Holmes v The Queen

[1989] HCATrans 73

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A2 of 1989

B e t w e e n -

ANTHONY HOLMES

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ

BRENNAN J

DEANE J
GAUDRON J

Holmes

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 APRIL 1989, AT 10.16AM

Copyright in the High Court of Australia

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MR G.D. WENDLER: If the Court pleases, I appear with my

learned friend, MR P.T. BYRT, for the applicant.

(instructed by Fardone and Co.)

HR J.J. DOYLE, QC, Solicitor-General for the State of

South Australia: If the Court pleases, I appear

with my learned friend, MR M.J.M. QUINLAN, for

the respondent. (instructed by the Crown Solicitor

for South Australia)

MASON CJ:	Mr Wendler.
MR WENDLER:	If the Court pleases, I invite Your Honours to

a short sunrrnary of argument.

MASON CJ:  Thank you. Have section 78B notices been served

in this matter?

MR WENDLER:  I am about to address the Court on that issue.

Because a position became available in the list on

Monday and the applicants sought to avail themselves of that position, the applicants had to make

themselves ready at very short notice. 78B notices

were issued on Monday by fascimile machine to all

the Attorneys-General throughout the Conrrnonwealth.

This morning my solicitors instructed me that the

Attorneys-General for the States of New South Wales,

Tasmania and the Northern Territory have responded

and indicated that they do not wish to intervene

in these proceedings, however, seek further instruction

or notice should this Court grant special leave to
appeal. That is the position at the moment.

DEANE J:  78B notices were given both at the trial and at

the first appeal 1 though, were they not?

MR WENDLER:  That is right, they have been issued as the matter

has proceeded up through the appeal system.

MASON CJ:	So that the other States are aware of the existence of the proceedings, if not of this particular
application.
MR WENDLER: Quite so, and, indeed, it is a matter of courtesy

that those notices have been issued even though

section 78B does not contemplate that they issue
in a matter which is before the High Court and, of

course, technically there is no proceeding refore

this Court yet.

MASON CJ: What do you mean by saying that section 78B does not

contemplate the issue of notices in a matter that is

before the High Court?

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MR WENDLER :  As I read it, it appears to suggest that -

refers to a matter pending in a Federal Court
other than the High Court. Now, there is no

matter in this Court yet until special leave

is granted. There is no proceeding and this

Court has held in the past that - - -

MASON CJ:  I see. You are confining this submission to

an application for special leave, as distinct

from other proceedings before this Court.

MR WENDLER:  That is right. As I understand this application

today, that it was called on as an application for

special leave to appeal.

MASON CJ:  It has been listed as an application for special

leave as such.

MR WENDLER: Quite so. In any case, I invite Your Honours

to allow me to proceed or allow the applicant to
proceed to justify the application for special

leave to appeal.

MASON CJ:  Yes. I might inquire of the Solicitor whether

he has any knowledge of the attitude of the States

from whom Mr Wendler has had no information about.

MR DOYLE:  No, Your Honour. I have not heard anything but I

do know and can confirm that notices were issued at

two previous stages and, at each of those stages,
those I spoke to indicated that they, in all
likelihood, would intervene only if ultimately the

matter got, in substance, to this Court and so what

my friend indicates is their reaction is consistent
with what I had been told on earlier occasions.

MASON CJ: And, by the expression "in substance to this Court",

you mean by grant of special leave.

MR DOYLE:  Yes, Your Honour. As I understand it, today,

contrary to past practice in criminal matters, we

are arguing solely the question of special leave

and would not, in any event, be proceeding to the

merits.

MASON CJ: Yes, that is correct. Yes, Mr Wendler.

MR WENDLER: If the Court pleases, this application - indeed,

important application - raises matters of national

importance. They are in four areas: first, this

matter will give this Court an opportunity to assess since at least 1970, almost 20 years ago.

the precise nature of section 52 of the CONSTITUTION.

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MR WENDLER (continuing): Primarily this application is a

challenge to this piece of legislation described

as the COMMONWEALTH PLACES (APPLICATION OF LAWroACT.

I do not mind telling Your Honours that when - - -

MASON CJ:  Mr Wendler, I think you might proceed immediately

to endeavour to persuade us that you have
arguable points that justify the grant of special

leave to appeal.

