the rule of law.
GAUDRON J: But perhaps that lack of protection is an argument for saying that the ordinary words of Chapter III should be given their ordinary meaning. If they have not got parliamentary representation then all the more important to give them the protection that comes from Chapter III, when its words and their natural and ordinary meaning extend that far.
MR GAME: At the heart of our argument is the proposition that you cannot read down and you should not read down section 122 which is why ‑ ‑ ‑
GAUDRON J: Nobody is reading it down. What you are reading down or what you are doing is reading qualifications into Chapter III. You are reading in, for example – the theory would read into 71, “The judicial power of the Commonwealth proper defined to mean the Commonwealth as constituted by the States but not including the Territories”. Then you read into 75 and 76 “Arising under any laws of the Parliament, except those enacted under section 122”, and so on, and there is nothing you are reading into 122, except, perhaps, the following words:
The Parliament may make laws for the government of any territory –
et cetera, “unconstrained by Chapter III”.
MR GAME: But, your Honour, the very converse of that proposition has been put for as long as since Lamshed v Lake which was that it would have been an easy thing to say the courts created under section 122 fell under Chapter III. The very proposition that you are cutting down section 122 is the very thing that the judges thought that they were considering in Spratt v Hermes. Justice Kitto used that very language in considering the argument and that is what it amounts to. It amounts to cutting it down because it cuts down – it means that the executive of the – section 4, for example, of the Supreme Court Act goes. That is cutting down the legislative power of the Territory. It is contrary to Capital Duplicators, in our submission, because it does not have the independent authority any more.
GLEESON CJ: How long do you expect to require for the remainder of your argument, Mr Game?
MR GAME: Not terribly long. I just wanted to say a few words about sections 75, 76 and 77 and I was hoping to make an exit after that, your Honour.
CALLINAN J: Mr Game, some people might think that since the special leave provisions were introduced, there are no rights of appeal under section 73.
MR GAME: That has been argued and rejected.
CALLINAN J: Argued and unanimously rejected, yes.
MR GAME: I have often wished otherwise, your Honour, but that is another thing. What it does mean is that, subject to statutory provisions, that Mr Eastman would not require special leave of this Court and the 7,000 pages of transcript could be wheeled in and grounds of appeal seriatim addressed, which I suppose may happen tomorrow.
Now, with respect to sections 75, 76 and 77, and with respect to 77 ‑ and this is really picking up the residual argument in a sense that we say that we do not have to come to this argument, but in any event I will address it briefly – we say, and consistent with Justice Menzies in Capital TV, that federal jurisdiction is not everything that is in sections 75 and 76 so described. It is when a court in section 77 exercises sections 75 or 76 jurisdiction.
Alternatively, we put the proposition put by your Honours Justices McHugh and Callinan in GPAO with respect to federal matters. There is another way of putting the proposition put by Justice Menzies in Capital TV which was essential to his decision, because of course he held in Capital TV that a court exercising federal jurisdiction – that a Territory court was not such a court. But the alternative proposition we would put about section 77 is that 77 provides the machinery either defining the jurisdiction of a Federal Court or investing a State court which otherwise could not be conscripted because of section 106 but you do not have to conscript territorial courts because you already have the section 122 power with respect to them.
We put that argument in those two ways and we make the observation that if you construe sections 75 and 76 such that “arising under any laws made by the Parliament” picks up any laws made by a self‑governing Territory and you construe section 77 such as that in effect is the only way into sections 75 and 76, then you have foreclosed any – there is no way out from the conclusion that federal jurisdiction is exercised. So there would be no way out of the conclusion that a section 122 court would have to be a Federal Court. That would follow, we accept.
GAUDRON J: Can I interrupt you briefly, because if you go back to the notion of Chapter III as there, at least in one sense, as to preserve the balance between the federating States and the new polity, you do have the problem that things in a Territory, things which are, in one sense, wholly territorial, may, nonetheless, impact upon the States, why would you not, simply because of that, think that the territories must be within Chapter III?
GUMMOW J: Just before you answer that - and in Spratt v Hermes, did not Sir Garfield Barwick say that there could be inter se questions with respect to the territories power?
MR GAME: Yes.
GUMMOW J: And that, therefore, section 74 had to be engaged.
MR GAME: Yes, that is true. We do not exclude the possibility that Chapter III could have any operation with respect to ‑ ‑ ‑
GUMMOW J: So, you do not accept the total disjoinder position?
MR GAME: No, your Honour.
GLEESON CJ: Or whether it is all or nothing. Because if it is all or nothing, then that involves reconsideration of the actual decision in Bernasconi.
MR GAME: That is correct. Bernasconi would have to go. So would other cases such as Buchanan, Reg v Porter Ex parte Yee – all of those decisions would have to go and as I said, if the seat of government argument succeeded, the Territory representation cases may have to be reconsidered also. But, with respect to the words “arising under any laws made by the Parliament”, in a sense I have already put this argument, but there have to be some constraints on what “arising under any laws made by the Parliament” means, in our submission, and we would rely on the Capital Duplicators reasoning. That is to say, when a law is passed by the independent authority of a Territory then it is no longer arising under a law made by the Parliament in any more sense than it is arising under a law made by the imperial Parliament. It is arising under a law proximately made by the self-legislating Territory. We make that submission both in respect of the Crimes Act Ordinance enforcing on 10 January 1989.
GLEESON CJ: Bernasconi is an interesting illustration of the operation of Chapter III as a source of protection for the citizens. If the argument that was rejected in Bernasconi had been correct, it would have meant that a citizen of Papua had a right to trial by jury in circumstances where no citizen of mainland Australia had that right.
MR GAME: Also, it may mean something more than that, because if it were concluded, and it might yet be concluded that section 80 did provide the real constitutional guarantee which Sir Garfield Barwick thought that it did not, then in respect of indictable offences heard summarily, one might come to the conclusion that every citizen had to have a jury trial in Papua New Guinea, or whatever. That is to say, there are other further consequences of section 80 which have not yet been worked through.
KIRBY J: However strong that argument of practicality may have been when it was first advanced, it has receded and disappeared now. We are just looking at the end of the century at section 80 as it is expressed, and it is says “any law of the Commonwealth”. It could not be in more general terms. I assume that in practice, both in the Northern Territory and in the Australian Capital Territory, that for an offence against the law of the Commonwealth a person is tried by jury. I assume that as a matter of practice that is done.
MR GAME: Section 68 of the Judiciary Act, in effect, assumes that you will be tried in a State court, in a Territory court, for Commonwealth offences in a similar way. So the answer is yes, your Honour.
GUMMOW J: Well, the Crimes Act now has provision, so I think probably always had them, about indictable offences, did it not?
GLEESON CJ: But it is only for indictable offences that you hget trial by jury, is it not?
MR GAME: Yes, your Honour. Sorry, there is provision where indictable offences can be heard summarily, and if ‑ ‑ ‑
GUMMOW J: It becomes a question of whether the prosecuting authority elects one or the other, does it not?
MR GAME: Yes, the prosecuting authority can elect in certain circumstances.
GUMMOW J: But in practice they ‑ ‑ ‑
MR GAME: It depends, your Honour. There are advantages and disadvantages. There are penalty advantages in taking summary jurisdiction, and cost, obviously expense, and so on.
GAUDRON J: But the theory of Spratt v Hermes – to come back to this – is that if a resident of New South Wales, for example, is charged in the Northern Territory with an act or an omission which would otherwise constitute an offence under the Crimes Act, it is nonetheless not a law with respect to whatever the head of power was that authorised that provision of the Crimes Act. It is not a law of the Parliament; it is a law under section 122. That is the theory of Spratt v Hermes.
MR GAME: Yes. That is true, but the whole theory of the seat of government legislation was that they would be laws of the Territory from 1909.
GUMMOW J: What, The Post & Telegraphs Act?
MR GAME: Yes, your Honour, that was the theory. Can I say that that is not essential to, as I have attempted to say more than once ‑ ‑ ‑
GUMMOW J: But that was the law in Spratt & Hermes; it was The Post & Telegraphs Act. It was not the Rat Catchers Ordinance of the Australian Capital Territory.
MR GAME: Well, a real distinction may be made between the Rat Catching Ordinance and The Post & Telegraphs Act, but that would require the Court to undo some jurisprudence that would not necessarily impinge on Spratt & Hermes, but it would certainly impinge on cases from Capital TV such as - but if I could come back to section 80, another consequence would be, of course, that in the Australian Capital Territory there is provision for trial by judge alone and there is a murder trial just being heard in the Australian Capital Territory by a judge alone, those provisions would go. So there are many other, in effect, unexpected consequences of undoing this line of authorities.
GLEESON CJ: What was the outcome of the murder trial by judge alone?
MR GAME: I am sorry, I was told yesterday there was one; it is about to happen, sorry.
GLEESON CJ: About to happen.
MR GAME: I have been handed some texts on the history of the Australian Capital Territory, but it might be more convenient if I could provide them to you at some later time.
GLEESON CJ: Yes, in due course.
MR GAME: The latest update is that the murder trial started on Monday and, on that rather strange note, I will conclude my submissions.
GLEESON CJ: If the argument against you is right, it is not looking in good shape. Thank you, Mr Game. Yes, Mr Solicitor.
MR BENNETT: May it please the Court. I propose to divide my submissions into three parts: I propose first, and very briefly, to make some general submissions about the approach of the framers of the Constitution towards territories in 1900; secondly to deal with the seat of government arguments and thirdly to deal with the main arguments concerning Chapter III.
May I just start by saying this. Through 1999 eyes, we naturally say that all Australian citizens should be treated the same way and that constitutional protections should apply to all of them; that is very much 1999 thinking. We say, naturally, that that applies to people in or not in territories. But territories were seen as somewhat different in 1900 and Bernasconi is useful in this way, not so much as a precedent, which may or may not one day be overruled by this Court, but for the insight which it gives into attitudes at the time, in relation to territories.
And if I can just remind your Honours of what Justice Isaacs, who was, of course, one of the founding fathers in the last century, said in that case. It is - your Honours need not go to it, I will just read it very quickly – it is 19 CLR 629 at pages 637 to 638, where his Honour said this:
It is plain that that section [122] does not consist merely of additional legislative power over territories beyond the powers already conferred upon Parliament in relation to the Commonwealth itself, for its language is unrestricted and covers many of the subjects already specified in sec. 51. It is an unqualified grant complete in itself, and implies that a “territory” is not yet in a condition to enter into the full participation of Commonwealth constitutional rights and powers. It is in a state of dependency or tutelage, and the special regulations proper for its government until, if ever, it shall be admitted as a member of the family of States, are left to the discretion of the Commonwealth Parliament. If, for instance, any of the recently conquered territories were attached to Australia by act of the King and acceptance by the Commonwealth, the population there, whether German or Polynesian, would come within sec. 122, and not within sec. 80. Parliament’s sense of justice and fair dealing is sufficient to protect them, without fencing them round with what would be in the vast majority of instances an entirely inappropriate requirement of the British jury system.
KIRBY J: Is it the submission of the Commonwealth that that is the approach which this Court should take now, today, in relation to the territories power?
MR BENNETT: Of course not, your Honour. The submission of the Commonwealth is that that is a very useful indication of what the attitudes were towards territories in 1900, which is all I am saying at the moment. I will come to the significance for construing in the Constitution later in my submissions. But at the moment, I am confining myself to what attitudes were. In relation to the proposed ‑ ‑ ‑
KIRBY J: It is a bit like Sir Victor Windeyer’s statement, is it not, that the early cases before the Engineers’ Case were not wrong, they were the perception of that time. But then came the Engineers enlightenment, and that is what is urged upon us now.
MR BENNETT: Yes. Your Honour, I will deal with that in a moment, and I do not run away from that. But I simply wish at the moment to make the submission: when one is construing the way it fits together as at 1900 before one gets to the question of whether one can reconstrue it or take a different approach today, that was the attitude.
And no doubt, in relation to a Capital Territory, the attitude was that that was an area, in some senses, in a subservient relationship to the rest of Australia, and that appears very clearly from section 122 itself. That talks about, amongst other things, in relation to any territory either surrendered or accepted, that one question was the Parliament may allow the representation of such territory in either House to the extent and on the terms it thinks fit. There was no constitutional right to representation by people in territories, and if one is to read the Constitution as conferring rights of a general constitutional nature upon people in territories of the type which is being discussed there, one must appreciate that is not what the draftsman had in mind, and that in many respects the rights of people in territories are left to the Commonwealth legislature and in, to some extent, the way the rights of people in States are left to the States in some respects.
GUMMOW J: Do you say these territorial administrators were beyond the reach of 75(v) if they behaved in a fashion that was illegal?
MR BENNETT: No, 75(v) may have been an area where the territories were ‑ ‑ ‑
GUMMOW J: You accept Sir Garfield Barwick’s analysis in Spratt v Hermes, do you?
MR BENNETT: In general terms, yes.
GUMMOW J: As to the non-total disjunction, if I can put it that way?
MR BENNETT: Yes, it is certainly a non-total disjunction, yes, your Honour.
GAUDRON J: But then you treat the Commonwealth there, do you, in 75(v), as different from the Commonwealth whose judicial power is dealt with in 71.
MR BENNETT: Yes, your Honour. We say that in section 71 the phrase “judicial power of the Commonwealth” is a hendiadys. One does not take the individual words of it and treat them as having some individual significance. It is a composite phrase designed to deal with the power which arises in determining federal questions and it is not intended to relate to a specific thing defined in one way or the other way. Certainly, it would be surprising if the distinction between the Commonwealth being the six States, and the Commonwealth being the six States and territories, was to the forefront of the minds of the people who drafted section 71.
I simply wanted to start with that submission because one cannot start with 1999 assumptions in construing what the words are that appear here. One may, of course, where there is ambiguity, to some extent look at modern approaches but one must bear in mind what the original approach was. Now, I wanted to come then to seat of government before returning to the main issues in this case. In relation to seat of government, the primary submission we put is that the phrase is non-geographical and that it simply means “the capital”, qua capital, in much the same way that children, I suppose, in schools around the world are taught Canberra is the capital of Australia. Seat of government means nothing more than that, we would submit. It is not any particular geographical area.
One sees that fairly clearly from some of the sections which relate to it. If one looks at section 125 itself there are a number of clues which support that. Before I take your Honours to them, may I just say this, that our fall-back submission would be that it is a very narrow geographical area. Whether it is just Parliament House, or Parliament House and the footprints of ministries, whether it includes this building, whether it includes some curtilage or whether it is the parliamentary triangle, one does not need to decide.
GLEESON CJ: Your argument is really that it is a bit like heaven which theologians think may not be a place but a state.
MR BENNETT: Yes, your Honour, that is an analogy we would adopt.
GLEESON CJ: It is certainly the way I think of it.
HAYNE J: If it is, it obviously does not include this place, does it?
MR BENNETT: Yes.
GUMMOW J: Sir Maurice Byers used to call this the abode of the holy ghosts. He may well have been right.
MR BENNETT: Yes. If one starts with section 125 – I appreciate there are some problems looking at capitalisation in the Constitution, but it is interesting that “seat” has a small “s”. Indeed, in section 52(i) “seat of government” has a small “s” and a small “g”, although in section 125 “government” has a capital “G”. One cannot place, of course, any real significance on that but it is a tiny clue perhaps.
125. The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within –
and we stress the word “within”. “Within” normally means within and not constituting the whole of. One can, I suppose, say that the Parliament of New South Wales has jurisdiction within its borders, meaning the whole of the area of the State, but a normal use of the word “within” is that something is wholly contained by something else and less than it. It normally implies inclusion rather than coextension. In any event:
shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney.
It has at least 100 square miles, and then:
The Parliament shall sit at Melbourne until it meet at the seat of Government.
The word “at” is significant. One does not use the word “at” in relation to a tract consisting of the area of a State or a Territory. One uses the word “at” as a matter of English in relation to a city or a town or something smaller. One would not say someone was doing something at New South Wales, although one might say the Court was sitting at Sydney. That therefore is a further clue that, whatever one is talking about, one is not talking about a whole territory which was to be at least 100 square miles and in fact turned out to be, I think, about 700. So there are clues in section 125 which suggest a narrower meaning of it.
Another clue, although a clue not contained in the Constitution itself but relevant in so far as it indicates the thinking at the time, is the title and use of the phrase in the legislation of the Seat of Government Acceptance Act and the Supreme Court Act. That has been referred to already today, but may I just remind your Honours of a couple of features of that. If one goes to the Seat of Government Acceptance Act 1909, the short title is:
An Act relating to the Acceptance of the Territory surrendered by the State of New South Wales for the Seat of Government of the Commonwealth.
Not “as”, not “to become” but “for”, a preposition suggesting that it was being surrendered for the purpose of a seat of government rather than to become that phrase. Section 4 provides:
It is hereby declared and determined that the Seat of Government shall be in the Territory described in the Second Schedule to this Act.
Which then sets it out. When one goes to the Jervis Bay legislation which was – I am sorry for this, your Honours – my papers were beautifully organised when I was seated three seats to the left, but once one moves they ‑ ‑ ‑
GLEESON CJ: You have got the benefit of that lectern that I have seen you moving up and down.
