Kruger & Ors v C of A

[1995] HCATrans 286

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M21 of 1995

B e t w e e n -

ALEC KRUGER

First Plaintiff

HILDA MUIR

Second  Plaintiff

CONNIE COLE

Third Plaintiff

PETER HANSEN

Fourth Plaintiff

KIM HILL

Fifth Plaintiff

ROSIE NAPANGARDI McCLARY

Sixth Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Darwin  No D5 of 1995

B e t w e e n -

GEORGE ERNEST BRAY

First Plaintiff

JANET ZITA WALLACE

Second Plaintiff

MARJORIE FOSTER

Third Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

For Mention

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 OCTOBER 1995, AT 4 14 PM

(Continued from 15/9/95)

Copyright in the High Court of Australia

MS W.A. HARRIS:   Your Honour, if it please Court, I appear on behalf of the plaintiffs.  (instructed by the Katherine Regional Aboriginal Aid Service Inc)

BRENNAN CJ:   Yes, Ms Harris.  Mr Solicitor, what is the progress?

MR GRIFFITH:   Your Honour, we have had earnest discussions and the position was reached, your Honour, that there was a tentative version at lunch-time with which we were content which has been typed and as we understand it, the plaintiffs now propose a third version which we have just seen as your Honour came in, with which we are not content, but it would probably be a clearer procedure if we just gave your Honour the advantage of seeing those versions and inspecting then, your Honour.

BRENNAN CJ:   Yes.

MR GRIFFITH:   So, if I could hand your Honour the version of which we had tentative agreement at lunch-time and possibly my learned friend could hand you the present version that is being put by the plaintiffs.  Your Honour will see from the lunch-time version that the defendant is prepared to tie itself to the  territories power.

BRENNAN CJ:   Yes.

MR GRIFFITH:   We were content to adopt the suggestion made by the plaintiffs to, in effect, break up question 1 on page 15, your Honour.

HIS HONOUR:   I am just looking at paragraph 29 of the amended statement of claim. Yes, the difference between the agreed to version and the later version is the expansion beyond section 122.

MR GRIFFITH:   Yes, your Honour.  Our view is that the expanded version in effect is to ask the Court an advisory opinion in question 1 because the issue really is a question 3 issue there and to speak in the air, your Honour, of such guarantees would seem to abstract the question from the issues between the parties and it would be unhelpful first inquiry, your Honour, and it does seem to us that the version of which we gave you a lunch-time version does reflect your Honour’s order and your Honour’s reasons and your Honour will see that it also does seem to reflect the remarks your Honour made on page 14 that even if there were no right of damages for breach of the constitutional obligation, the issue of validity of the Act could be relevant to the extension application.  So that does seem to be accommodated.  So, your Honour, that would be our preferred version.

HIS HONOUR: Am I right in thinking that the basic distinction between the agreed version and the questions that I proposed is the insertion of question 1 as a free‑standing question asking about the limitation on section 122 power?

MR GRIFFITH:   And thus also raising the flag on the territories power solely in support, yes.

HIS HONOUR: Yes. Then, do I take it from the Commonwealth’s point of view it is prepared to rest its argument on section 122 alone?

MR GRIFFITH:   I think we are, your Honour, because it is with territories power that one has an obvious argument on the Chapter III issue and if it is not there, we cannot think of any better spot to find it.

HIS HONOUR: Yes, so you are within section 122 and that is as much as you wish to debate at this‑ ‑ ‑

MR GRIFFITH:   It is our best section, your Honour.  If we do not get up there, we are not going to find it somewhere else.

HIS HONOUR:   What do you say, Ms Harris?

MS HARRIS: Your Honour, the addition of the first question is really a reflection of the fact that the Aboriginals ordinance is not a direct legislative act carried out under section 122, but rather an executive act carried out by the Governor‑General of the Commonwealth as part of delegated legislative power conferred by section 122. So, we are concerned not to close off an argument that, even if the Commonwealth legislation supporting the Aboriginals ordinance is not invalid because section 122 is, for some reason, not vetted by the freedoms which we plead in section 29 of the amended statement of claim, we are concerned not to close off an argument that the executive act of the Governor‑General in enacting the Aboriginals ordinance was, nevertheless, beyond power because it infringed these constitutional freedoms.

HIS HONOUR:   I see.  So, it is not a question of the source of legislative power, it is a question of limitation on executive power that you wish to raise.

MS HARRIS:   Indeed, that is right.

HIS HONOUR:   The relevant power with which you are concerned is the power to make the ordinances?

MS HARRIS:   Indeed.  Conferred under the administration and the acceptance and the Northern Australia Acts variously.

HIS HONOUR: So your concern would be met by dealing with the legislative power conferred by 122 of the Constitution or the executive power to enact the ordinances which are referred to in the statement of claim?