MR WENDLER:  Because we will be confined to these areas,

first, the precise nature of section 52 of the

CONSTITUTION, and whether that section is

designed in such a way that it can justify the

passing of legislation such as the COMMONWEALTH

PLACES(APPLICATION OF LAWS)ACT which has a

national legislative effect. The other issue

is this: whether the scheme itself, that is the

scheme set up by the Commonwealth under the

COMMONWEALTH PLACES(APPLICATION OF LAWroACT

is a scheme which cane be justified under

section 52 of the CONSTITUTION. The third issue

is whether or not it is part of the constitutional

jurisprudence of this country that a delegation

of power which is tantamount to an abdication of

power, whether that is part of the constitutional

jurisprudence of this country, because the submission

will be made that section 52- the term "exclusive"

means exclusive of the States. Now, it cannot be

an exclusive grant of power if you indirectly
hand it back to the States. The applicants will

embrace the dissenting opinion of the US Supreme

Court in the SHARPNACK case. Justices Douglas and

Black, in the applicant's submission, have embraced

the correct view of such a system, namely that it

is beyond the constitutional power of the Commonwealth

to set up an assimilative system in the way that
the COMMONWEALTH PLACES (APPLICATION OF LAW$ ACT

has been set up.

MASON CJ: What do you say in support of the propositions

you have just advanced?

MR WENDLER:  This particular piece of legislation has a

national effect. It not only has an effect on

the criminal law but on the civil law as well. It primarily looks at the assimilative system,

whether it is a workable system under section 52.

The application is brought to protect the

CONSTITUTION, really, because the COMMONWEALTH

PLACE~(APPLICATION OF LAWS)ACT is really in a sense a de facto amendment to the CONSTITUTION to a

certain extent.

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MASON CJ:  Well, I do·not understand the proposition of a

de facto amendment to the CONSTITUTION?

MR WENDLER:  That eomes about by scrutiny of the Act, because section 4

of the Act, which is tne linchpin of the Act

is essentially an order tu apply State law. It hands

over the entire responsibility to the States, to take

care of the law and - - -

MASON CJ:  It does not hand over the responsibility to the

States, does it? It picks up State law and makes

State law applicable as Commonwealth law in

Commonwealth places?

MR WENDLER:	That is th~ theory but a scrutiny of the Act - - -
MASON CJ:	That is a reality, is it not, as well as the

theory?

MR WENDLER:  Not in respectful submission. A scrutiny of

the Act, in particular section 4, simply says "apply

State law".	The assimilative process is something
which has been invented somehow.	The applicant

was convicted in the Supreme Court of South Australia
and, in my respectful submission, such a conviction

is bad in law if it can be shown, that the COM-DNWEALTH

PLACES (APPLICATION OF LAWS) ACT, which underpins

the system is, itself, ultra vires. Are Your Hunours

looking at the COMM:ONWEALTH PLACES (APPLICATION OF

LAWS) ACT now?

MASON CJ:	Yes, we have it.	Now, you draw attention to section 4?
MR WENDLER:	Section 4.	I do not mind telling Your Honours

that when I read through section 4 and all of its

subsections I became extr2mely depressed and, in fact,

got a headache. It is probably easier to understand
the last 100 pages of James Joyce's Finigans Wake

than it is to understand some of what is contained

in this piece of legislation. But section 4(1)

it appears, by the use of the term "applied provisions"

or shadow Commonwealth law I will call it, appears

to suggest, literally, that the State, the laws

in force in a State, simply apply to the special

place. It is an order really to apply State law.

There is nothing in section 4 which says that State

law is transmogrified into Commonwealth law somehow.

There is no mention of that type of sch~me.

MASON CJ:	But what happens is that the provisions of State law are picked up and made applicable by virtue of Commonwealth law, namely, this statute?
MR WENDLER:	In my respectful submission that is the theory but literally it does not sey that., it is. si.rnply an
order to apply State law; "shall apply" it ::;ays.

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MASON CJ:	But it is not an order addressed to someone.
MR WENDLER:	No, not in that sense but it is simply a

mirror

MASON CJ: It is a declaration.