MR BENNETT: I do, your Honour, and that, to some extent, blocks one’s body language which one wishes to use in advocacy. The Jervis Bay Territory Acceptance Act 1915 uses the same sort of phraseology. It is surrendered to the Commonwealth and accepted as a Territory of the Commonwealth. It is therefore a separate Territory but:
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 –
Again, a Territory acquired for the seat of government. When one moves forward to the Supreme Court Act in 1933, that was originally called the Seat of Government Supreme Court Act but one should not be beguiled by that abbreviation of the title because the fuller description is, “An Act to establish a Supreme Court of the Territory for the seat of government”. The formal name, in other words, was “Territory for the Seat of Government” not seat of government. Then there is a definition in that Act in section 5 of “the Territory” or the “Australian Capital Territory” and that seems to be the first time that phrase is used that we have been able to discover. It may have been used earlier but, in the original 1933 Supreme Court Act “the Territory” or “the Australian Capital Territory” means “the Territory for the seat of government”, so its formal name was “Territory for the Seat of Government”. It was colloquially called the Federal Capital Territory but the full name was, “Territory for the Seat of Government”.
And, then, section 6 gave the court the name which was ultimately given to the Territory:
There shall be a Supreme Court of the Territory which shall be known as the Supreme Court of the Australian Capital Territory -
And, it went on to provide that the judge was to be a judge of the Federal Court of Bankruptcy or of the Commonwealth Court of Conciliation and Arbitration. There was no provision about tenure and the salary is to be the salary the judge receives and what was obviously to be his or her principal office. So, one has those little clues at the time as to the meanings of the words. Now, when one ‑ ‑ ‑
KIRBY J: If one goes to the historical antecedents is there any lesson in what the United States Constitution provided for the District of Columbia or the Canadian for Ottawa?
MR BENNETT: Well, Canadian was quite different because in Canada – I am having some documents printed for your Honours about Canada, an extract from McConnell’s Commentary on the British North America Act, but after some controversy it was decided in Canada that there would not be a separate territory but that the seat of government or the capital would be in Ottawa and section 16 of the British North America Act – this is 1867 – says:
Until the Queen otherwise directs, the Seat of Government of Canada shall be Ottawa.
So what it is really saying is Ottowa will be the capital.
KIRBY J: Is that administered in fact as a separate territory or it is just a town in Ontario, is it?
MR BENNETT: Yes, your Honour. I think it is actually on the border of Quebec, but it is in Ontario, yes. I have copies of that which I can ‑ ‑ ‑
KIRBY J: I think there is a provision in the Constitution obliging the justices of the Supreme Court of Canada to live in their seat of government.
MR BENNETT: That might be an example, I suppose, of the law under section 52(i), an exclusive power of the Commonwealth, as opposed ‑ ‑ ‑
GLEESON CJ: It does not sound very valid to me.
MR BENNETT: One of the examples given in one of the early cases of a law under section 51 was a law requiring every Australian to visit the seat of government at some regular interval. That is a little harder, because it is hard to see how that could be an exclusive power.
One of the arguments which is put in relation to section 52(i) is the question, “What is its function?” In other words, if, as we say, the relevant power to legislate is that in section 122, and section 52(i) is merely concerned with the seat of government qua seat of government, then why does it need to be exclusive, and what comes within it. Our answer to that is that section 52(i) is very narrow, indeed. It is concerned with matters affecting the choice of this area as the seat of government, or as the capital. One example of a way in which ‑ ‑ ‑
KIRBY J: That does not fit very well with the power to make laws with respect to the Commonwealth places which is a continuing law, not one which is once done - over and done with.
MR BENNETT: If the State of Victoria had decided at some point in Australia’s history that it would maintain publicly that Melbourne was the capital of Australia, that might be something it was prohibited from doing by section 52(i). Certainly, the power to determine what should be the seat of government is an exclusive Commonwealth power. One must remember that there was great rivalry between at least two of the States over this issue at the time, hence the provisions about it being at least 100 miles from Sydney, and matters of that sort.
GLEESON CJ: Is one of the consequences of the exclusiveness in section 52(i) that although the seat of government is within the territory, the legislature of the territory does not have the power to make certain kinds of law that affect the capital as capital?
MR BENNETT: No, your Honour, because in Svikart v Stewart this Court held that “exclusive” in section 52(i) differed in one respect from “exclusive” in section 90, and that in section 90 it had that meaning; in section 52(i) it merely meant exclusive of the States, and therefore there would be no exclusivity from – otherwise, if one took a geographical view, even if it was a narrow geographical view, one would have some surprising anomalies. Assuming that Parliament House were the sole area which was within the seat of government, a murder in Parliament House could only be dealt with under Commonwealth law, not under Territory law. That would be one consequence of that. And that was the sort of consequence, of course, that was argued in Svikart v Stewart, in relation to a Commonwealth place in the Northern Territory, but the Court held that “exclusive” in that section only meant exclusive of the States, and that avoids that problem.
GLEESON CJ: And it is the capacity to override Territory legislation that produces the necessary practical consequence.
MR BENNETT: Yes. In relation to that, might I just go to the section 111 argument that has been put. The argument based on section 111 is this: that that uses the words, on a surrender, that it becomes “subject to the exclusive jurisdiction of the Commonwealth” and the argument is that that picks up the three heads of power: section 1, the legislative; section 61, for executive and section 71, for judicial. Of course, if that were right, the Self-Government Act would be invalid; there would be no ability to have an independent Territory executive, leaving aside what it would do to Territory courts, but the ‑ ‑ ‑
GUMMOW J: Why? It picks up the legislative powers including section 122.
MR BENNETT: Well, if one says that, one gets the same result as if the argument were not put at all in relation to judicial power, but it is our submission that all that means is, again, exclusive of the States, but it is not referring to the three heads; it is rather referring to sovereignty. “Exclusive jurisdiction” simply means sovereignty, which means power to legislate, which means in turn power to create courts and power to create executives, which is, of course, what has occurred.
KIRBY J: But if one is talking about a law made by the Federal Parliament which cannot be overridden by Territory laws made indirectly through section 122, and if one looks at the Supreme Court Act which has reserved certain matters to federal control, does that not tend to indicate that it has been enacted under section 52, whatever may event, the thought in the mind of those who proposed it and those who voted on it but, of its nature, is it not a seat of government exclusive type enactment rather than general territorial enactment?
MR BENNETT: No, your Honour, we would submit it is a general territorial enactment and part of what section 122 contemplates is that one may set up as one sees fit, legislative, executive and judicial powers in the territory, one could have if one wanted to, a territory divided into parts called sub-territories and a complete mirror sub-constitution including a mini Chapter III which set out everything this Constitution said, although as a sub-constitution for a territory. All that could be done under section 122. It is simply a plenary power which enables one to deal with matters legislative, executive and judicial.
KIRBY J: Why cannot you use the exclusive power to grant self‑government?
MR BENNETT: Because one does not need to, your Honour. It is in section 122 ‑ ‑ ‑
KIRBY J: So you say, but it is equally in section 52. Nothing would be inconsistent with the Parliament having the exclusive power, then providing from that exclusive power for the self-government for which it is already provided.
MR BENNETT: Well, your Honour, there would be a question whether such a law was a law with respect to the seat of government qua seat of government or whether it was rather a law with respect to the physical area of land. There would be a serious question about that. Having said that, I will be submitting in the course of my submissions that even if the source of power were section 52 that would not bring it within section 71 for the purpose of the courts, but I will come to that when I get to it. But we would submit section 122 is full, plenary and enables all that one needs it to enable and one simply does not need these other provisions to create different results. Section 52 was there – it was as if it had said, knowing words they did not then know, “the capital of Australia will be Canberra”.
GLEESON CJ: Are you saying the capital of Australia will be Canberra is all that was contemplated by the opening words of section 125? Maybe it is.
MR BENNETT: Yes, your Honour.
GLEESON CJ: There seem to be some remarks in some of the cases we have been taken to that said there has never been a determination, as though there were some further boundaries of some kind to be drawn by Parliament.
MR BENNETT: That is why I put my submission as a fall-back submission. There has never been a determination of whether my submission is correct that it is merely an ethereal concept of the capital qua capital or whether it is a geographical place, nor has there been a determination, if it be geographical, of how wide it is. No doubt it would ‑ ‑ ‑
GUMMOW J: There would have to have been some determination, or otherwise they would still be in Melbourne.
MR BENNETT: There is a determination of what it has to be within. There has been a determination ‑ ‑ ‑
GUMMOW J:
The Parliament shall sit at Melbourne until it meet at the seat of Government.
It met at the seat of government in 1927.
MR BENNETT: Yes, that is so, your Honour.
GLEESON CJ: Did not somebody determine that it would be within the district of Yass?
MR BENNETT: I think that is so, your Honour. I think there was an earlier determination of the general area but certainly not the precise area.
GLEESON CJ: Why is it not sufficient compliance with section 125 to say, “It will be in the district of Yass on this hill where we’ll build a building”?
MR BENNETT: There is no reason why they could not have done that, your Honour, but it would not have taken it any further. All they are saying is that Parliament will determine the location of the capital. Things may take place there. If they do of course, that is a matter for section 122. But there is exclusive power to determine that it will be the capital, the significance of it being the capital, matters relevant to it being the capital and so on. It may be that a quasi trademark piece of legislation saying that no one could use the words “seat of government” on a product would fall within section 52(i). Certainly Victoria declaring Melbourne as the capital could be dealt with under section 52(i). But it is simply concerned with that, we would submit, and no more. As I say, if it is wider, it is not exclusive of the Territory for the reasons given in Svikart and it is a narrow piece of land.
GUMMOW J: Mr Solicitor, do you align yourself with Mr Game who accepts or adopts the proposition that there is no requirement at all for any judicial structure, to use that term, in any Territory?
MR BENNETT: Yes, your Honour. There would be very little need for one, for example, in Heard and Macdonald Islands, where there are no people.
GUMMOW J: Yes, well that is not meeting my point, really; in any populated territory.
MR BENNETT: Your Honour, the distinction is not drawn, of course ‑ ‑ ‑
GUMMOW J: I am just asking what the Commonwealth’s attitude is, that it all.
MR BENNETT: Yes, we would say it is entirely a matter for Commonwealth law and, naturally, one would expect that it is fairly basic to the government of any area that one starts by creating a court. But when the Constitution set up ‑ ‑ ‑
GUMMOW J: I am not asking about that. I am saying, as a matter of constitutional imperative, not government benevolence, is there any requirement for a judicial structure in any populated territory on the mainland of Australia, to make it precise?
MR BENNETT: No, your Honour. The submission will be – when I come to the third part of my submission and to section 71 – the submission will be that the hendiadys of judicial power of the Commonwealth is concerned with maintaining the balance between the Commonwealth and the States, the keystone of the federal arch, if one likes, that aspect, and all the matters which will arise in a Federation.
GUMMOW J: So the only constraint upon the activities of these administrators in these Arcadias would be 75(v), would it?
MR BENNETT: Yes, your Honour.
GUMMOW J: I thought you agree with that.
MR BENNETT: The only constitutional restraint?
GUMMOW J: Yes, would be 75(v).
MR BENNETT: Yes.
GUMMOW J: And, of course, that could have a Hickman clause attached to it, I suppose.
MR BENNETT: Yes it could, it could, but that may not take one the whole way for the reasons given in Hickman itself.
If one does take a narrow geographical view of “seat of government” in section 52(i), one area where it might operate is to preclude the extraterritorial operations of State laws which might otherwise be able to operate for certain purposes in a Territory, but one has to use one’s imagination to find examples of how that would arise.
Now, it was suggested in argument yesterday that if section 52(i) is the operative provision, then territory courts would necessarily be under Chapter III. Might I take your Honours to Spratt v Hermes 114 CLR 226 and your Honours will note at page 232 in the argument of Mr Merralls, who appeared for the prosecutor, in the middle of page 232, against the word “lake” in the left-hand margin:
As this is so, it does not matter whether the Territory is governed under s 52 or s 122 or both; for it is part of the Commonwealth proper and judicial power can be given to courts within it only if the courts are set up in compliance with s 72.
Justice Taylor dealt with that at page 263. Most of the other Justices seem to have dealt with it implicitly, but his Honour dealt with explicitly. At point 7 on page 263, if your Honours see the references to “Forts” and “Magazines” in the left‑hand margin, his Honour says this:
But whether or not the source of legislative authority for the legislation now in question be s 52(i) or s 122 the result of this case must, I think, be the same for, in my view, the courts of the territories constituted under s 122, or in the case of the Australian Capital Territory, whether constituted under s 122 or s 52(i), do not exercise the judicial power of the commonwealth –
et cetera, and he goes on to make the point he has made elsewhere.
GUMMOW J: I thought you had disassociated yourself from the phrase “a disparate non‑federal matter”, and associated yourself with Sir Garfield Barwick.
MR BENNETT: I was not so much dealing with the phrase “disparate non‑federal matter”, as I was with the proposition that it makes no difference whether one is under section 52 or 122 for the purpose of the submission about section 71.
GUMMOW J: Yes, I see.
MR BENNETT: It is that, and that alone, for which I referred to it.
GAUDRON J: Perhaps having taken us to the section you could explain – I do not understand what the words “but, in effect, what may be described as judicial power accorded to the respective territories”. I can get that – “for which as organs of government they are constituted”.
MR BENNETT: Yes; what his Honour is doing is this: he uses the words “may be described as” because he has split up the hendiadys. He is taking the words “judicial power” from Chapter III, and saying that, of course, deals with judicial power of the Commonwealth. Now, I suppose you can, he is saying, in a metaphorical sense, use those same words in relation to what is done within a territory where the Commonwealth chooses to set up courts for it. All he means by “what may be described as” is that he is taking words which are part of a term of art and applying them out of context.
GAUDRON J: No, it is “for which as organs of government they are constituted”.
MR BENNETT: Yes, the courts in the territories are organs of government within those territories. It is a slightly clumsy sentence, but that seems to be what is being said.
I was asked about the position in the United States.
KIRBY J: Do the citizens in the District of Columbia vote for the Congress, do you know? I had a recollection that they did not and there was some agitation about it.
MR BENNETT: I do not know the answer to that, your Honour. The phrase used in Article 1 section 8 of the United States Constitution – and we have set this out in footnote 72 of our submissions – Congress has power:
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased –
and then it goes on to deal with:
Forts, Magazines, Arsenals, dock-Yards –
So, it is rather like section 52, which no doubt was taken from it; it has bracketed seat of government and federal places.
KIRBY J: And it is definitely territorial. It is geographical, I mean.
MR BENNETT: Well, the district is what seems to be the entity and it becomes the seat of the government of the United States. If one could interpolate into that my words, it is simply saying it becomes the capital of the United States.
KIRBY J: Yes, but it is geographical, just as Commonwealth places are geographical. They are little bits of territory. This is a bigger bit of territory, not too big, but it is a bit of territory.
MR BENNETT: Certainly I concede, your Honour, that the drafting of the American provision is more appropriate to a geographical description than the drafting of our provision.
KIRBY J: But if, as you say, that is the source of our idea, it seems unlikely that our framers were getting at something quite different.
MR BENNETT: Well, they did use different words in a number of aspects of it. They kept the exclusivity and that is no doubt where the concept came from. In relation to courts, until 1933 it was held in the United States that the courts of the District of Columbia were not treated as federal courts, but were simply treated as territorial, as we submit. In O’Donoghue v United States 289 US 516 in that year, a different view was taken.
GLEESON CJ: Well, before you pass from what Justice Taylor said, on page 263, it is about two-tenths of the way down the page, is it not, that he states in two sentences what he says is the subject matter of section 52(i):
It is not a power to make general laws irrespective of their subject matter having an operation within the seat of government and such other places but a power to make laws having as the subject matter the seat of government or such other places.
MR BENNETT: Yes, that is what I was endeavouring to encapsulate by my ‑ ‑ ‑
GLEESON CJ:
As such it authorizes legislation to establish the seat of government and such other laws as can fairly be said to be with respect to that subject matter.
MR BENNETT: That is the submission, your Honour. It is what I sought to encapsulate by using the word “capital” rather than “seat of government”; “capital”, of course with an “a” not an “o”.
GAUDRON J: How does what was there said square with the decision in Worthing v Rowell?
MR BENNETT: Worthing v Rowell was dealing with a different part of section ‑ ‑ ‑
GAUDRON J: I know, but what his Honour there says at page 263:
having as the subject matter the seat of government or such other places.
Presumably, referring to the places acquired by the Commonwealth.
MR BENNETT: Yes, and as to those matters, the power is exclusive.
GAUDRON J: Yes, “having as the subject matter” is what I am talking about. You see, the effect of Worthing v Rowell was that laws of general application, not laws having as their subject matter places acquired by the Commonwealth, were held not to apply and I am just wondering if what was said by his Honour there accords with the decision in Worthing v Rowell & Muston.
MR BENNETT: Well, there is no doubt, your Honour, that one has to say that the juxtaposition in section 52(i) is not one which means that one has to apply exactly the same approach to the two parts of it, and if the Court accepts my submission that the first phrase is non-geographic and the second phrase is geographic, then it is quite easy to understand how Rowell can be reconciled with the approach we put.
McHUGH J: It was not the view that Justice Kitto took in Spratt v Hermes. He took the view that both of them were dealing with a subject matter and not more general topics which may affect the place and in Rowell & Muston I relied in argument, rather strongly, on what Justice Kitto put in Spratt v Hermes but that was rejected by the Court.
MR BENNETT: But that again supports that the ultimate ratio favours the non-geographic approach and once it has ‑ ‑ ‑
McHUGH J: Well, I do not think so because Rowell says that you can make laws – any laws at all – as long as they operate within the particular place and it is not a law on the specific subject of places fulfilling that description.
