Lane v Morrison & Anor

[2009] HCATrans 1

[2009] HCATrans 001

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C3 of 2008

B e t w e e n -

BRIAN GEORGE LANE

Plaintiff

and

COLONEL PETER JOHN MORRISON

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Application for order to show cause

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 JANUARY 2009, AT 9.31 AM

Copyright in the High Court of Australia

MR A.W. STREET, SC:   May it please the Court, I appear with my learned friends, MR M.J. DUNCAN and MS K.S. COCHRANE, for the plaintiff.  (instructed by Provest Law)

MR S.J. GAGELER, SC (Solicitor‑General of the Commonwealth of Australia):   If your Honour pleases, I appear with MR N.M. WOOD for the second defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Street.

MR STREET:   If your Honour please.  The plaintiff seeks leave to file in Court a further amended application that was provided to the Solicitor‑General on 9 January.  Your Honour I think has been provided informally with a copy.  Could I hand up a copy of the proposed further amended application, which is the original, and the proposed amended 78B.  Your Honour, could I indicate that the area of dispute between the second defendant and the plaintiff in essence relates in that application to the following grounds, if I can refer your Honour to it.

HIS HONOUR:   Yes.  It is 4, 5 and 7, is it?

MR STREET:   Yes, your Honour.  In relation to 4, 5 and 7, your Honour, in essence we rely upon the substance of what we put in our section 78B notice and the argument we have developed there, but I do have a supplementary note which I have provided to my learned friend which, if it is convenient to your Honour, I would hand up to your Honour.

HIS HONOUR:   Yes.  Just take a seat for a moment.  Yes, Mr Street.

MR STREET:   If your Honour pleases.  Your Honour, could I just supplement that oral outline by these propositions.  We say in relation to ground 3 that we have put forward that that raises the existence of what I will call the parallel universe.  Your Honour will recall that the theory of military disciplinary law being advanced on a proposition that it is subordinate to the existence of criminal law.  That parallel universe and its existence is what we have raised in ground 3.  What grounds 4 and 5 do are raise the physical laws, or physical constitutional principles in existence in that ‑ ‑ ‑

HIS HONOUR:   Sorry, what is a physical constitutional principle?

MR STREET:   I am seeking to use the analogy, if I may, in this way, your Honour.  We say ground 3 challenges the existence of the universe.

HIS HONOUR:   Let us not get lost in metaphor.

MR STREET:   The parallel universe.  Your Honour, the reason why I am addressing it in this way is only to identify this, your Honour, that we say in essence that the arguments we raise in grounds 4 and 5 are constitutional principles that we say are not raised by ground 3 and in substance what we say ground 4 does is raise a most important provision in relation to Chapter III and to, in essence, deal with the application of this parallel universe that is said to exist without taking into account Chapter III is in essence to approach Chapter III with one hand tied behind the back, if I can put it in that way.

The work done by section 80 might be looked at in this way, if I can, your Honour; again an analogy, if I may. Take a Rubik’s cube, in the face of a Rubik’s cube; the nine sections of Chapter III, section 80 is one of the provisions that gives the face to that Rubik’s cube. Without it actually being advanced and dealt with one has a position where we say the full nature and scope of the work done cannot be addressed. We say these arguments were not dealt with in White.  We say these are not arguments that are precluded from being raised.  We say there are dissenting decisions that support it and we have different legislation to the earlier decisions.

Your Honour, ground 5 then raises arguments not based simply on the section 80. It raises arguments based on Melbourne Corporation and an integrated judicial system and, in our respectful submission, both grounds again are ones which are important aspects of the limitations that we say have not been taken into account in the earlier decisions given the legislation that now exists.  It was not the case that in White, or any of the earlier cases, there existed an Australian Military Court.  It was not the case that there existed criminal guilt of the kind now found through section 10.  To that extent we have a different regime that exists and needs, in our respectful submission, to be taken into account.

Your Honour, can I then turn to ground 7, and here, your Honour, in White 231 CLR 570 his Honour Justice Kirby identified in his reasons for judgment in paragraph 161 that if one applied a service nexus test of the kind there referred to, which is what we have raised in our ground, it would fail. In essence, he identified in 201 the Swiss position which was equivalent to such a test having a scope and operation. In essence, what we say is that the purpose test ‑ ‑ ‑

HIS HONOUR:   Switzerland?  I think it is Sweden that is referred to there, is it not?

MR STREET:   Yes.  Sorry, your Honour.  The purpose test which was that advanced by Justices Brennan and Toohey in Tracey and then followed in Nolan, we respectfully submit, has this major error in it.  It is a test founded simply on one constitutional principle, namely, a purpose test. 

