Kruger & Ors v Cwealth of Aus

[1996] HCATrans 36

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

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 FEBRUARY 1996, AT 10.20 AM

(Continued from 13/2/96)

Copyright in the High Court of Australia

BRENNAN CJ:   Yes, Mr Solicitor.

MR GRIFFITH:   If the Court pleases.  This matter comes before the Court on the questions reserved largely because of the way in which the issues have been joined on the pleadings and if I may give the Court as background to the making of that order the copy of the reasons of your Honour the Chief Justice delivered 4 October 1995 in making the order for the questions reserved.  I give this to the Court particularly because it is relevant to the submissions we wish to make as to the use of materials.

BRENNAN CJ:   The judgment is in fact reported, I think, Mr Solicitor.

MR GRIFFITH:   Thank you.

McHUGH J:   It is in the Australian Law Journal Reports.

MR GRIFFITH:   If the Court pleases.

BRENNAN CJ: It is in 69 ALJR 885.

MR GRIFFITH:   Yes, if the Court pleases.  If the Court has copies of the judgment in that way, I will not hand up the copies.  The Court, of course, has already been taken to paragraph 29(d) and (e) particularly of the defence in each matter.  In Kruger matter, that appears on pages 39 and 40 of the questions reserved book under tab 3, and that raises, of course, the point made in answer, particularly under paragraph (d), alleging that if the legislative power conferred by section 122 was restricted in the way alleged with respect to constitutional freedoms, it is asserted in defence that the Ordinance is not contrary to any such freedoms, it being alleged that it was:

enacted and amended for the purpose of the protection and preservation of persons of the Aboriginal race; and

also be reference to the proportionality test, which is alleged in paragraph (ii).

Paragraph 3 makes what we have termed the “intertemporal point” which alleges that these matters must be considered by reference to the standards and perceptions prevailing at the time and that is a matter picked up by the questions reserved, question 3.  May I briefly take the Court to the reply, that is on page 45, document 3 of the application book, in similar terms in the Bray matter, and with reference particularly to the allegation in paragraph 29, paragraph 3 alleges that:

In further answer.....if the matters alleged in paragraphs 29(d) and (e) can be established (which is denied), those matters do not constitute an answer in law to the grounds of invalidity alleged in paragraphs 29 and 30 of the Amended Statement of Claim.

The position of the Commonwealth is, accepting, as we referred to in our opening yesterday that this most certainly is not the sort of law which one would expect any Parliament now to pass; that the Ordinance nonetheless, if passed in the terms of this Ordinance, would be a law within the territories power, section 122, and also within 51(xxvi), both as it was prior to 1967 and also after the constitutional amendment in its application to the territory.

So, our submission is the Ordinance is thus valid during its period of operation and would be valid even if enacted today. As your Honour Justice Dawson observed to me yesterday, “The powers conferred by the section of the Constitution do not operate by reference to social standards and perceptions”. So, our primary submission is that there is no occasion for the Court to engage in retrospective review by reference to present standards, a law which is in operation during a period between almost 40 and 80 years ago. We further say that there are no relevant freedoms, immunities or rights upon which the plaintiffs may rely to allege invalidity. The further alternative in the event there was such freedom, immunity or right, we say, there has been no breach.

TOOHEY J:   Is there an intervening step that if there were such an implied immunity or freedom that section 122 would somehow override such an implication?

MR GRIFFITH:   I am sorry, your Honour, that was intended to be our first proposition in descending order.  Our submission is that section 122 is a complete answer even if there is such freedom, immunity or right.  So this proposition is on the basis that the Court holds notwithstanding that this law is supported under section 122.

DAWSON J:   You say firstly there is no implied freedom extending to the territory?

MR GRIFFITH:   Yes, your Honour.

DAWSON J:   Secondly, even if there were in a sense, it would be overridden?

MR GRIFFITH:   Yes, your Honour.  If it is the case that it is necessary to consider the issue of whether or not there has been a breach of any alleged freedom, immunity or right, it is the Commonwealth’s position it is necessary to consider the effect of changing standards and perceptions.  Our submission will be that the different standards and perceptions prevailing at the time of the Ordinance did not infringe these rights during the period of its operation.  That is, as it were, the paragraph 29 pleading on this point.  Also in paragraph 29 our pleading is that any test of proportionality should be by reference to the contemporary standards and practice.

We further say that were there such a freedom, immunity or right and were there a breach, which applies in the territory of course, our defence is that there is no remedy sounding in damages for breach of any such right.  As to limitation periods, we say that any common law cause of action is barred and we also say in defence that any constitutional cause of action is also now incapable of being maintained.

As we understand the way in which the plaintiffs now put their case, they accepted that if the Ordinance is properly characterised as a law for the protection and welfare of Aboriginal people, then that will be a complete answer to their case.  We make it clear that we allege we have a higher defence.  We say section 122 would authorise such law whether or not it is so characterised but, meeting it at the point of the plaintiffs’ allegation, we say that this acceptance of the position emerges most clearly from the exchange between your Honour the Chief Justice and my learned friend Mr Forsyth at page 63 of the transcript.  Indeed, much of the plaintiffs’ submissions by reference to the Ordinance were, as we see it, directed to establishing the proposition that the Ordinance cannot be characterised as an Ordinance for the protection and welfare of the Aboriginal people.  Almost certainly section 16 of that Ordinance cannot be so characterised.

In our submission, what the plaintiffs are seeking to establish is a negative proposition, and that is that the Aboriginal Ordinance could not, on any view, amount to a welfare or protection legislation. 

TOOHEY J:   I did not think it went that far, though.  I thought that may be one limb of the argument.  The other, I thought, was, even if protection and welfare were an object of the Ordinance, there were other objects to be discerned from the legislation, which could not be characterised as protection and welfare.

MR GRIFFITH:   Your Honour, we took it that they were saying more particularly that section 16 fell outside of any other object, which the rest of the Ordinance may have, as regards protection and welfare.  Perhaps that is saying much the same thing as what your Honour has put to me.

TOOHEY J:   No, I do not think it is.  It just seems to me that there are various ways in which section 16 could be approached; one is the way that you invite us to approach it, namely, that it is part of a piece of legislation for the protection and welfare of Aboriginal people.  Section 16, in so far as it confers the powers that it contained therein, may be seen as giving effect to that policy or it may, perhaps, be seen as giving effect to more than one policy, of which protection and welfare is simply one element.

MR GRIFFITH:   Yes.  Your Honour is perhaps identifying the importance of not regarding this case as standing or falling on the protection and welfare characterisation but, it is our submission, your Honour, that, although the Commonwealth may justify the legislation, by reference to primary constitutional powers, nonetheless, for the plaintiffs to make out their allegations, it is necessary for them, your Honour, to, in effect, isolate section 16 and take it from the law and, in doing so, your Honour, to seek to give that section a characterisation as not being a section which is supported as being a law, we say, as part of an entire Ordinance, your Honour, dealing with matters of protection and welfare.

TOOHEY J:   Yes, I suppose it depends on what you mean by “not being supported”.  You might say it is supported by the entirety of the Ordinance.  Another view might be that section 16 contains powers which go further than the Ordinance read as a whole would warrant.  I think that is really the point I am putting to you.

MR GRIFFITH:   As your Honour has already read from our submissions, we make the point of the distinction to be made between the extent of the power itself and the manner in which it may be exercised.

TOOHEY J:   I was trying to steer clear of the manner of its exercise.

