Gallagher v Howard

[1988] HCATrans 162

~

~ ;~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne Nos M20 and M21 of 1988

B e t w e e n -

NORMAN LESLIE GALLAGHER

Applicant

and

ROBERT CHARLES HOWARD

Respondent

Applications for special leave to

appeal

WILSON J

DAWSON J

Gallagher

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 AUGUST 1988, AT 12.54 PM

Copyright in the High Court of Australia

· MlT9 /1/PLC 1 12/8/88

MR M. BLACK, QC:  May it please the Court, I appear with my

learned friend, MR K.H. BELL, for the applicant in this

matter. (instructed by Holding Redlich)

MR H. BERKELEY± QC, Solicitor-General for Victoria: If the

Court p eases, I appear with my learned friend,

MR R. TRACEY, for the respondent. (instructed by

A.F. Lindeman, Solicitor to Department of Labour & Ministry

of Consumer Affairs.

WILSON J: Five minutes, Mr Black, before we adjourn, should

give you the opportunity to state your case.

MR BERKELEY: If my learned friend takes three, I can do it in two.

MR BLACK:  Might I hand to the Court for their immediate

convenience the relevant legislation?

WILSON J: Yes, thank you.

MR BLACK:	And might I also hand for conceivable use a bundle of cases to which passing reference might be made but which
will not necessarily be used, forYour Honours' associates.

WILSON J: Our capacity to conceive may be less than your's.

MR BLACK: This is an application for special leave from the

judgment of the Full Court of the Federal Court. The basic

point in issue is whether the applicant, Mr Gallagher, is
entitled as of right to have proceedings that have been

brought against him under the CONCILIATION AND ARBITRATION

ACT tried by a jury.

The section under which Mr Gallagher has been

prosecuted is section 182(l)(d) of the Act which makes it

an offence for a person to:

use words calculated -

(ii)   to bring a member of the Commission or the Commission into disrepute.

It is alleged that Mr Gallagher uttered words that had

that effect.

After the proceedings were commenced, and they were commenced by summons, an application was made for a jury.

That application came on for hearing by way of motion

before Mr Justice Jenkinson who dismissed it. The matter

then went on an application for leave to the Full Court

of the Federal Court. Some other matters arose. It went

back again to Mr Justice Jenkinson and ultimately came

to the Full Court of the Federal Court again where a

number of arguments were canvassed. The only one raised

here is the argument in relation to a trial by jury.

WILSON J: And it was, strictly speaking, an application for

leave in the Federal Court.

MlT9/2/PLC	2	12/8/88
Gallagher

MR BLACK:  Yes.

WILSON J: And leave was refused.

MR BLACK:  Leave was granted but the appeal was refused.

WILSON J: Thank you.

MR BLACK:	The two, in our submission, very important, indeed, fundamental questions of law are raised by this
application. The first turns upon the particular
sections of the CONCILIATION AND ARBITRATION ACT that
were in issue and some sections of the ACTS INTERPRETATION
ACT.  The second relates to the whole effect of section 80
of the CONSTITUTION and it would raise, in our submission, an appropriate case for the meaning of that section
to be re-examined by this Court for reasons that I will
come to.

Now, the first point, however, is shortly this:

whether an offence under section 182(1) of the

CONCILIATION AND ARBITRATION ACT, in respect of which

proceedings are brought under section 191 of that same

Act, is an indictable offence for the purposes of

section 42 of the ACTS INTERPRETATION ACT of the

Commonwealth and, therefore, if an indictable offence, one which must be tried by a jury or whether, on the

other hand, the offence is a summary offence in respect
of which there need be no trial by jury.

Now, we say that this first point raises matter

appropriate for special leave for a number of reasons.

First, we submit, that as a matter of construction of

the relevant statutes, the Full Court was, we say with

respect, wrong and the dissenting judge, His Honour

Mr Justice Gray, was correct. But, in any event, we say

the point is clearly arguable; secondly, we say that the

point is of substantial general importance because it

will apply to every prosecution brought under section 182

of the CONCILIATION AND ARBITRATION ACT; thirdly, we

say the case is important for this reason: if, in truth,

involving guarantees in the CONSTITUTION enlivened, we	this offence is triable by jury then for basic reasons
say, by the provisions of section 42 of the ACTS INTERPRETATION ACT, then it is critical that the offence
should, indeed, be tried by jury. And that leads, I suppose, to the same point stated in a different way and that is that if there is a right to trial by jury -
if there is - then that is a fundamental matter commanding the attention of this Court.
The final point upon which we base our application for special leave on this ground is that the question is
novel. There is no other authority on the point in relation to this section and there was, if we might
respectfully so characterize it, a strong dissenting
judgment in the Full Court of the Federal Court.

MlT9/3/PLC	3	12/8/88
Gallagher

TOOHEY J:  Mr Black, the constitutional question aside, are

your arguments on the relationship between the

CONCILIATION AND ARBITRATION ACT and the ACTS

INTERPRETATION ACT the arguments that were advanced by

Mr Justice Gray?

