Garlett v The State of Western Australia & Anor

[2021] HCATrans 221

[2021] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P50 of 2021

B e t w e e n -

PETER ROBERT GARLETT

Applicant

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

THE ATTORNEY‑GENERAL FOR THE STATE OF WESTERN AUSTRALIA

Second Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO MELBOURNE

ON TUESDAY, 21 DECEMBER 2021, AT 1.52 PM

Copyright in the High Court of Australia

HER HONOUR:   In accordance with the remote protocol, I will announce appearances.

MR G.R. DONALDSON, SC appears for Mr Garlett.  (instructed by Roe Legal Services)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia, appears with MS H.C. RICHARDSON for the second respondent, the Attorney‑General for the State of Western Australia.  (instructed by Solicitor‑General’s Office (WA))

HER HONOUR:   I have a submitting appearance on behalf of the first respondent. 

I should tell you that the Court is minded to remove this matter given the attitude of the second respondent, but I have four or five matters I would like to clarify, if I may, with both of you.  Mr Donaldson, the first is this.  I am a bit confused about whether I am removing, or you are seeking the removal of the whole of the appeal pending in the Court of Appeal of the Supreme Court of Western Australia, or part of it.

Can I explain how my confusion arises and ask you to resolve it for me?  It arises in this way.  When I go to the application book at page 8, paragraph 14, it tells me that your client has commenced an appeal in respect of paragraph (a) of the declaratory orders and you seek removal of that appeal to this Court.  I must say that reflects the way the constitutional question is framed in relation to the application for removal in the sense that it only deals with the Chapter III issue and it is consistent with the affidavit sworn by your instructor.  But the notice of appeal talks about the whole of the declaration, which would pick up paragraph (b) dealing with the Racial Discrimination Act and I must say it also seems to reflect the order that you seek in your application for removal.  Do you seek removal of the whole, or just paragraph (a)?

MR DONALDSON:   Just paragraph (a), your Honour.

HER HONOUR:   Thank you.  That means then I think that the order for removal is part of the cause and not the whole of the cause.

MR DONALDSON:   Thank you, your Honour, yes.

HER HONOUR:   The second thing is can I then clarify with you – is the challenge to the validity of the High Risk Serious Offenders Act as being contrary to Chapter III insofar as it operates only with respect to item 34 of Schedule 1, Division 1, Subdivision 3 which makes robbery under section 392 a serious offence?

MR DONALDSON:   Yes.

HER HONOUR:   Or is it in relation to both item 34 and item 35 of Schedule 1 which makes assault with intent to rob under section 393 of the Criminal Code a serious offence?  The reason I ask that is this.  The declaration, as I read it, made by Justice Corboy expressly concerned the validity of both items, but your removal application seems to me, at least, at application book 6, to only operate with respect to item 34.  I may have misread it.

MR DONALDSON:   Can I say, your Honour, I had understood that it related only to section 392 which is item 34 on the basis that that was the – that is the relevant offence for Mr Garlett. I do not know, your Honour, why – I should know, but I do not know why a declaration was sought in relation to section 393 in relation to Mr Garlett as well, so it could only ‑ ‑ ‑

HER HONOUR:   Could I say this to you?  If you go to application book 48 and look at the declaration made by Justice Corboy on 12 November 2021, he does deal with both.

MR DONALDSON:   Yes, I see that, your Honour.  Your Honour, could I perhaps do this.  As I said, my understanding is that as regards Mr Garlett, the relevant offence is section 392.  If, for reasons that will be explained to me shortly, 393 has some relevance for Mr Garlett as well, your Honour, then it will be in relation to both.  But if Mr Garlett’s offending is only in relation to 392 and the other offending relevant to Mr Garlett is not a scheduled serious offence, your Honour, then it would only relate to 392 and not 392 and 393.

HER HONOUR:   I had understood – and maybe I have this wrong – is it possible for you to work that out relatively quickly?

MR DONALDSON:   I am just seeking some instructions now, your Honour.  Might I just go on mute for a moment, your Honour, please?

HER HONOUR:   While that is happening, I raise a third issue, and you can resolve that for me as well, please.