MR GRIFFITH:   I have to come to that, your Honour, yes, but our submission is that in so far as the plaintiffs seek to make the proposition that the Aboriginals Ordinance, in particular section 16, cannot on any view amount to welfare or protection legislation.  We say that inasmuch as the plaintiffs seek to make that contention by reference to the documents contained in volume 2, that is something which they cannot do, and we say that when one considers the judgment which as your Honour the Chief Justice indicated and we reported of your Honour the Chief Justice on 4 October referring these questions reserved to the Court and also the pleadings themselves, it is clear that this matter arises as a matter solely on the pleadings.  That is the point of question 3, to say if solely on the pleadings the plaintiffs are entitled to say that there is a claim at law which the Court accepted as one which may be pursued, that question 3 raises the issue, “Are these matters of intertemporality alleged by the Commonwealth matters which are relevant to determining whether or not there are such implied freedoms, whether or not there has been breach?”, and our primary submission is the Court should proceed on the basis that by their pleadings the plaintiffs, in effect ‑ ‑ ‑

DAWSON J:   Mr Solicitor, I am at a loss in that reasoning.  Surely the reasoning is that if section 16 is a welfare provision, it is a welfare provision.

MR GRIFFITH:   Yes.

DAWSON J:   It may be that you are right in saying that we should not look at the other materials, but it would be for the reason that they would show, if they went beyond welfare, breaches of section 16 and we are not concerned with that.

MR GRIFFITH:   We would accept that, your Honour.

DAWSON J:   But is that not the way the case is put?

MR GRIFFITH:   Your Honour, what we see, particularly from part 1 of the plaintiffs’ submissions, a reference to a body of extrinsic materials by way of footnote which are now produced to the Court to give a colour to the legislation.

DAWSON J:   I do not understand that.  They cannot govern the interpretation of the Ordinance.  At most they can amount to examples of the way in which the Ordinance was administered and if they go beyond welfare then they must be in breach of the Ordinance and we are not concerned with it.

MR GRIFFITH:   Your Honour, we entirely agree.  In paragraph 1.4 of our written submissions we already make the point that we object to reference to historical materials in those submissions.  But the point we now wish to make, your Honour, is that our submission is the issue is joined on the face of the Ordinance itself and its legislative history and that although these materials in volume 2 have been produced to the Court, in our submission, the Court should not have reference to them in making this inquiry.

TOOHEY J:   I understand that argument.  How does it fit with the proposition which I understand the Commonwealth makes that the legislation is to be judged by contemporary standards?  Where does one go to find those standards?

MR GRIFFITH:   We have made it clear in our pleading and also in our arguments to the Chief Justice at the directions hearing leading to the order made by his Honour on 4 October that if that matter becomes relevant that is a matter which should go to trial.  Now, your Honour, our primary submission was that the issue of whether or not, were such an entitlement to allege that there was a breach of a constitutional right, liberty or freedom, that breach could sound in damages.  In our submission, before the Chief Justice - that was a preliminary matter where the statement of claim alleged right, breach and then claimed damages.  The Commonwealth’s claim on its original summons on the pleadings was to strike out that statement of claim alleging that there could be no entitlement for damages were there such a right and were there breach.

In consequence of that summons the statement of claim, after the hearing before his Honour the Chief Justice, was amended to include the alternative claim for damages for false imprisonment.  The defendant to that claim said, “Well, that claim is not, on its face, sustainable because any claim for false imprisonment is statute barred.”  And the Commonwealth’s position was that for the matter to advance, if it were regarded as a claim for common law damages only, the first issue would be the issue of limitation.  If that was established, then whether or not there should be an extension of time before the matter should advance further.  On the question of if there is a claim for damages arising merely on the basis of alleged breach of constitutional right, the Commonwealth’s position, that was a matter suitable to be determined as a preliminary matter of law by this Court which would make any further inquiry into the alleged rights and the alleged breach irrelevant.

Now, those matters were argued before the Chief Justice and he gave the judgment which the Court now has indicating that it was possible and the parties accepted that ruling and agreed on extended questions which reflected the draft question which his Honour the Chief Justice had in that order which raised, on the pleadings, the successive points but it remains the Commonwealth’s position, and we will get to that in order in our submissions, that if it is the case that there can be no damages for breach of a constitutional right, there is no free-standing right.

If it is the case the plaintiffs’ only claim here can be a claim in tort for false imprisonment and that is statute barred, it remains the case that it is not necessary for this Court to answer what we say would then be merely abstract questions which could not be raised between the parties as to whether or not there is presently such an implied constitutional right or freedom and whether or not such constitutional right or freedom should be judged in its existence by reference to this legislation by reference to contemporary standards or by reference to the intertemporal issues which the defendant refers to and whether or not there has been breach.

That, perhaps, still is a matter which falls within the discretion of this Court in considering the questions.  It does remain the case, and that will be our submission.  If the Court takes the view that one cannot recover damages for breach of the constitutional right, as alleged, then the plaintiffs’ claims, the matters raised in questions 1 and 2 must fail in limine because our submission is the plaintiffs would not be able to ask the Court for a declaration that legislation repealed almost 40 years ago was invalid during the period of its operation without attaching to it some claim of a sort of a claim sounding in damages so that there is a real element of relief.

We say the Court would just be approached in essence on a matter of an advisory opinion about matters long closed so that, in our submission, it does remain the case that the Court, when it has heard the arguments of both sides, is in a position to choose which way to dispose of this case which does not necessarily involve answering all the questions; some of the questions the Court may fairly regard as ones which do not arise for determination.  It, of course, is a necessary consequence of what we say is the very appropriate order of the Chief Justice to see whether or not these issues of law which are raised can be raised as a matter of pleading without a trial of fact, in a way that does dispose of the matter.

I suppose one way it could be disposed of completely without having any trial of fact would be if all the questions were answered favourable to the plaintiff, including question 3 dealing with the defendant’s allegation under paragraph 29, the intertemporal fact elements.  Another way, obviously, where the Court could not dispose of the matter would be if it held the examination of intertemporal facts as relevant for the reasons alleged by the Commonwealth, even if otherwise the answers were favourable to the plaintiff, the matter would have to go to trial, but on this question of the facts which have been brought before the Court, the position of the Commonwealth is that firstly, the plaintiffs should be treated as electing to stand or fall in its claim by reference to the construction the Court makes of the Ordinance itself and, we would accept, any legislative history of the Ordinance.

What we say further, that as to that, the Commonwealth is, as it has pleaded in its defence, able to put the arguments which it tends to make as to the relevance of these intertemporal matters but so far as the plaintiff is concerned, our submission is that the plaintiff cannot rely upon materials such as in volume 2 to add to what otherwise, we say, must be its case on the face of the Ordinance itself.

So that so far as the historical material is concerned, our submission is the plaintiffs are in, in effect, a no advantage situation.  They cannot rely upon it for the purpose of making their submissions good for alleged right.  The Commonwealth has pleaded that it is a matter relevant in its defence and it may be that the Court will answer the questions - and that is the prime submission of the Commonwealth - the first question “No”, second question “No”, and that will be the end of the action.  If the Court holds that there may be such a freedom as alleged and embraced by question 1, our submission will be then the matter may proceed no further in the inquiry because it will be necessary to have a trial of the facts such as the facts that the Commonwealth has alleged in paragraph 29 of the defence.

BRENNAN CJ:   If contrary to your submissions the view was taken that it was necessary to look at the perceptions of the time, then the appropriate answer, I should have thought, in relation to question 1 was to say, “Unable to answer”; question 2, arguably “Unable to answer”, depending upon other considerations perhaps, question 3, “Yes”.