MS HARRIS:   I think that would adequately deal with the problem.

HIS HONOUR:   Mr Solicitor.

MR GRIFFITH:   Yes, your Honour; we do not really see the difficulty because such executive power, we would say, was being exercised under the territories power.  Your Honour’s form of words would make assurance doubly sure on it.

HIS HONOUR:   Yes, very well.  Do you wish me to do the drafting or can I leave it to the parties to do?

MR GRIFFITH:   We would prefer your Honour to, because your Honour has, if I may say so, in your judgment with facility drawn together what seemed to be very diverse threads in a way that is exceptional.

HIS HONOUR:   We will see if Ms Harris has any suggestions.

MS HARRIS: I think we would only be concerned to ensure that two things happened: that there was scope for argument that the freedoms existed and that they were potentially fetters on both legislative power under section 122 and the executive power to make the Aboriginals ordinance and further to that, that they potentially gave rise to causes of action sounding in damages to the extent that the questions may be modified to accommodate those considerations, we would be perfectly happy for your Honour to do the drafting.

HIS HONOUR:   Just give a moment then.  Am I right in thinking, Ms Harris, that the ordinances referred to in paragraphs 7, 8, 9, 10, 11 and 12 of the statement of claim are the ordinances which, in the plaintiffs’ intended submissions, may be affected by this constitutional restriction on power?

MS HARRIS:   That is right.  The Aboriginals ordinance and then the Commonwealth ‑ ‑ ‑

HIS HONOUR:   I want to make sure that those are the ordinances with which you are concerned.

MS HARRIS:   I only wanted to refer your Honour to the fact that we are talking in those paragraphs not only about ordinances made pursuant to that power, but also Commonwealth legislation pursuant to section 122.

HIS HONOUR: Perhaps if I indicate to you what I have in mind and you can say whether or not this meets your requirements. If question 1 in the agreed version is altered to read, “Is the legislative power conferred by section 122 of the Constitution or the power of the Governor‑General to enact the ordinances referred to in paragraphs 7, 8, 9, 10, 11 and 12 of the statement of claim restricted by”, et cetera.

MS HARRIS:   Subject only to ascertaining that it was indeed the Governor‑General who, at all material times, had the ability to enact or amend ‑ ‑ ‑

HIS HONOUR:   Well, was it?

MS HARRIS:   I would have to check, but I understand that that is the case.  In fact, the Aboriginals Ordinance 1927 North Australia and the Aboriginals Ordinance 1927 Central Australia, which are referred to in paragraph 9 of the amended statement of claim, were made by the Deputy Governor‑General of the Commonwealth, and the Aboriginals Ordinance No 2 1953 was made by the Legislative Council of the Northern Territory.

HIS HONOUR: I see, yes. Well then, if the words of the Governor‑General are omitted so that it read, “Is the legislative power conferred by 122 of the Constitution, or the power to enact the ordinances, referred to in those paragraphs, restricted by any?”, et cetera?

MS HARRIS:   Yes.

HIS HONOUR:   Mr Solicitor.

MR GRIFFITH:   Your Honour, that would seem to work, although we would have thought the paragraph 11 allegation would be referring to legislative power, not executive.  It would be covered two ways then, your Honour, so there would not be a problem..

HIS HONOUR:   Is the Aboriginals Ordinance No 2, 1953 referred to in any of the other paragraphs?

MS HARRIS:   I think that is the only reference to the Aboriginals Ordinance No 2 1953.

HIS HONOUR:   I think it would probably be desirable to leave it in the form which I have suggested, merely because those paragraphs are intended to identify the ordinances in question, not to deal with the subject matter of the allegation.

MR GRIFFITH:   We are content with that, your Honour.  On question 2, did I have a manuscript “such” written in the first line?

HIS HONOUR:   Yes.  Is that agreed; the word “such”?

MS HARRIS:   Yes.

HIS HONOUR:   In that case I am working from what I understand to be the version agreed which contains two manuscript variations, one which I have just indicated as coming from my pen and the other which has the word “such” instead of “the”.  Are there any other amendments to it?

MS HARRIS: The only other thing we would put to your Honour is that the answer to question 2 should not necessarily depend upon the answer to question 1, although that is to a large extent cured by the addition to paragraph 1 which your Honour has just now made. We were concerned because of the special position of section 122 in the Constitution and the possible doubts which may arise as to the ability of constitutional freedoms to impact upon legislative power under section 122 not to make the answer to question 2 depend upon the ability of freedoms to impact upon section 122 legislative power. We would therefore want to reserve the right to argue, even if the answer to question 1 was “No”, that the answer to question 2 should be “Yes”. That is, we would still want to argue question 2.

HIS HONOUR:   That is because you contend that the rights, guarantees, immunities, et cetera, are themselves a source of liability, is that right?

