Jones v Commonwealth Services Delivery Agency

[2013] HCATrans 37

[2013] HCATrans 037

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A3 of 2013

B e t w e e n -

DAVID CRAIG JONES

Applicant

and

COMMONWEALTH SERVICES DELIVERY AGENCY

Respondent

Summons for expedition

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON TUESDAY, 26 FEBRUARY 2013, AT 2.33 PM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC:   If the Court pleases, I appear with my learned friend, MR M.J. LUTT, for the applicant.  (instructed by Legal Services Commission of South Australia)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Cth))

HIS HONOUR:   Yes, Mr Abbott.

MR ABBOTT:   This is our application for an extension.  In relation to the application for removal we seek that an early listing occur and we have filed an outline, which I hope your Honour has.

HIS HONOUR:   I have, and I have read the outline and read also the summary of argument that has, I think, been filed recently.

MR ABBOTT:   If I could just go to the essential differences between what I will call Keating’s Case and this case, your Honour.  In Keating’s Case, Ms Keating has only been charged and no hearing, no fact finding and no judicial determination has as yet occurred.  In short, there has been no actual exercise of judicial power in Ms Keating’s case and, indeed, the Keating application, their argument proceeds on the basis that there was an impermissible interference in the exercise of judicial power, not judicial power which had already been exercised, but judicial power which will be exercised were the amending Act to apply.

In other words, what they say is that retrospectively creating an omission to act as a physical element of the Commonwealth offence is an impermissible interference in judicial power if and when it is exercised.  That seems to be the gravamen of their main complaint.  On the other hand, in our case judicial power has already been exercised.  Our matter is either completed or pending if you take into account the appeal and the time at which the amending Act was passed and we say ‑ ‑ ‑

HIS HONOUR:   It would be an odd position for your side of the record to adopt, would it not, to say that the exercise of judicial power is complete?  It would be complete by the entry of conviction and that, I thought, was not quite what your side of the record sought to achieve.

MR ABBOTT:   Of course not.  What I do say ‑ ‑ ‑

HIS HONOUR:   The matter is still pending in the judicial branch, is it not?

MR ABBOTT:   There has been an exercise of judicial power, both at the Magistrates Court level and at the appellate level because we have had a trial and there has been an appeal.  In our situation the issue is whether or not the interference in that process, that specific process, constitutes an interference which is ultra vires and unconstitutional.  There is also, of course, an additional construction issue which arises in our case and does not, and cannot, I suggest, arise in Keating’s Case and that is whether or not on a proper construction of the amending legislation it, in fact, applies through proceedings which have already been completed, at least in part, and in respect of which an appeal was pending at the time of the passage of the legislation.

In Ms Keating’s case, of course, there was no appeal pending. It is open to us, if the application for removal is successful, to argue that on a proper construction, because our appeal was pending, a construction of the Act does not permit section 66A to apply to an appeal which was pending at the time of the introduction of the passage of that legislation.

HIS HONOUR:   Which provision of the amending legislation, which is the Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011, which provision of that Act would fall for construction do you say?

MR ABBOTT: Section 66A.

HIS HONOUR:   I understand that, but this question of application in your case.  What would tender the question of construction?

MR ABBOTT:   The words – in relation to section 3, application provision, “applies in relation to an event or change of circumstances that occurs on or after 20 March 2000” - is that intended to apply to cases which have yet to commence or in addition to cases where a judicial finding has been made by a magistrate and an appeal is pending.  I mean, there is a wealth of authorities that draw a distinction between pending cases – I am thinking in part of Lodhi’s Case as one example and initially, of course, Newell’s Case in the High Court said that retrospective legislation did not apply in those circumstances to a file which had already commenced.

All I say, your Honour, is that there is a fair argument that on a construction issue there is a question which arises in our case, but not in Ms Keating’s case, as to whether or not on a proper construction of the Act it applies and is capable of applying to the factual situation in this case where judicial power has already been exercised.  That, in turn, in my respectful submission, feeds into the wider question of the interference in the judicial process.

Here we have a Supreme Court exercising federal judicial power on an appeal which appeal was ready to proceed but which was adjourned pending the outcome of the decision in this Court in Poniatowska.  In the meantime, the passage of the amending legislation meant by the time the South Australian appellate court considered this case the amending legislation was in force. 