MR BENNETT: No, your Honour, but that is because the second part of paragraph 1 is geographic and the first part is not.
McHUGH J: I know that is the assertion you make, but why should you distinguish between the two of them, having regard to their form? One refers to “the seat of government”, it seems to be a subject matter; the other one refers to “all places acquired”, seems to be a subject matter.
MR BENNETT: Yes, your Honour, but one is a subject matter which is an abstract noun and one is a subject matter which is a geographic place. When one applies an exclusive power to legislate with respect to an abstract noun, one necessarily gets a different sort of result than if one applies it to a geographic place.
KIRBY J: In these proceedings, if one came to the view that within the four corners of Chapter III the Territory courts must be Federal Courts, then am I wrong in thinking that you do not then have to decide whether the Supreme Court of the Capital Territory is or was established under the seat of government power or the territories power?
MR BENNETT: No, that is not so, your Honour, because we have an ultimate fall‑back submission which is very much in a different category to the other submissions which says that the legislation is legislation of the Territory and not Commonwealth legislation.
GLEESON CJ: There seem to be a variety of kinds of territories. You have external territories and internal territories. Amongst the external territories you have populated territories and unpopulated territories. Amongst the internal territories you have the Australian Capital Territory, on the one hand, and other territories on the other.
MR BENNETT: That is so, your Honour, and ‑ ‑ ‑
McHUGH J: Could I just add to that, before you answer it. It is contemplated that they may even be leasing territories, that the territories that would be acquired under the various sections, 111 and 122, might include territories just for the use of the Commonwealth.
MR BENNETT: Yes, they might, your Honour. And having totally unpopulated territories with no courts is not an impossible thing to imagine. In fact, we do not have that. Even Heard and Macdonald Islands, I think the ACT Supreme Court has jurisdiction over them. But the variety is, as the Chief Justice puts to me, enormous, and it would have been seen as enormous at the time but it was not a primary purpose in the minds of the drafters of the Constitution to protect people who might be living there. They were concerned with the rights of the people in the States they represented and with their rights vis-à-vis the new federal entity they were creating. Territories were simply part of an attribute of nationhood which might need to be nurtured to become States, as was said in Bernasconi, or might need to be in a special relationship to the Federation, as in the case of the Australian Capital Territory, or might be uninhabited and used for military manoeuvres or nature conservation.
There was simply no perceived need – there may have been a need – to be concerned about the rights of citizens of territories as such; that was not what they were about protecting at the time.
May I move then to the third part of my submissions as to which I propose to take the course of dealing with it, rather than in the order which appears in our submissions, in the order in which matters were addressed by this Court yesterday and today. It is convenient, if your Honours have it, to do it by reference to the transcript of yesterday’s hearing. I do not know if your Honours have that, but it would be useful if your Honours could. The first submission arises out of paragraph 705. The submission my learned friend makes at that point of his argument is that there is an analogy under section 76(ii) between a regulation made by a Commonwealth regulation‑making authority and the act of a self-governing legislature of a Territory.
All I need to say about that is that that submission is inconsistent with Capital Duplicators [No 1] and the three Indian Privy Council cases which were relied on in that case, Apollo Candle, Burah and Hodge. The next matter is at paragraph 1055. There is a discussion there about the seriousness of the consequences. In one sense, of course, that is not a disqualifying factor in relation to my friend’s submissions. It is certainly a reason which we put why leave should not be granted to reopen the large number of cases which he seeks to overrule. He does not appear to have expressly addressed that issue in the course of his submissions but it is an issue which, we would respectfully put, is a serious one.
It is a serious one for this reason. That these are decisions of the Court which have been relied upon over the years in numerous respects. They have been relied on in relation to the appointment of judges; they have been relied on in relation to decisions made by those judges; they were relied on in the matter submitted by my learned friend, Mr Game, in relation to the amendment to the Constitution in the late 1970s. I appreciate in putting that submission the difficulty which has been referred to by this Court in other cases of treating that as in its own right an aid to construction, but it is a factor in relation to reopening that this is a section which has been taken to the Australian public on the issue of judicial tenure and an amendment was made in relation to judicial tenure in the context where that was clearly thought to refer to certain judicial officers and not to other judicial officers. That was done by Parliament, and then by the people, after Spratt v Hermes and, of course, Capital TV.
KIRBY J: You say the people understood the baroque jurisprudence in this area of the Constitution?
MR BENNETT: No, your Honour, of course I do not make that submission. But that is not the basis on which I am putting it. It is rather that there was put to the Australian public an amendment which might have been a very different amendment if a different view had been taken.
KIRBY J: By the way, Justice Callinan drew my attention to the fact that in that note on the British North America Act there is an indication that the 23rd Amendment to the United States Constitution provided for the voting by members of the community in the District of Columbia in presidential elections which, until President Johnson proposed and secured that amendment, was not available to them. I knew I recollected some debate about that but it was in the seventies.
MR BENNETT: It rather illustrates the same approach that is taken in section 122 itself. It was certainly not assumed by the drafters of the Constitution that people in territories would have the same franchise as others.
KIRBY J: All I am saying is in the United States with the seat of government territory it was assumed that they would, as it were, be neutral and above all that and would not take a vote in the national elections.
MR BENNETT: The traditional example which was always given was how could you allow the population of the capital city to vote and determine an issue such as where diplomatic cars can park, where the interests might be diametrically opposed to those of the Federation. That is the sort of consideration. The issues concerned the administration of justice which is an area where the interest of certainty is at its highest. The principle, as we say, has been worked out in a long series of cases and, indeed ‑ ‑ ‑
GLEESON CJ: How long do you think you will require to complete your argument, Mr Solicitor?
MR BENNETT: I would think half to three quarters of an hour, your Honour, probably nearer ‑ ‑ ‑
GLEESON CJ: We will adjourn at 12.45 and then we will resume at five past two.
MR BENNETT: If your Honour pleases. The approach taken by Justice Gaudron in a related area in GPAO is an example of the importance of maintaining authority in this type of area even where one might not have reached the same result was one starting with, what has euphemistically been described as, a clean slate. My learned friend, Mr Pauling, is going to provide the Court with some details about appointments in the Australian Capital Territory and the Northern Territory over the years.
GUMMOW J: Now, it was my impression, Mr Solicitor, that the Northern Territory Supreme Court is, as it were, even more divorced from its antecedents in the Parliament, that it is a free-standing Act of its own.
MR BENNETT: Yes. That is so.
GUMMOW J: Is that right?
MR BENNETT: I think that is so, but that is an area which my learned friend, Mr Pauling, will deal with in some detail.
GUMMOW J: Yes. I just hoped he might do so.
MR BENNETT: Yes. Historically, what one sees is that federal judges have not, until recently, been given the same sort of tenure that is given to other federal judges. Recently, that has been conferred other than by constitutional guarantee and the practical situation, of course, is that it is highly unlikely ever to be unconferred but for most of the first hundred years of Federation, federal judges were not given the same sort of tenure as others.
GLEESON CJ: You mean Territory judges?
MR BENNETT: Territory judges, I am sorry, your Honour. Indeed, in many cases, they were appointed at pleasure, so that they could be removed by executive act. That was certainly the position in Norfolk Island, as late as the 1970s, and it may still be; I have not followed Norfolk Island through.
In paragraph 1285, my learned friend, Mr Jackson, makes the submission that the Territory courts were the most likely courts for the founders to have had in mind when they drafted sections 71 and 72 and used the words, “such other federal courts as the Parliament creates”. We would submit it was more likely that what was in mind was either subordinate federal courts – that is courts of fairly general jurisdictions subordinate to this one, such as the Federal Court when it was ultimately created, or specialised courts dealing with matters such as taxation or patents or matters of that sort. So far as Territory courts are concerned, we would submit, the sort of thinking which appears in Justice Isaacs’ judgment in Bernasconi, makes it less likely that that was what they had in mind in the drafting of section 71.
GUMMOW J: What about other courts?
MR BENNETT: Well that was to deal primarily with State courts.
GUMMOW J: Yes, but exclusively?
MR BENNETT: Your Honour, we submit it does not mean it exclusively, no, but it is ‑ ‑ ‑
GUMMOW J: So, as I understood, the Commonwealth accepts that Territory courts may be invested with federal jurisdiction.
MR BENNETT: Yes, we do. But that is the sort of thing which probably – I mean, one does not see anything in the debates about that.
GUMMOW J: No.
MR BENNETT: So it is, in a sense, the sort of thing which was not thought of, largely because – if I may keep saying it again – of Bernasconi –type thinking, in relation to territories and justice in territories.
GAUDRON J: Can I just take you back to your Bernasconi‑type thinking, if you like, and the notion that section 122 – well, really, it is that section 122 is not constrained by Chapter III, but, you do accept, do you not, that it is constrained by some provisions?
MR BENNETT: It is constrained by - - -?
GAUDRON J: By some provisions.
MR BENNETT: I am sorry, your Honour, I do not understand.
GAUDRON J: Let me take two examples: it has been held that the “just terms” provision can affect 122, can apply in the Territory. What is the difference between that and Chapter III? Or, perhaps, are you saying the “just terms” decision was wrong, do you?
MR BENNETT: Your Honour, one goes back to Teori Tau. Section 122 is concerned primarily with legislative power, as is, of course, section 52. Chapter III is concerned primarily with the holding of the balance between the Commonwealth and the States, and the maintenance of the Constitution, the interpretation of matters arising under it, and the entrusting of those matters to an independent body which, although appointed by the Commonwealth Executive, would nevertheless be independent of it.
GAUDRON J: Not wholly so confined.
MR BENNETT: No, it is not wholly so confined, your Honour.
GAUDRON J: Because there is nothing about the federal balance, is there, relating to the same subject matter claimed under the laws of the different States?
MR BENNETT: No.
GAUDRON J: Nothing about the federal balance involved in diversity jurisdiction.
MR BENNETT: Nor in section 80, your Honour, but certainly in sections 71 and 72 that was what was being dealt with. The provisions were all put together in Chapter III, not because it was creating a composite code in its own right, but rather because they were the matters being dealt with which could be grouped under the heading “The Judicature”. But one does not need to find every aspect of Chapter III excluded in order to make the submission that sections 71 and 72 are not concerned with Territory courts. But, your Honours, I see it is after a quarter to one.
GLEESON CJ: Well, then we will adjourn until 2.05 pm.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.07 PM:
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: If your Honour pleases. Your Honour, there are a number of matters left over from this morning, before I continue. In relation to legislation using the words “seat of government” I might just add a couple of references to the ones I gave your Honours. The Seat of Government Act 1904 was the first Act relevant to the topic and section 2 of that said:
It is hereby determined that the Seat of Government of the Commonwealth shall be within seventeen miles of Dalgety, in the State of New South Wales.
It goes on to say:
The territory…..should contain an area not less than nine hundred square miles -
I am not sure where Dalgety is. I think it is somewhere in this area. It may be a little further away. Then, that was replaced with the 1908 Act. There were two Acts in 1908, the Seat of Government Act, which is not the Act I took your Honours to before, repeals the earlier Act and says:
It is hereby determined that the Seat of Government of the Commonwealth shall be in the district of Yass-Canberra -
and:–
The territory…..shall contain an area not less than nine hundred square miles, and have access to the sea.
It goes on to deal with that. Finally, the Seat of Government Acceptance Act 1938 amended the earlier legislation and said:
The territory shall be known as the Australian Capital Territory.
And, that is the question your Honour the Chief Justice asked about this morning which my learned friend Mr Game ‑ ‑ ‑
GLEESON CJ: I notice from Worthing v Rowell that there is an intermediate possibility that was adopted by Justice Windeyer. Some people have said the seat of government is a place and some people have said, as you would have said, I think, the seat of government is an idea or a quality or a state. Justice Windeyer said a seat of government is a place but not a place that is capable of being given a “metes and bounds” description just as he said a university is a seat of learning or a bishopric is the seat of a bishop.
MR BENNETT: Yes, that is the passage at page 124 and I was going to take your Honour to that because it is an interesting example of something falling between the two. Although he says it means a place, a locality, he does seem to depart from that in the balance of the paragraph to which your Honour refers. But he goes on to say in that passage and halfway down page 124, that the problem of defining it presents no difficulties, the problem of its absence of definition, because it is within an area as to which the Commonwealth has exclusive power under section 125:
must be within territory described in s. 125…..and in respect of such territory…..power is plenary and exclusive.
GLEESON CJ: That, presumably, is what Chief Justice Barwick had in mind in Spratt v Hermes at 241. He, in Worthing v Rowell, said that the seat of government is certainly a place like a place acquired by the Commonwealth. But in Spratt v Hermes he said that is neither here nor there for the reason that he asserted on the top of page 241.
MR BENNETT: Yes. Well, there would have been all sorts of difficulties if the consequence was that there was no law for the Australian Capital Territory at all and no power to deal with it in the absence of express legislation. For example, there is the general principle of law which is referred to in cases like Mabo and its predecessors that where one has cession, as with conquest, the existing law continues until the new law takes effect. There will be questions of that sort, too.
I should also mention on that subject that so far as section 111, an exclusive jurisdiction, is concerned, there is nothing to stop the Commonwealth using its instruments of government under Chapters I, II and III in relation to territories because the legislature established under Chapter I which legislates for territories - it is the executive set up under 61 which can have a department of territories and under Chapter III it is open to confer jurisdiction over territories to the High Court as was done in, of course, the early days of the seat of government and we have heard reference to Porter’s Case where Justice Dixon gave a summing up to a jury in Canberra in a murder case. It may be that the jury room in courtroom 3 can be used again.
There is no doubt that the Commonwealth can, if one likes, conscript - if that is the word - its own organs, legislative, executive and judicial, to be used in relation to territories under section 122. But, of course, that does not involve anything, necessarily, under section 52.
I had not completed dealing with the United States position in relation to section 52 in the District of Columbia, and the concluding matter I wanted to convey to your Honours was that until O’Donoghue’s Case 289 US 516 (1933), it had been held that the District of Columbia courts were entirely governed by the power in relation to the Territory, and not the judicial power.
O’Donoghue took a different approach, but it was overruled, in effect, by Palmore v United States 411 US 389 (1973). What is more important for present purposes is not the aberration which existed in the United States for those 40 years but, rather, the fact that certainly at the time of Federation it was clear that District of Columbia courts, at least, were not dealt with under the judicial power.
It must be borne in mind when looking at the convention debates - and looking at section 52 in relation to it - that the earlier draft of the convention debates followed the American version much more slavishly – that is our section 52(i). The later versions did not do so, and that is referred to by Justice Windeyer in Spratt v Hermes 114 CLR at 275 point 1. I will not take your Honours to it. It is merely a reference to the fact that one has to use the convention debates and the American precedent with some caution, because the ultimate version was very different from the original one.
Finally on this topic, may I remind your Honours of what was said in Svikart 181 CLR 548 by the majority. The passage is at page 561, where, in the judgment of the majority what was said about seat of government was this – it is about the fifth line of the first full paragraph:
There is now a Territory, the Australian Capital Territory, within which the seat of government has been located, although its limits have not been precisely determined by the Parliament. The seat of government is, however, not co-extensive with the Territory in which it is located nor, under section 125, is it intended to be. The Parliament must rely upon section 122 for the power to make laws for the government of that Territory. That power is not made subject to the Constitution as is the power to make laws with respect to the seat of government under section 52(i). Moreover, the power to make laws with respect to the seat of government would seem to be concerned with its political or constitutional aspects, rather than with the government of the territory which it occupies. It is not only the presence of section 122 which indicates this to be so, but also the fact that, unlike the power under section 122, the power to make laws with respect to the seat of government is expressed to be a power to make laws for the peace, order and good government of the Commonwealth.
And so on. So that fairly squarely fits with what is being put in relation to that.
Reverting to the transcript, in paragraph 1290 my learned friend quotes from the dissenting judges in Capital Duplicators [No 1], but that passage, in relation to the free trade area under section 90, is a passage which is referring to free trade, which was always in a special position under the Constitution, and, of course, in a sense it is the applicant, not the respondents, who is seeking to put the territories in a special position. It is the applicant who says that his client is entitled to protections which do not exist in the States, and one must never forget that. When one talks about the importance of the constitutional protections and the importance of people in the territories having the protections of section 72 and so on, they are not available in the States, and there really is an exquisite irony in the idea that those protections should be given to people in territories and not, necessarily, to people in States. It rather reverses what we would expect to ‑ ‑ ‑
KIRBY J: But the States were established as colonies, whereas the territories were the Commonwealth’s responsibility.
MR BENNETT: Yes.
KIRBY J: It is not an irony at all, it is just natural flow of the design of the Constitution.
MR BENNETT: Yes, your Honour. The Constitution would have permitted States to give judges of courts a lesser form of tenure and, indeed, permitted offences to be dealt with without juries and matters of that sort. The protections in Chapter III were, in my submission, designed for a specific and much narrower purpose.
GLEESON CJ: At the time Spratt v Hermes was decided, when it was argued unsuccessfully that magistrates in the ACT had to be appointed for life, magistrates in New South Wales were public servants who had to retire at the age of 60.