MR GRIFFITH:   We would accept that, your Honour.

BRENNAN CJ:   Then the matter goes to trial in relation to what were the perceptions of the time.

MR GRIFFITH:   We would accept that, your Honour.  Our understanding is that is not how the plaintiffs have put their case to the Court at all.

BRENNAN CJ:   I am not sure about that.

MR GRIFFITH:   We will hear in the 52 minute reply, your Honour, but our submission is that the pleadings make it clear.  It is a bald pleading alleging there is a right, an absolute right, to these freedoms, that they have been breached on the face of this law and there is a free‑standing right including entitlement for damages providing the remedy.  That is the principal claim of the plaintiffs.  The claim for false imprisonment is a secondary one raised merely to avoid what would have been an obviously preliminary issue of law which could have been determined by the Court or to avoid a strike‑out.  That is our submission about it.  That is the principal claim - just three steps:  there is the right; this legislation infringes it; it always infringed it during its period of operation.  As a result of that, each of the plaintiffs are entitled to damages.

Our submission is in the alternative though that, even if the Court were to look at the documents which have been produced, it is difficult to see how these can assist the plaintiffs.  May I give the Court three examples of that.  I should make it clear to the Court that it remains our submission that characterisation should be made on the face of the Ordinance itself but, as the plaintiffs have, particularly in part 1 of their submissions and also in the oral submissions and also by presenting these materials in volume 2 for the most part are picked up by the footnotes and relied upon to substantiate the assertions which are made as to the characterisation of the legislation in part 1 of the plaintiffs’ submissions.

May I just briefly take the Court to two early documents, which are the ones preliminary to the enactment of this Ordinance; firstly, document 1 under tab 1, Report of the Administrator in the year 1912, at page 6, right‑hand column, under the heading “Morality and General Character of the Aboriginals”, the administrator says:

It is not infrequently stated by white settlers that the natives have no morality.  This is, of course, entirely untrue ‑ that is, of aboriginals in their normal state, before they have been degraded by contact with a civilization that they do not understand and from which they need protection.

If I may take then the Court to tab 2, the Report of the administrator in 1914 and 1915, page 36, under the heading, “Half-castes” ‑ and I cannot apologise to the Court for these expressions which were merely the expressions of the time ‑ near the foot of page 36, right‑hand column, referring to the inevitable circumstance that where there has been settlement, well then:

half‑caste children born of aboriginal mothers are in evidence.

And it refers to the task of:

the Department of gathering in and educating these children ‑

It says:

The task will be no small one, but, in the interests of the children, the work should be undertaken wherever possible.  Amongst them are many bright‑faced intelligent boys and girls, who, if given a chance to obtain an elementary education, would be able later in life to look after themselves and compete successfully for employment in the labour market.

Now, what follows, of course, reflects the morays of the times, but, if I could particularly refer the Court to page 37, left‑hand column, referring to the position of half‑caste girls, where one sees a very sympathetic statement, once more appreciated by reference to the circumstances and perception of the time, which makes it clear, in our submission, that the approach of here, the chief inspector of Aboriginals was one, certainly with the case of women, which was predicated upon dealing with matters concerning the welfare and protection of half‑caste girls.  And we refer to that as indicating, obviously, a rational basis for the particular provisions of the Ordinance dealing with the matters pertaining to the protection of women.

DAWSON J:   Why are we being referred to this, Mr Solicitor?

MR GRIFFITH:   Your Honour,  we do this to indicate that - perhaps if I take you to the third document to make the point abundantly clear - that when one goes to these documents which have been relied upon by the plaintiffs, we say, showing their best case on extrinsic materials, one can merely see confirmation of what is clear from the legislation itself, its protective and welfare purpose.

DAWSON J:   You are seeking to do the same thing you say they cannot do.

BRENNAN CJ:   Yes.

MR GRIFFITH:   Yes, your Honour, because we say the plaintiffs have elected to bring this material forward.  Our first submission is the Court should not look at it.  Our second submission is, if the Court has any anxiety about whether or not it is necessary to go to the material, rather than letting this matter go off to a trial, as the Commonwealth originally pleaded, it is sufficient for the court to say, “This is the collection of documents that the plaintiffs have produced as best case; when we look at it, that fails to support what they make out; we can answer the question now”.  So it is a fall‑back position, but I do not want to labour it because it is a fall‑back one but, in our submission, the third document we wish to refer to ‑ ‑ ‑

BRENNAN CJ:   As soon as you do labour it, issue will be joined, will it not?

MR GRIFFITH:   Only shortly, your Honour, because we are under constraints but, your Honour, can I make one point which, to our view, closes this matter off, and I will not detain the Court with it any further, but that is that in document 13, which commences at page 151, it is stated in the index to be:

Commonwealth Government’s Policy in Respect of the Northern Territory:  Aboriginals ‑

1933.  It is necessary to look at the index because there is an archive reference number in the index.  Now, this document is quite a telling document.  Firstly, it describes the Aboriginal population.  It must be remembered that even in 1933 the Northern Territory was a very primitive place.  There is reference in the materials to the primitive behaviour of white men in the Territory, but when one looks at ‑ I say primitive to the point of view of being developed through the occupation of white non‑Aboriginal persons, but when one looks at statistics of Aboriginal population, one sees in 1933 still the great majority of Aboriginals were merely nomadic tribes estimated.  What this document does in describing general policy; it refers to the general policy of the Commonwealth at the top of page 152, which, in our submission is wholly directed to matters of welfare and protection.

Under the description “Administration” it describes the administration by reference to the provisions of the Ordinance, on the next two pages.  Page 153 and following, it indicates that records are kept as to “Identification”, “Medical history”, “Employment”, et cetera.  The next part deals with “Medical Attention”.  Page 156 deals with matters of employment.  All these topics specifically covered by the Ordinance which make it clear, in our submission, that the provisions of the Ordinance, dealing with provisions to be confined with respect to Aboriginal employment, either male or female, are, in their nature, for purposes of protection.

Similarly, on page 157 dealing with employment in boats.  Page 158 has some interesting statistics with respect to “Nomadic tribes and Reserves”.  It indicates that some half of the area of the Northern Territory in 1933:

is unalienated and is available for the nomadic tribes.

So the point we make about that is, where there is a reference to reserves in the Ordinance, the Court should not assume that “reserves” means a particular place of confinement.  It might mean the opposite; it might mean a place of advantage where an entire Aboriginal group, or tribe if one likes, if you use the expression of the time, was able to remain together.  We submit, it cannot be assumed that the terms of section 16 are predicated on separation; they might be predicated on exactly the opposite aim, and that would seem to be consistent, both of what is said at pages 158 and 159, under the heading “Nomadic Tribes and Reserves” and also very consistent with what is said on “Prohibited Areas”.  When one looks at the provisions of the law, to some extent some of its provisions are no different from what the example we have with the Pitjantjatjara peoples, ensuring that non-members of the Pitjantjatjara grouping are not entitled to go onto their reserves.

As to Aboriginal women one sees from the foot of page 159 that the entire direction of the policy is directed to aspects of protecting women from the natural predatory risk, which your Honour the Chief Justice has referred to in argument two days ago.  One can see also under the reference to “Half-castes” that there is an acceptance by the government of:

responsibility for the training and welfare -

and that goes over to page 163.  The conclusion is an assertion on page 164:

The Commonwealth Government maintains that the policy it has adopted and the administration of that policy are in the best interests of the aboriginal.  It realises that it has a duty to perform to the aboriginal races of the Territory under its jurisdiction.  That duty is being faithfully carried out.