MR BLACK:  In substance, that is so, Your Honour, but with one

addition and the addition is, in essence, this: we say

that if the Parliament of the CoIIllil.onwealth has provided

a mechanism to enliven the guarantee in section 80 which,

on current authority, has limited effect but which, once

enlivened, has absolute effect, if the Parliament of the

CoIIllil.onwealth has provided a mechanism for that to be

enlivened as it does in section 42 of the ACTS

INTERPRETATION ACT, then anything that would take away

that prima facie activation of the right under section 80

should be strictly construed. Therefore, we say - and

this is, I think, in addition - this is a further matter
that Mr Justice Gray did not specifically advert to -

therefore when one reads section 42 and it says:

Offences against any Act which are punishable

by imprisonment ..... shall, unless the contrary

intention appears, be indictable offences -

one would require, in our submission, a very clear

contrary intention before the prima facie enlivenment
of the constitutional guarantee was, in truth, negated.

That, in our submission, is an additional point and we say it is a strong point for the reason that whether

one requires that degree of clarity or not section 191(2)
does nothing of the sort.

The other additional point that we would advance

over those raised by the learned dissenting judge is that
there is authority in this Court that one can have
something that is called an indictable offence which is

instit~ted as a matter of procedure by summons on

informit1.on and that,as we would understand it, is the case
in Victoria. If one is alleged to have coIIllil.itted a

serious offence, one may receive a summons; one attends before a magistrate who may or may not coIIllil.it the person

for trial and then there would be, in Victoria, a

presentment or, in the Commonwealth, an offence.

WILSON J: Yes, but you cannot call that in aid, surely. The

connnittal proceeding is not an indictable proceeding.

It is a proceeding for commitment to trial and the trial

does not begin until the presentation of a presentment

or an indictment.

MR BLACK:  But, Your Honour, we call it in aid in this way,

because section 191(2) of the CONCILIATION AND ARBITRATION

ACT, instead of using the language of the ACTS

INTERPRETATION ACT such as declaring something to be an

indictable offence, in fact, fastens upon procedures and

it says:

MlT9/4/PLC	4	12/!,S/88
Gallagher

(2) Proceedings before the Court under this

section may be instituted by summons

issued upon information, without indictment.

Now, the same can be said of proceedings that ultimately

turn out to be proceedings on indictment. If one looks

only at the procedure and not at the end one gets the

situation that a procedure such as is described in
section 192(2) does not necessarily lead to something
that is not ultimately trial on indictment and

therefore, we say, the learned dissenting judge was

correct in concluding that section 192(2) was merely a

matter of procedure and it did not indicate
a contrary intention for the purposes of section 42 of

the ACTS INTERPRETATION ACT.

WILSON J: Would there, L---i t1i.e procedurt; ;70U contemplate in

section 191, involve a committal hearing? And, if so,

before whom?

MR BLACK: Your Honour - - -

WILSON J: You could think about that over lunch and perhaps

we might adjourn and resume at 2 o'clock, if that is

convenient.

MR BLACK:  May it please the Court.

AT 1. 0 5 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

WILSON J: Yes, Mr Black.

MR BLACK: Before the adjournment I was asked whether the

construction for which we contended meant that the

proceedings would be issued by summons and then there

would be a trial without committal and the answer that

we would give to that question is, yes, that would be
the case but we would add to that answer that there is

nothing intrinsically offensive to legal principle in

that. And in support of that answer I would desire
to refer to the Court a passage in the judgment of

Mr Justice Deane in KINGSWELL V REG, 159 CLR 264 and

the passage in His Honour's dissenting judgment is

at page 305 starting in the middle of the page. This

is the commencement of His Honour's analysis of the

authorities and the effect of section 80 of the

CONSTITUTION. His Honour, in the middle of the page,

refers to the Attorney-General's information in New

South Wales and points out that:

MlT9/5/PLC	5	12 / 8_/ 88
Gallagher

it became customary for committal proceedings

to be held ..... pursuant to a surmnons issued on

information laid under successive JUSTICES ACTS -

and then His Honour continued:

The Attorney-General's information (or "indictment)

under the Act of 1828 has, however, never been

dependent upon the existence of a prior committal

order and there has never been any legal barrier

preventing the Attorney-General or other authorized

law officer from filing an information ex officio

without committal proceedings ..... see, generally,

BARTON V REG.

And then His Honour continued:

In this context, it is apparent that the reference to "trial on indictment" ins. 80 of the CONSTITUTION could not properly be construed as being restricted to a trial

consequent upon indictment by a grand jury or

a finding of a prima facie case and committal

by a justice or magistrate. It would also seem

apparent that the reference to "on indictment"
ins-. 80 does not, of itself, carry the

implication that the ultimate determination of

Attorney-General's or other law officer's	guilt must be by a jury. In that regard, the
indictment, information -

et cetera -

like the former indictment by a grant jury in

England, are, of their nature, directed to create the situation where an accused stands

charged with a criminal offence at the suit of
the State. They did not and do not, of themselves,
control the method by which guilt or innocence is

to be determined.

Now, in that context, it is our submission - - -

GAUDRON J: Would it follow from that though the prosecutor

must be the Attorney-General or appropriate law officer

of the Commonwealth?