MR BENNETT: Yes, precisely, your Honour, and who could be dismissed at will, subject to public service legislation. But certainly they did not have anything like the protection that a judge has. And in paragraph 1345 there is a reference to a statement by Justice Gaudron about people who resided in New South Wales and losing the membership of the body politic. We do not suggest that they did that. Of course, it is a fairly insignificant consideration in relation to the ACT where there were probably about two farmers and a lot of sheep. It may have been a more important consideration in relation to the Northern Territory. And in any event, they certainly lost part of their franchise and they certainly acquired different rights, whatever they were. Bernasconi would say that they lost the right to a trial by jury.
McHUGH J: They lost their right not to be discriminated against under section 117 of the Constitution.
MR BENNETT: Yes, they certainly lost that, your Honour, and there is nothing surprising about that ‑ ‑ ‑
McHUGH J: You can discriminate against Territory residents when they come into the States.
MR BENNETT: Yes. Now, at pages 36 and 37 there is a general exchange between your Honour Justice McHugh and my learned friend and we submit that the territories were, as your Honour put, not part of the Commonwealth compact and in that sense, not part of the Commonwealth. But what one cannot do is go through the Constitution, look for where the phrase “the Commonwealth” appears and give it an identical meaning in each place having regard to whether or not internal territories or whether or not external territories are included. That, we would submit, is simply not the approach.
If one looks at the language of covering clause 6, it is interesting that that refers to the six colonies:
such of the colonies…..including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States –
So the suggestion rather seems to be there that “Commonwealth” is used in a narrower sense.
McHUGH J: But does not GPAO create considerable problems for your whole argument about the meaning of “the judicial power of the Commonwealth” in section 71? Just leave GPAO aside for the moment. Supposing that in 1904 this Court was given original jurisdiction under section 76(ii) in respect of a matter under 122 of the Constitution. Would it be exercising the judicial power of the Commonwealth?
MR BENNETT: There would be a real question, your Honour. One would have to ask whether the matter itself arose under a law made by the Parliament.
McHUGH J: Let it be assumed that this Court had been given jurisdiction to try criminal offences in the territories: for example, “You shall not kill somebody in the Northern Territory”.
MR BENNETT: A law ‑ ‑ ‑
McHUGH J: There was not a Northern Territory then, but let us say 1912 or 1914.
MR BENNETT: Your Honour, certainly a law made by the Parliament includes a law under section 122 for that purpose – that is GPAO.
McHUGH J: That is GPAO and once that is conceded, what would this Court be exercising in that hypothetical situation? Would it be exercising the judicial power of the Commonwealth or not?
MR BENNETT: Yes, your Honour, because that is a matter specifically referred to in section 76 but if it was a common law offence, if the Court was simply empowered to deal with the law of contracts or the law or torts or a common law offence ‑ ‑ ‑
McHUGH J: Where is this Court going to get that jurisdiction from other than from a law made by the Parliament? There is no common law of Australia, as I understand it.
MR BENNETT: No, there is not. What would happen there is this. First of all, there is a decision of Chief Justice Miles in the Australian Capital Territory. I do not think your Honours have the reference. It is called Reg v Donyadideh 114 FLR 43. That involved section 75(ii) of the Constitution in relation to consuls and there was an offence created in relation to consuls and the person was charged with it in the Australian Capital Territory. What was argued was that there was no jurisdiction because the High Court had original jurisdiction under section 75(ii) and the ACT Supreme Court was not one of the courts referred to in section 77 and therefore the jurisdiction could not be conferred.
What his Honour said was that it got its jurisdiction under section 122. One got the power under section 122 and that because section 39 of the Judiciary Act, your Honour will recall, took away from the States their federal jurisdiction, and then gave some of it back. That was never done in relation to the territories. So, there was always a non‑federal ability of territory courts, as there would have been with State courts but for section 39, to deal with matters in sections 75 and 76 so far as they arose in the course of the court’s normal jurisdiction.
GUMMOW J: But the court’s normal jurisdiction flows simply from a federal law.
MR BENNETT: But, your Honour, for the purpose of section 76(ii) it ‑ ‑ ‑
GUMMOW J: I realise that. The States were in a different situation. The States were there, and then Federation came along – or the colonies were there when Federation came along. That is not true of Territory courts.
MR BENNETT: Under section 122, once the Territory court had been given general jurisdiction, that enabled it to deal, either with common law matters, or with matters which happened to fall under ‑ ‑ ‑
GUMMOW J: That is the very question that his Honour had to decide.
McHUGH J: It does not seem to me to answer the problem that I was putting to you. The hypothesis seems to assume that Chief Justice Miles was sitting in a territory court as opposed to a federal court. What I was asking about was this Court.
MR BENNETT: Yes.
McHUGH J: Where could this Court get jurisdiction other than directly under 75 of the Constitution or under a law made under 76?
MR BENNETT: It could get it under section 122 directly, on the basis that pursuant to section 122 the Parliament confers power on this Court to ‑ ‑ ‑
McHUGH J: I understand that, but, having regard to GPAO, that was an exercise of federal jurisdiction because besides the federal jurisdiction, surely it is an exercise of the judicial power of the Commonwealth.
MR BENNETT: Your Honour, there is a distinction between conferring on this Court power to decide an issue arising under section 76(ii) – I am sorry – a matter which would arise under section 76(ii) and conferring on this Court a general power to deal with law generally in the Territory. The second is done simply under section 122, and is not, as such ‑ ‑ ‑
McHUGH J: Independently of section 76(ii) of the Constitution you just cannot invest this Court with jurisdiction.
MR BENNETT: Well, your Honour, one has to ask what was done at the time of the seat of government Act and I think it was a section of the Judiciary Act which conferred the power on this Court, since repealed – whatever the section was. That was done, we would submit, simply under section 122; it was certainly never challenged so we never heard the ‑ ‑ ‑
McHUGH J: But that seems completely inconsistent with In re Judiciary and Navigation. That is to say that unless the jurisdiction is conferred under section 76(ii) as being arising under a law made by the Parliament, this Court has got no jurisdiction.
MR BENNETT: Well it cannot be under section 76(ii), your Honour, unless one says that the existence even of common law in the Territory is something which arises under the Seat of Government (Acceptance) Act or the Seat of Government Act. Unless one says that, there must be things which do not fall within section 76(ii).
McHUGH J: Well that may be, if you are talking about this Court; different arguments arise in respect of courts which purport to be created under section 122. But what I want you to focus on is the position of this Court. Now, I do not at the moment see how this Court can exercise any jurisdiction, except that which is conferred on it pursuant to section 75 and, for practical purposes, section 76(ii) of the Constitution.
MR BENNETT: Well, your Honour, one does not need for this case to dispute that, because the consequence of that would simply be that, either that one would say all law in the Territory falls within section 76(ii), because the common law owes its origin in the Territory to the Seat of Government Act or Acceptance Act. Either one would take that viewpoint or the jurisdiction which could be conferred on this Court, if what your Honour puts to me is correct, would be limited to that arising under laws, so it would not include a common law jurisdiction in contract or tort or for common law offences. Now, which of those solutions one takes, we would submit, does not matter in this case, and is probably never going to arise again.
McHUGH J: Why does it not matter in this case? If this Court is created by the Parliament, why would it not be exercising federal jurisdiction?
MR BENNETT: If the High Court?
McHUGH J: No, I am sorry, I said “this Court”, I mean the ACT Supreme Court.
MR BENNETT: Your Honour, because we submit that when one talks of judicial power of the Commonwealth – well, there are three concepts. There is federal jurisdiction and the judicial power of the Commonwealth. In relation to federal jurisdiction, one is talking about Chapter III jurisdiction and that is limited by section 75 and 76. If one is talking about the judicial power of the Commonwealth as we have indicated, that, we submit, is limited to a particular role which is referred to in sections 71 and 72.
HAYNE J: How does that sit with the idea of federal jurisdiction? How do you reconcile those two differing definitions in the context of Chapter III?
MR BENNETT: Well, your Honour, Chapter III is dealing with a number of miscellaneous matters which are grouped together under the heading of “The Judicature” and one does not, in our respectful submission, read it in a tight way which ties every section to every other section and contains the detailed implied exclusions which are being suggested here.
McHUGH J: Can I just explain my difficulty? It is that everything that can be invested in a court under section 75 and 76 is federal jurisdiction, having regard to what GPAO has decided, and I must say once that argument is accepted I cannot see how a court which is exercising federal jurisdiction is not exercising the judicial power of the Commonwealth. One seems, to me, to follow like night follows day.
MR BENNETT: Well, your Honour, the fact that it can exercise federal jurisdiction ‑ ‑ ‑
McHUGH J: No, not can, is exercising federal jurisdiction.
MR BENNETT: Well, we would not accept that in this case because the – well, one has to then go to the question that that leads to the status of the legislation, the Crimes Act and the ‑ ‑ ‑
HAYNE J: Is the exercise of federal jurisdiction the exercise carrying into effect, giving effect to, whatever verb you use, the judicial power of the Commonwealth?
MR BENNETT: Not necessarily, your Honour, we would submit. The latter is a more limited concept. But the mere fact that the court can and perhaps in this case was exercising federal jurisdiction does not bring it within the ‑ ‑ ‑
GAUDRON J: Ultimately, it was a matter arising under a law of the Parliament, was it not? That is understood?
MR BENNETT: Well, your Honour, that depends on the effect of the deeming which is one of the subsidiary arguments which appears in our submission ‑ ‑ ‑
GAUDRON J: Of the deeming?
MR BENNETT: Yes, your Honour, the deeming of things to be enactments. You see if ‑ ‑ ‑
GAUDRON J: No, but was not the New South Wales Crimes Act applied here by force of the ordinance, by force of the law which said ordinances can be made for the government of the ACT?
MR BENNETT: Yes.
GAUDRON J: The right in question or the right or liability in question was the liability to be convicted of murder and sentenced accordingly.
MR BENNETT: Yes.
GAUDRON J: Now, does that ultimately not trace its way back to the law of the Parliament which said ordinances can be made?
MR BENNETT: Certainly prior to self-government it did, your Honour. The question is the effect of the federal legislation which deems certain things which were formerly Acts of the Federal Parliament to be enactment of the ACT legislature, and that was the argument my learned friend, Mr Jackson, referred to yesterday, the deeming argument as to whether one – clearly one cannot deem oneself out of the Constitution, but the question whether an Act can make itself not into an Act but into something else, maybe something different, and that is an argument which we put in the submissions and which I have not come to yet, but it is a different aspect of the case and a subsidiary aspect.
GAUDRON J: Well, assuming no self-government for the moment ‑ ‑ ‑
MR BENNETT: Yes.
GAUDRON J: ‑ ‑ ‑ we would be talking about a matter arising under a law made by the Parliament.
MR BENNETT: Yes, we would then.
GAUDRON J: And that would be federal jurisdiction on the authorities of this Court.
MR BENNETT: Yes, your Honour.
GAUDRON J: Now, how do you then say it does not involve an exercise of the judicial power of the Commonwealth?
MR BENNETT: Because, your Honour, when in section 71 the Constitution talks of “The judicial power of the Commonwealth”, it is concerned with the constitutional nature of that power. It is concerned with the maintaining of the federal balance and the ‑ ‑ ‑
GAUDRON J: But, I mean, that may be its prime purpose and, indeed, if Chapter III were not there, maybe something very similar would have to be invented.
KIRBY J: Inferred.
GAUDRON J: Well, you know, I just say that because – but it is not all about that because you have your diversity jurisdiction, you have your admiralty and maritime jurisdiction, and you have the same subject matter claimed under the laws of different States.
MR BENNETT: Your Honour, one approach to this is to take the approach taken by Justice Hayne in GPAO.
GAUDRON J: Well, can I just ask you that. Are those matters the judicial power of the Commonwealth or they are just federal jurisdiction?
MR BENNETT: They are just federal jurisdiction, your Honour.
GAUDRON J: Let us pursue this, can we? They could be dealt with, if they are not the judicial power of the Commonwealth, by a functionary, an official. Section 71 only says “The judicial power of the Commonwealth” is to be vested in the named bodies, so we could have admiralty and so on.
McHUGH J: Would you go so far as to say that Parliament could set up an Admiralty Court with judges to retire at age 60?
MR BENNETT: No, because the Admiralty Court, unlike the Territory court, would be covered by such other federal courts as the Parliament creates. It would be a Federal Court.
GAUDRON J: I see, yes.
MR BENNETT: Could we just suggest, your Honour, that the answer to this ‑ ‑ ‑
GAUDRON J: But that takes the assumption, does it, that the other courts created by the Parliament are not those other federal courts? No, it does not, I am sorry.
MR BENNETT: No, it is ‑ ‑ ‑
GAUDRON J: But in so far as section 76 only says it “may make laws conferring original jurisdiction”, the question really is: can it set up an admiralty tribunal or an interstate Motor Accidents Board to deal with matters which fall within 76(iii) and (iv)?
MR BENNETT: They would be other federal courts and would have to ‑ ‑ ‑
GAUDRON J: No.
HAYNE J: No.
GAUDRON J: No, I am suggesting they are not a court. I am suggesting what they are is that they are commissions set up ‑ ‑ ‑
HAYNE J: Set up by public servants dismissible at will.
GAUDRON J: Yes.
MR BENNETT: And they exercise judicial power?
GAUDRON J: That is what I am asking you. You are telling me that the judicial power of the Commonwealth is confined to matters concerned with the federal balance.
MR BENNETT: Yes.
GAUDRON J: Yes, and I am putting to you that 75(iv) is not such a matter, but that would have to come to the High Court; but there is nothing obligatory about 76, so that matters under (iv) and (v) could be dealt with by public servants, functionaries, bodies that are not courts, free of the constraints which come from Chapter III.
GUMMOW J: Except 75(v).
GAUDRON J: Except 75(v), yes.
MR BENNETT: That is one possible consequence, but the other ‑ ‑ ‑
GAUDRON J: Well, it is startling, is it not?
MR BENNETT: The other way of dealing with it ‑ ‑ ‑
HAYNE J: Is it not the consequence of the submission you put to us, Mr Solicitor? That is where I would like assistance. Is it the consequence of your submission? If it is not, why is it not?
MR BENNETT: Because, I suppose, section 71 refers to other courts which are invested with federal jurisdiction. That would be federal jurisdiction, and therefore, to that extent, would fall within 71 and 72.
GAUDRON J: It only falls within 71 if it is the judicial power of the Commonwealth.
HAYNE J: You begin from the premise that the judicial power of the Commonwealth concerns only relations between the integers; that is a lesser field, smaller field than 75(vi). Is that not the premise from which this leg of your submissions proceeds?
MR BENNETT: Would your Honour just pardon me a moment? Yes, I see the problem your Honour has raised. It may well be that one gets around that by saying ‑ ‑ ‑
HAYNE J: Mr Solicitor, for my own part, I would be assisted by knowing what the contention of the Commonwealth is. Not what it might be, but what it is.
MR BENNETT: Your Honour, the primary contention that we have put in the submissions is that because one looks at the - as your Honour said in GPAO, because one goes to the question of the source of the power to adjudicate that that, in a sense, takes it out of the problem in the present case because the source of the power to adjudicate here is a law under section 122 and ‑ ‑ ‑
GAUDRON J: So was it in GPAO. That was the point of GPAO.
McHUGH J: That was the point of the difference between the majority. I have to say, subject to questions of maintaining the status quo, it seems to me that GPAO may have meant game, set and match for the Commonwealth in this area.
MR BENNETT: Well, there is no reason why one cannot say that the fact that there is power under section 76(ii) to confer upon a territory court something which constitutes federal jurisdiction under that section necessarily has the consequence that the territory court on which such jurisdiction is conferred falls within section 71 and 72. There is simply no need to make that jump, contrary to what has been said in the line of authority that has been referred to in this Court.
GAUDRON J: Well, it may be, but it does not flow from your proposition that the judicial power of the Commonwealth is restricted to the relations between the integers of the federation.
McHUGH J: That is the problem I see on this point, Mr Solicitor. Until GPAO it was open to argument, in my view at least, that courts could exercise federal jurisdiction and they could exercise territory jurisdiction – I think was the phrase that Justice Windeyer used in one of the other cases – but GPAO forecloses that. It says if you are a federal court you are exercising federal jurisdiction, even though the rights arise under the territory law. They surely must be exercising – I mean, the Family Law Court, if it was exercising federal jurisdiction in GPAO, must have been exercising the judicial power of the Commonwealth. That must flow from the decision in the case.
MR BENNETT: Well, your Honour, it may not.
CALLINAN J: And can it properly exercise judicial power if it appoints acting judges consistently with Wilson v Minister for Aboriginal and Torres Strait Islanders.
MR BENNETT: Well that is a separate question, your Honour.
CALLINAN J: Well it may not be.
MR BENNETT: Well, the issue which arises there is whether the function is so foreign to that of a federal judge as to make it inappropriate for a federal judge to be appointed to carry out that function.
CALLINAN J: What about an acting judge, carrying an acting judge one day exercising federal jurisdiction and another day exercising some other jurisdiction, non-federal jurisdiction?
MR BENNETT: Well, your Honour, whether that were valid or not would depend on whether the non-federal jurisdiction were so remote from the federal jurisdiction or so different in character, as to affect the ability. The point in Wilson was that the function conferred was to report to a Minister. It was a function which was not independent of the Minister ‑ ‑ ‑
CALLINAN J: Well, it was an executive - regarded as a quasi-executive function.
MR BENNETT: Yes precisely, but merely to – well this is part of the issue in the cross-vesting cases as well – exercise a form of power, a form of judicial power perhaps, which does not fall within Chapter III, does not bring oneself within Wilson principles.
