Ferdinands v Commissioner of Police

[2004] HCATrans 300

[2004] HCATrans 300

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A227 of 2002

B e t w e e n -

TREVOR KINGSLEY FERDINANDS

Applicant

and

COMMISSIONER OF POLICE

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 2004, AT 11.06 AM

Copyright in the High Court of Australia

MR T.K. FERDINANDS appeared in person.

HAYNE J:   Yes, Mr Ferdinands.

MR FERDINANDS:   Your Honour, I have submitted my application book and oral submission in this matter. It is a matter of section 109 of the Constitution, the inconsistency of a subsection within the Police (Complaints and Disciplinary Proceedings) Act 1985, section 48. The actual section has a few troubling aspects to it and when one looks at it one comes to a conclusion as to if Parliament is going to say no appeal lies to a decision of a District Court judge then why does Parliament not say no appeal lies to a decision of a magistrate and why does Parliament not say no appeal lies to a decision of a Supreme Court judge.

So what we have there is a situation which is not common in any social group, social groups being groups and made up of individuals in different organisations. So the inconsistency there is, in my particular matter, I raised matters with his Honour Judge Rice in terms of the Constitution, in terms of federal law, in terms of matters of colour and race, which are determined by High Court Judges. I raised grounds of appeal in terms of the fairness of the trial. There were various aspects of the Universal Declaration of Rights and the like. All of those matters are now closed and sitting in the District Court of South Australia and they may never see the light of day because of the section.

So when we have a look at what do we have to do to sort of turn the magistrate’s decision around and turn the judge’s decision around, we look at the section and we say is there anything logical, is there anything reasonable about why police officers, as a social group, should not have access to the Supreme Court.  And so what we need to do is have a look at what other social groups do in terms of their professional conduct, misconduct, their appeal rights.  The first thing that comes to one’s mind is legal practitioners.  The board will make a decision, it will go before the Tribunal and then the Supreme Court and all of a sudden you can see that social group has got it rights.  It is called due process before the law. 

So in the Constitution there is a little section called section 109 and it says when there is an inconsistency in a State law and it does not marry up with the Commonwealth law, the Commonwealth law will prevail. So his Honour can say to himself, what Commonwealth law prevails in this State matter, and it goes to the heart of the roles and functions of High Court Judges and the very Constitution itself and the Judiciary Act 1903. So there are my powers, this is what I have to do and this is how I will do it. I shall be able to interpret the Constitution, I will be able to interpret the Racial Discrimination Act 1975, I will be able to interpret the Universal

Declaration of Rights 1948 which were led in the District Court and then we shall have a due process in this claim. 

So that is what his Honour says, but then we are stuck with this section 48, so now we have to go and have a look at some case law. There is only one universal case law in this matter and that is Robinson v Western Australian Museum 1977 where the Court has said anything which is not consistent with Commonwealth law within the State, so the States have their own Constitutions, the States can amend their own State Constitutions by Parliament. They create Houses of Assembly and Legislative Councils. The other manner in which they can change their Constitution is by referendum and in this matter here, in Robinson v Western Australian Museum, the High Court has said, yes, look, if there is anything which is not compatible, which is inconsistent with what we do in the Commonwealth, that State law is not valid. 

So that is why I am here today to just tell the house that section 48 of the Police (Complaints and Disciplinary Proceedings) Act is simply not valid.  So this Court today is asked to uphold Robinson v Western Australian Museum and set aside section 48 of the Police (Complaints and Disciplinary Proceedings) Act and allow due process for police officers to have their legal rights, their appeal rights, determined in the Supreme Court of South Australia.  Thank you, your Honours.

HAYNE J:   Thank you, Mr Ferdinands.

An appeal to this Court would enjoy no prospect of success.  That being so, it follows that special leave to appeal is refused and refused with costs. 

Adjourn the Court to 2.00 pm on Tuesday, 17 August in Sydney.

AT 11.14 AM THE MATTER WAS CONCLUDED