MR DONALDSON:   Yes.

HER HONOUR:   In the submissions filed by the Attorney‑General for Western Australia not only do they say they did not consent or oppose his application for removal – there was no Christmas cheer, I noted – what it did say, though, was that you did not need leave to appeal.  You really

should not have been an appellant in relation to the – have I just lost you, Mr Donaldson?

MR DONALDSON:   I can hear your Honour.

HER HONOUR:   I cannot see you, as long as you can hear me.  Is that all right?

MR DONALDSON:   Yes, I can certainly hear, your Honour.

HER HONOUR:   I will go back – at the moment, as I understand the application that is sought – I withdraw that.  The cause that is sought to be removed identifies you as the applicant for leave to appeal in the Court of Appeal of the Supreme Court of Western Australia. 

MR DONALDSON:   Yes.

HER HONOUR:   In the submissions filed by the Attorney‑General for the State of Western Australia they said that they thought that was wrong, that you did not need leave and that you should have been an appellant.  Is that the right position, because if it is then it affects what is removed and the nature of how I described what is removed?

MR DONALDSON:   Yes, your Honour, I think it is correct that we do not require leave because it is a final order and so we will be an appellant – Mr Garlett is an appellant in the Court of Appeal.

HER HONOUR:   Mr Solicitor, do you accept that to be the true position?

MR THOMSON:   Yes, and can I make one comment which might bear upon some of the questions that your Honour has been asking and whether it is a removal of part or all of the cause.  One of the difficulties about the stage that has been reached is that a notice to appeal has been filed, but in Western Australia the grounds of appeal are not articulated until the appellant’s case is filed.  So, I had expected that at the time that the appellant’s case is filed that it would articulate grounds of appeal which would be more precise and perhaps would pick up some of the matters that your Honour has just raised.  So, in those ‑ ‑ ‑

HER HONOUR:   I do not know about that, Mr Solicitor, because the proposed ground of appeal, as I read it, is that Justice Corboy erred in declaring that none of the provisions of the High Risk Serious Offenders Act 2020 (WA) contravened any requirement of Chapter III of the Constitution insofar as they apply to a serious offender under custodial sentence who has been convicted of the offences of – and my question is whether or not it is

both offences, being items 34 and/or 35 of Schedule 1. So, that is the proposed ground of appeal as I understand it.

MR THOMSON:   Yes.

HER HONOUR:   We just need to work out whether it is both items – it is clarification that it is not the Racial Discrimination Act, so it is only paragraph (a) of the declaration and not (b).

MR THOMSON:   Yes, exactly.  Can I raise one other point that is pertinent to the nature of the grounds and it is this.  I do not think it is the case, but it perhaps has a flavour of it in the application for removal.  If there is an attempt to reopen Kable or any of the previous cases – and that should, in our submission, be articulated as a particular of a ground of appeal or at some point ‑ ‑ ‑

HER HONOUR:   Well, it would be in the submissions I would think, would it not?

MR THOMSON:   Yes, but at this stage it is not clear from the submissions if that is what intended.

HER HONOUR:   All right.  Let us just build the bridges first and let us get over the first hurdle.  Mr Donaldson, as far as I understand now, it is only in relation to paragraph (a). 

MR DONALDSON:   Yes.

HER HONOUR:   It is agreed that you are the appellant and not the applicant.

MR DONALDSON:   Yes.

HER HONOUR:   Is it item 34 or items 34 and 35?

MR DONALDSON:   Only 34, your Honour.

HER HONOUR:   Right.  So, it is a serious offender who has been convicted of the offence of robbery.  Is that it?

MR DONALDSON:   Yes.

HER HONOUR:   Right, thank you.  There are two other issues before I will get to the date and the timetable.  I assume that no further 78B notices are required?  Am I right to assume that?

MR DONALDSON:   I had asked my solicitor what the position was in relation to 78B notices.  I have just been advised, they have gone to the relevant parties in relation to the Court of Appeal appeal, but I have been advised - there is no 78B notice in relation to a removal application has been sent out.  But that would be done, depending on the orders that your Honour makes today.  If your Honour is ordering it to be heard in March then that would be done now, or today.