CALLINAN J: But it might make the court an impure repository for federal power.
MR BENNETT: But, in my submission, it would not go so far. But there is no doubt that the acting judge - if section 71 and section 72 govern it, then, of course, one cannot have an acting judge, although, as has been pointed out, in this case the consequences go far beyond that. But, at the end of the day, the ‑ ‑ ‑
GUMMOW J: I should perhaps point out, Mr Solicitor, that it is the submission of your predecessor, in GPAO, recited at paragraph 91 of the joint judgment, which supported the result the majority reached.
MR BENNETT: We do not cavil at the result in GPAO.
GUMMOW J: No, I did not think so.
MR BENNETT: But ultimately you have to look at the constitutional source of the jurisdiction and here the constitutional source of the jurisdiction is different. At the end of the day, there is no necessary requirement of treating the phrase “The judicial power of the Commonwealth” as being synonymous with the heads in section 75 and 76.
HAYNE J: Well, do you content that it is more limited, notwithstanding the consequences that have been recently explored in the course of debate?
MR BENNETT: Yes, that is one of the alternatives which we submit.
GAUDRON J: What is your first submission? Is that your first submission in this area? I want to understand this very precisely. Is that your primary submission?
MR BENNETT: No, your Honour, the primary submission ‑ ‑ ‑
GAUDRON J: We are talking about the judicial power of the Commonwealth. What is your primary submission? I need to understand this very carefully.
MR BENNETT: I am sorry to appear to cavil. It depends whether by primary, your Honour means logically first, in order of descending particularity or ‑ ‑ ‑
GAUDRON J: Give me all of them. Give me your first and then your alternatives. You classify them whether you wish to do them logically first or illogically first.
MR BENNETT: The preferred submission, your Honour, is that sections 71 and 72 do not apply to federal courts and that ‑ ‑ ‑
GAUDRON J: Excuse me, 71 and 72 do not apply to federal courts?
MR BENNETT: I am sorry, Territory courts. I used the wrong word before.
GAUDRON J: Yes, I understand that. I understand that is your preferred submission. Indeed, that is what we are here about. What I want to know so that I understand your argument is what is your preferred submission as to the meaning and extent of the phrase, or hendiadys, as you insist on calling it, “The judicial power of the Commonwealth”?
MR BENNETT: Your Honour, the first submission is that it is confined to those subject matters concerned with the maintenance of the federal balance.
GAUDRON J: What are your alternatives to which you referred earlier?
MR BENNETT: The alternatives are that it extends to sections 75 and 76 but that where one has a Territory court exercising a function which may happen to fall within one of those sections, if the source is a law made under section 122, then it does not fall within sections 71 and 72.
GAUDRON J: But it does, do I take it on that, if there is a dual source, as in the Post and Telegraphs Act under consideration in Spratt v Hermes?
MR BENNETT: No, it is a source of jurisdiction, your Honour, rather than the source of the matter. If I can show your Honours the way it was put by Justice Hayne in the last page of GPAO in paragraph 256. His Honour says:
The source of a federal court’s authority to adjudicate is the law made by the Parliament, whatever may be the constitutional foundation for the rights and duties that are to be adjudged. The diversity jurisdiction…..and matters of Admiralty and maritime jurisdiction…..are, or include, jurisdiction that is not directly concerned with the rights and duties created by laws made under ss 51 or 52 or with the federal compact (although, of course, each is dealt with in the Constitution because of that compact). And yet s 77(iii) speaks of those and the other matters mentioned in ss 75 and 76 as if Parliament, making a law investing State courts with jurisdiction with respect to them, is investing the State courts concerned with federal jurisdiction. And it speaks of them as matters of “federal jurisdiction” because it is Ch III that gives the authority to invest the court concerned with jurisdiction to determine the rights and duties concerned.
In the present case, it is section 122 which gives the Parliament the authority to invest the ACT Supreme Court with the rights and duties concerned in the Crimes Act and for that reason there is nothing inconsistent with the GPAO approach to say that this case is not a matter falling within 71 and 72. That is the primary way in which we put the matter. The next matter is ‑ ‑ ‑
GAUDRON J: Well, then, you do say, do you, that the words “under a law made by the Parliament” do not exactly mean what they appear to say?
MR BENNETT: No, your Honour, I do not say that at all, with respect. We say that the Parliament may make laws conferring jurisdiction on courts in certain circumstances where it is a matter arising under a law made by the Parliament. It may also, under section 122, create courts and get them to do whatever it likes. As a matter of characterisation, while this may have been done under either, the source of the particular law was section 122 and not 76(ii) – not 77.
McHUGH J: But what can his Honour be saying in Chapter III when he refers to Chapter III as being what gives authority to invest the court with jurisdiction under than 76(ii)?
MR BENNETT: Well, in this case section 122. In that case ‑ ‑ ‑
GAUDRON J: It may also have been 122. It was also 122.
MR BENNETT: Yes.
McHUGH J: I mean, 122 said nothing at all about jurisdiction in the sense that is used in the judgment of his Honour. It determined or created rights and liabilities. It created a matter, did it not? It was the Territory power that created the matter.
MR BENNETT: Yes, it was, but it was also the Territory power which created the – I am sorry, it was the Territory power which created the authority to – I am sorry, no, the authority to adjudicate in that case was the power in section 51 over family law – over matrimonial causes ‑ ‑ ‑
McHUGH J: Is that so?
MR BENNETT: Yes.
McHUGH J: I must say I thought Boilermakers rejected the notion.
MR BENNETT: No, it is section 77, because of section 52, yes.
McHUGH J: Yes, exactly.
MR BENNETT: But the point which we make from his Honour’s judgment is that if - the source of the authority to adjudicate is the law made by the Parliament which provides that, and in the present case the source is section 122.
McHUGH J: Yes, but the problem that you have to face up to, I think, Mr Solicitor, is that 77 was the source of the court’s authority to adjudicate, but that was with respect for the matters mentioned in the last two sections, and the relevant one was 76(ii) which picked up the rights and liabilities created under 122.
MR BENNETT: Yes, it can do so, but ‑ ‑ ‑
McHUGH J: But it did so in that case.
MR BENNETT: It did so in that case, but here one could – one does not need 76(ii) in the present case. Section 76(ii) may be the enabling provision which could have been used, but that does not mean that it was used. In that case, of course, it had to be section 77, using 76(ii), using the matrimonial causes power, because there was not any other. Here you have a ‑ ‑ ‑
McHUGH J: Not matrimonial causes power, because it did not extend so far, it was ex-nuptial children.
MR BENNETT: Yes, the ex-nuptial children power.
GAUDRON J: That was section 122.
HAYNE J: There was not one. It was a 122 case, Mr Solicitor.
MR BENNETT: I am sorry. The point one gets in relation to source is that where one is dealing with section 122 – and I thought I started saying that and I was taken off it - section 122 in relation to source, unlike section 52, contains its own internal code in relation to matters legislative, executive and judicial, and that is why in Capital Duplicators it could create a subordinate legislature, it can create a subordinate executive and it can create a subordinate territory judiciary, and it is the source of the power to adjudicate in its own right. While section 76(ii) may apply to it, that does not mean that in every case where there is a conferral of jurisdiction on a territory court that because 76(ii) is available, it does not follow that 76(ii) has been used, and in this case it has not been used. This is a simple application of section 122.
McHUGH J: Is that another way of saying that the ACT Supreme Court is not a federal court?
MR BENNETT: Yes, your Honour, it is not a federal court and, indeed, it does not fall within section 77. That was the basis of the argument in Donyadideh, that because the ACT Supreme Court, the Territory court, does not fall within section 77 that one could not go through the other steps in relation to it.
GAUDRON J: Well now, that is an assumption that I have always thought was a rather large assumption. I am sorry, 77, yes. But 71, it might well fall within 71, even if it is not a federal court.
GUMMOW J: I thought you had agreed, Mr Solicitor, before lunch, that it was the Commonwealth’s position that the phrase “in such other courts as it invests with federal jurisdiction” would authorise the Commonwealth to invest a territory court with federal jurisdiction and that this, of course, has happened.
MR BENNETT: Well, the question is has that happened in this case? Of course it can happen and that is the argument in Spinks & Ors v Prentice about the corporations law ‑ ‑ ‑
McHUGH J: But that is a novelty, is it not? It means that you have to recede somewhat from Spratt v Hermes because the words “such other courts as it invests with federal jurisdiction” in Spratt v Hermes were regarded as referring to State courts.
MR BENNETT: That was the referent which was to mind at the time but there is no reason why those words cannot extend further. But one does not need that in this case because once there is power under section 122 to confer the jurisdiction on the Territory court, one simply does not need to apply sections 71 and 72 to it.
McHUGH J: But if you accept what you have just said, that means Capital TV is wrongly decided, does it not? Because the reason they said there was no right of appeal from the ACT Supreme Court was because it was not a court invested with federal jurisdiction.
MR BENNETT: Yes, it ‑ ‑ ‑
McHUGH J: It was not a federal court and it was not a court invested with federal jurisdiction because the courts invested with federal jurisdiction were State courts and its referent was 77(iii) of the Constitution. Once you make the concession you just made to Justice Gummow it seems to me ‑ ‑ ‑
MR BENNETT: Yes, your Honour is correct in that, I should not have gone so far in relation to those words.
GUMMOW J: You withdraw that concession that you made twice?
MR BENNETT: Yes, your Honour, I do. I made it too quickly; I am sorry.
To return to the submissions. At pages 39 and 40 there is an exchange between Justice Kirby and my learned friend, Mr Jackson, in which, and I say this subject to correction, but I think Mr Jackson and Justice Kirby may have been at cross‑purposes, and I thought that should be explained. Your Honour Justice Kirby asked at 1630 at the end of that paragraph:
Is there a special provision in the United States Constitution in that regard?
I understood your Honour to be asking was there a special provision referring to territory courts. I do not think that is the way Mr Jackson understood it when he answered the question, because, in fact, there is no special provision about territory courts. I do not think my learned friend intended to answer ‘yes” to that question, although your Honour seems to have treated him as answering “yes” to that question because of what your Honour said at 1655 about making “the step that the Americans had taken”. As I say, I think that arose from a misunderstanding.
GUMMOW J: The settled doctrine in the United States is that the power in Article 1 section 8 clause 9, “To constitute Tribunals inferior to the supreme Court” relates to the inferior courts provided for in Article 3, itself. It is not the source for so‑called legislative or territorial courts.
MR BENNETT: Yes, precisely, your Honour. We discuss that in footnote 22, where there are numerous cases holding that territorial courts come under Article 4 section 3 clause 12, and not Article 3 which deals with the judicature.
At 1900 your Honour Justice Gummow asked my learned friend about the amendments to section 72 and the adoption of Spratt v Hermes. I referred to that this morning, and I conceded that it is not something one can place a great deal of weight on, but we do place some weight on the fact that, as the Chief Justice pointed out at 3020, the Spratt Case itself concerned issues of tenure in relation to a magistrate, and it was in relation to issues of tenure that section 72 was amended, although, of course, not in relation to who, but in relation to how long. The question of how long might well be affected by the question of who.
In relation to paragraph 3610 on page 83, and your Honour Justice Gaudron’s question about section 71, the matter we were discussing earlier, it is significant, we would respectfully submit, that there are at least two areas in which the Court has held that there can be judicial power in Commonwealth matters outside Chapter III, those two areas being the special Fitzpatrick v Browne type of area, that is 92 CLR 131 at 166. The other is the military justice area, and that is Re Tracey Ex parte Ryan 166 CLR 518 at 540.
Finally, in relation to the purpose of section 72, may I just remind your Honours of a number of places in the convention debates where, when section 72 and the tenure provision was being discussed, the basis of it was put on the maintenance of the federal balance. My learned junior has prepared an addendum to our submissions which sets out the relevant portions of the convention debates.
GLEESON CJ: Thank you.
MR BENNETT: Indeed, one of them is the place which seems to have been the origin of the phrase “keystone of the federal arch”, which comes from a speech of Mr Symon, but these passages all make clear that it was that that the draftsmen of the Constitution had in mind when they were enacting section 72.
Now I have not, in the course of my submissions, gone through our written submissions seriatim; I simply adopt them and ask your Honours to take them into account, but we do stress section 2 on leave to reopen. If this is an issue on which there are divergent views, and if this is an issue, as we submit it is, which has been settled by this Court for a long time, there are very serious reasons why it is inappropriate, we would submit, for the matter to be reopened by this Court and we have set out the reasons by reference to John’s Case in paragraph 2.4.
The other matter I would wish to refer to ‑ ‑ ‑
HAYNE J: Well, before you go to that, in that connection do you make any submission on the matters raised or to be raised by the Solicitor for South Australia about de facto officers?
MR BENNETT: No, your Honour.
HAYNE J: You make no submissions.
MR BENNETT: We make no submissions on that subject. The other matter is this: in relation to ‑ ‑ ‑
KIRBY J: Can I just ask there, to assist the Court, is it the Commonwealth’s submission that any such doctrine of the common law cannot stand against the terms of the Constitution?
MR BENNETT: Your Honour, it seems to us that the submission is one which is difficult to maintain and we do not adopt it, for the reason your Honour gives.
KIRBY J: Is there any thought on the part of the Commonwealth, of ways in which - I mean this problem has to be faced in the cross-vesting case as well and was mentioned, I think, in argument there, how one would deal with the practical problems that were presented. Is there any thought given to that?
MR BENNETT: There has not yet been in relation to the problems raised in this case, your Honour. I suppose it may be a case in which the Court is asked to give 30 days notice of judgment. The difficulty is ‑ ‑ ‑
KIRBY J: I mean, the point you make about how one must pause very long and hard before changing settled doctrine which would have a very serious consequence is very powerfully made.
MR BENNETT: Yes.
KIRBY J: On the other hand, the logic of that argument locks the Court forever – and for many, many orders yet to come – into a view of the Constitution which the Court maybe persuaded is incorrect and which, if in correct, the sooner repaired the better.
MR BENNETT: Well, your Honour, that is the familiar balance in interpreting a Constitution between precedent and one’s own view of the meaning of the document. At the end of the day that has to be determined very much in the light of considerations of the importance of maintaining established authority in favour of which there is a policy consideration in its own right against the other view and one has to weigh that in each case, and we submit this is a case in which one would maintain the force of existing authority.
HAYNE J: And you say we should do that on the assumption that the various consequences that have been debated in an argument are consequences that we should assume would flow?
MR BENNETT: Yes, your Honour, and one example of that is what a court does at a much lower level in simply construing a statute. Well, a court construes a statute; the statute is amended in respects which preserve the wording or the section the court has construed and then the court then says, “The next time the issue comes up, even though we might now have construed it differently, having construed it that way and the legislature having done what it has done we refrain”. Of course with the Constitution it is different, but the analogy is that - one of the reasons for maintaining a doctrine of precedent is the importance of continuing certainty.
GLEESON CJ: Well, when we a dealing with the Constitution which is different from a statute and is an institute of government, one of the aspects of it being an instrument of government is that the people are governed in accordance with the way it is construed from time to time and, presumably, the consequences to which reference has been made are examples of reasons why the meaning of an instrument of government should not change from time to time.
MR BENNETT: Yes, precisely, your Honour, and why greater respect than might be paid to precedents in other areas needs to be paid to precedent in this area where governments have conducted themselves on a certain basis, rights have been adjudicated on a certain basis, people have been convicted and sentenced or acquitted on a certain basis, and all that may go. There are serious problems with that occurring, particularly in a situation where so much has been done in reliance upon a line of authority in this Court.
McHUGH J: Yes, I know but the problem is that, as I have said, I think in McGinty or one of those cases, the Constitution contains no injunction as to how it is to be interpreted. Some Judges take the view - Justice Barwick
was one, Justice Murphy was another, I think Justice Kirby is another – who say you do not interpret the cases; it is the text. It does not matter what is said in the cases, it is the text that counts, and therefore you go interpret the text. Others adopt the view of Sir Harry Gibbs in Queensland v Victoria or Queensland v Western Australia who say you just cannot treat the Commonwealth Law Reports as if they have blank pages.
MR BENNETT: Well, your Honour, at the end of the day there is a balance between those two. We submit the balance should in this case substantially favour the second of those for all the reasons we have submitted. The only other matter ‑ ‑ ‑
GLEESON CJ: Yes, thank you, Mr Solicitor.
KIRBY J: I do not want by my silence to be taken to accept the proposition that authority has no value in constitutional elaboration.
MR BENNETT: The only other matter I wish to mention was that in relation to my submissions about Justice Hayne’s judgment in GPAO, that we do stress in support of the distinction his Honour draws the cases and references in footnote 55 to our submissions.
GLEESON CJ: Thank you. Yes, Mr Solicitor.
MR PAULING: May it please the Court. During the adjournment I circulated some documentation to the Court to which I want to take the Court immediately. The first was two copies of Hansard, one in the House of Representatives and one in the Senate, concerning the Australian Capital Territory Supreme Court Bill 1971 and the Northern Territory Supreme Court Bill 1971. It was put by my learned friend, Mr Game, that Parliament had enacted these pieces of legislation in consequence of the decision of this Court in Capital TV and Appliances v Falconer. If I could take your Honours, for example, to the second reading speech of Mr Sinclair at page 1733, that matter is plain indeed:
The Supreme Court of the Australian Capital Territory was established on the basis that it was a Federal Court for the purposes of the Commonwealth Constitution and that the tenure of office of the Judges of the Court was accordingly governed by provisions in Chapter III of the Constitution. That is to say, the Act was enacted on the basis that a Judge of the Court would hold office for life, subject to resignation or removal from office on an address of both Houses of Parliament for proved misbehaviour or incapacity.