What it does not take into account are the other limitations and restrictions found within the Constitution and, in our respectful submission, to apply a purpose test as if that was exhaustive is fundamentally flawed as it leaves out of effect the work done through the integrated judicial system, the work done through the reservation to the States of their powers of essential government in terms of their criminal law and it fails to take into account, in our respectful submission, the executive power and Chapter II.

Those matters were not analysed in the discussion concerning the test that was adopted by what was really a minority in originally Tracey and then expanded on in Nolan.  In our respectful submission, that test is one which clearly was not raised in White.  It arises in the present case and all three grounds in issue, in our respectful submission, are sufficiently arguable and right for determination and appropriate for referral.  If the Court pleases.

HIS HONOUR:   Thank you.  Yes, Mr Solicitor.

MR GAGELER:   Your Honour, there are, of course, degrees of arguability, but once you get to the point of challenging the existence of the universe, you must have crossed the line.  In our submission, the three grounds, grounds 4, 5 and 7, are unarguable.  Indeed, two of them, grounds 4 and 5, are repetitive of grounds dismissed by the former Chief Justice as unarguable in White itself. 

Your Honour, ground 4, the trial by jury ground, is based on the proposition that section 80 of the Constitution requires trial by jury for any serious Commonwealth offence, even a Commonwealth disciplinary offence. That is a proposition that is plainly and flatly inconsistent with Kingswell and with Lowenstein and with a number of other cases.  In paragraph 63 of our learned friend’s comprehensive section 78B notice he identifies 11 cases that he says he would need to overturn or distinguish to ‑ ‑ ‑

HIS HONOUR:   Paragraph 63?

MR GAGELER:   Paragraph 63 I think, your Honour.

HIS HONOUR:   I do not think so. 

MR GAGELER:   Page 22. 

HIS HONOUR:   Yes.

MR GAGELER:   I think I counted 11.

HIS HONOUR:   Perhaps I have not got the most recent version of it.  There is reference to a whole lot of cases which Bernasconi is raised.

MR GAGELER:   Yes, I counted 11, your Honour.  If you look at the cases, it is not as if they stand in a line, your Honour.  They are all over the place and he would need to do serious damage to get anywhere near arguing that point. 

HIS HONOUR:   But 4 brings in the 80 argument.

MR GAGELER:   Yes.

HIS HONOUR:   What do you say about 5?

MR GAGELER:   Ground 5 is founded on an idiosyncratic, topsy‑turvy view of the constitutional structure and the proposition that underlies ground 5 appears to be something like this.  Under the Australian constitutional structure it is said there can only ever be one law that applies to conduct, so that you cannot have a parallel disciplinary action taken for conduct that would be an offence against State or Territory law.

HIS HONOUR:   You cannot have a law which excludes the operation of the State judicial system.

MR GAGELER:   That is right.

HIS HONOUR:   That is the essential feature of State Government which was protected.

MR GAGELER:   If he is saying that, then it is not a problem that arises under this Act because of section 190 of the Act.

HIS HONOUR:   No.

MR GAGELER: What he is saying appears to be something different. What he appears to be saying is if conduct is an offence under State or Territory law, then it cannot be the subject of, to use his language, parallel action. Presumably the proposition would cover disciplinary action by an auditor’s disciplinary body or by a lawyer’s disciplinary body for conduct that would amount to an offence against State or Territory law and applied to the sort of case at hand, it would apparently be a proposition that would say – it would have the effect that if assaulting a person is an offence against State or Territory law, then there cannot be a military offence of assaulting a person who happens to be a superior officer. That appears to be the way it goes. It is somehow founded on section 118. It gives section 118 an operation that it simply cannot have and it somehow brings in, I noticed on rereading it last night, section 122 of the Constitution. That is in my version, your Honour. Section 122 is referred to in paragraph 78. Paragraphs 79 and 80 then go on to list two sets of, I think, overlapping cases.

HIS HONOUR:   I have 78 and 79 in my version.  It begins with Capital Duplicators, and each one refers to Re Tracey and so on.

MR GAGELER: That is right. So the first lot seemed to be the section 122 cases which are a long way from the present case, and then section 80 is another line of cases again. It is not as if they all stand in a line. So, your Honour, the proposition, so far as we understand it, that underlies ground 5 is a proposition that should be regarded as unarguable and it should be regarded as having no basis in either section 118 or section 122.

Ground 7 does not really seek a refinement of the existing service connection test.  It posits an extreme service connection test, support for which our learned friend has only been able to find in Sweden.  It receives no support in any judgment from any member of this Court in any case, so far as we can see, and it is inconsistent with the outcomes of five cases from Tracey through to White.  Again, as we understand it, if you were to apply this test that is posited in ground 7, what you would find, that even if there was an assault committed on a superior officer, that would not be capable of being a service offence unless it were committed on active service and outside Australia.  In our submission, that is a proposition that is incapable of acceptance.