MR BLACK: 

It does not in this case because of the provisions

of the CRIMES ACT that would allow any person to commence
proceedings although there are special provisions in the

CONCILIATION AND ARBITRATION ACT as to other classes of

persons who can commence proceedings. So, it is conceded

that what would happen if the ACTS INTERPRETATION ACT

guarantees trial by jury in this instance is that one

would have the situation where, theoretically, an individual
person could commence proceedings by summons that would
end up as a trial on indictment, that is to say, by a

jury.

MlT9/6/PLC	6	12/ 2/88
Gallagher

GAUDRON J: Well, does "on indictment" really mean just by a

jury? What is said by Justice Deane suggests otherwise.

MR BLACK:  Your Honour, yes, that is so, although the mere

words of themselves, as His Honour says, do not of themselves import a trial by jury and hence in the

CONSTITUTION there is the whole expression "requiring

a jury for a trial on indictment". But, in our	submission, what happens - what would 1. 1happen here, if the
construction for which we contend is correct, is that
there would simply be a procedure laid down by the Act by which the person accused would be brought into the
situation where he stood his trial and that trial, in
our submission, would be a trial for an indictable offence,
because of section 42 of the ACTS INTERPRETATION ACT,
and thus the constitutional provisions of section 80 would
be enlivened. So, we say that the reference - and we
would suggest a rather peculiar reference - in section 191(2)
to the connnencement of proceedings do not, in the circumstances, disclose a contrary intention.

We develop that argument further by saying that

it would have been very easy for the Parliament, had

it so intended, to have made the matter clear. If one

goes to section 43(b) of the ACTS INTERPRETATION ACT

itself there is a reference to offences that:

are not declared to be indictable offences -

so that if the Parliament wished to make its intention

plain it could have used the language of section 43(b)

which is the converse situation and it could have said

in section 191(2), "The trial shall not be on indictment"

or it could have said that·~"The matters shall not

be indictable offences". Now, either of those two

simple ways would have been sufficient, in our
submission, to evidence a contrary intention but neither

was chosen. Instead, the very limited form of words were

used:

Proceedings before the Court under this section

may be instituted by summons issed upon

information, without indictment.

And our short point is, for the reasons essentially given

by the learned dissenting judge in the court below, is

that that does not indicate a contrary intention, that

is to say, it does not indicate that the offence is not

to be an indictable offence within the meaning of

section 42. And if that is right it means that
section 42 attaches itself to section 80 of the

CONSTITUTION and the accused is guaranteed by the

CONSTITUTION a trial by jury.

In final development of that argument, we would

refer to and adopt,with respect, the observations of

the learned dissenting judge in the court below at

page 109 of the application book where His Honour says,

in the middle of the page:

MlT9/7/PLC	7	12/8/88
Gallagher

Oni.:e procedural questions are separated from

substantial questions, it may be seen that a

trial "on indictment", i.e. for an indictable

offence, can take place following the

connnencement of a proceeding by information

and sunnnons.

And that, in our submission, is all that section 191(2)

does; it governs the method whereby the proceedings may

be connnenced. It does not answer or it does not, rather,
express a contrary intention to that indicated in
section 42, that is to say, that offences which are

punishable by imprisonment for more than six months

shall be indictable offences. Now, that is the - - -

WILSON J: In coming to his conclusion, Mr Justice Gray, it

would not be putting it too strongly, would it, to say that he was impelled to that conclusion by the

strength of his view of section 80 of the CONSTITUTION?

For example, the sentence following what you read:

If this were not so, the guarantee of trial

by jury to be found in s.80 of the

CONSTITUTION would be removed.

MR BLACK:  What His Honour meant in that sentence, in our

respectful submission, did not depart from conventional

doctrine. What His Honour, what we would submit, must

have had in mind was the circumstance that although

section 80 has received a narrow interpretation in this

Court nevertheless it has been established and, indeed,

as recently as two years ago in BROWN's case, that

if section 80 attaches then its guarantees are very

real to the extent that ancillary parts of the trial,

for example, matters of penalty, in some instances

and matters of waiver, are governed by section 80.

WILSON J: Yes, but on present established authority there

could be no question that section 80 attached to this
offence, would there?

MR BLACK: Section 80 - - -?

WILSON J: Of the CONSTITUTION.

MR BLACK:	- - - attached to this -
WILSON J:	- - - to this offence on present established

authority, authority which the majority in KINGSWELL said

should now be taken as settled. The section would have no application to other than serious offences,

allowing for Mr Justice Deane's dissent and taking his

dissent into account, that is to say, offences carrying

a sentence of two years' imprisonment or more.

MR BLACK: Twelve months was the figure His Honour used.

WILSON J: In His Honour's judgment, was it?

MlT9/8/PLC	8	12/!3/88
Gallagher

MR BLACK:	Yes, I believe so, Your Honour.
WILSON J:	From memory, I thought it was two years.
MR BLACK:	I stand to be corrected, Your Honour, but I can

turn up the passage.

WILSON J:	You may be right.
MR BLACK:	I will ask my, learned junior to turn up the passage,

view of Justices Dixon and Evatt in

but His Honour Mr Justice Deane, in his dissent in with the dissenting

LOWENSTEIN which was that it was sufficient that there be a penalty of imprisonment for section 80 to be

attracted.

His Honour, as I recall the judgment, said that as

a matter of tentative view he would have thought the

12 months was, as it were, the cut-off. It is at

page 319, I think, Your Honour. It is true that and this offence has a maximum of one year.