In April of this year the High Court of Australia decided, in the case of Capital TV and appliances Pty Limited v Falconer, that the Supreme Court of the Territory was not a federal court, but a court of the Territory. A consequence of that decision is that the provisions in the Constitution with respect to the tenure of office of federal Judges are not applicable to the Judges of the Supreme Court of the Territory. The High Court’s decision has accordingly disclosed a need for the tenure of the Judges of the Territory Court to be provided for by statute and the present Bill makes such provision.
And so on. Similar, or the same things, in essence, are said in the Senate by the then Attorney-General, Senator Greenwood, and later in relation to the Northern Territory, both in the House of Representatives and the Senate, the same things are said. So that there can be no doubt that here is a case where we are not seeking to draw an inference from the fact that a law changed after a High Court decision simply on the basis of post hoc ergo propter hoc, but rather here is a case where quite clearly everything that has happened since these amendments directly relate to reliance upon the authority of Falconer. It is in those circumstances that we have urged, along with others, this Court not to depart from what was said in that case.
GUMMOW J: You say, do you not, Mr Solicitor, that the wheel has turned again since, and that the present situation is that these are no longer courts created by the Parliament, that they are courts created by the ACT legislature and the Northern Territory legislature?
MR PAULING: Yes, that is the primary submission we come to later, your Honour, but ‑ ‑ ‑
GUMMOW J: But if that is right, one need not get into this other problem.
MR PAULING: No, and that is why we come at the argument at the end by saying that the Supreme Court we are here dealing with was not created by the Parliament, and we say so in reliance in reliance on - - -
McHUGH J: What if that argument is rejected?
MR PAULING: In order to reject it, your Honour, the authority of Capital Duplicators would need to be drawn back from, although we say the case would have to be overruled because it is central to the decision in that case and that we are dealing with a new legislative power.
GLEESON CJ: We have been asked to overrule Spratt v Hermes and Capital TV, not Capital Duplicators.
MR PAULING: I appreciate I am not dealing by mistake with Capital TV, your Honour, I am dealing with Capital Duplicators; and that is to say that the legislature set up under the ACT Self-Government Act is a new legislative power and one looks at the preamble to that Act and the Northern Territory Act and sees that it echoes the words of Justice Mason in Berwick v Gray.
McHUGH J: What about the Constitution and Self-Government Act 1988 or whatever the year was, 1992? Does it not create or maintain the Supreme Court?
MR PAULING: No, I will come to that by following the legislation through, your Honour, but there are some other matters I wanted to deal with. I have done a paper on acting justices of the Supreme Court of the Northern Territory and the Australian Capital Territory and it might be of some historical interest but my learned friend Mr Jackson’s argument goes so far that the fact would be that in the ACT and the Northern Territory no judges, since 1971 at least, would have been appointed in accordance with Chapter III, nor magistrates. So that the consequence of a decision in this case is not just that decisions made by acting justices might be invalid because of an invalid appointment, it goes to the whole of the judiciary in both territories.
GLEESON CJ: What was the tenure of Mr Justice Bridge?
MR PAULING: He was “at pleasure”, your Honour. I will bring you to the legislation to deal with that. What I did was to pick up the appointment of Justice Kriewaldt. There is a document, your Honour, with the Commonwealth Gazette on the front and it is followed by the 1911 to 1954 Supreme Court audience. This is by way of reference – if I can take you to that document. The gazette sets out on the right-hand side the commission of the Governor-General to Martin Chemnitz Kriewaldt and at the end of the major paragraph, it says:
to be Judge –
and there was only one –
of the Northern Territory during the pleasure of the Governor-General.
Then annexed to that, your Honours, is the Supreme ‑ ‑ ‑
GLEESON CJ: Was he the first judge of the Northern Territory Supreme Court?
MR PAULING: Justice Kriewaldt?
GLEESON CJ: Kriewaldt.
MR PAULING: No, your Honour.
GLEESON CJ: I see.
MR PAULING: There had been many before. Indeed, in the historical note it is pointed out that Justice Bevan, who was expelled, physically expelled from the Territory after the rioting in 1919, his removal and subsequent dismissal caused the problems for Gerald Hogan, who was a deputy judge, and that is the subject of this Court’s decision in Presley v Geraghty. But Bevan was, I think, the second judge appointed for the Northern Territory under the 1911 ordinance. As I say, the fact that there have been numerous acting appointments and that there is even today an acting judge referred to by name by the Chief Justice - - -
GLEESON CJ: His name has two “e’s” in it, by the way.
MR PAULING: I see it is correct, but all I am saying is, your Honour, that the importance of the fact that people were acting has rather faded away by the fact that my learned friend’s argument would attack the constitutionality of the appointment of all judges and magistrates.
GLEESON CJ: Do you refer to Justice Bridge here?
MR PAULING: Only in that he was replaced by an acting judge for a period – no, I do not, your Honour. I was taking your Honours to the legislation under which Justice Kriewaldt and, indeed, Justice Bridge ought to have been appointed.
Can I just draw attention to a couple of matters, because I will do so in the context of the Australian Capital Territory Act in a moment, because of a submission my learned friend made, but, at section 4, the jurisdiction of the court said to be:
Subject to this Ordinance, the Supreme Court shall have in the Northern Territory all the jurisdiction and powers of the Supreme Court of the State of South Australia, and of the Court of Insolvency of that State, immediately prior to the acceptance by the Commonwealth of the Northern Territory.
It is appropriate to note that under the Northern Territory Administration Act, the laws of South Australia continued, although, of course, a law that was subsequently amended in South Australia did not have that effect in the Northern Territory. And then, your Honours, at section 6 it just says:
constituted by the Judge or Acting Judge of the Northern Territory –
I might point out that this provision for Acting Judges was brought in in 1921 following that decision in the High Court – another incidence of Parliament acting on what the High Court said – which found that Mr Hogan was not properly appointed a deputy judge because there was no judge.
GLEESON CJ: But it is not just a question of tenure; there is a threshold problem, is there not, that is, who chooses who the judge will be?
MR PAULING: Of course, your Honour.
GLEESON CJ: And, as I understand it, both in the Northern Territory and in the Australian Capital Territory for a substantial time, it is not the Governor-General in Council who has been choosing the judges, it has been some other body.
MR PAULING: Only since self-government.
GLEESON CJ: In the Northern Territory, that is since when?
MR PAULING: Since 1978. Now, the commissions that were read out prior to that were in the name of whoever was the then Governor-General.
GLEESON CJ: And the Governor-General was appointing people at pleasure originally?
MR PAULING: Yes, your Honour. I am trying to recall the precise words of the commissions. I have heard a lot of them read. But, yes, the appointment was at pleasure. And then, as a result of the 1971 amendments, it was until the age of 70, although that was not expressed in the commission itself. Perhaps, your Honour, it ‑ ‑ ‑
GLEESON CJ: But notwithstanding self-government in the Northern Territory, if the argument against you is correct, it is the Commonwealth Government who should be choosing the people who would be Northern Territory judges, not the Northern Territory Government.
MR PAULING: That is if Mr Jackson’s argument be correct.
GLEESON CJ: Yes.
MR PAULING: Yes, and it would be a small sop to say that the views of the Territory might be sought, but on that argument, too, the stipendiary magistrates would need to be appointed in accordance with Chapter III and by the Governor‑General, on the advice of the Executive Council.
GAUDRON J: That, of course, assumes that a stipendiary magistrate is a court. It has been known for their to be stipendiary magistrates without there being a court.
MR PAULING: That may be, your Honour, but it is not important to my argument.
GAUDRON J: No, other than to say that the dire consequences you point to may not be as dire as you suggest.
MR PAULING: Let me withdraw from consideration magistrates, the dire consequences for judges. I was asked by one of my learned friends how many people – we only started locking up people in our own gaols after 1978 – how many people might be there and I will not give evidence from here, your Honours, but it is a lot. But, can I just say that one then goes on in that Act to see that there are provisions about the acting judge in 10B – sorry, 10A it starts at.
KIRBY J: Can I just raise in respect to that argument, which I really take the force of because it has very serious consequences, but presumably the same things were said from the Bar Table during the Boilermakers’ Case. We had had an arbitration court from 1904, in various forms and ‑ ‑ ‑
MR PAULING: Yes, but those awards that, to use Justice McHugh’s term, “went down the chute” were capable of being remedied provided the right procedures were gone through and one did not try and mix judicial and executive power. They were savable.
KIRBY J: So that one harnesses the understanding of the Constitution to an original mistake and it can never be escaped in Australia; you are forever then bound to what has been said.
MR PAULING: No, I do not suggest that, and there may come times when a major shift is dictated, but as my learned friend, the Solicitor-General for the Commonwealth put it, ultimately one has to put “the dire consequences”, to use your Honour’s term, in the balance to see whether or not one solution is better than another. There is no doubt that there is no more vexing part of the Constitution than the relationship between section 122 and Chapter III and the likely reason for that is that it is badly drafted and whichever argument one runs, it comes to an intellectually unsatisfying result.
HAYNE J: And is it right to take account in that balancing process the kind of provision that by chance we come upon on page 1 of the Supreme Court Ordinance 1911 where, in the footnote, footnote 9, you have the remedial legislation that seems to have been passed to fix up what had happened when there was a vacancy in the ‑ ‑ ‑
GUMMOW J: Presley v Geraghty.
HAYNE J: Yes.
MR PAULING: Yes.
HAYNE J: Following Presley v Geraghty.
MR PAULING: Well, there is an answer to that immediately, your Honour, that in this enlightened day and age, were the Parliament to seek to validate the convictions and sentences of imprisonment of persons convicted in territories of crimes where the judges were not constitutional, the matter would be brought straight back here on the basis that that was an exercise of judicial power. It is something that the Parliament is incompetent to do. It is forbidden to do it by the Constitution. Whereas in Boilermakers one can go back with a properly constituted body and create awards for the future and make provision for what happened in relation to awards found to be invalid, we are in a completely different area of discourse here if we are talking about validating the convictions and sentences of countless prisoners in gaol.
McHUGH J: Consistent with Chapter III, it would be very difficult to say that a law of the Parliament which said somebody was guilty retrospectively of an offence which they had not been lawfully convicted of ‑ ‑ ‑
MR PAULING: If my learned friend’s argument be right, in order for the Parliament to do that they would have to exercise the judicial power of the Commonwealth, and they cannot. That is what is different and that is why an expedient such as used in the very, very curious circumstances of Mr Hogan SM, would not work today; it just would not work. In those circumstances, what we say to your Honours is whilst Boilermakers was the complete watershed or the enlightenment, as your Honour Justice Kirby said, this is another area of discourse altogether and it is not one that can be remedied in the way that Boilermakers could by the Parliament acting properly and not mixing incompatible functions.
Your Honours, I will leave that Ordinance because, as your Honours are aware from the argument already, in both the Australian Capital Territory and the Northern Territory, following self-government, various provisions have been made in respect of the Supreme Court. Your Honour Justice Gummow, I think, wondered whether the Northern Territory situation might be more divorced from its origins in a law made under 122 than the situation of the Australian Capital Territory. Yes in form and no in substance is the answer to that question.
In the Northern Territory under the provisions of the Self‑Government Act at self-government the Northern Territory was given executive authority in respect of courts other than the building of the Supreme Court in Alice Springs and proceeded to pass a law that made every provision for and did not, apart from appropriate transitional provisions, continue the operation of any federal law, for example, the Supreme Court Act that was amended, as we have seen, in 1971.
So that in form what has happened here was a clear power to enact or repeal or amend, but what was done was the enactment of the Supreme Court Act of the Northern Territory. The mechanism that the draftsmen who organised self‑government in the Australian Capital Territory used was different. Your Honours have a blue folder which contains legislation. Indeed, it contains seven pieces of legislation, starting with the Australian Capital Territory (Self‑Government) Act.
Reference was made yesterday to the fact that the Australian Capital Territory is established as a body politic under the Crown by the name of the Australian Capital Territory. That style would appear to follow what had happened 10 years earlier in the Northern Territory, which was established as a body politic under the Crown, but I am unable to enlighten your Honours as to where one might find the representative of the Crown in the Australian Capital Territory. The Governor‑General has powers in respect of the Australian Capital Territory, but they tend to be powers of dissolution, powers of calling assemblies together, and powers of disallowance.
The important section of that Act to look at is section 34 which is headed “Certain laws converted into enactments”. What we have said in our written submissions is that the process undertaken here have the effect that from 1 July 1992 there no longer was a Commonwealth Act called the Australian Capital Territory Supreme Court Act, and that the effect of the provisions in the Self‑Government Act was to bring about a repeal of that Act, recognising that it had been converted into an enactment of the Australian Capital Territory. Consistent with that process, the Act, itself, changed its name so that it became the Australian Capital Territory Supreme Court Act 1933 of the Territory, and that, itself ‑ ‑ ‑
KIRBY J: But this is a change in nomenclature and it is what is taken to be, but it did not, in fact, effect a repeal.
MR PAULING: I am sorry, our argument is that, firstly, one has to ask who is to take the Commonwealth law as now being an Australian Capital Territory law, those who owe obedience to the Act, and those who sit interpreting the Act, and that is courts. So that when a court comes to consider the appointment of Mr Carruthers under section 4A to which I will take you shortly, one says, “What law was he appointed under?”, and you say, “It is the Supreme Court Act of the Australian Capital Territory”. They say, “Was it not once a Commonwealth Act?”.You say, “It might have been once, but it is not anymore”, because, firstly, in general the whole law has changed, and even if that argument was wrong, the power to appoint acting judges is clearly, and entirely owes its existence to the Australian Capital Territory Legislative Assembly. It was they that passed it, and in no way can it be called a law made by the Parliament.
GUMMOW J: So what we have, the text we have to look at, the legislative text is your tab 7, as it existed at the time material here.
MR PAULING: Yes, that is the 1996 reprint.
GUMMOW J: That is the reprint. Yes.
MR PAULING: But, your Honours, in passing, my learned friend, Mr Jackson ‑ ‑ ‑
GUMMOW J: That is a Territory Act by the look of it.
MR PAULING: It made reference to the ACT ‑ ‑ ‑
GAUDRON J: How did that get printed? I mean, is there something in the ACT legislation which authorises all these Acts to be reprinted as Australian Capital Territory Acts? I am not being facetious, it may be important to my analysis.
MR PAULING: Yes, your Honour, I cannot answer that at the moment but ‑ ‑ ‑
HAYNE J: If you go to page 35, note 2 of this print we are look at, there seems to be called the Legislation (Republication) Act 1996. Is it to that that we would look for the source? Do you see note 2 to which I am referring, Mr Solicitor?
MR PAULING: Yes, I do see it and my learned friend the Solicitor‑General for South Australia is aware of it. Yes, it seems that that is so, your Honours, but my attention had not been drawn to it before and I will see if I cannot be of further assistance in that regard.
But can I take your Honours to Part VA of the ACT Supreme Court (Transfer) Act, which is at page 918 of that Act, tab 3. Your Honours, my learned friend, Mr Jackson, took the Court to sections 48A, 48B, 48C and 48D as being sections which indicated that the Commonwealth had not, as it were, transferred all the court across. It had done so with limitations and, indeed, he described them as being matters that were entrenched. I particularly want to draw attention to 48A because common to all of the Supreme Court Acts that we have looked at, the jurisdiction is spelt out in the Act itself. In this case, it says:
(1) The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory.
To use the term one finds in Spratt v Hermes, that is a plenary grant, it is every power that could be imagined that would achieve that object, that is, that it is necessary for the administration of justice in the Territory. And if that were not enough:
(2) In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any Act, enactment or ordinance, or any law made under any Act, enactment or Ordinance.
(3) The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal.
So that, far from being some indication in the Commonwealth legislation that the ACT Supreme Court was to be limited and not fully developed, those are not words of limitation, those are words of grant.
KIRBY J: Yes, but they grant by the Federal Parliament. It is not autochthonous, it is not out of the ACT itself, it is something that comes down from the Federal Parliament which only must operate within the Constitution.
MR PAULING: Yes, but the point we get to is that following this Act there can be no doubt that the only Parliament that could directly amend the Supreme Court Act is the Legislative Assembly of the ACT.
GLEESON CJ: Could the ACT legislature do what the NSW legislature did, establish a Land and Environment Court and take away from the Supreme Court first instance jurisdiction in relation to matters dealt with by the Land and Environment Court?
MR PAULING: Yes, we say they could, your Honour.
GLEESON CJ: If that is right, section 48A(1) does not entrench anything.
MR PAULING: We say that one reads 48A to say there is no limitation on what jurisdiction you can exercise, original or appellate, provided it answers the description of being necessary for the administration of justice in the territory.
HAYNE J: But the entrenchment if it occurs, is entrenchment via the Commonwealth Australian Capital Territory (Self-Government) Act 48A, is it not? That is how I understood Mr Jackson to be putting the point, that the entrenchment occurred because the Commonwealth Parliament had said the Supreme Court is to have all original, and so on, jurisdiction. Perhaps I misstate his argument but that is how I understood it.