That amending legislation, in effect, directed of necessity that the appellate court, instead of finding or substituting a verdict of not guilty and quashing the decision of the Magistrates Court, uphold the conviction.  So we say it is a direct interference on one construction at least of the task that the judge had to carry out as exercising judicial power in the Supreme Court unlike Keating’s Case where there is no, if you like, direct interference or an example of direct interference that one finds in our case.

So we say that the constitutional issue of a more direct interference, we say that the Keating argument is of necessity – although we would not deny that it is a good argument – they are saying that there is an impermissible interference in the exercise of judicial power which has not yet been exercised but which, if it were exercised and took into account section 66A, would constitute an impermissible interference.

We have a much stronger case in that judicial power has already been exercised. The question which would agitate the High Court on our removal is whether or not that direct operation of section 66A in causing the reversal of the decision of the appeal court constitutes an impermissible intrusion into the exercise of Chapter III judicial power by that appellate court.

There is, as we have endeavoured to show in our outline, a further issue and that is that there is a legislative intrusion into the judicial fact‑finding process.  We have dealt with this in our summary of argument which I hope your Honour has as well at page – I think your Honour had said you read – paragraph 41 and following where it said in addition to the arguments in Keating, in relation to the validity of the amending legislation, the applicant’s case raises separate questions relating to legislative interference with the judicial function of fact finding and the need for certainty.

Then we made reference to a number of cases and over the page we said at paragraph 44 the appellate function is interfered with in that the legislative act of incorporating facts and law into a completed trial effectively directs a contrary result, namely dismissal of the appeal, not an acquittal.  That is, the effect of the legislation is to interfere with the manner or outcome of an exercise of judicial function.  In that regard we have footnoted Nicholas where we say it was not a usurpation of judicial power because the manner – it was a manner of process, not a direct interference.  We say our case comes closer to that which was said to be an impermissible use by this Court in Nicholas and that is another matter that we seek to argue on the removal application.  Could I just say by way ‑ ‑ ‑

HIS HONOUR:   Just before you part from that point, what is the fact which is the subject of judicial – that you describe in paragraph 41 as the “judicial function of fact‑finding” which is altered, adjusted or interfered with by the Act?

MR ABBOTT:   Thank you, your Honour.  Can I put it this way?  It is clear from the decision of this Court in Poniatowska that the elements of the offence against section 135.1 of the Code are at least as a starting point that the conduct of the offender, the alleged offender, has to be voluntary and that the person must intentionally engage in the conduct as a result of which the benefit is obtained.  Not only must he voluntarily and intentionally engage in that conduct, but he also must engage in it with the knowledge and belief that he is not eligible to receive the financial advantage. 

The effect of this amending legislation was to require Justice Gray and any Chapter III judge to create a new factual regime in respect of the applicant which, but for the amending Act, could not exist because this applicant could never have known, in the legal sense at least, that he was not entitled as a matter of law to receive the financial advantage because he was only disentitled to receive it when he was under a duty to report changes in his circumstances.  As we know at the relevant time no such duty existed.

So we say that this knowledge element has been, in effect, impliedly created by the amending Act and applied – and had to be applied by Justice Gray if he was to find, as he did, our client guilty.  It would also follow that not just the knowledge element is missing but is now presumably created, but also the voluntary element must also be likewise impliedly created because as we have said in our outline – I think it is at paragraph 26 of our outline – we have said at paragraph 26 of the outline, not the summary – sorry, of the summary of argument – in relation to proof of voluntariness, the Code provides that where what is alleged is an omission to perform an act, there are two requirements.  It is a product of the will and the act that the defendant omitted to perform must be one that he is capable of performing.

So what we say it was legally impossible for the applicant to do a voluntary act in the sense of doing anything to avoid criminal responsibility because the non‑existence of the duty at the relevant time meant that the duty could never be discharged.  Therefore, the act cannot, on that reading, be a voluntary act.

HIS HONOUR:   These reasons, Mr Abbott, are matters that would go to the validity of the points which ultimately you would wish to agitate in this Court.  May I bring you back to some practical considerations first?

MR ABBOTT:   Yes.