MR WENDLER:  In any case, the applicant's submission

is that the assimilative process is inconsistent

with the special nature of section 52 of the

CONSTITUTION.

MASON CJ:  But why is not it a law with respect to

Commonwealth places in that it provides what

provisions of law are to apply in Commonwealth

places?

MR WENDLER:  Because it is inconsistent with the exclusive

grant of power to section 52. It hands the

authority, the law-making authority, to the States. The States have the responsibility

in this. Therefore it is not an exclusive exercise

of power - not exclusive of the States, if you

indirectly hand the responsibility back to the

States.

DEANE J: Section 7 is very much against what you say,

is it not?

MR WENDLER:  I do not think it is, in my respectful

submission.

McHUGH J:  But this is an exercise of federal jurisdiction.

The legislation dealing with the question of

sentencing would be the Commonwealth legislation

would it not, not State?

MR WENDLER: Quite so. It has somehow become

transmogrified but nowhere in the Act does it

say anything like that. This is something that

has been assumed. It really comes down to an

examination and assessment of the special

characteristics of section 52 of the CONSTITUTION.

That is what it comes down to.

McHUGH~: But take the SEAT OF GOVERNMENT ACT of this

Territory, it applies the law of New South Wales

which was in force in 1911. Was that a valid

law?

MR WENDLER:  It may not be if this particular piece of

legislation which underpins it is in itself

unconstitutional. So it is this system which

is under attack to a certain extent. It may

be that the Commonwealth has power to - indeed,

it does have power to pass various laws concerning

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criminal behaviour but it does not have power

to do it in the way that it has done today.

MASON CJ:	What about section 64 of the JUDICIARY ACT which
picks up, as it were, State law and makes it
applicable in terms of creating rights as between
citizen and the Commonwealth,  does that suffer
from the same disability?

(Continuing on page 8)

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MR WENDLER: Well, section 64 of the JUDICIARY ACT has its

source in another power but this does not. This

has its source in section 52 and we cannot get

away from that. This application is brought to

protect section 52 and, if my voice has a centralist

tone about it, I unashamed about that. So this is

what this application is about, the exclusive power

of the Commonwealth, an examination of that exclusive

power and its position in the CONSTITUTION.

MASON CJ: But, I do not see why it is inconsistent with the

exercise of an exclusive power that State laws are

picked up and made applicable. There does not seem

to me to be any inherent inconsistency between the

two notions.

MR WENDLER:	Perhaps it comes down to how one looks at it, when you get to the bottom line. It depends on how one looks at
it jurisprudentially but, in my respectful submission,
the very special nature of section 52 as such, that in those special places, the Commonwealth is the only
functionary which has sov&"eignty and no matter which way one looks at it, it is still the State law which is picked up, as Your Honour put it, and applied in
that special place.
Now, the assimilative method, in my respectful submission, is inconsistent with the special nature
of section 52 of the CONSTITUTION. That is why the minority in the SHARPNACK case struck down the assimilative
Act passed by Congress in that matter.
MASON CJ:	But that was, rather, the second point that you were

arguing, was it not, rather than the first point?

MR WENDLER:  It is probably a bit of both to a certain extent.

The other point, of course, is whether there is an abdication completely of the Commonwealth's power

under section 52.

MASON CJ: Well, what do you say in support of that?

MR WENDLER: Well, in my respectful submission, it is tantamount

to an abdication of power to hand the responsibility
back to the States. It is the States that provide
the legislation in force in those places. It is not

the Commonwealth that has passed any legislation or

executed any Act. It is the States. It is always

the States. It comes back again, of course, to this

definition of "exclusive". What does that mean? What

is the constitutional reach of that particular section?

That is the specialness of this application, the

examination of that particular section which has

ramifications in other areas and it is appropriate - - -

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MASON CJ:  But it is a misnomer to talk about abdication of

power, is it not? After all, the States are

without power to legislate in relation to

Commonwealth places. Only the Commonwealth

Parliament can legislate with respect to them and

it has done so but it has done so by the device

of picking up and making applicable the provisions of State law. The Commonwealth Parliament, at any time, can vary those State laws. It can, in fact,

repeal the relevant provision and substitute

provisions of its own, as it does from time to time.