WILSON J: Well, perhaps my point stands.

MR BLACK: Well, with respect, we would -

WILSON J: It would stand in any event. No, I think, within the

context in which I am putting it to you that assuming

that you were right in saying that an offence could be -

section 42, in conjunction with section 182 of the

CONCILIATION AND ARBITRATION ACT provided for trial

by jury for these offences, so support for that

conclusion could be gained from the present construction

of section 80 or the construction that Mr Justice Deane

would place on section 80.

MR BLACK:  No. I am sorry, Your Honour, I misunderstood

Your Honour's point.

WILSON J: And Mr Justice Gray's reliance on section 80 as

impelling him to his conclusion, as I think that
sentence that followed the sentence you read rather

suggests, may have been misplaced.

MR BLACK: Well, Your Honour, we would answer that by saying

that His Honour Mr Justice Gray expressly stated at the

beginning of His Honour's judgment - that is at page 103

of the application book,-about a·third of the page:-

it must be accepted in this Court that

s.80 only guarantees trial by jury in such

cases as are determined by Parliament to be

tried "on indictment".

And he then refers to the majority judgments in KINGSWELL.

So, in our submission, in that context, when His Honour

MlT9/9/PLC	9	12/ D/88
Gallagher

refers to the guarantee of trial.by jury in section 80

he is really saying that in circumstances where the

parliament has selected indictable offences, that is

to say, the parliament in the exercise of the power

that under current authority it has to say "this shall
be an indictable offence", then, in the exercise of

that authority the parliament's intention would be

frustrated if a narrow interpretation was placed upon

it.

WILSON J: Yes, I understand how you put it.

:MR BLACK: That is how we would put it, Your Honour. So, we

would say that, indeed, with respect, far from weakening

what His Honour has said it really is consistent with

some of the observat:iorl3 of merrbers. of this Court in cases

such as BROWN which are to the effect that if section 80

attaches to a crime then it is a real guarantee to the

extent that it attaches.

WILSON J: Could I interrupt you to give the judgment in the

last matter?

AT 2.16 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.17:

:MR BLACK:  The Court would.not be assisted if I simply restate

the reasoning of Mr Justice Gray, if the Court pleases,

so I shall not devote any time in this argument to the

other matters to which His Honour referred save to simply

remind the Court that His Honour was of the view which

we would respectfully submit was correct that since

this offence under section 181(2) of the CONCILIATION

AND ARBITRATION ACT might, consistently with high

authority - ultimately the authority of th~~ Court -
also have been prosecuted in a State court,	it is a

curiosity, indeed, that section 191 is confined in its

terms to''Proceedings before the Court"meaning thereby,

by a process of interpretation, the Federal Court, so

that the direction in section 191(2), on the face of it,
only operates in respect of one jurisdiction in which

the offence may be prosecuted.

Now, His Honour Mr Justice Gray's view,which we

would respectfully submit is correct, is that that would

create a most anomalous situation if you could have

trial by jury in a State court because there were no

contrary intention expressed, and not trial by jury in
the Federal Court, and His Honour's view was that in

those circumstances one would not read section 191(2)

as indicating a contrary intention. Rather, it would be

more sensible to read it as imposing some type of procedural

MlT9/10/PLC	10	12/8/88
Gallagher

requirement but leaving the offence an indictable offence,

as it plainly is unless a contrary intention is shown

under section 42 - leaving it as an indictable offence

for the purposes of Connnonwealth law so that it is

prosecuted before a jury in whatever jurisdiction the	offence, in fact, is prosecuted.
For those reasons we submit that the judgment of the Federal Court of the majority was either wrong,
which is our primary submission, or, alternatively, arguably wrong and sufficiently arguably wrong to
justify the examination of the decision by this Court
and for the reasons outlined before the luncheon
adjournment that the matter is important and is an
appropriate matter for special leave.

Now, the other limb of the argument for special

leave involves us submitting to this Court - and, of course,

we do so with respect - that the time has come for

section 80 to be re-examined and that this case is an

appropriate case for that to occur. Now, we concede

innnediately that the meaning of section 80 has been
regarded as settled and the Court has said that of
recent times but nevertheless, in our respectful submission,

the problem has not gone away because what one has is a

provision which, on the face of it, one would expect to

be purposeful and whicq by a course of interpretation,

has not achieved the object that on one view one would

expect it to achieve. And the thoughts underlying that

problem are those, in our respectful submission, expressed

by Justices Dixon and Evatt in their dissenting judgment

in RV FEDERAL COURT OF BANKRUPTCY EX PARTE LOWENSTEIN,

59 CLR 556. The brief passage to which I would desire

to refer the Court is at page 581 connnencing at about

point 8 of the page. Their Honours there said:

(Continued on page 12)

MlT9/ll/PLC	11	12/P/88
Gallagher

MR BLACK (continuing):

In R. V ARCHDALL, Mr Justice Higgins paraphrases

the words -

that is to say, the words of section 80 -

as meaning - "if there be an indictment, there must be a jury; but there is nothing to compel

procedure by indictment.