HIS HONOUR:   The application for removal was filed on 29 January.  Keating stands fixed for 3 April.  Only very recently, namely on 20 February, did your side move for expedition.  Why should we now try and play catch‑up to get this case into a state where it could be heard contemporaneously with Keating?  I can understand you saying that we should do that if there was significant advantage to be had by the Court or the parties to joining the two.  Therefore, (a) why the delay but (b), can you state in summary form again what you see as being the advantage of joining the two cases together?

MR ABBOTT:   Yes, your Honour.  As to (a), my client is on legal aid.  The Legal Services Commission did not meet until 14 January and authorised this matter to proceed.  Thereafter, those who were engaged to proceed with this matter proceeded with as much dispatch as was possible in the circumstances.  The applicant is not to be blamed for the fact that the Legal Services Commission had no meeting of its council or whatever the body was that determines whether matters proceed in this Court’s jurisdiction, which I understand is a matter de rigueur so that no matter can proceed, at least with the blessing of the Legal Services Commission, unless it has been authorised by such a committee or council.

HIS HONOUR:   I well understand that fact.  What be now the advantages that the Court would be considering if I were, as you say I should, to expedite the hearing of the application for removal?  Let me inject one further practical consideration.  The only available day for expedition of the removal application would be to the Friday fortnight motions day, being motions days in Melbourne and Sydney on Friday, 15 March.  So you would not know if I were to expedite it, whether the case is to be removed until 15 March.  You are then going to have to play catch‑up to get it up and ready and running by 3 April.

MR ABBOTT:   Your Honour, I have already discussed these matters and we are aware of the dates.  The Registry kindly informed us of the possible date when, were your Honour to grant our application, the removal application might be heard and we are aware, of course, that 3 April is the date fixed in stone for the hearing of the Keating application and the only basis on which this matter would go ahead were if it could be heard on the same date in conjunction with the Keating matter.  I am told that we are now in a position to comply with those time limits and that they are

compliable from our perspective.  I can only give your Honour the insurance that my instructing solicitor is able to give me.

HIS HONOUR:   So what is it we get if we join the two together?  Can you state in summary form the best points you have?

MR ABBOTT:   In summary form then, if Keating’s Case alone goes up, this Court will consider the issue of whether in retrospectively creating an omission to act as a physical element of a Commonwealth offence that mere creation of such a retrospective offence is an impermissible interference in judicial power, that is judicial power of the Commonwealth were it to be exercised.  In other words, what they say is creating any retrospective criminal liability, unless it is in the exceptional circumstances of Polyukhovich and Kidman’s Case, offends Chapter III.

Our additional argument is that plus the fact that we say there has been an impermissible interference in the actual exercise of judicial power, that is judicial power which had already been exercised and which was in the process of being exercised and that the fact that the magistrate had exercised judicial power and the appeal court judge was in the process or going to exercise judicial power and that our matter was pending, to use the word used in Lodhi’s Case, means that this Court, were it to run our removal application, would consider both aspects of the amending Act section 66A, not only whether by retrospectively creating an omission to act - that might be an impermissible interference with some judicial power to be exercised in the future, but whether in creating a retrospective criminal liability in this case, it actually interfered with judicial power which had been and was in the process of being exercised at the time.

The second point, your Honour, is the construction point.  Whilst they might – and I do not think they argue this or are going to argue this in Keating’s Case, but at least there is an argument in our case that this amending Act was not intended to apply to pending proceedings within the meaning of that term as expressed in Lodhi’s Case.  Those are the two points which we say are significant, your Honour.

HIS HONOUR:   Yes, thank you.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honour, our concern is with the timetable, to be blunt.  Obviously we want nothing to interfere with Keating, it being the matter that is holding up a large number of prosecutions.  As to the two extra points that are said to be raised in this matter, in my submission it is inevitable that in Keating the degree of retrospectivity will be a matter of argument – if it is retrospective and to what degree.  So, in my submission, it does not take – whilst I accept that factually one is dealing with a different scenario here, in my submission it is not inevitable that those matters will not be argued or arise in Keating.

HIS HONOUR:   Can I just understand the position in Keating, perhaps better than I do?

MS ABRAHAM:   Certainly.

HIS HONOUR:   Paragraph 24 of the case stated in Keating records the fact that Ms Keating was charged on 7 October 2010 with some offences, that those were charges preferred against her, I think, before the amending Act.

MS ABRAHAM:   Correct.

HIS HONOUR:   At least in the sense that charges had been preferred and were pending undetermined, judicial power had been invoked though not exercised.