How does that constitute an abdication of power?

(Continued on page 10)

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MR WENDLER:	Well,	it still remains that it is State law which

is transmogrified as Commonwealth law. It is still

the States -

MASON CJ:	But how does that amount to an abdication of power?
MR WENDLER:	In my respectful submission, it does, because it

is not consistent with an exclusive grant of power.

I mean, "exclusive" means exclusive of the States.

No~, this system that has been set up does not reflect

the true nature of section 52 at all. In fact, it is

subversive, this legislation. I do not want to

become too inflamatory or confrontationist about it,

but - - -

MKSON CJ:	No, please do not.
MR WENDLER:	The applicant's position is this, that it is

arguable and it is a matter of national importance

and this Court should pronounce upon whether this

particular piece of legislation is inconsistent

with the special nature of section 52. It is a

matter which has not come before this Court for

almost 20 years. It may well be that this Court - - -

MASON CJ: There may be good reasons for that, Mr Wendler.

MR WENDLER:  Indeed, Of course, this piece of legislation was

not before this Court in WORTHING V ROWELL or in

REG V PHILLIPS.

MASON CJ:	No, but we are aware of what the members of the
Court said in relation to curing the problem that
the decisions in those cases revealed.
MR WENDLER:	But the scrutiny of that piece of convenient legal advice by the Court on how this could be overcome has got to be looked at in proper context.
Now, if that court has this piece of legislation
in front of it, in my respectful submission, it
would not survive a challenge.  I do not think the
court envisaged this type or the way that this
legislation hai:: been designed  I do not think the

court envisaged anything like this. So I urge this

important application upon Your Honours to grant me special leave to appeal so I can explore this matter further in depth and go right through the

authorities in order to show that this piece

of legislation or this system is inconsistent with

the special nature of section 52 of the CONSTITUTION._

MASON CJ:	Now, do you wish to put anything else to us in
support of the case that you do have arguable points
for determination?

MR WENDLER:  Yes, I do, sir. The other matter that emerges is

this and involves a matter of criminal procedure,

namely, what is the correct procedure when administering

this oiece of legislation, assuming that this Court

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holds that it is valid because when the applicant

was tried in the Supreme Court of South Australia,

no order was ever made reflecting the federal

process.

(Continued on page 12)

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MR WENDERL (continuing):  We have an endorsement. The

practice in South Australia is not to issue a

certificate of conviction, but simply to

endorse an information. No endorsement on

the information suggests that the proceedings

were ever - to use Professor Lane's term -

federalized. So we have a conviction pursuant to State law and a process which seemingly was

a federal process. The question then becomes:

what is the legal effect of that?

MASON CJ: In presenting this argument, are you accepting

that section 14 of the Commonwealth Act is valid?

MR WENDLER:  Assuming that all of it is valid, I would

have to accept that section 14 is valid, but

although that may cure it to a certain extent

you still have the problem of what happens when the

matter goes through the appellate process and

whether a court of criminal appeal, when assessing

the constitutionality of the matter can itself
federalize the proceedings to reflect the federal

process.

On page 1, the very first page of the

appeal book, appears the information. The practice in

the State of South Australia is simply to make

various notes on the information as a trial

proceeds including a note concerning the result of

the trial. Your Honours will see on page 1 that
the jury retired to consider its verdict and

the jury returned with a verdict of guilty. So

there is a reflection of what happened at the trial,
but there is no note concerning any federal process,

indeed, the information itself contains no note

concerning the federal process. This raises an

issue of criminal procedure and the proper way the

COMMONWEALTH PLACES(APPLICATION OF LAW~ACT should

be administered.

BRENNAN J: What is said to be the way in which it should

be administered?

MR WENDLER:  The first point, of course, is the information

should reflect the Act and it should read "as

applied by the COMMONw"'EALTH PLACES(APPLICATION OF

LAW~ ACT", that is identification of the

section under State law as applied by the

COMMONWEALTH PLACES (APPLICATION OF LAW~ ACT.	The
information does not contain anything like that

and I remind Your Honours that only counts 1 and 2
were tried in the supreme court, counts 3 and 4

were severed at the trial. Of course, counts 1

and 2 were the only two that concerned the

possession on the Commonwealth place.