Of course, we say nothing in defence of what reflected the, one can say the almost universal customs, morays and attitudes of the times, as to what should be the content of that protective and welfare function of the government.

So, your Honours, having referred to that we make it clear that that is not our principal submission, but we say that if the Court is left in any doubt on this question of characterisation, in the way the plaintiffs have brought matters forward the Court may assuage such doubts merely by reference to the material that the plaintiff has chosen, uninvited, and we say contrary to the terms of your Honour the Chief Justice’s order in these proceedings and also by reference in their submissions.

If I may turn now to the issue of construction of the Ordinance.  This is a matter we deal with in part 1 of our submissions, and in our submission it is just not correct to assert the Ordinance was intended to be an instrument of oppressions and subjugation to suppressed political movements, to prohibit Aboriginal people from exercising their religion or anything of that sort.

Our submission is these are ex post facto analyses and assertions made through contemporary eyes.  It is not social welfare legislation which would satisfy today’s standards and values, but at the time of its enactment it was intended, in our submission, and that could be seen on its face to provide for the care and protection of Aboriginal persons as a class in need of special care and assistance.  Without taking the Court in detail through our written submissions, I should make it clear that each and every of our written submissions, including the supplemental submissions which we handed up in interleaved form yesterday, stand as the submissions for the Commonwealth and I do not intend to take the Court in detail through that but merely adopt them at this stage.

What we say is that it was accepted by this Court in Namatjira v Raabe 100 CLR 664 at 669, which the Court has already been referred to, that in 1959 the successor to this Ordinance, the Welfare Ordinance 1953, was intended to be protective in nature.  One sees this discussion in our submissions paragraph 1.23 and there we see that the view is taken by Justice Fullagar that it conferred a status upon the Aboriginal people equivalent to that conferred under the Ordinance as persons who stand in need of special care and assistance.

We submit also - and this is dealt with in our supplementary submissions paragraph 1.25a page 4 of the bundle of supplementary submissions - that it is apparent from the legislative history of this type of legislation which can be traced back to concern in the 1830s and the 1840s about the plight of Aboriginal persons caused by the expanding area being occupied by pastoralists.  This concern eventually led to the.....of the first officer for protector of Aboriginal persons.  The intention to provide for the welfare of Aboriginal persons is something which underlay the 1910 South Australian Ordinance and upon which this Ordinance was modelled and we refer in paragraph 1.22 of our submission to the second reading speech to the South Australian Act which has some provisions identical to this Ordinance which indicate that intention.

Our submission is that the power to take into custody and care under section 6 was not one which could be exercised without good cause merely according to the whim or prejudice of the protector.  The power was exercisable only where the protector was of the opinion that it was necessary or desirable in the interests of the Aboriginal for him to do so and we say it is clear from the decisions we refer to in paragraph 1.31 of our submissions - and we have already referred to Waters - that the power is one which was amenable to judicial review if exercised improperly.  So how the power was exercised in practice is not, in our submission, a matter bearing upon its constitutional validity.

Also we do not understand our learned friends submitting other than faintly that they attack section 6 as having as it does reference to matters of welfare as terms for its application.  We submit that the power to cause Aboriginal persons to be kept within a reserve or institution under section 16(1) also was a power which was not to be exercised arbitrarily.  It was a section which did not apply to any Aboriginal person whom, in the opinion of the chief protector, satisfactory provision was otherwise made and that, of course, is the provision of subsection (3)(d).  The duties imposed upon the chief protector under section 5(1)(f) - and we quote this in paragraph 1.25 of our submissions - are particularly significant.  Of course, all the functions and duties of the chief protector are directed, in our submission, to aspects of protection and welfare, but (f) is:

to exercise a general supervision and care over all matters affecting the welfare of the aboriginals, and to protect them against immorality, injustice, imposition and fraud.

In paragraph 1.25 we point to many examples in the Ordinance of provisions plainly intended to be protective of Aboriginal people such as provision of reserves for their use, the benefit and imposition of obligations on shipmasters to return those persons home before the expiration of their employment, the intention to protect women as a class regarded as particularly vulnerable.  The sections which my learned friend, Mr Finkelstein, attacked, in our submission, are ones which, properly characterised, have an obvious intention to protect, particularly in the circumstances which the Court may, as a matter of judicial notice - as a matter of confirmation from materials which I have referred to in passing can understand.

The obligation to exercise the powers under section 6 and section 16 in the best interests of the Aboriginals is reinforced by section 7 because there the chief protector is made the legal guardian of children and, of course, this provision as we note in paragraph 1.28 of our submissions was not regarded as importing all the rights and obligations attaching to guardianship of an infant.  This was discussed by Justice Kriewaldt in Ross v Chambers which is in our materials, volume 3 at page 158, a decision to which my learned friend, Mr Finkelstein, has taken the Court.  So there is an aspect, we submit, of care and protection confirmed by sections such as section 43(1) and section 57 dealing with wages.  There was a capacity to assist Aboriginals, not to act to their detriment.

So, our submission is that there is no intention to subjugate Aboriginal people discernible from the terms of the Ordinance.  We say its intention on its face is the opposite.  The Ordinance is, of course, predicated upon the Aboriginal people as a class being in need of special care and assistance, and it is our submission that this is the demonstrable intention of the Ordinance so to provide.  When one looks at the structure of the Ordinance one sees, in our submission, firstly, the element of duties provided for in section 5, all referable to welfare and protection which, in our submission, have an influence and really infect the entire provisions of the Act.  The Act is predicated upon duties and powers which are vested in the chief protector, director, or other protectors. 

In our submission all those powers are powers referable to the protectors, the chief protector, carrying out the duties placed upon him by section 5 of the Act.  So that when one then has particular powers - the ones looked at by the plaintiffs are section 6, which the plaintiffs seem, more or less, to concede, is characterised appropriately as a protection or welfare law, and section 16, to which they deny such characterisation, in our submission, are provisions each of which are within the structure of the Ordinance, required to be utilised by the chief protector in discharging his confined duties under section 5, those of protection and welfare.  And, of course, it is possible to regard section 6 and section 16 as being directly related sections. 

Section 16 enables, we submit, on welfare grounds, the chief protector to take an Aboriginal person, including half-caste as defined, into his custody.  Now, the section which provides for the consequences of that being taken into custody would seem to be - perhaps there are other provisions, but one obvious section  is section 16, so that section 16 may fairly be read as a complement to section 6 for the purposes of protection and welfare by reference to the specific requirement that the director, chief protector be of the opinions necessary of desirable in the interest of Aboriginal concerned.  The person may be taken into protection and then, we submit, subject to the same requirements of having regard to the purposes of the Ordinance, the requirements of section 5 describing the duties of the director, the chief protector, the chief protector may act pursuant to section 16 dealing with causing the person to be kept in a reserve or institution.

This reading of section 16 as being part of the scheme of the Act, in our submission, is confirmed by subsection (3).  The other provisions of the Act dealing with employment are, in our submission, to be characterised as protective so that when they are engaged then, the operation of section 16 is quite logically and consistently with welfare and protection excluded.  The other exclusions of (b) and (c) are also consistent with the provisions of the Ordinance to which we have referred, dealing with both employment and also the particular provisions for the protection of women and, indeed, paragraph (d) itself, as we note, is a general provision indicating that section 16 is a provision to be available to pick up the situation when, if not otherwise covered because the person is lawfully employed, holder of a permit, a woman who is suitably protected within the scheme of the Act or any other person whom the chief protector, on a particular basis, is content that satisfactory provision is otherwise made, that must mean satisfactory provision having regard to their welfare, then, section 16 is a general provision enabling what the scheme of the Act would provide for: appropriate welfare and protection of that person. 