MS ABRAHAM:   Yes.

HIS HONOUR:   Does it follow – this is a question, not an interrogative statement – does it follow that the question of the application of the amending legislation to a case pending in the judicial branch will necessarily arise in Keating?

MS ABRAHAM:   Yes.

HIS HONOUR:   True it is that in Keating it had not gone to trial and verdict, but the processes had begun.

MS ABRAHAM:   Yes.

HIS HONOUR:   Yes.

MS ABRAHAM:   Your Honour, much of what my friend just said – that it is based - what is said to be different from Keating are based on, in our submission, a mixing of fact and more which the judgment in Jones at first instance said was incorrect.  The issue of the elements of the offence ‑ ‑ ‑

HIS HONOUR:   I smile a little, Ms Abraham, simply because if we go back into the 19th century, the distinction between fact and law was one which has perplexed us all for many decades.

MS ABRAHAM:   I accept that, your Honour, but what I suppose was this – my friend says, well hold on, we want to argue a construction point that is not being argued in Keating.  In my submission, what it falls to is an issue of the elements of the offence.  The elements of the offence are what is required to be proved and will obviously be discussed in Keating.  My friend’s problem is that they are asserting against law things that are a matter of fact and a good example is, in fact, his client because Mr Jones actually admitted that he knew he was required to tell Centrelink when he commenced employment and he knew that would affect his Centrelink benefits.

So my friend’s arguments on that not only mix the two, but are, indeed, extraordinarily artificial in the scheme of things.  It is the Keating matter, in our submission, that is the urgent matter.  There are literally hundreds of matters, as your Honour is aware.  There is only one other that we are aware of that falls into the Jones category.  It is an appeal that has been put on hold in the Australian Capital Territory.  So the urgency is not there ‑ ‑ ‑

HIS HONOUR:   An appeal by a person convicted at trial?

MS ABRAHAM:   Yes, so the same factual scenario as here.  So you are not dealing, with respect, with the same number of matters as one is dealing with in the Keating situation.  The other aspect is this is a matter that is currently before the Full Court in South Australia pending the outcome of Keating, in effect, and as I understand the papers that have been filed, there are actually six grounds of appeal filed in the Full Court. 

The paperwork to this Court seeking removal seems to be for the whole of the case or part of the case.  I cannot find amongst the papers, I must confess, the precise terms of the grounds of appeal but the submissions filed before the Full Court give some indication and we would say at least three of those grounds do not even arise in terms of a constitutional argument and are not appropriate matters to be removed.  So there are those issues.

HIS HONOUR:   What is the process pending in the Full Court of the Supreme Court of South Australia?  It is, is it not, an application for permission to appeal?

MS ABRAHAM:   Yes.

HIS HONOUR:   Which is to be argued as on a full appeal or is that left undetermined?  What is the procedural stance?

MS ABRAHAM:   My understanding is it is being considered in private as a first step.  They have determined that they will, in effect, adjourn the application pending the determination of what is going to occur in Keating.  It is the last document in the bundle to the affidavit of Mr Lutt.

HIS HONOUR:   Yes.  Exhibit MJL19, I think.

MS ABRAHAM:   Yes.

HIS HONOUR:   The application will be referred to the Full Court so it can consider the proper disposition of the application after hearing oral argument.

MS ABRAHAM:   But I can indicate that aspect, I understand, has been adjourned pending Keating.

HIS HONOUR:   But I assume, do I, that – perhaps I am not right to assume.  If, contrary to your urgings, (a) I were to expedite and (b) a Full Court were to consider removal of the whole or part, is a question pending in the Full Court validity or is it only is there an arguable point about validity?  Do you see the conundrum that swirls around?

MS ABRAHAM:   Yes, I do.  Clearly as permission has not been granted as yet and the argument is to be had on permission, an argument on permission is the same as leave to appeal that a matter is arguable.

HIS HONOUR:   Yes.

MS ABRAHAM:   Your Honour, as I said, our major concern is the timetable.  If the Court orders expedition then clearly we will do whatever is needed to get that done, but if the hearing for removal is not until the 15th, Easter Thursday is the 28th, which is a week and a half after, so Easter is four weeks and two days from today, I think, and the issues, for example, what is it that is going to be removed – they are seeking to remove, what grounds and the like clearly have not been addressed in these submissions.