MR PAULING: Well, I have put what I want to put about the section, your Honour, and we say that all that does is to remove any doubt, if there ever was any, as to what jurisdiction could be exercised and it envisages the idea that under an Act of Parliament some particular jurisdiction may be put upon it, for example, under the companies legislation, or patents, or trademarks or any of those topics. That is what I wanted to draw attention to, particularly in the legislation.
GAUDRON J: Are you going to tell us, or give us, perhaps, a document showing the number and nature of amendments to the legislation by the ACT legislature?
MR PAULING: In relation to?
GAUDRON J: The ACT Supreme Court.
MR PAULING: Yes, we can do that, your Honour, but I wanted to draw particular attention to 4A. Perhaps if I go to the written submissions, your Honour, where we identify 4A ‑ ‑ ‑
KIRBY J: There is a table of amendments behind the last tab in the ACT reproduction of the Supreme Court Act which is at the very back of the volume.
MR PAULING: Thank you, your Honour.
KIRBY J: And there is an awful lot of them.
MR PAULING: Yes, 4A at page 3 of that last bit of legislation, that was inserted in 1993 by Act No 91 of that year. It is plainly an exercise of the broad powers given as a result of the grant of self-government. The Act itself commenced on 17 December 1993 and, as we observe, the trial in this matter and the appointment of the acting judge all occurred after these amendments. So that whether or not the principal argument found favour that the scheme used by the draftsman was to effect the repeal of the Commonwealth Supreme Court Act 1993 and by paramount power to create a law of the ACT which this law is, capable of amendment and repeal by the Legislative Assembly of the ACT, there is no doubt that when we get to 4A that, firstly, it is not suggested, apart from constitutional grounds, that it was beyond the legislative competence of the Australian Capital Territory Legislative Assembly to provide for acting judges, that this was a law of that assembly and not a law made by the Parliament. That is the back‑up point, if you like, of my learned friend the Solicitor‑General for the Commonwealth. It is our up‑front point and we say that in order to ‑ ‑ ‑
GAUDRON J: You say the legislative support for the ACT Supreme Court changed when that day happened? What was it, 1 July 1992?
MR PAULING: Yes, and that commissions continued on or work specifically ‑ ‑ ‑
GAUDRON J: Yes, but the legislative support changed and what there happened was, by reason of the change in legislative support, in substance and in effect there was a new court created because it had different legislative support.
MR PAULING: Yes, it was now the Supreme Court of the Australian Capital Territory under Capital Territory legislation.
KIRBY J: But if in fact that was not competent to the ACT Assembly and that any courts that were created must be either federal or State courts and there is no immediate hybrid of Territory courts, then one would construe, would one not, this legislation so as to the greatest extent possible to uphold as valid the creation originally by the Federal Parliament of a federal court and not construe it down to destroy the effectiveness of everything that has been done since 1993?
MR PAULING: The difficulty would be – and I suppose my learned friend, the Solicitor-General for South Australia, will be having to deal with the de facto officer proposition that ‑ ‑ ‑
KIRBY J: This is not a de facto officer doctrine, this is how one would construe the federal legislation where you say it affects a repeal. One would construe it not to affect a repeal but simply to erect a fiction which did not in law have the effect of repeal because, if it did have that effect, that would be to make the new law, in important respects, unconstitutional.
MR PAULING: But by parity of reasoning, if it continued as the law of the Parliament, then there is no process in the legislative scheme which enables the Legislative Assembly of the Australian Capital Territory to amend laws of the Parliament.
KIRBY J: Quite. Well, it certainly cannot amend them to insert provisions relating to acting judges.
MR PAULING: Well, in that event ‑ ‑ ‑
KIRBY J: It may be able to do other things that are not incompatible with the federal nature of the court.
GLEESON CJ: But one thing that is clearly incompatible with the federal nature of the court is making the Executive of the ACT the body that decides who the judges will be. If you look at section 4A(1) of this Act and focus attention on the word “acting”, then what you are straining at a gnat and swallowing a camel, the camel being in the preceding words, that is, that it is the Executive who appoints them.
HAYNE J: And on this path of analysis you have, to adopt the Lancastrian language referred to by Sir Owen Dixon, “a usurper in office” and if that is so you are right in the core of the de facto officer doctrine, for the defect is not constitutional, the defect is legislative.
MR PAULING: I do not know that I can effectively answer that proposition.
GLEESON CJ: Well, as an illustration of the point that Justice Gaudron was putting to you for your comment, that is to say the newness of the court, there is a new body who decides who the members of the court will be.
GAUDRON J: And that is clear in 4(1). You do not even have to go to 4A. Section 4(1), it would seem to me – well, it would seem to me that it is arguable that 4(1) brought about a different court from that which previously existed.
MR PAULING: That is what we are saying, that once the court owed its existence to an enactment of the Assembly, if one goes to the definition of “enactment” at the front of the bundle ‑ ‑ ‑
KIRBY J: But if Chapter III requires territory courts to be federal courts, then you can enact as much as you like but it will not have any effect; you cannot change their nature as federal courts.
MR PAULING: Well, I accept that argument as far as it goes, your Honour. I mean, we have argued, as we did in Spinks v Prentic,e that they are not federal courts although, in that case - and we have incorporated those submissions with the ones we make in this case rather than simply repeat them in another document - whilst we say, and we said then, that it is possible that a territory court could exercise jurisdiction under section 71, that still would not make a federal court. And we adhere to that and say in our submissions that the decisions in Spratt v Hermes and Falconer to that effect are unanimous, followed, acted upon, ought not to be overturned and, if they are not overturned, my learned friend’s argument must fail.
GAUDRON J: Well, but none of those decisions really cut across what has to be your fundamental proposition; that on self-government of a Territory, the Territory legislature could create a new court outside Chapter III, query, whether it is different from any State court at that stage - whether there is anything in Chapter III that requires it to be different from a State court, other than perhaps a similar doctrine to the Kable doctrine that would say, if it is to be invested with federal jurisdiction, it must be a court of the kind that can accept and exercise the judicial power of the Commonwealth.
MR PAULING: I accept, your Honour, that Kable incompatibility would be the one exception to that proposition, and we say that the analysis by ‑ ‑ ‑
KIRBY J: But where is the foundation in section 122 for having two classes of federal Territory: one which is non self-government and one which is? Where is the clue in the language of the Constitution that there are to be two different types of Territories? Different consequences for the relationship with Chapter III.
MR PAULING: Well, it is the absolute breadth of the power that is contained in section 122 that is one’s starting point, but if one goes to our submissions in Spinks & Ors v Prentice, we point out that in the debates that the Territory had very little mention at all. One goes to page 8 of our submissions:
Part 2
Territories and Territory Courts
The only real reference of assistance was when, in footnote 28 we point out, that:
Mr Barton at the Adelaide Convention, 20 April 1897 said that:
Territories were seen as being in a “transition state”.
KIRBY J: It cannot be transitional for the Australian Capital Territory. According to the authority of this Court, it can never become a State.
MR PAULING: No, because the end point of a transition does not necessitate it becoming a State, but the Australian Capital Territory has gone, on one argument, as far as it can go; it is self-governing. But the Commonwealth has kept to itself those matters which go to the power of the seat of government, the 52(i) power, but that the general laws that are made in respect of the Australian Capital Territory, and the general administration, is by a body presided over by a new legislative power.
McHUGH J: Do you rely on the majority judgment in Capital Duplicators?
MR PAULING: I do.
McHUGH J: For two classes of territorial courts, if you like.
MR PAULING: That is right.
McHUGH J: Yours is made by a body that has been given self‑government.
MR PAULING: That is right, your Honour, and it has, as in GPAO and the joint judgment of your Honour the Chief Justice and Justice Gummow in the course of analysis – I need not turn up the passage – but pointed out that self‑government had brought about a profound change - my words, not those of the judgment. But it had an impact on how territories at that stage of development fit in to the relationship with the States, the relationship with the federal polity, and it is that very thing that Justice Mason in Berwick v Gray was talking about, that what is there out of this state of tutelage is eventual development. One might not get a legislature before you get control over the courts, which is what happened in the ACT but did not happen in the Northern Territory. One might get control of some executive actions involving setting up one’s own fiscus, as has happened in the Northern Territory and happened here.
So that the very sort of progress that was mooted by Justice Mason which forms, as I said, the preface to the Self‑Government Acts is what is happening. One asks what about Norfolk Island? Will that ever become a State – the State of Norfolk Island? It is hard to imagine. But what is there is that territories will develop according to one’s needs. It is obvious that a territory like the Northern Territory, which occupies a sixth of the continent, should one day stand side by side with the States. It is also obvious that where the seat of government is, there would be a strange conflict if, contrary to section 125 of the Constitution, the seat of government was to be in a State.
KIRBY J: But once the Territory became a State, then it would be in relation to the Commonwealth as a State is.
MR PAULING: Yes.
KIRBY J: But whilst it is a territory, it seems hard to say it is a territory of the first class, as distinct from the second‑class territory.
McHUGH J: It need not necessarily be the same as a State. It can be admitted as a State subject to various conditions under 121.
MR PAULING: That is what I was coming to, your Honour. One of the things one notes about the Territory is that if it became a State, the degree of representation for the people is a matter for the federal Parliament. That is there. One wonders why. You ask why do they not have a right to a trial by jury? Answers have been given, whatever criticism of Bernasconi there might be, and so on.
Could I just answer a question Justice Kirby earlier asked about the nature of 52(i) laws to deal with the seat of government. If one looks at the Seat of Government Acceptance Act 1909, attached to it is a schedule. In that schedule one sees things that are appropriate to the exercise of that power. We have already heard that it was proposed that there be access from the Australian Capital Territory to the sea via Jervis Bay, and that is provided for in the agreement; and the building of a railway line; and the acquiring of the things necessary to build it from New South Wales without payment. These are matters that secure access of the people to the seat of government - the sort of thing we read about discussed in Svikart v Stewart, and I will not take you to it, and other cases arising from the alleged American experience in Philadelphia that led to the setting up of the District of Columbia.
KIRBY J: Whilst you are on the American experience, do you know what happened after the decision in 289 US, O’Donoghue, and before the report in 2411, I mean, how they dealt with the problem of invalidity of court orders?
MR PAULING: No, I have not investigated that.
KIRBY J: If there is any information on that, that might be helpful to know what they did.
MR PAULING: I will do some research.
KIRBY J: With their larger population they must have faced that in a very acute way, and yet the Supreme Court did what it did.
MR PAULING: Your Honours, I do not need to repeat in any way what is said in our written submissions and I would ask the Court to read again what was said in Spinks v Prentice. In the chapters we have identified, some are irrelevant to this issue. Those are our submissions.
GLEESON CJ: Thank you. Yes, Mr Solicitor.
MR SELWAY: If it please the Court. As a preliminary matter could I just mention the Legislation (Republication) Act 1996 of the ACT Act upon which it appears the ACT Supreme Court Act was republished. That Act permits editorial changes and suchlike of the normal republication sort.
GUMMOW J: But what is the subject matter of the republication – laws of the ACT?
MR SELWAY: Yes, your Honour. As to that matter, we would adopt what my learned friend the Solicitor‑General for the Northern Territory put and refer to our written submissions where the matter is discussed. It would seem to us that at the very least, after the first amendment made of the ACT Supreme Court Act by the ACT Parliament, it then needs to be treated as an ACT piece of legislation.
GAUDRON J: It is like republication of a will, the doctrine of republication in a will, I suppose.
MR SELWAY: Yes. A public Act in particular is deemed to be always speaking. Telegraph Investments v Commissioner of Stamps tells us that any amendment, you have to read the Act again in context. Any other result would lead to the absurdity that presumably, if there is any part of the Commonwealth Act left in a hundred years’ time, you still say it is a Commonwealth Act. We say the commonsense of it is at least after the first amendment and maybe before that, it is an ACT Act.
KIRBY J: I think that would ordinarily be the case, but what do you do where one approach leads to the invalidity of judicial commissions and another approach saves them? Would one not construe the federal Act in such a way as to save the validity of the constitutional establishment of the courts?
MR SELWAY: You might, your Honour. The problem in this case is that the very opposite argument is put. If the Commonwealth Act applies on my learned friend Mr Jackson’s argument, that is the basis of invalidity on the basis that it is a court established by the Commonwealth.
GUMMOW J: But Mr Pauling’s argument sustains validity.
MR SELWAY: Yes, that is my point, your Honour. What we say is that the ordinary principles of statutory interpretation apply even to the vexed question of section 122 and the provisions of Chapter III. In this regard the relevant principles would be that powers are to be read broadly, they are not to be read down merely because some other power might be available and in particular the expressio unius rule has only limited application.
The second principle would be that the Constitution should be read as a whole and each provision in context and, thirdly, that any implied limitations upon express legislative powers must be necessary or obvious having regard to the text and structure. In our attempt to apply those principles we depart from your Honours Justices McHugh and Callinan in GPAO and I suspect, to that extent at least, from the Commonwealth submissions. But we cannot see that there is anything in section 122 which suggests that it is the exclusive source of all legislative executive and judicial power in relation to a territory.
Of course, the argument that it is is also contrary to the decisions of this Court in Newcrest and in GPAO. But, consequently, we cannot see why the Parliament cannot confer federal jurisdiction on a federal court to hear a matter arising under a law made pursuant to section 122. On the other hand ‑ ‑ ‑
GUMMOW J: What do you say about a law conferring federal jurisdiction on a court which is supported only by 122 as to its source of authority?
MR SELWAY: We would say that that law, because the court is only supported under 122, must find its source in 122. As to that, the difference we would have with some – at least to the dicta in recent cases – is they are based, we think, on an assumption, a fair enough assumption supported by Boilermakers and Navigation Act, but the assumption that Chapter III is the code in respect of judicial power and, in particular, judicial power arising under a law of the Commonwealth - Commonwealth judicial power ‑ ‑ ‑
GUMMOW J: I am asking you at the moment about conferring federal jurisdiction.
MR SELWAY: Yes.
GAUDRON J: On what could be called a territory court, established under 122, immediately, or less immediately, or less so by a law of the ACT legislature.
MR SELWAY: What we say, your Honours, is that, ordinarily, and with respect to most powers, there is within sections 71, 72, 77 and the broader principle of separation powers, an implication that the only source of legislative power to establish courts, to confer jurisdiction and so forth, is within Chapter III. We say the principle is clear enough and is applied in many cases. It applies generally to all powers under section 51 although there is an exception which we say is illuminating in this context. In respect of the defence power, there has been considerable debate in this Court as to whether courts martial are validly constituted, given that they are not constituted under Chapter III.
In Re Tracey, for example, (1989) 166 CLR 518, Chief Justice Mason, Justice Wilson and Dawson at 537 to 543 expressed the view that the power being exercised was a judicial power of the Commonwealth but was not subject to Chapter III. That is to say, the special nature of the defence power and its history took it outside of Chapter III. Justices Brennan and Toohey at 553 to 556 and 572 to 574 said it was not judicial power and, therefore, it was outside of Chapter III which, with respect, is the same sort of analysis we would have seen your Honour Justice McHugh and Justice Callinan using in GPAO.
GUMMOW J: What I am wondering about, is the very same law as in GPAO but jurisdiction being invested not in the Family Court of Australia, but in the Supreme Court of the Northern Territory?
MR SELWAY: In which case, your Honour, it must be Territory jurisdiction. But the issue is not, is this federal jurisdiction or is this ‑ ‑ ‑?
GUMMOW J: You say it is not a matter arising under a law made by the Parliament?
MR SELWAY: It may be, your Honour, but the question is, could it be conferred on the Territory court, which is a court not constituted in respect of Chapter III? The answer to that is no. It cannot be conferred on that court under Chapter III.
GAUDRON J: Why not?
McHUGH J: It does not come within 77, so you have to rely on 122.
MR SELWAY: Yes, and what we say is that the debate about whether it can come within section 71 or not is, to an extent, sterile. The only reason you ask the question is to find out whether there is a limitation on legislative power. Once you decide that you can use section 122 ‑ ‑ ‑
GUMMOW J: No, no, you ask the question, amongst other things, to find out whether section 73 applies.
MR SELWAY: Yes.
GUMMOW J: It is not sterile. It would be enormously important.
MR SELWAY: I take your Honour’s point. What we would say in a non‑section 73 case of this question about whether section 72 applies, the reason we are going through the analysis here is to find out whether there is a limitation upon the legislative power of the ACT Parliament or the Commonwealth Parliament to confer jurisdictions upon a court where the judges are not appointed in courts for section 72. And what we say as to that is that there is an implication in the approach, that there is a limitation from section 72 and section 71 which necessarily applies, and we say that is the wrong approach. Section 122 is a plenary power which operates differently. It operates differently from section 51.
GUMMOW J: But to come back to the example I was putting to you, your answer would have the consequence that in the GPAO situation and the Family Court, 73 bites. If the litigant had happened to go to the Supreme Court of the Northern Territory – this could well have been the case – 73 not applicable.
MR PAULING: And we say that is not – it may make it a bizarre result, but given the nature of section 122, we say it is not a surprising result. The reason we say section 122 differs ‑ ‑ ‑
GUMMOW J: And that is because the Supreme Court in that situation is not exercising federal jurisdiction.
MR PAULING: I am sorry, your Honour?
McHUGH J: In the illustration, if the Northern Territory Supreme Court had been the relevant body in GPAO, is it your submission it would not have been exercising federal jurisdiction?