When one goes to the regulation‑making power, particular powers have been referred to by my learned friend, Mr Finkelstein.  That is under section 27, particularly (j) and (k).  In our submission, the entire regulation‑making power must be exercised for the purpose of the exercise of the functions under section 5 and we have also referred to the further character which is given to the exercise of these functions by the establishment of the chief protector as a legal guardian of every Aboriginal and every half -caste child.  So that if regulations were made that went beyond that purpose, then they obviously could be put as beyond power.  There is a restriction on the regulation‑making power.  In our submission, it is a clear one from the law itself.  The regulations must be for the purpose of the Ordinance, for the purpose of the director carrying out the duties which are imposed upon the duty under section 5.

In our submission, drawing threads at this point together, we say section 16 is not free‑standing.  It is one of the powers conferred upon the chief protector and it does seem, on its face, one closely related with section 6 which is barely under attack by the plaintiffs.  We say that all the discretions under the Act including those under section 16 and probably in its ordinary operation also infected by its preliminary application to any particular Aboriginal person by section 6, can only be exercised for the beneficial purpose intended by the Act.

If it were the case that it was exercised for any other purpose then, in our submission, the ordinary principles would apply.  Where a provision in a statute confers a statutory discretion in general terms, we submit that it cannot be alleged as being beyond power because it may be possible to postulate a situation where that discretion has been exercised in an unconstitutional manner or, if we accept for the purposes of the argument that the plaintiffs have demonstrated to this Court that this occurred some time between 40 and 80 years ago, if we accept for the purposes of argument that each of the matters alleged by the plaintiff could constitute an exercise of discretion for an improper purposes.

That is putting the plaintiffs’ claim at its absolute highest.  In our submission, if that be accepted as the case for the purpose of argument, it cannot be that the statutory provision itself may then be said to be unconstitutional.  An exercise of a discretion contravening a constitutional prohibition would be ultra vires the Act; it must be.  So, provided that an exercise of a discretion could be restrained by judicial review so that its exercise is within constitutional power, the provision conferring the discretion in general terms would not be invalid.

I refer the Court to firstly the judgment of your Honour the Chief Justice in Miller v TCN Channel Nine Proprietary Limited 161 CLR 556 at pages 611 to 615. I will not read that passage but, your Honours, in our submission, that sufficiently establishes that in a situation where one may postulate ‑ ‑ ‑

BRENNAN CJ:   That is the current view perhaps, but of course the old view under section 92 cases was that if a discretion was given to a State Commissioner of Transport that was too wide, then the grant of the power fell.

MR GRIFFITH:   Your Honour, perhaps I could refer to Giris’s Case.  We accept the statements there by several of the Court.  Could I give the Court references to that which we say in the context of a provision which there enabled the Commissioner of Tax to discriminate between States within the provisions of the Income Tax Assessment Act, that your Honour would accept that as a relevant old position.  That is Giris v Commissioner of Taxation (1969) 119 CLR 365, in particular the Chief Justice at 374, Justice Kitto at 378, Justice Menzies at 380 and Justice Owen at 387. There each of their Honours in much the same terms said that even though the provision did not forbid discrimination, this did not mean that it permitted discrimination and was held valid. So that what we seek to say is that, in circumstances such as those, it is clear where there is a discretion it is intended to extend only to matters which are constitutional, that Parliament did not intend that discretion should either operate wholly including unconstitutional operation or not at all.

The second element we refer to is where judicial review exists which ensures that there is a mechanism to attack its exercise.  We submit, your Honours, that for the purpose of this argument it is not to the point that the mechanisms of attack during the period of this Ordinance’s operation were not as sophisticated as they are now.  We say that they were able to be challenged.  If we could refer also in this context to Wilcox Mofflin v New South Wales (1952) 85 CLR 488. We say there is nothing at all in section 16 to indicate it is intended to operate contrary to the Constitution.

That is not a surprising proposition, but we say that as the Court comes to construe it - and this is perhaps picking up a point your Honour the Chief Justice made to my learned friend Mr Forsyth two days ago - one should not approach this legislative structure making assumptions at each step that there is an intention to go beyond power, to go beyond the territories power, to go beyond placitum (xxvi), to go beyond constitutional power.  It is a question of obvious construction as one goes through that chain that one approaches it on the basis that, if fairly read, it is falling within power, then there is no occasion for this Court to make assumptions that the provisions are intended to be unconstitutional.

For the purpose of the case put by the plaintiffs, our submission is they must go that far.  By their very nature, if they bring to the Court matters that are close two score, three score, four score years ago, we say it should not be regarded as a matter of procedural unfairness that these points are valid points to be made.  Their complaint is unconstitutionality of laws during the period of their operation in the period of 80 to almost 40 years ago.

Our submission is, your Honour, that complaint of unconstitutionality must be addressed by reference to the principles which this Court has enunciated on dealing with issues of unconstitutionality.  We also make the point it is a very difficult task to invite the Court so to do this in the case of a law so long repealed.  We say ordinarily the Court would not countenance it, but, having regard to the particular way in which it is pleaded, in our submission, the Court is able to have regard to the matters as they have been pleaded and reserved in questions of the Court and none the less apply these established principles.  In our submissions, paragraph 1.31, we discuss the manner in which unconstitutional exercises of the discretion could have been restrained, and I will not take the Court to those matters. 

For those reasons we characterise the Ordinance, including section 16 - I do not know whether I am dealing with your Honour Justice Toohey’s point which you raised and I did not completely answer earlier - but one of our submissions is put in this way that section 16 is related to section 6 related to section 5, so that it is not something where one can say, yes, that is a provision which indicates that there are other and foreign purposes within the Ordinance.   But our principal submission is that the Ordinance, when one comes to particularly section 5 and section 7, is really permeated entirely by reference to matters of welfare and protection, albeit in terms which by application of contemporary standards we entirely accept the description your Honour McHugh made yesterday of “appalling”.  But that, in our submission, does not take the case made against us any distance at all.

The consequences of the characterisation which we submit should be made is that, and this is, we wish to make clear to the Court, dealing with the case as the plaintiffs put it, because it remains our view the plaintiffs must fail for the other principal reasons that I have already summarised to the Court.  But, if it is correct to say the legislation is characterised or was during its operation - it is long gone - as legislation for protection and welfare of Aboriginal people, we say the plaintiffs’ case necessarily fails.  So the Court then can answer the questions adversely to the plaintiffs, particular questions 1 and 2, and that is the end of it.

The Ordinance, of course, could not even be suggested as conferring judicial power and none of the constitutional rights or freedoms asserted by the plaintiffs would be infringed even assuming in the plaintiffs’ favour that they existed now or that they existed 50 years or so ago, and that they should be applied both now and applied going back for a period of upwards of 50 years.

BRENNAN CJ:   You say then that the argument that is put against you, as I understand it, is built on some phrases that we used in Lim’s Case.

MR GRIFFITH:   Yes, your Honour.

BRENNAN CJ:   And the argument is section 16 contains what might be regarded as confining power.  Any confining power is penal, any exercise of the penal power is judicial, therefore, section 16 is judicial.

MR GRIFFITH:   Your Honour, I was intending to deal with these issues in order.