HIS HONOUR:   All right.  If I expedite it, those things, no doubt, would have to be focused upon with a greater degree of precision.

MS ABRAHAM:   Certainly.

HIS HONOUR:   But at least for the moment the thing that is fussing me most of all is, to put it bluntly, what is in it for the Court or the parties to bring it forward?

MS ABRAHAM:   In my submission, as I indicated earlier, we say it is inevitable that these issues would be raised and dealt with in Keating as this matter is not urgent, that is Jones is not urgent.  There are not cases banking

up or anything like that.  If we are wrong about that, we are not, but if we are wrong about that, then the matter will be still before the Full Court in South Australia.  It will be heard according to the law as Keating sets down and any additional arguments that are to be had and then special leave can be sought from there.  In my submission, it is the logical course given the time that we are now at in these proceedings.

HIS HONOUR:   Yes, thank you, Ms Abraham.  Yes, Mr Abbott.

MR ABBOTT:   In our application for removal, we only seek a removal on three grounds.  The Director of Public Prosecutions drew our attention to the fact that there were more grounds in the Supreme Court and we have informed them that we do not seek removal of grounds other than the three grounds in the application for removal.  If your Honour pleases.

HIS HONOUR:   Yes, thank you.

The applicant was charged on complaint in the Magistrates Court of South Australia sitting at Adelaide with one count of knowingly obtaining a financial advantage from Centrelink, to which he was not entitled, between 11 October 2006 and 15 August 2007 contrary to section 135.2(1) of the Criminal Code (Cth). The applicant pleaded not guilty but on 4 June 2010 the magistrate found the charge proved. The matter was then adjourned for submissions on sentence and to enable the applicant to make reparation.

Before the matter was called on for further hearing in the Magistrates Court, the Full Court of the Supreme Court of South Australia gave judgment in the matter of Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578. The present applicant, in light of the reasons of the Full Court in Poniatowska, lodged an appeal against his conviction.  The hearing of that appeal was adjourned to await the outcome of a subsequent appeal to this Court in the matter of Poniatowska.

The applicant’s appeal came on for hearing before Justice Gray of the Supreme Court of South Australia who, on 29 June 2012, dismissed the appeal.  The applicant filed application for permission to appeal to the Full Court of the Supreme Court of South Australia on 19 July 2012.  That application for permission to appeal has not been determined.  Rather, the Full Court, having considered the application, has referred it to the Full Court so that it can consider the proper disposition of the application after hearing oral argument:  see Jones v Commonwealth Services Delivery Agency [2012] SASCFC 113 at paragraph 6.

Shortly before this Court’s decision in the matter of Poniatowska, the Parliament enacted the Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011. That Act provided, among other things, that the Social Security (Administration) Act 1999 was to be amended by inserting section 66A entitled “General requirement to inform of a change of circumstances etc”.

The validity of that provision was put in issue in proceedings in the Magistrates Court of Victoria in proceedings between the Director of Public Prosecutions (Cth) and Kelli Anne Keating.  On 14 December 2012, this Court ordered removal of the matter of Keating into the Court with a view to determining the questions of validity that it was sought to agitate in that matter.  In Keating, the parties have agreed on a stated case and have reserved questions for the consideration of the Full Court which inquire, in effect, about the validity of section 66A of the Administration Act.

At least one of the points about the validity of that provision turns upon the operation of section 3 of the 2011 amending Act which provided that:

Section 66A of the Social Security (Administration) Act 1999, as inserted by [Schedule 1 to the 2011 amending Act] applies in relation to an event or change of circumstance that occurs on or after 20 March 2000.

The charges against Ms Keating, which are the subject of the proceedings removed into this Court, include certain charges preferred against her on 7 October 2010, before the enactment of the 2011 amending provision. 

On 29 January 2013, the applicant filed an application for removal of part or all of the cause pending in the Full Court of the Supreme Court of South Australia.  Three grounds were tendered in support of the orders which were then sought.  Following the fixing of the matter of Keating for hearing by a Full Court of this Court on 3 April next, the applicant in the present matter applied by summons of 20 February 2013 for an expedited hearing of the application for removal.  The only opportunity that remains for a Full Court to consider that application for removal, if it were to be expedited, would be at the motions days which are to occur in Sydney and Melbourne on 15 March next, only a little more than two weeks before the date fixed for the hearing of the matter of Keating.