Then Their Honours in their joint dissent continue -

It is a queer intention to ascribe to a

constitution; for it supposes that the

concern of the framers of the provision

was not to ensure that no one should be

held guilty of a serious offence against

the laws of the Conunonwealth except by the

verdict of a jury, but to prevent a

procedural solecism, namely, the use of an
indictment in cases where the legislature
might think fit to authorize the court

itself to pass upon the guilt or innocence

of the prisoner. There is high authority

for the proposition that "The CONSTI7UTION

is not to be mocked." A cynic might, perhaps,

suggest the possibility that section 80 was

drafted in mockery; that its language was carefully chosen so that the guarantee it

appeared on the surface to give should be

in truth illusory. No court could countenance

such a suggestion, and, if this explanation

real operative effect is conceded by the is rejected and an intention to produce some

section, then to say that it::; application can

always be avoided by authorizing the

substitution of some other form of charge

for an indictment seems but to mock at the

provision. But, even if this -

and then Their Honours continue with their analysis.

Now, strong words indeed, and words that, in our

submission, indicate that the question is inherently

a lively one. Now, it is not just that we rely upon

what we would submit is the inherent liveliness of
the question; there is one further basis upon which

we submit that it is now appropriate for the Court

to re-examine section 80,and it is this. In KINGSWELL

Mr Justice Deane comprehensively reviewed the whole

course of authority on section 80 and he comprehensively

reviewed the principles upon which section 80 may be,

in His Honour's view, thought to be founded. His Honour

concluded, having re-examined, or having examined

the cases at considerable length, His Honour concluded

at page 317 of the decision of His Honour's judgment

in KINGSWELL, at about the middle of the page, that:

Three matters emerge from -

MlTl0/1/VH	12	12/8/88
Gallagher

his -

review of the previous cases.

And, in our submission, they are three very weighty

matters. The first of the matters identified by

His Honour was that, in His Honour's view:

There is no actual decision of the Court

requiring thatthe provisions of section 80

be construed in the manner in which
Chief Justice Latham in LOWENSTEIN and

Chief Justice Barwick in ZARB and LI CHIA

construed them, namely, as placing no

impediment in the way of the Parliament

providing for the summary prosecution of

any offence at all.

And then, over the page, His Honour identified the second matter, this is at 318 at point 2 of the page,

and that was that it emerged from the review of the

cases that:

If one refers to numbers rather than weight

of reasoning, the predominant tendency of

the views expressed in judgments of

members of the Court is plainly enough

towards the conslusion that section 80 should

be construed, in the light of what is

perceived as having been decided in ARCHDALL

and LOWENSTEIN, as enabling the Parliament

to avoid the guarantee -

et cetera. Then His Honour said:

The weight which one would otherwise give to

that predominent tendency is, however, greatly

lessened by the third matter which emerges

from that review. That third matter is one

that searches in vain, in judgments favouring

the view which would deprive the "fundamental	law" of section 80 of effective operation,
for any coherent statement of a line of
reasoning leading to that conclusion.

And at the bottom of the page His Honour expresses

his dissenting conclusion, that:

Notwithstanding the contrary trend in

subsequent judgments in this Court, the views

expressed by Mr Justice Dixon and Mr Justice Evatt
in L6WENSTEIN, as qualified in the manner which -

HisHcmour had mentioned, and that was the manner that emerged in discussion between Your Honour the learned

presiding judge and myself -

MlTl0/2/VH	13	12/8/88
Gallagher

should be accepted as a correct statement of

the effect of the reference to "trial on

indictment" in section 80 of the CONSTITUTION.

WILSON J: But the commencement of that discussion, of course,

was based on that there was no actual decision of

the Court requiring the provsions of section 80

to be construed in the manner in which

Sir John Latham construed them in LOWENSTEIN.

MR BLACK:	Yes.
WILSON J:	At the time that the judgments were published in

KINGSWELL, that position was corrected. There was

then an authoritative decision of four justices

of the Court exactly to that effect, was it not?

Because is that not the very point that the joint

judgment and, in which Justice Mason, as he then

was, concurred, and said should now be regarded

as settled?

MR BLACK: Well, Your Honour, that is so.

WILSON J: tlow is it still a live issue after that?

MR BLACK:  Because, in our submission, ultimately I come to

the point of saying, and I say this of course

with great respect, because of the strength of the

dissent and the problem identified by

Justices Dixon and Evatt, in their dissent in

LOWENSTEIN. Now, that is all I can say, but

in my very respectful submission, that is enough

to indicate that the problem, with great respect,

ought to be reanalysed, because one had, in the

CONSTITUTION, a provision which, on the face of it, would appear to be a guarantee and which, in truth,

could be, were the Parliament so minded, could be

a nugatory guarantee, not a guarantee at all of

any significance. That is how we put it.

WILSON J: Yes.

MR BLACK:  Now, if the Court were of the view that the Court

might entertain an application for leave to reargue

those matters then, in our submission, this would

almost inevitably follow as a case for special leave

simply because of the general importance of the matter.

There is one postscript, if I may so term it to

the argument, it could be said against us that in

any event we are not dealing here with a "serious

offence," and in any .event, it is a contempt and

contempts are not jury matters. To that, we would

make the following observations. The offence, under

section 182 is not strictly a contempt at all, it

is a statutory offence relating to a statutory

tribunal that does not have judicial power.