BRENNAN CJ:   I am not suggesting you should take it out of your order, it is just that your assertion that section 16 does not wear on its face the character of a judicial power does not really come to terms with the nature of the argument, as I understand it, that is put against you.

MR GRIFFITH:   Your Honour, at this point I was dealing with characterisation.  This is covered by part 4, chapter 4 of our submissions to deal with this question of, particularly, judicial power.  Your Honour, we do address the Lim point there, but I accept your Honour’s point as to that but, your Honour, of course we do say that does not matter anyway.  It is territories.

BRENNAN CJ:   Yes.

MR GRIFFITH:   So, our point here is, your Honour, if we be right in that, in any event, that is it and that the failure of the plaintiffs on the characterisation issue, as it were, puts them out of Court, but we must address, in due course, your Honour, section 122 to see whether that excludes judicial power and, of course, we address the fall-back situation if it does not - what our submission is on judicial power, so that is all accepted, your Honour.

Your Honour, what we do say is that if it is not correct to say the legislation to be characterised as legislation for the protection and welfare of Aboriginal people then, for the reasons we develop in chapter 10 of our submissions, it will be necessary for the Court to consider evidence of the matters referred to in paragraphs 29(d) and (e) before any constitutional breach could be found.  I will say something about proportionality and the test but to meet head-on the point made by my learned friend, Mr Finkelstein, yesterday, we submit that on any of the freedoms, free‑standing rights alleged, each of them would be subject, if they existed, to a proportionality test.  There is not some that escape it.

Our submission is that even if the plaintiffs advance to their furtherest extent theoretically possible, this case must then go off to be considered on such evidence as there is matters relevant to a proportionality test.  We are not inviting the Court to do that because we are going to leave the Court, we hope, with what we say are these brick walls, as it were, that stop it going further.  It is not intended to be progress by exhaustion.  The plaintiff comes over one and then there is another, but of necessity, and it is not surprising when one considers claims which are made in this unprecedented way to the Court dealing with a claim for damages from an alleged free‑standing constitutional right not yet recognised by this Court of the operation of a law between 40 and 80 years ago that the plaintiff has difficulties.  That is just facing up to an obvious circumstance.

Your Honours, if we may then close off our submissions about the materials by just indicating to the Court that we stand here on the face of the Ordinance and say the Court may conclude that the plaintiffs have not made out, and we say it is for them to make it out, that the law cannot be characterised as a law other than a law concerned with protection and welfare including, in particular, section 16 which is the provision which they attack in the application to each of the plaintiffs in the circumstances pleading. 

We have made just the incidental point that if one does have regard to the materials which we say you should not, then by bringing this forward, they have just put themselves in a confirmed no-win position on this because that material, if anything, confirms our first submission based on the construction of the Ordinance and in any event, your Honour, we would submit that if the Court is not in the position where it says, “Well, we conclude that the plaintiffs have not made this out” - and we say the Court can do that - then the next step would have to be, in our submission, in effect, answer question 3 “yes” and the matter would have to go to trial on this issue of extrinsic materials.  Some trial judge would have the difficult task of putting himself in the position of the chief protector over the years of this century in the circumstances of the Northern Territory.

Your Honours, may we next turn to the section 122 point which, as we have indicated, quite apart from these issues of characterisation we plead.  Now, your Honours, we do not intend separately to deal with placitum 51(xxvi) because, in our submission, it does not take things any further than the territories power would take it and by leaving it in section 122 for the purpose of argument, we say that the question of judicial power does not arise as it would if it were under section 51.  So, we do not intend to get independent support from placitum (xxvi) because we do not see it taking us any further than the territories power.

DAWSON J:   Is (xxvi) relevant anyway, because of the date of the amendment?

MR GRIFFITH:   Your Honour, the part in brackets refers to State, and this is Aboriginals of the territory.

DAWSON J:   I see.  It escaped my attention.

MR GRIFFITH:   It escaped mine for some time too, your Honour, but it really does not seem to advance things any further because of the, as it were ‑ your Honours, we hesitate to treat such a serious issue of matter as if it were a card game, but in a way, what we say is, we have drawn a hand, and that appears in our written submissions.  Now, our learned friends have drawn their hand but, in a way, we have submitted, they have put in a wild card, because they have put in their factual material.  Now, we have made our argument about that. 

Now, we seem to have supplemented that, our further written submissions and now our oral submissions, but what we say is, your Honour, that really, with the advantage of these of these new procedures at the Court, the arguments with parties not holding back except my learned friend Mr Finkelstein’s interesting point about section 79, it is all there in the written submissions for the Court.  It is a lot of homework, we appreciate, but it is there and what we desire in our oral submissions is to.....on section 122 point, just point out to the Court that on this, as it were, the strength of our hand relies upon the strength of Courts’ judgments on these issues of section 122, and our observation is that this is a matter of authority which we say the submissions of our learned friends, in effect, seek to avoid by neglect.

To put it bluntly, it is not sufficient to overturn the section 122 argument by referring to the fact that there is a balance of dicta saying section 116 applies in the territory, to say that this Court has said that the constitutional freedom, political expression, does have consequence in the States and territories.  To stop at that point, as we understood my learned friend Mr Finkelstein did yesterday, we regard that as establishing that all the clear authority of this Court, this is section 122, is overturned.

Now, we plead this out in chapter 2 of our written submissions and I am not going to take the Court in any detail to that, because we say that is a particularly strong structure erected by this Court by anxious consideration over the years, and it is just there.  It is not something to say, “Well, if we had a clean slate there might be different approach to it.” or, “If we realised that we might regard section 90, or section 92, as having some general sort of single effect on how we should regard the territories power,”, or “We have a different view about what a Federal Court is.”, our submission is the Court has established all these things.  And so we say, firstly, we rely upon it as a source of power for the enactment of the Ordinance, and we say it is the plain position that it is not restricted by any of the constitutional limitations asserted by the plaintiffs.  Now, the power has some features.  The first is, it is a power which is capable of application in relation to territories of varying sizes and importance at various stages of political and economic development.

DAWSON J:   Just before you move on.  You may cover it in your submissions in relation to freedom of movement and association, but there is a more fundamental difficulty about any implied freedom of that sort in relation to the territories, is there not?  If the freedom is derived from representative government, then the territories not required to have representative government.  Do you deal with that somewhere?

MR GRIFFITH:   I am not sure we do specifically, your Honour.

DAWSON J:   Nor are they required to be represented in the Parliament of the Commonwealth.

MR GRIFFITH:   The point I make to freedoms which may effect the State and Territories is that one might say that on the issue of Theophanous and Stephens it may be that the same principle applies in the Northern Territory as it did in the States, for the reasons that the Court there ‑ ‑ ‑

DAWSON J:   But it did not ever give any reasons; it did not ever turn its attention to the territories, but there is a fundamental difficulty, is there not?

MR GRIFFITH:   I must say that I have been prepared to concede my friend’s point about territory but, indeed, why should I?

DAWSON J:   Representative government forms no part of - the territories constitutional guarantee.

McHUGH J:   But in Australian Capital Television did not the majority of the judges hold representative democracy argument invalidating the legislation so far as it applied to the territories?  It was only, I think, Justice Brennan and myself - no, I am sorry, I upheld it; I am not sure if anybody else did.