MS HARRIS:   That is indeed the case.

HIS HONOUR:   It seems to be that not much damage would be done, Mr Solicitor, if we simply repeated in question 2, the form which I had originally in my question 1.  In other words, a new question 1 would simply deal with limitation on power and the new question 2 would then deal with whether or not there is some constitutional right, a breach of which sounds in damages.

MR GRIFFITH:   Your Honour, we do not want to get in a position where we, as it were, get up on one and find we have not got anywhere, but that would seem to cover it, your Honour.  Your Honour, there might be a knock‑on on the chapeau to question 3 then.

HIS HONOUR:   It would be yes to question 1 or question 2, but I think question 4 would remain only if yes to question 2.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   I would propose, however, that question 2 is reformulated so it would correspond precisely with question 1 which I first proposed this morning and the word “such” would not appear.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Is that - what do you have to say, Ms Harris?

MS HARRIS:   I would be happy with that.

HIS HONOUR:   Very well.  Then question 2 as drafted will be deleted in favour of question 1 on page 15 of the reasons which I delivered this morning and question 3 as drafted will be amended to read, “If yes to question 1 or question 2, are any and which”.  So as to ensure that there is no confusion on the papers, I will return the unagreed version to the Bar table and I will place the agreed version, subject to those amendments, with the papers and those will be the questions that will be reserved.

The next question is the manner in which they should be reserved.  Should they be reserved by way of any case stated or is it desired simply that the questions be reserved and the appeal book or the application book contain the amended statement of claim and defence in reply?

MR GRIFFITH:   Your Honour, the latter.  Your Honour, we have not referred to the Bray matter and we understand the plaintiffs wish both matters to go before the Court because there is one permutation, a plaintiff in Kruger, that is not in Bray.

HIS HONOUR:   I understand that.  Are there pleadings in the Bray matter?

MR GRIFFITH:   Your Honour, that is the point.  There is not yet but there can with facility be.  There would be no problem in replicating pleadings to get to the same point.

HIS HONOUR:   Then why is not the desirable course to have those pleadings delivered?  No doubt they will be replications of the pleadings in the Kruger matter and then lodge a consent order which I will initial in the Bray matter corresponding with this order in the Kruger matter.

MR GRIFFITH:   So your Honour would not contemplate consolidating and really have two sets of questions?

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, we would contemplate that pleadings would be filed to be before the Court with the question attached or in some way because that is the reference point for these questions.

HIS HONOUR:   Yes, but the pleadings would be filed in the Bray matter.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Followed by an order reserving these questions in the Bray matter.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Yes, but that would leave orders in both Kruger and Bray on foot.  Is that desired?

MR GRIFFITH:   I think it is, your Honour.

MS HARRIS:   Yes, that is right.  We were concerned this morning to ensure that questions went forward in the Kruger matter because that raises one question that is not raised in the Bray matter.

HIS HONOUR:   Very well.  Then we will go forward in both matters.  They will be consolidated and they will be heard together.

MR GRIFFITH:   There will then be a further issue on the limitation issue because Kruger was issued in Victoria to be argued on Kruger but not on Bray.

HIS HONOUR:   The questions will be the same but the point will be different.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Yes.  So that there will be a reservation on the question under Order 35 rule 2?

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Is that agreed, Ms Harris?

MS HARRIS:   Yes, indeed, thank you.

HIS HONOUR:   The next question is the procedure as to the preparation of comprehensive written submissions and the date of hearing.

MR GRIFFITH:   Yes.  Perhaps the date of hearing would be a useful reference point to work back from, your Honour.

HIS HONOUR:   It would be, subject to one thing, and that is that it seems to me that this case has a great promise of diffuse argument and I have in mind a consideration of the draft submissions and an allocation of time having regard to their content.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   That would suggest preparation of draft submissions before Christmas, a further directions hearing and allocation of time, followed by a fixed listing, but the fixed listing could take place, I can indicate, in the second week of the February sittings, that is, the week starting 12 February which, I understand, is available for counsel on both sides.

MR GRIFFITH:   Yes, your Honour, it is available.  I will be overseas a week before, your Honour, but I will be back by the Monday.  March would be better, but if it is listed the second week in February, so be it, your Honour.

HIS HONOUR:   We might be concerned to discover how long this case will actually take in the Court, but that may depend upon the written submissions.

MR GRIFFITH:   Yes.  Your Honour, that procedure outlined does seem to be a useful way of indicating that.

HIS HONOUR:   That means that I should like to have a further directions hearing before Christmas with the written submissions in hand.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   What timetable do you suggest, Ms Harris?

MS HARRIS:   Your Honour, we would be happy with the course you propose.  We would simply seek to have as long as possible before Christmas to file our written submissions, of course.