BRENNAN J:  Was there any motion to quash the indictment?

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MR WENDLER:  A submission was made in the Court of Criminal

Appeal.

BRENNAN J:  No, at the trial, was there any motion to

quash the indictment - information?

MR WENDLER:	There is no mention on page 5 - - -
BRENNAN J:	On page 3 there is a note:

That no offence exists on the Information as charged - application refused.

MR WENDLER:  I see. My memory of it was that I made

an application along those lines, a technical

application that the information should be

quashed on the basis that the COMMONWEALTH PLACES

(APPLICATION OF LAWS)ACT was not pleaded. In any

case, it comes back to the point as to the correct

administration of this particular piece of

legislation and the legal effect of not federalizing

the proceedings and what happens when a court of
criminal appeal is confronted with the matter
when the proceedings have not been formalized in
the way that the Act requires. That is the other
matter, or issue, concerning the justification

for leave to appeal.

McHUGH J: Is there any difference between the South Australian

legislation and Cormnonwealth legislation concerning

the sentencing of this prisoner?

(Continued on page 14)

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MR WENDLER:  No, the Commonwealth legislation - he was

not, of course, charged under the CUSTOMS ACT.

That is the only Act which would have an

equivalent charge.

McHUGH J:	But there is a Commonwealth SENTENCING OF PRISONERS ACT, is there not?
MR WENDLER:	Yes.

McHUGH J: It deals with questions of making orders.

MR WENDLER:  I do not know. I do not know if there is

a difference.	Your Honours, I cannot pursue
it much further.	I urge this application upon

Your Honours to grant the applicant special leave to appeal in order to develop the submissions further concerning the specialist power in section 52, the administration of

this scheme, as to whether it is legal or not,

and the administration of the Act itself,

assuming that it is a valid exercise of power.

This is an appropriate case for such an assessment

or investigation because it is unconscionable

that a person should be convicted of an offence

which, in effect, does not exist in law.

DEANE J:	Can you point to anything at all which would
have been different in this case if the information had specifically stated that what
was involved was an offence against a law of
the Commonwealth?
MR WENDLER: No.	It may well, of course, if this scheme,

of course, is unworkable and illegal or

unconstitutional.

DEANE J:	No, I was simply directing the question to your
last point on the assumption that the Act is valid. It seems to me if you were going to
have any basis for getting special leave on
that point alone it is incumbent upon you to
point to some significant difference which would
have existed if the offence charged had been
specifically stated to be a Commonwealth offence or if there had been a reference to the Act.
MR WENDLER:	No, there is not because if this piece of

legislation is valid then the system remains

as it is.

DEANE J: What I had in mind was the type of territory

to which Mr Justice McHugh directed your

attention but the answer is you cannot point

to any difference that would have resulted?

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MR WENDLER:	No.
MASON CJ:	Your client has not yet been sentenced has he,
Mr Wendler?
MR WENDLER:	Yes, he has been sentenced.

MASON CJ:  He has been. I was looking at page 54 but,

presumably, events have overtaken page 54.

MR WENDLER:  He has been sentenced. He is in custody.

No, there is no difference because the

sentencing process - it picks up the State

sentencing process, that is why. If the Court

pleases, I do not have anything else to say.

MASON CJ; Thank you, Mr Wendler. The Court will adjourn

for a short period of time in order to

determine the course it will take in this matter.

AT 10.45 AM SHORT ADJOURNMENT

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UPON RESUMING AT 10.52 AM:

MASON CJ:	The Court need not trouble you, Mr Solicitor.
MR DOYLE:	If the Court pleases.
MASON CJ:	On the constitutional questions which the applicant

seeks to raise the decision of the Court of Criminal

Appeal is not attended with sufficient doubt to

justify the grant of special leave to appeal.	On
the procedural question the applicant's counsel
i~ unable to identify any detriment suffered by
his client by reason of the omission from the

information of any reference to the COMMONWEALTH

PLACES (APPLICATION OF LAWS) ACT 1970. The

application for special leave to appeal is therefore

refused. The Court will now adjourn until 10.15 am

tomorrow.

AT 10.53 AM THE MATTER WAS ADJOURNED SINE DIE

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