Secondly, the offence, in our submission, is serious

MlTl0/3/VH	14	12/8/88
Gallagher

in that 12 months imprisonment is serious. Now,

whether the cut-off point should be the 365th day,

as in this case, or the 366th. My learned friend,

always helpful, suggests three hundred and seventy - - -

MR BERKELEY:  Seven.

MR BLACK:  Yes, the point is my way, 367 in leap years.

whether that is the cut-off point - His Honour

Mr Justice Deane was indicating that was his

tentative view and if the matter were to be reviewed,
then that would be one of the matters that the

Court would, in our respectful submission, need

to review. The next point is that, if the contempt

analogy is pursued, then what we would say is that

this is a scandalizing the Court type of contempt,

and in relation to those contempts there are

powerful policy reasons, and always have been, why

they should be tried by a jury. That is the view

taken after review of the law by the Australian Law

Reform Conunission in its 35th report on the matter

of contempt last year.

It was also the view taken by the Finemore Conunittee

in England - in the United Kingdom,-some years &;o

and there are several observations by distinguished

judges in this country in support of that view.	They
are observations by Chief Justice Burt in

Western Australia in REG V LOVEDAY,(1982)WAR 65 at 67;

observations by Mr Justice of Appeal Hope in

ATTORNEY-GENERAL V MUNDY,(1972) 2 NSWR 911. The

other matter is that, historically, contempts were

tried by jury and although the practice fell into

disuse it existed, as it were, in the race memory
of conunon lawyers right up to the turn of the century

and, indeed, there is an instance - although the

writers are not unanimous as to whether it was truly

a contempt case, but some take the view that it was -

there is an instance in this century in REG V TIBE:iTS,

(1902) 1 KB 77, of contempt being a scandalizing

type of contempt being prosecuted before a jury in

this century.

When the matter was reviewed in the Court of Appeal

in New South Wales in 1984 in the matter of WILLESSEE,
(1984) 2 NSWLR 378, the court was disinclined to the

view that jury trial was available for contempt, but

expressed the view that that had been the situation
for some 80 years, and that by a rather crude process
of arithmetic, I am bound to concede, would nevertheless
take one to the time of Federation. So that, if it be

said that this is not an appropriate case, because it

is a type of contempt and because it is not very

serious, we would say it is serious, it is within the

ambit of what might be serious and, secondly, contempts

were historically indictable and there are instances

of them having been indicted within times~

MlTl0/4/VH	15	12/8/88
Gallagher

WILSON J:  But if therewas any relevance in such an argument,

surely one would have to look at the section as a

whole. If one was going to say the offence that is

constituted by section 182 is not of the kind that

would attract trial by jury in any circumstance,

or whatever the submission - s~e - - -

ijR BLACK:  Yes.

WILSON J - - ~ou are arguing with an anticipated submission.

MR BLACK:	Yes.
WILSON J:	But it would need to have regard, if it was put,

to the section as a whole.

MR BLACK:  Yes. For those reasons, we submit that this

matter does raise weighty matters; that it raises

them in an appropriate way and in appropriate circumstances

to justify the review of the decision of the

Full Court of the Federal Court by this Court and we further say, in such a way as to justify us

inviting the Court and indicating that we would

desire to invite the Court, if leave were given,

to examine the whole basis of section 80 anew.

For those reason~ we submit that special leave

should be granted in this case.	May it please the
Court.

WILSON J:  Thank you, Mr Black. Mr Solicitor, we would like

to hear you on the first ground of the application,

but not the second.

MR BERKELEY:  Yes, if Your Honour pleases. The first ground

of the application relies upon the applicant
persuading this Court that the words, "without

indictment " mean "with indictment." ·

If I could first go to subsection (1):

A person who has committed an offence against

this Act or the regulations may be charged

accordingly before the Court and the Court

may impose the penalty provided by this Act

or the regulations in respect of that offence.

And then (2):

Proceedings before the Court ..... may be

instituted ..... without indictment.

Now:

Proceedings before the Court -

refers back to (1), that is, proceedings in which

the defendant is charged, tried and sentenced and

not, as the applicant would suggest, merely

proceedings which, in some way, institute a

MlTl0/5/VH	16	12/8/88
Gallagher

procedure which may finish up with a jury trial.

(2) refers to the whole of the process referred

to in (1), institution, trial and penalty.	Now,
that is all I can say about that, except this

that, as a collateral matter. we would submit to
the Court that this is not a suitable case for
special leave because it is an interlocutory appeal

in a criminal matter, and interlocutory appeals are odious, and there is a good reason for that,

because there is always the risk - the Court,

as a final court of appeal, is being asked to

decide the law in the absence of any findings of fact

and there is always the danger which attaches in those circumstances - there is always the danger

which attaches to decisions, the consideration

of hypothetical questions of law.

So, for those reasons, we would say that the

first ground, that is, what is the proper construction

of section 191 does not support the application for

leave to appeal. Now, it is put by the applicant

that, because of the provision of the ACTS INTERPRETATION

ACT, section 191 should be strictly construed as

referring only to matters of procedure. With the

greatest respect to the argument, I find it a bit

difficult to understand what that means, because

the method of trial, whether by_ jury er not, is always

a matter of procedure. The first question the Court

ought to ask itself is what do the words mean,
"without indictment"? It is only if there is some

ambiguity or uncertainty about that that one mig~t have

to face the question of which of two alternative

constructions is to be preferred.