MR PAULING: Yes, the jurisdiction – to the extent the question is relevant, the jurisdiction ‑ ‑ ‑
McHUGH J: Well it is relevant for the purpose of section 73 of the Constitution, because there can be an appeal from a court exercising federal jurisdiction. Now, you could take an appeal in GPAO from a family court to this Court, subject to the Family Law Act but, on one view of section 73, on your argument, you could not take an appeal in the same issue from the Northern Territory Supreme Court.
MR SELWAY: Well, you may not be able to, your Honour. What I would say about section 73 is that it has been interpreted in the cases. The approach we put can justify and describe how that operates, without using a non-federal distinction and, consequently, we say section 73 need not apply, but the question ‑ ‑ ‑
GAUDRON J: Can the Northern Territory pass a law – it says there shall be no appeals in criminal matters to the High Court of Australia?
MR SELWAY: Your Honour, my understanding is that the appeals are given by Commonwealth Acts at the moment, which would ‑ ‑ ‑
GAUDRON J: I know, but you have now got self-government, have you not?
MR SELWAY: Well, the Northern Territory may have a different view of self-government than South Australia, but certainly we would still understand that the Commonwealth could amend.
GAUDRON J: But we have to look at this as a constitutional issue which is going to determine how matters are conducted and where they are conducted for some time into the future.
MR SELWAY: Your Honour, we would not have submitted that the Northern Territory has legislative power under the scheme under which it is set up to confer jurisdiction on this Court in the absence of Commonwealth legislation.
GAUDRON J: Well, perhaps we will have a look at that, but the matter is of some importance, because, let it be assumed now that we are dealing with a matter arising under the Customs Act in the Northern Territory; on one view being a matter under a law of the Parliament and on another view, if it is in a territory court not. At the moment, of course, there is Commonwealth legislation, but leave inconsistency aside, which may be the answer to the straight question, but your argument would have it that precisely the same offence under precisely the same law could be the subject of an appeal to this Court in one case, and not in the other.
MR SELWAY: The same result is going to flow, your Honour, when and if the Commonwealth establishes a federal magistrate. There is no guarantee of an appeal from a State magistrate. There will be, one assumes, from a federal magistrate.
GUMMOW J: Yes, there would, if the State magistrate was exercising jurisdiction under federal law.
HAYNE J: It would be another court invested with federal jurisdiction, would it not?
McHUGH J: It is a 77(iii) - - -
MR SELWAY: Yes, I apologise. Yes, I take your Honour’s point.
HAYNE J: But why in the example given by Justice Gummow would the Territory court not be an “other” court invested with federal jurisdiction. Your answer is, as I understand it, that jurisdiction is not relevantly federal jurisdiction.
MR SELWAY: No. That is our answer.
HAYNE J: Yes.
MR SELWAY: Having said that, we accept that there are arguments about section 73 which we submit are different from the arguments about 72.
HAYNE J: Yes, they are different, 72 and 73.
MR SELWAY: We were talking about the limitations on legislative power and how they flow in respect to section 122 and our basic position is that section 122, because of its nature, stands differently from the other powers in section 51, with the possible exception of the defence power. The differences - we see four. The power differs in that it is not subject to federal issues in the same way that other powers are. It does not mean federal issues are irrelevant but it is less relevant. Second, that the jurisdiction given by Chapter III is limited. Sections 75 and 76 are incapable of comprising the whole of the jurisdiction necessary to carry out a Territory court. It does not include, for example, common law tort claims.
GUMMOW J: And do you also say that the territories power authorises the conscription of State courts?
MR SELWAY: I am not sure, your Honour. Could I come to that in just a moment?
GUMMOW J: I am thinking about the Western Australian situation.
MR SELWAY: Yes. If the point arose for argument I certainly would be saying no, but the question is whether there has been conscription in this case and how it operates and that may be a more difficult question. The third reason why section 122 is different is that the expected territories included territories which by reason of their development could not have been assumed to have had within them Chapter III courts, in particular, in summary jurisdiction, and the fourth reason is that the territories were expected to proceed to statehood by means of self-government. Those, we think, are the distinguishing features why section 122 should be read differently from section 51. Whilst we say that is the correct approach, we would also submit that if there is any doubt about it the approach of Justice Gaudron in GPAO at paragraphs 126 to 127 should be adopted. Your Honours, I know that I have taken up too much time. I will be about another five minutes, I would expect.
GLEESON CJ: Thank you.
MR SELWAY: Your Honour’s approach involves an acceptance that at the very least the relationship between section 72 and 122 is not clear and there is some basis for not treating courts created by section 122 as federal courts and for not treating them subject to section 72. And, your Honour at least proposed that you might be prepared to leave the existing decisions in place on that basis.
GUMMOW J: There does seem to be a distinction between creating a court, and it is one of the distinctions you have been making, the source to create it and the source of particular jurisdiction it has which gives it authority to determine particular classes of case. The one may not be the other.
MR SELWAY: That is true, your Honour. Indeed, some things that are called territory courts may, on closer analysis, appear to be federal courts. Our problem with it is that by reason of their make‑up, construction, appointments and so forth, they may not be capable of being federal courts, and that is where, if you like, the problem arises.
The practical consequences of invalidity have already been referred to by my friends. Could I refer your Honours to The Queen v Humby Ex parte Rooney (1973) 129 CLR 231, 243 to 244 and 248. That was a case where orders that are previously made by a registrar invalidly were validated. The discussion was whether this was an interference with judicial power. The Court in that case, in respect of matrimonial orders, held that they were not.
GUMMOW J: That was because matrimonial causes could be done by Parliament.
MR SELWAY: Yes, your Honour, exactly. The problem here is that we would have to validate, on the face of it, convictions and sentences. It is very difficult to see that there is any option available. That leaves us to the de facto officer rule.
McHUGH J: Just before you come to that, what about section 80 in a case where the Parliament has invested the Supreme Court of the Northern Territory with jurisdiction to try an offence under the Customs Act? Does section 80 apply?
MR SELWAY: We would say, no. What we would say is it is the same analysis that one would use for section 72 and so forth – what is the intention of section 80 as against the intention of section 122? Was it intended that section 80 should apply in respect of section 122? The courts have given the answer, no. One would have to say, probably a close run thing, but given that that answer has been given, we would say it is not clearly wrong given the nature of the power under section 122.
KIRBY J: A close run thing or not, it seems an odd thing that citizens of the country in some parts prosecuted under a federal law are going to be entitled, and the community entitled, as the Court pointed out in those cases, to a jury, and yet in another part of the country, not.
MR SELWAY: I agree. That is the debate, your Honour. But, nevertheless, the court has decided that debate one way. We would say, at the very least, it is arguable that it is correct. Given the dislocation it would cause to overturn it, it should be left alone. The de facto officer rule, we say, might be applicable. I do not need to take it any further – in fact, I cannot take it much further than it is in paragraph 24 of our written submissions. The United States courts have declined to apply the rule in relation to constitutional invalidity of appointments. The Canadian courts do; but the Canadian courts, in fact, apply a much broader de facto officer rule than I think the common law in Australia has ever identified.
GUMMOW J: Well there is a recent case called Manitoba Provincial Judges Association (1988) 1 SC 6, which is the latest as I can find. It is dormant in that sage, in Canada.
MR SELWAY: I know the case, your Honour, but I cannot recall ‑ ‑ ‑
GUMMOW J: Well it is a sequel to the case in which the provincial courts were invalidated, if that is the word, for inadequate remuneration.
MR SELWAY: And I know they deferred bringing the orders into effect and things. I suspect there must have been a de facto officer rule principle applied, but they seem to apply the de facto officer rule even where the legislation, giving rise to the matter, is invalid.
HAYNE J: Or where the office is invalid as opposed to the appointment of the officer? That is a distinction that has been tried and failed in the US, I think; the distinction between office and officer.
MR SELWAY: But the Canadians go one step further. They apply it where the law itself is invalid and the officer ‑ ‑ ‑
GUMMOW J: The law creating the office.
MR SELWAY: No, the substantive law giving rise to the right and they have held, say, in the Manitoba Language Case, where the laws were written in the wrong language, that orders made by invalidly appointed courts, in relation to the invalidly made laws, were valid. Now I certainly do not suggest that that would be the law here, but what we do say is that the principle is a common law principle. It being a common law principle and given that the Constitution can be read in light of and against the background of the common law, there is no reason why the de facto officer rule should not apply in determining what orders the court should make, in exactly the same way that the common law in respect of prerogative writs is applied by this Court in terms of discretions, in respect of matters arising for constitutional invalidity. We say that ‑ ‑ ‑
KIRBY J: Do we know if the order, in the case of Mr Eastman, is an order of the Supreme Court of the Australian Capital Territory, the order of conviction?
MR SELWAY: That is our understanding, your Honour.
KIRBY J: Is that in the application book? We saw the sheriff’s order, but I do not remember seeing the actual order of his conviction.
MR SELWAY: I have not seen it, your Honour, but we make the submission on our understanding that the attack is an attack upon the validity of the appointment of this judge, when the trial has proceeded on the assumption that the judge was properly appointed.
GUMMOW J: Well, he was really taken out of the Territory under the Removal of Prisoners’ Act.
MR SELWAY: Yes.
HAYNE J: It is the warrant.
GUMMOW J: That is right, it is the warrant. One question is, does that Act, the Removal of Prisoners’ Act and warrants thereunder apply to orders of this newly constituted, as it is said to be, court of the Australian Capital Territory? I do not know the answer to that.
MR SELWAY: I cannot help your Honour, I do not know myself.
HAYNE J: But the steps that have to be taken are to invalidate the warrant, perhaps also or instead of invalidate the conviction. Merely setting aside or demonstrating that the person purporting to exercise office was not validly appointed does not inevitably and inexorably lead to the conclusion, it seems to me, that the order of the court is invalid. It may well be, but it is lively question.
KIRBY J: I agree with Justice Hayne. It may be helpful for us to know what those steps were. The jury finds guilty and then there is, presumably, an order of the judge convicting, and then there is the sealed order of the court, and then there is the order of the sheriff, which removes him from the ACT to New South Wales. But I just have no idea of what all those steps were.
MR SELWAY: I will see what we can do ‑ ‑ ‑
HAYNE J: The order would be beyond recall, probably, by the single judge once passed and entered.
GLEESON CJ: There is not going to be much joy for Mr Eastman to simply set aside the order for removal out of the ACT. That is just going to land him back in the cells in the ACT Supreme Court.
MR SELWAY: Yes. But, your Honours, the two ‑ ‑ ‑
HAYNE J: The whole point – just to follow it out one step further, I know I am delaying you – but the whole point of Sir Owen Dixon’s article is that the attack may be on the office holder and the office holder’s taking of profit from it, not upon what he/she does.
MR SELWAY: Yes, and perhaps that is one thing we should say. Even if the de facto officer rule applied, we would still be left with the position - it is not as if it would solve all problems - we would still be left with the position, for example, where all of these judges had been invalidly appointed, we are liable to refund their pay for whatever period it was. So, they might have some concerns.
Your Honours, there are two other matters I wish to briefly mention. First, in respect of the matter raised by your Honour Justice Callinan, we
would submit that no issue of incompatibility arises in this case in the Grollo or Kable sense. It does not rise on the proceedings, there has been no 78B notice issued. And one of the reasons I was sent along by my peers was to make the point that this is not an incompatibility case and the States would wish to be heard if there were an incompatibility issue about acting judges.
With respect to the second matter, your Honour, the historical practice of conscripting State courts, we say, does not arise in this case. It may be that there is provision in the cases where that has occurred for the States to consent. For example, in section 8H of the Christmas Island Act 1958 such a provision applies. It is an executive consent and there will then be a question about whether the executive of the State can lawfully consent to its judges being used for this purpose. But we would say that is another debate, as is the question about whether section 122 would enable such conscription. If it please the Court.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Jackson.
MR JACKSON: Your Honours, may I deal with a number of matters. First of all, it concerns the provision of the Crimes Act itself which gave rise to the charge. If I could just say this: the offence was committed on 10 January 1989 and the relevant law was the Crimes Act or Crimes Ordinance of the Territory at that time. If one goes to section 34 of the Self‑Government Act and in particular to section 34(5), what your Honours will see is that it provides that:
Subsection (4) does not apply to a law specified in Schedule 3.
That means that if one looks then at subsection (4), your Honours will see it says – I am sorry, perhaps I will start again. Your Honours will see if one goes to - your Honours, I think I have managed to lose myself in saying this. I will perhaps deal with it a little later if I may or perhaps put it on a piece of paper for your Honours.
What I was going to say was, to move on from there perhaps, if I could go to the convention debate, the extract that was given to your Honours by my learned friends, what your Honours will see is that the passages that are referred to in the document headed “Addendum to the Submissions of the Attorney-General of the Commonwealth” makes it apparent that the reason for the existence of section 72 is not just to deal with the potential position as between the Commonwealth and the States. Your Honours will see, if I could go to the second page of the document, the reference to what was said by Mr Symon. In the first paragraph of it, about the fifth or sixth line, he said that:
The Federal High Court is placed in a position to safeguard the liberties of the subject and –
he goes on to a second category –
the rights of the individual States against the encroachment of the Legislature.
If your Honours also go to the extract from Hamilton which sets out the constitutional value, as it were, your Honours will see that there is a reference to “legislative encroachments” in the second line and then about halfway through that paragraph:
The independence of judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors –
and he refers particularly to the rights of individuals. Your Honours will see also on the top of the next page, page 3, in the quotation that carries on from the preceding page, a reference in the last few lines to the fact that they involve not only the interests of the States both large and small but also of the individual as well. So, your Honours, it is not an issue that only has one side. Could I come then to what I might describe perhaps as the fixing it up situation and the difficulties that have been adverted to by our learned friends.
Now, your Honours, undoubtedly, whenever there is a significant change in constitutional interpretation, it is necessary for there to be some steps taken to rectify the situation and your Honours saw that in relation to what happened in, for example, Ha v New South Wales and the Excise Cases, which made a very significant change in the funding of the States and where your Honours heard a great deal of argument from the States saying nothing should change even though the States had gone further and further and further away from, in effect, the constitutional situation.
Your Honours, one sees in the present case that if one looks at the manner in which the various courts of the territories have been staffed, that at first they appear to get, in our submission, further and further away from the requirements of the Constitution. But, having said that, your Honours, one does come to what are the practical things that would happen. If I can deal first of all with both criminal and civil matters, one would expect it to be entirely possible for there to be legislation which may, in significant respect, alter the burden of proof in respect of persons who have already been the subject of convictions or who have lost in civil cases.
McHUGH J: Alter the burden of proof?
MR JACKSON: Yes, your Honour ‑ ‑ ‑
GLEESON CJ: For what purpose alter it, alter the burden of proof?
MR JACKSON: No, I am sorry, your Honour, I am speaking of cases where persons had to be, for example, retried. It may be possible to say, to legislate in circumstances of that kind for the assertion of particular facts to be prima facie evidence of those matters which then had to be set aside ‑ ‑ ‑
GAUDRON J: That might have you up here again, I think.
MR JACKSON: Well, your Honour, one would not think that would be the case at least in relation to civil matters because there does not seem to be any particular difficulty in a number of decisions of the Court saying that the burden of proof is a matter that can be the subject of laws made under, for example, section 51(xxxix). One might well see that there were provisions such as there being abbreviated time for challenges, for, in effect, challenges to previous decisions that have been made and matters of that kind. Also as a practical matter, your Honour.
It is very unlikely, one would think, that in a significant number of cases one would find persons who had, for example, earlier pleaded guilty to offences, not wishing to have the whole matter reagitated. In many cases one would also find it unlikely that people who had been convicted, for example, and had had a trial but who had served part of the sentence would want to put the same issue in jeopardy again.
McHUGH J: But they might, there might be claims for compensation.
MR JACKSON: Your Honour, that is possible, but that itself raises a different question, of course. Whether there would be an entitlement which could be enforced and there may well be legislation which would deal with it. Now, your Honour, all I am seeking to say in saying that, is that one recognises, of course, that if there is constitutional change there has to be something done to endeavour to look after what has happened in consequence of it.
Your Honour, it is not beyond the wit of the legislators and those who advise them to take steps which would make significant differences to alleviate the situation.
GLEESON CJ: Mr Jackson, would it be inconvenient to you if we adjourned now until 9.30 in the morning?
MR JACKSON: No, your Honour.
GLEESON CJ: On the basis that we would go straight on with the next case.
MR JACKSON: I understand, your Honour. May I make an inquiry, as it were, in relation to the next case? It is, of course, an application for special leave, and in relation to that I had perhaps assumed that the Court would allow me rather more than 20 minutes.
GLEESON CJ: Yes, that is a good assumption.
MR JACKSON: Your Honour, there may need to be some division of the day, and assuming that our learned friends are called on in relation to the matter, we would seek to have a situation where, by way of argument in the first place, and that, together with the reply, we have half the time, and the others have in toto half the time.
GLEESON CJ: It might be quite - it seems to me rather likely that we might have to make a decision during the course of the morning as to the way we will deal with the procedural matters that might arise tomorrow. We will adjourn until 9.30 tomorrow morning, and the next case in the list will be listed for 9.30 tomorrow morning as well as this part‑heard case.
AT 4.34 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 25 MARCH 1999
Key Legal Topics
Areas of Law
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Criminal Law
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Civil Procedure
Legal Concepts
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Abuse of Process
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Appeal
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Jurisdiction
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Procedural Fairness
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