The applicant submits that this application for removal should be expedited because it is likely that the Court would wish to remove this matter to be heard at the same time as the matter of Keating.  It is submitted that the Court would wish to hear this matter at the same time as Keating because the arguments to be advanced in this matter, although overlapping to a considerable degree with those that will be advanced in Keating, raise new and different issues to which the attention of the Court should be directed in the course of considering the validity of the impugned provisions.

Chief among the points which the applicant submits the Court should consider in this matter, which it is said does not arise in the matter of Keating, is whether the impugned provisions apply to a case which has already been the subject of exercise of judicial power.  It is to be recalled that in this matter the applicant has been convicted in the Magistrates Court.  His appeal against conviction to a single judge of the Supreme Court of South Australia has failed and he has a pending application for permission to appeal to the Full Court of the Supreme Court.  It is said that that procedural history necessarily tenders issues of a kind or quality different from those that will arise in Keating.

As already observed, however, the matter of Keating includes consideration of the application of the impugned provisions in respect of charges which were preferred against Ms Keating before the enactment of the amending legislation.  Those charges had not been tried, yet the judicial power of the Commonwealth had been engaged by the institution of the charge against her.  Counsel for the present respondent, the Commonwealth Services Delivery Agency, submitted that the question of application of the amending legislation to cases pending in the judicial branch would necessarily fall for consideration in the matter of Keating regardless of whether the present application is removed into this Court.

The applicant submitted further that he would wish to advance arguments about validity which, as best he now understands the matter, are not to be advanced in Keating.  Those arguments he described as being arguments about legislative intrusion into judicial fact finding.  At least on the face of things it would appear to me likely that issues of the kind described are issues which would necessarily fall for consideration in the course of argument in Keating. 

Although I do not regard the matter as decisive of the question of expedition, it is to be noted that the proceeding which the applicant would seek to remove into this Court, in whole or in part, is a proceeding which is an application for permission to appeal.  It may be - I need express no concluded view on the question – that the only issue of validity that would be touched on in determining the question of permission to appeal to the Full Court of the Supreme Court of South Australia is whether the constitutional challenge which the applicant would seek to make is arguable, that is it may be – again, I emphasise I express no concluded view on this matter – that the proceedings in the Supreme Court of South Australia tender no question fit for removal.

Whether or not that is so, I consider that, having regard to the extent to which preparation of the matter of Keating has proceeded and the point at which this present matter stands, it is neither necessary nor desirable to expedite the hearing of the application for expedition.  The Court has already fixed the list of matters to be heard on 15 March next in Sydney and Melbourne and, although those lists are, of course, always capable of some limited expansion, it is, I think, undesirable to seek to have that occur in this matter.

The applicant did not apply for removal until the end of January this year and, as counsel for the applicant explained, that was brought about by the need for the Legal Services Commission of South Australia to consider whether the application should be made.  Nonetheless, the fact remains that the application for expedition and the application for removal come at a point very close to the hearing of the matter of Keating.

As at present advised, it would appear to me that the matter of Keating will likely have to traverse all of the issues which the present applicant would seek to agitate in this Court.  If, contrary to that initial impression, there were later to emerge in the proceedings in the Full Court of South Australia some aspect of the matter which was not the subject of consideration in this Court in the matter of Keating, it will remain open to the applicant to seek special leave to appeal against whatever order the Full Court of South Australia may make.  Of course I make no predication about the outcome of any such application for special leave, but refusing to expedite the present application for removal will not bar the applicant from pursuit of any of the arguments which he seeks to agitate in this Court which have not been considered and determined by the Court in the matter of Keating.

In my opinion, the application for expedition should be refused.

Mr Abbott?

MR ABBOTT:   If your Honour pleases, your Honour said that following this Court’s decision in Poniatowska Parliament enacted section 66A. It was, in fact, shortly before.

HIS HONOUR:   Yes.

MR ABBOTT:   Could I ask that your Honour amend your reasons?

HIS HONOUR:   I shall amend the reasons when I am settling them, Mr Abbott.

MR ABBOTT:   Thank you, your Honour.

HIS HONOUR:   The joys of extemporising.  They are joys which never leave a judge.  Very well, the application is refused.

Adjourn the Court.

AT 3.24 PM THE MATTER WAS CONCLUDED