MR GRIFFITH:   Your Honours, we were going to refer to Australian Capital Television and my learned friend, Mr Gageler, my junior, enables me to do that now by giving my notes out of order, but what we say is that there is no decision of the Court but when you look at Australian Capital Television, the reason why political advertising provisions were structured on applications of the territories, because they were held to be inseverable from the remainder of the Act.  That I think was a point that your Honour Justice Gaudron made in your judgment also.

GAUDRON J:   My point was, I think, it did not purport to stand on section 124.

MR GRIFFITH:    That is a point I desire to make, your Honour, that the law there was not a territories law.  So we say that makes it different.

DAWSON J:   When you get to a territories law, there must be fundamental difficulties in drawing an implication of the sort that applies elsewhere when representative government forms no part of the constitutional requirements, not even in the sense of representative government within the territories or representative government in its form of the territories being represented in the Commonwealth Parliament.  And when one considers the position of external territories it perhaps becomes even clearer.

GAUDRON J: Now that there is provision in the Constitution for territory senators and territory representation.

DAWSON J:   That is a choice; that is not a constitutional requirement.

MR GRIFFITH:   Well I was going to say that, but our first submission is that the Court does not have to determine whether the implied freedom of political communication now applies in the Northern Territory or any other territory because that does not, we say, pass as a matter to be determined in this case, but assuming that the implied freedom of political communication does apply to the territory, we say that could only result because of the constitutional legacy of developments.

DAWSON J:   You say it does not apply in this case, but one of the arguments is that the taking of the Aboriginal children from their parents breached the implied freedom of communication.  If there is no implied freedom of communication in the territories, then that is an end to that argument.

GAUDRON J:   But what if, for example - the same problem arises, for example, does it not, if it were remitted to the Federal Court, without specification of where it was to hear and determine the matter?

MR MASON:   It depends what means by the same problem.  If one says one has a statutory void, whether or not that is a problem may be in the eye of the beholder or the particular issue that is determined.  In my submission, given the way that statute has impacted upon the common law, it is more of a problem to say that there is no statutory law applicable, than to find a means of choosing statute law.  The Commonwealth has not, for obvious reasons, entered the field and re-enacted in terms every applicable State law; it has, in my submission, done so through section 79 with an intent that that will pick up for all matters in State and federal jurisdiction the rules according to the terms of the section.

Your Honours, as to where the High Court, or for that matter the Federal Court, exercises jurisdiction within the language of section 79, may I refer the Court to Professor Lane’s earlier work, the Australian Federal System, and at page 529 and 530 he collects a number of cases, Parker being one of them, Deputy Federal Commissioner of Taxation v Brown 100 CLR 32 at page 39 and Reg v Oregan 97 CLR 323 at page 324 and 330 and refers to other cases on that particular issue.

Your Honours, I have not had time to have the report brought, but my recollection is that Breavington v Godleman was a case in which there was a Commonwealth party, Telecom was one of the parties, and the outcome ‑ ‑ ‑

GUMMOW J:   That was submitted to the Supreme Court of Victoria.

MR MASON:   They did, but whether they lost ‑ ‑ ‑

GUMMOW J:   At least they did not object.

MR MASON:   But whether in doing that they lost their substantive statutory rights according to the law of the Northern Territory is a matter which occurred to me, but I can only refer the Court to the report.

Finally, your Honours, may one ask, well what would happen if there were no section 79 or if section 79 has somehow or rather missed its mark because of the narrow construction to be put upon it?

My submission is that that would not create a legal void so far as the rights of the litigant parties are in these or any other similar proceedings and one does not get into any sort of Cigamatic problem because the Commonwealth is, in this case, claiming a benefit rather than being subject to a burden. My submission is that section 108 of the Constitution, in effect, does for State law what covering clause 5 does for Commonwealth law and provides that, in effect, State law shall have force according to its tenor and, therefore, if there were no section 79 there would be an available body of State statute law which would be capable of application to the litigant parties in a particular State if that is where the rules of private international law would point them.

Your Honours, may I then return to the written submissions and deal, but briefly, with some of the points there made. In paragraphs 3 and 4 of the submissions we have collected some authorities, much of which now repeats what is to be found in paragraph 9.6 of the Commonwealth’s submissions. The essential point is that, with respect, to express constitutional guarantees, even those seen as conferring directly private rights, nevertheless, the principle of law was well established that there is no cause of action for the breach in itself. It is the common law which stands behind the Constitution which governs the rights of the parties.

We note that the plaintiffs have not really in the present case had to be very explicit about what the elements of the cause of action are but one presumes that there would be a notion of causation. There presumably would be, although there might be debate about this, some notion of mens rea. One cannot avoid, in my submission, the need to look to the common law in order to flesh out what is described as the constitutional tort, even though breach of the Constitution is said to be a step in the way.

Our submission is that the principles in Mengel’s Case should apply and there is no reason in principle why they do not apply where the defect of the official action is no more than being ultra vires the Constitution. Indeed, there is a point of distinction which perhaps strengthens the present case, because, as one reads the present pleadings, the agents of the Commonwealth, who acted in this matter, are not said to have acted in bad faith, and acted under the comfort of an unchallenged federal statute. I am not saying that if the statute swept away they would not be exposed to a tort claim, but I do submit that it is a big jump to say they are exposed to a cause of action not dependent on bad faith, and not dependent upon any principles of tort. Our submission is that the law does not so provide.

Your Honours, we then address, in the balance of our submission, and mainly by reference to American authority, the elements of the so‑called constitutional tort, if such exists, which we deny, and we submit that the Court should not follow the reasoning in Simpson’s Case, or Baigent’s Case, based as it is upon express statutory powers, or a misreading of the American law, because there is reliance upon Bivens’ Case in Baigent, but a misplaced reliance for the reasons we summarise in paragraph 8 and develop in the balance of the submissions.  What is very clear is that the Bivens tort is seen as a tort; it has an element of mens rea in it.  It is moulded by the judiciary in the sense that absolute and qualified privileges have been attached to it and it is regarded as capable of statutory modification or abrogation, all of which are propositions that are implicitly denied by the ‑ or explicitly denied in the plaintiffs’ approach in the present case.

Your Honours, may I take the Court briefly to Federal Deposit Insurance Corporation v Meyer 127 L Ed 2d 308. It is referred to at the bottom of page 3 of our submissions. It was mentioned yesterday. I think the transcript has wrongly attributed to Justice McHugh something Justice Gummow said, but since we are respectfully disagreeing with what fell from the judicial mouth, perhaps the error does not matter as much, at least to your Honour Justice Gummow.

Reference was made to Meyer’s Case and at pages 148 and 149 of the transcript it is stated that Meyer is explicable upon the basis that there had been no effective waiver under the Torts Act.  Our submission is that Meyer does not turn upon that and on the contrary the reasoning of the court in Meyer’s Case sharply distinguishes between the waiver of sovereign immunity and the elements of the Bivens tort. It is 127 L Ed 2d 308 and at pages 322 and 323 is the passage to which we make reference. At 322 in the left‑hand column it is stated in the judgment of the court that:

Although we have determined Meyer’s claim falls within the sue‑and‑be‑sued waiver, our inquiry does not end at that point.

And in the rest of that paragraph a distinction is drawn between the waiver of sovereign immunity and the substantive law that follows, the court going on to hold that though there is waiver nevertheless there is not liability.  What Meyer was arguing was that this federal corporation which had waived federal immunity could be directly sued in a Bivens claim.  The court held, no, that Bivens applied only to actions against agents and not agencies and the Supreme Court in Meyer refused to vary that aspect of Bivens.