HER HONOUR:   It needs to be done without any delay whatsoever.

MR DONALDSON:   Yes.

HER HONOUR:   Do you have anything to say about that, Mr Solicitor?

MR THOMSON:   No, your Honour.

HER HONOUR:   All right.  At the moment the intention is that the matter would be listed for hearing at not before 2.15 pm on Thursday, 10 March and over until Friday, 11 March.  Can I ask, before I identify what is currently proposed to be the timetabling, the first respondent has filed a submitting appearance, Mr Solicitor.  Do I need to accommodate any filing of submissions by the first respondent or will they file a submitting appearance in relation to the hearing of the appeal itself as well?

MR THOMSON:   They should file a submitting appearance in relation to the appeal itself, assuming that only constitutional issues are raised.

HER HONOUR:   That is all that is asked to be removed.  I have had a conversation with Mr Donaldson, as I understand it, limited to paragraph (a) and item 34 in respect of the ground of appeal that I identified earlier.

MR THOMSON:   Yes.

HER HONOUR:   All right.  What I propose to do is to identify what the proposed timetable is.  I will deal with the removal application itself by identifying the order I propose to make as well as the timetabling orders and then will give you an opportunity to respond to any of them.

1.Pursuant to section 40 of the Judiciary Act 1903 (Cth), that part of the cause pending in the Court of Appeal of the Supreme Court of Western Australia in which Peter Robert Garlett has appealed against paragraph (a) of the declaration made by Justice Corboy on 12 November 2021, being Proceeding No CACR 173 of 2021, be removed into the High Court of Australia, namely the ground of appeal that:

“His Honour Justice Corboy erred in declaring that none of the provisions of the High Risk Serious Offenders Act 2020 (WA) … contravene any requirement of Ch III of the Commonwealth Constitution … in so far as they apply to a serious offender under custodial sentence who has been convicted of the offence[] of robbery ... , as referred to in item[] 34 ... of Schedule 1 Division 1 of the High Risk Serious Offenders Act 2020 (WA)”.

2.Unless otherwise ordered or directed, Part 44 of the High Court Rules 2004 (Cth) relating to written and oral submissions, with any necessary variations or adaptations, shall apply to this proceeding.

3.On or before Monday, 10 January 2022 the appellant file the appeal book.

4.On or before Thursday, 20 January 2022 the appellant file his written submissions, any book of further materials and chronology.

5.On or before Monday, 31 January 2022 any party intervening or seeking to intervene in support of the appellant file their written submissions.

6.On or before Wednesday, 9 February 2022 the respondent file their written submissions, any book of further materials and any chronology.

7.On or before Friday, 18 February 2022 any party intervening or seeking to intervene in support of the second respondent file their written submissions.

8.On or before Friday, 25 February 2022 the appellant file written submissions in reply.

9.On or before Tuesday, 1 March 2022 the appellant file the parties’ joint book of authorities prepared in accordance with the requirements of Practice Direction No 1 of 2019.

Mr Donaldson, do you wish to say anything in relation to those proposed orders?

MR DONALDSON:   No, thank you, your Honour.

HER HONOUR:   Mr Solicitor, do you wish to say anything in response to those proposed orders?

MR THOMSON:   Not in substance.  I just was not sure that if, in order 6, which is the order relating to 9 February 2022, your Honour mentioned the respondent, or the second respondent and I assumed ‑ ‑ ‑

HER HONOUR:   It should be the second respondent, and I will amend it accordingly.  Thank you.  Anything else?

MR DONALDSON:   No, thank you, your Honour.

MR THOMSON:   No, your Honour.

HER HONOUR:   Mr Solicitor or Mr Donaldson, do you wish to raise anything else other than the matters we have raised this morning?

MR DONALDSON:   No, thank you, your Honour.

MR THOMSON:   No, thanks, your Honour.

HER HONOUR:   Thank you very much.  I wish you all the compliments of the season.  I hope you have some kind of break.

MR DONALDSON:   If your Honour please.

MR THOMSON:   Thank you, your Honour.

AT 2.07 PM THE MATTER WAS ADJOURNED