HIS HONOUR:   Yes, I can understand that.

MS HARRIS:   But subject to that qualification, I am happy with what your Honour proposes.

HIS HONOUR:   Then, say, three weeks from now?

MS HARRIS:   I think that we would not be in a position to canvass all the issues that needed to be canvassed within three weeks.

HIS HONOUR:   Assuming it was four weeks?

MS HARRIS:   I would still be reluctant to say that we would have sufficient time.

HIS HONOUR:   I can understand that you may be reluctant, but it may be necessary.

MS HARRIS:   I would prefer at least six weeks, if that was practicable.

HIS HONOUR:   How long do you require, Mr Solicitor?

MR GRIFFITH:   Your Honour, six weeks from here would take it to late November.  The reality is, your Honour, it is the point of oppression to be expected to have submissions by Christmas.

HIS HONOUR:   It seems to me that six weeks is simply too long.  That is if it is to be heard in February.

MR GRIFFITH:   Your Honour, implicit, I would understand, in the submission six weeks is required would be the principle of equality between the parties, I would have thought, and so that possibly the application could be reframed as being one contemplating a March hearing.

HIS HONOUR:   I understand that there are difficulties about the March hearing from the point of view of the availability of counsel.  Is that correct, Ms Harris?

MS HARRIS:   Indeed, that is correct.  Mr Merkel is not available after the second week of February for some time.

HIS HONOUR:   I think it may be a question of taking the choice.  In other words, we will shorten the time.  If we made it four weeks for the applicants’ submissions and four weeks for the respondent’s submissions, can you give me an indication on the calendar where that would take us, Mr Solicitor.

MR GRIFFITH:   Your Honour, I have not a calendar, but it should take us around about 2 December.

HIS HONOUR:   Where would take us to, Gerrard?  That would take us to the beginning of December if there were four weeks each.  That would then allow, I think, another week - perhaps another two weeks for interveners to make their submissions, if any.

MR GRIFFITH:   I think they will be there, your Honour.

HIS HONOUR:   Which would take us to 15 December.  I do not think it is practicable to leave it any later than that for the determination of the hearing date.  I think, Ms Harris, in the circumstances, the problem is in your hands.  You can have either four weeks with the prospect of the hearing in the second week of February, or if it is a longer time for the preparation of written submissions, then you will run into difficulties in the availability of counsel.

MS HARRIS:   Indeed.  I think we would not want to put the hearing off beyond the second week of February if we could avoid that.  Of course we would much prefer a longer time for the preparation of written submissions, given the breadth of the issues that need to be canvassed, and I would submit, perhaps, that the Commonwealth would not require as long to prepare their written submissions in response to ours as we will need to prepare ours; however, if the choice is 4:4 split, then I would accept what your Honour proposes.

HIS HONOUR:   Very well, I think the equality requires that we give the Commonwealth the necessary time, so I think that we make it four weeks from today - that is not including today - for the filing and delivery of the comprehensive submissions of the applicant.  A further four weeks from the delivery of those written submissions for the filing and delivery of the written submissions of the Commonwealth, with the intention that there be a further two weeks available to any interveners who may wish to intervene to make their submissions in relation to the matter.

The applications will then be adjourned until Wednesday, 13 December for consideration of the written submissions as filed and the setting of times for hearing.  But I can indicate that if those time limits are adhered to, then the case will be listed in the week commencing 12 February 1996.

MS HARRIS:   Your Honour, there is one final housekeeping matter.  In our haste to get the Bray statement of claim filed and delivered prior to our last hearing, there was a mistake made in several of the paragraphs in terms of the paragraph numbering.  I would seek leave to amend those just to correct the paragraph numbering.

HIS HONOUR:   You would have no difficulty with that, Mr Solicitor?

MR GRIFFITH:   No, your Honour.

HIS HONOUR:   That can be done.  You have leave to amend as needed to correct the paragraph numbering.  I take it that the other pleadings in the Bray matter can be delivered forthwith, is that correct, Mr Solicitor?

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   And your reply can be delivered forthwith in the Bray matter?

MS HARRIS:   Indeed.

MR GRIFFITH:   Your Honour, we will do it after we get the statement of claim with the correct numbering.

HIS HONOUR:   Yes.  In the meantime that need not delay in any way the preparation of the written submissions, of course.

MR GRIFFITH:   Your Honour mentioned the interveners.  We do know of at least one and perhaps another, but we expect probably all States will intervene.

HIS HONOUR:   That may well be so.

MR GRIFFITH:   No doubt they will inform the Court of their position.

HIS HONOUR:   I would expect that if there are indications of intervention that the parties will take steps to serve their written submissions on the interveners who have so indicated.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Very well.  The Court will adjourn now.

AT 4.45 PM THE MATTER WAS ADJOURNED