The argument put by my learned friend does not

support a method of construction which would require

the reading down of plain words to support some

policy which is said to drafted in the CONSTITUTION,

because that would be getting in by the back door

what he cannot get in by the front door, that is	overruli:nf· in KINGSWELL's case, so that the first
question is, what do these words mean? We would
say they mean what they say; they are perfectly
plain words; they cannot have any other purpose
other than the obvious one and, that is, it is to
be tried by a judge in the Federal Court. If the Court pleases.

GAUDRON J:  Mr Solicitor, I wonder if I could ask you this:

what do you say to the argument by Mr Black that,

first of all, the proceedings could be commenced

in State courts and, if they were so commenced,

they would result in trial on indictment?

MR BERKELEY: That is so, Your Honour.

GAUDRON J: That is so?

MlTl0/6/VH	17	12/8/88
Gallagher

MR BERKELEY:  Yes. that one has that position at common

law. Say L1 contempt cases, you can

either deal with them summarily or, in theory, you

can deal with them on indictment. Under State law

one often gets that postion. Nd1 the fact is one

has to come to the conclusion that Parliament's counsel

.::as	overlooked., or probably overlooked,that, and as
Your Honour has	met as many of them as I have, it

is perhaps not surprising.

GAUDRON J:  I hope you do not hold me responsible, Mr Solicitor.

MR BERKELEY:  No, no, not at all. But the fact,is, in drafting

a complex bit of legislation like t~is, by a person who

one: supposes is :in a ;:;cction of the parliamentary

counsel's office who are specializing in industrial

law, it is not surprising he has overlooked that

particular complication. When one comes to look at it

analytically manys years later, it is not surprising

that counsel will pick up the point. But that does

not mean that one ought to read down the plain

meaning of these words or to give them some meaning

which they cannot comfo:ttc1.bly carry.

It means that there is a defect,if it is a defect

in the legislation, which Parliament will have to fix

up, and that often happens and it is really not for

the Court to fill up the gap in those circumstances.

GAUDRON J, Well, then, it is the prosecutor's decision as to

whether or not the offence is indictable or summary.

MR BERKELEY:  That often happens, Your Honour. I mean, State

law is full of indictable offences prosecutable

summarily and it is up to the prosecutor whether he

makes an application or not. There is nothing

inherently unjust of contrary to one's feeling of

propriety in that situation.

GAUDRON J: Perhaps not, except it does become a little strange

when the prosecutor is a person having no relevant

connection with the administration of the criminal laws

of the Commonwealth and is none the less in a position

to make the decision whether an offence against that

law shall be prosecuted summarily or on indictment.

MR BERKELEY:  Yes, I understand that, Your Honour. But that

reluctance which one has to contemplate that situation.

arises from a view of what one - I understand the

force of everything that my learned friend says about

section 80 - and everybody that has ever written a

textbook about constitutional law has the same

view. But the history of constitutional construction in this Court is full of areas in which the Court has

got itself, or the law has got itself into a position

where you can say, well, logically, if we had to start

all over again we would do it differently. But the

Court cannot put itself in that position because

there would be no certainty in the law at all. So one

MlTl0/7/VH	18	12/8/88
Gallagher

gets a situation that there is a certain interpretation
of section 80 and, looking at it, we can actually

say to ourselves, well, if we to start all over again

and do it again, we might do it differently. But

that feeling cannot be allowed to influence one's

view of what the meaning of section 191 is. One has

to put that feeling aside and say that we have got to

look at these words and see what they mean.	It may
be that one, with sufficient imagination,	can

imagine cases which have never yet arisen, where that

construction might r~ise some anomaly or what may be

thought to be an anomaly. Well, that often happens

with Acts of Parliament.

WILSON J:  Thank you. Yes, Mr Black.

MR BLACK:	If the Court pleases. One cannot, however charmingly one expresses it, deal with a matter as fundamental as the negation of a prima facie right of trial by jury
under the CONSTITUTION by saying that some parliamentary draftsmen are not as astute as others. If one looks
at the words of these statutes, one finds, in our
submission, in section 42 a plain statement of the circumstances under which the Parliament intended that
the trial by jury should attach:

Unless the contrary intention appears.

And one finds in 191(2) an insufficient indication of

the contrary intention and further, an anomaly of

a severe order that was highlighted in the discussion

between Your Honour Justice Gaudron and my learned

friend. Now, that is ultimately what our point is

about and, in our submission, we are not trying to

read 191(2) - read into it words that are not there.

Our case relies upon the words that are there, the

words that start with:

Proceedings before the Court -

as showing no contrary intention for the purposes of

section 42. At the interlocutory point, we would

answer it this way: the Full Court of the Federal

Court - and in this respect we respectfully adopt

what they say - thought that it was an appropriate

case. Secondly, the hearing has already been delayed;
it would not be delayed much longer in any event;

it has not started; it is a matter of law in any case

and, ultimately, if it deals with the matter as

fundamental as the mode of trial, and the mode that

we seek is a trial by jury, then, as a matter of

discretion the Court should nevertheless grant

special leave if it otherwise persuaded to do so.