GUMMOW J:   No, what I was saying was Bivens developed it in the first place because you could sue the agent but you could not sue the United States.  You could only sue the United States if there had been a relevant waiver in the Federal Courts Act and the idea was to catch a human, namely, the unfortunate federal officer.

MR MASON:   Yes, I am sorry, your Honour, I had misunderstood the exchange.  At page 323 in the report reference is made to the real complaint ‑ left‑hand column point 3 - being:

that Pattullo, like many Bivens defendants, invoked the protection of qualified immunity.

And there is a discussion about that aspect of Bivens and in the right‑hand column a policy reason, as it were, given for hesitation in extending Bivens into new categories of situation.  So that case emphasises the point that this is a product of judicial creation analogous to or treated as a tort claim subject to cautious extension and legislative tampering. 

Your Honours, in paragraph 11 of the outline reference is made to the recent decision - I think it was mentioned by one of the plaintiffs’ counsel - of Farmer v Brennan.  The particular page that we refer to in the passage quoted at the end of the paragraph is 823, an example of a situation where Bivens has been extended to a particular breach, in this case the Eighth Amendment - but only where there is a sufficiently culpable state of mind in the officer concerned and the cause of action pleaded by the plaintiffs in the present case does not allege any state of mind, it does not attempt to bring itself within the principles of Mengel or the analogous American law.

Your Honours, in paragraph 13 we refer the Court to some American principles of law which apply as part of the appropriate remedial aspect of the Bivens tort, the most applicable State limitation law.  It is clear that, having regard to the nature of the Bivens tort, there is nothing in statute, although there perhaps could be which requires there to be a limitation provision appended to the tort.  Nevertheless, the federal constitutional tort, however one describes it, is subject to the most appropriate applicable State limitation period.  A good example of that, and one that is perhaps in a context similar to the present case is Leonhard v United States 633 F 2d 599, a 1988 decision of the Court of Appeals of the Second Circuit.

It was a case, your Honours, where a claim was made by a parent suing under 42 US Code, section 1983 and Bivens for loss of his children, in effect.  The plaintiff lost custody of his children, his wife remarried, her new husband went to gaol.  Her new husband, however, got out of gaol by agreeing to testify against the Mafia and the condition of the testifying was that the family go into hiding and they were relocated under some witness protection scheme, the effect of which was to keep the original father away from his children for about 10 years.  For that wrong, he sued everybody in sight and the question of the limitation aspect arose.  He sued for constitutional wrongs done to him with respect to denial of due process in depriving him of parental rights.

GUMMOW J:   The limitation point on the Bivens action is dealt with at 615, is it not?

MR MASON:   Yes, your Honour, thank you.  That was the passage I was going to refer the Court to, and at 616 and 617 where the children who were co‑plaintiffs were able to escape the limitation bar by resorting to provisions in the applicable statutory provision which allowed an infant to avoid the tolling of the limitation period.  So, in one sense, it perhaps cuts a little bit both ways.

Your Honours, there is only one other short matter I was going to address about the nature of the action on the case.  Shall I do it now or in the morning?

BRENNAN CJ:   How long do you expect your submissions to take, Mr Solicitor?

MR MASON:   Two or three more minutes.

BRENNAN CJ:   Proceed then.

MR MASON:   If the relevant limitation regime is that of the Northern Territory, our understanding of the law is that the Northern Territory limitation statute at the relevant period was the Statute of James, the 1623 Statute of James, and one question that may arise is whether the so-called constitutional tort, if it exists, which we deny, is within the Statute of James.  Reference is made to a whole category of claims that are barred and my learned friend, Mr Gageler, has said the intent was to pick up every common law action at the time.  One of the expressly mentioned claims is the action on the case.  Your Honours, there is a discussion about the nature of the action on the case and the way the law has developed in Justice Priestley’s judgment in Mengel - I never thought I would be citing this case, but for this passage I do rely upon it - Northern Territory v Mengel (1994) 95 NTR 8 at 36 to 41, where his Honour in particular cites Kiralfy, who wrote a work on the action on the case, to say that:

it is substantially true to say that almost all new forms of common law liability are today derivatives of Case.

GUMMOW J:   What was that page, Mr Solicitor.

MR MASON:   I was reading from page 38.  Kiralfy’s work on the action on the case has a chapter 10 “Trespass and Case on Statutes” and it is a short chapter, but it does discuss what are referred to as statutory actions on the case.

One such case, however, it is interesting, is one where the application of the statute of limitations to such a statutory action is discussed.  It is Syms v Wilson in Style 214 82 ER 656.

TOOHEY J:   Why are you talking about statutory actions on the case?

MR MASON:   Because I am addressing the question whether a constitutional tort is an action on the case. As I understand the plaintiffs’ way of putting it, there was a breach of the Constitution, therefore there is damage. Is breach of the Constitution analogous to an action on the case within the spirit of the limitation statute?

MR MASON:   The report of Syms v Wilson which concerned the Statute of Monopolies and whether a plea of the Statute of Limitations was a good plea ‑ the report is not any help but Kiralfy says that an examination of the plea roles shows that the defence was rejected.  In other words he says that on that old authority for which there is no reasoning an action on the case on a statute is not an action on the case within the letter of the limitation statute.  I refer to that because it came to my attention about half an hour ago, and having regard to one’s duty to the Court. 

However, my submission is, your Honours, that the proper approach to a provision such as the Statute of Limitations of 1623 is to apply the principles relating to the spirit of a statute such as discussed recently in Nelson v Nelson in the joint judgment of Justices Deane and Gummow

70 ALJR 47 at 54 and 55, and the correct approach to applying an ancient statute like the limitation statute is to divine the spirit of the statute. The question then arises, well, does one construe it narrowly or generously? Is it to be seen as a blot upon plaintiffs’ rights or as remedying a mischief and, therefore, correctly to be construed generously according to its spirit and intent. We have been unable to find any Anglo-Australian authority on that point but the American law, according to 51 Am Jur 2d, Limitation of Actions, paragraph 50, is that limitation statutes are construed generously because they are seen as remedying a mischief and, therefore, our submission is that within the spirit of the statute of 1623 the sort of constitutional tort, if it exists, is an action on the case.

TOOHEY J:   Is that because the Northern Territory Limitation Act, which I do not have in front of me, has no provision which could embrace a claim based on breach of a constitutional right?

MR MASON:   It is because the Northern Territory limitation provision, applicable until quite recently, was the Statute of James and it provides in its transitional provisions that an action barred before the commencement of the Act, if it was barred under the preceding law, will remain barred.

TOOHEY J:   That seems curious.  How does that come about?  Why would not laws of South Australia - - -?

MR MASON:   It is a law of South Australia of the 1860s.  It is referred to in paragraph 11.16 of the Commonwealth submissions.  The Limitation of Suits and Actions Act of 1866 of South Australia re‑enacted the 1623 statute, and that law remained in force in the Northern Territory until its repeal by the Limitation Act of 1981 of the Northern Territory.

GAUDRON J:   Why do we look beyond 1981?  Why do we not look at the time when the action was commenced?

MR MASON:   When the action was commenced?

GAUDRON J:   These actions.

MR MASON:   Because the transitional provisions ‑ and I have not got the detail of it - of the Limitation Act says that if it was barred before the new law, it is to be governed by the old law.  Your Honours, I am reminded that there is a collection of cases about the beneficial interpretation of limitation provisions referred to in Halsbury 2d ed vol 20, page 596.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Solicitor.  The Court will adjourn until 10.15 am tomorrow morning.

AT 4.23 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 15 FEBRUARY 1996