May it please the Court.

GAUDRON J:  Mr Black, could I ask you where it is that one would

find the source of a State court's jurisdiction to

entertain proceedings?

MlTl0/8/VH 19 MR BERKELEY, QC 12/8/88

~.mi T,T A rtT? "-rt

0.	_...,,11...,,,_k--
MR BLACK:  Yes, Your Honour. The matter was - it comes

through the JUDICIARY ACT. It was discussed in

some detail by the Full Court of the Federal Court

in its industrial division in ROWELL V CHILD, a

case decided in 1983, 77 FLR 87, where Their Honoursfoll<Jv.led

a decision of this Court in COCKLE V ISAKSEN and

the passage to which I would refer is at page 90

of the decision where the judgment of the Court

in COCKLE V ISAKSEN is referred to. In the passage

that is cited from that judgment at the bottom of

page 90, reference is made to section 39 of the

JUDICIARY ACT, as giving the jurisdiction - that is the mechanism by which it gets there.

GAUDRON J: 39(1) it must be.

MR BLACK:  Yes. The matter is discussed, Your Honour, I am

reminded by my learned junior, by Mr Justice Northrop

at page 55 of the application book, His Honour being

in the majority in the Full Court of the Federal Court,

and His Honour explains it as follows, reading from

about point 2 of the page:

It is convenient to consider first the
issue raising the nature of the proceedings

before the Court. There seems to be no

doubt that if Gallagher had been charged

with an offence against section 182 .....

in a State court, he would have been entitled

to a trial by jury; see the JUDICIARY ACT 1903

and in particular section 68, and as will be

seen later, he could not have elected to be

tried by a Judge without a jury. Any person

could have instituted proceedings -

et cetera. Then His Honour refers to - he goes over

the page -

The wording used in 191(1) ..... is rather quaint,

but it has been accepted as conferring a

jurisdiction on the Court to hear and determine

a charge brought pursuant to a provision of

the ..... Act.

His Honour then refers to KELLY's case. I do not think

that then takes the matter any further.

GAUDRON J: Yes.

MR BLACK:  I am sorry I am not able to give Your Honour greater

assistance.

GAUDRON J: Well, the jursidiction in State courts arises

because it is a matter involving the Commonwealth Act

which is a matter in which this Court has jurisdiction

MR BLACK:  And then it is given back.

MlTl0/9/VH	20	12/8/88
Gallagher

GAUDRON J: - - - which isnot made exclusive by section 38.

MR BLACK:	Made exclusive and then given back.
GAUDRON J:	And then given - well, it is not made exclusive,

it is then vested by 39(1).

MR BLACK:  Yes, that is the mechanism.

GAUDRON J: Although, of course, I do not know that the State

courts have ever been asked to act in these matters,

have they? At least, since the establishment of

the Industrial Court.

MR BLACK:	I do not personally know the answer to that.
GAUDRON J:	Simply as a matter of practice, I think, it is - - -
MR BLACK:	They do act, of course, in other respects.

GAUDRON J: Yes, recovery of wages.

MR BLACK:  Recovery of wages and matters of that nature, but

beyond that, I just do not know the answer,

Your Honour. I do not know of them having acted;

that is not to say they have not. I am not able

to take the matter any further, Your Honour. If

the Court pleases.

GAUDRON J:  Thank you.

WILSON J:  Thank you. The Court will retire for a moment

to consider its decision.

AT 2.50 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.52 PM: 

WILSON J:  By majority, the Court is of the view that

insufficient doubt attends the decision of the

majority of the Federal Court to warrant the grant
of special leave. Special leave is therefore

refused.

MR BERKELEY: If the Court pleases.

MR BLACK: If the Court pleases.

MR BERKELEY:  I ask for the costs of the application, if the

Court pleases.

WILSON J: Is it a proper application under the CONCILIATION

AND ARBITRATION ACT, does it arise under that? And

secondly, is it a criminal matter?

MlTl0/10/VH 21 MR BLACK, QC 12/8/88

,.., ., ., 1 ... - .......... -··-- ..........

MR BERKELEY: It is not a criminal matter, Your Honour. because

in HINCH's. case that whole question was argued by

the Full Court.

WILSON J: Yes, I do not think it is a criminal matter, but

is there anything in the CONCILIATION AND ARBITRATION

ACT that prevents you?

MR BERKELEY:  I cannot assist Your Honour on that. I am not

terribly interested in costs, but I am always told

to ask for them.

WILSON J: Yes, you can always be generous afterwards.

Mr Black, are you - - -

MR BLACK:  I am always told to oppose such applications and,

in this instance, I	think I have a statute
that may assist me.	I uave not had a chance to

look instantly at 197A of the CONCILIATION AND

ARBITRATION ACT, but it provides that.- I think

it is (c), Your Honours.

MR BERKELEY:	I think there is enough doubt about the matter for me not to push it this time.
WILSON J:	You withdraw the application?
MR BERKELEY:	Yes.

WILSON J: Right. Special leave is refused. Thank you.

AT 2.54 PM THE MATTER WAS ADJOURNED SINE DIE

MlTl0/11/VH	22	12/8/88
Gallagher