HIS HONOUR:   I am just going back to Cox for a moment.  That was commission of an offence while serving a term of imprisonment for commission of a military offence and then the question was whether the Act could properly apply to people who had been discharged by reason of their previous misconduct but were serving a custodial term in respect of that misconduct.

MR GAGELER:   Yes.  It would probably be inconsistent with Cox as well.  It would not be inconsistent probably with Elias and Bevan who were on a ship.  So we should add that earlier authority to the list, your Honour.  It would be inconsistent with six cases in this Court.  Your Honour, really that is, I think, as much as I can say about the grounds at this stage.

HIS HONOUR:   When you say “inconsistent with”, are you going so far as to say it would require the overruling of any of those cases?

MR GAGELER:   Well, yes, it would.  Sometimes an argument can be inconsistent with the reasoning in a case.

HIS HONOUR:   That is right.

MR GAGELER:   But here it would be inconsistent with the reasoning in the case and the outcome in the case and so each of those six cases would need to be overruled.

HIS HONOUR:   Yes, all right.  Thank you.

MR GAGELER:   If your Honour pleases.

HIS HONOUR:   Mr Street.

MR STREET:   If your Honour pleases.  Your Honour, can I indicate that our submission in essence is one which my learned friend has not correctly characterised in dealing with the respective arguments.  Your Honour, we accept that the executive power can be used to create disciplinary code offences which are of a nature that give effect to disciplinary duty.  The distinction, and the material distinction, is between what are service offences and what are ordinary criminal law offences.  What has happened in this legislation has departed from what was analysed by Justices Brennan and Toohey in the earlier cases of Tracey and Nolan and the subsequent cases.  Can I just take your Honour back to Nolan 172 CLR 460 at 478 where their Honours say:

Service offences created by the Discipline Act are essentially different from offences created or recognized by the ordinary law (hereafter “criminal offences”).  Those tribunals which have jurisdiction to punish criminal offences do not impose punishment for contraventions of laws creating service offences and, even where the elements of a service offence correspond with the elements of a criminal offence, the offender is not necessarily exposed to the same punishment –

Your Honour, that distinction has gone.  Just in the same passage, can I take your Honour down to the attack.  It is not on the universe, it is on the parallel universe:

If service offences and criminal offences containing substantially the same elements were classified as offences of the same character –

that is our argument –

it would be impossible to maintain the co‑existence of military law and the ordinary criminal law in force in the different parts of Australia –

That is the parallel system. Now, your Honour, in this case what we say my learned friend has not addressed is the new legislation that creates a character that brings these offences into that very conflict identified by Justices Brennan and Toohey that were said to be impermissible. In our respectful submission, that is the reason why there is a major distinction together with, in looking at section 80 – can I just take your Honour to one other passage in that decision. In the discussion on page 487 at about point 6 on the page after the paragraph starting “It is to be found”, the third sentence, it refers to the Disciplinary Act and then it says, “The gradations of service tribunals”.

Now, your Honour, that has changed. We now have an Australian Military Court. We have a court determining guilt. The character of the offences has changed. It falls, in our respectful submission, into an area which can be distinguished from the earlier decisions and, to the extent necessary, your Honour will appreciate we have said we seek to distinguish, to the extent that that is an appropriate step, those decisions that addressed different legislation. It is in that context that we say the section 80 issue does arise because of the character of the offence. It is in those circumstances that we say that both the Melbourne Corporation and the ‑ ‑ ‑

HIS HONOUR:   Does the Melbourne Corporation situation arise?

MR STREET:   Well, your Honour, we say it does, because if the character of the ‑ ‑ ‑

HIS HONOUR:   What function of a State Government is being interfered with?

MR STREET:   The criminal jurisdiction.

HIS HONOUR:   How?

MR STREET:   Because the service offences, if their true character is that they are, in essence, offences of the criminal law because of the determination of them by a court, the Australian Military Court, and determination of guilt, in essence you have the direct interference with a domain that is essential to the existence ‑ ‑ ‑

HIS HONOUR:   Sorry, how is it interfering?

MR STREET:   Because, your Honour, the work done, we would respectfully submit, by a system of a parallel existence of what are not service offences but are ‑ ‑ ‑

HIS HONOUR:   Well, if things are in parallel, they do not interfere with each other.  What is the interference?

MR STREET:   Your Honour, the interference arises from the fact that it is no longer a service offence.  Its proper character is that of an offence which is of the same kind as would be dealt with by ordinary courts.

HIS HONOUR:   But the scheme does not address the double jeopardy issue, does it?

MR STREET:   It does. 

HIS HONOUR:   In what way?

MR STREET: Your Honour, there is a provision, section 190, that purports to preserve the jurisdiction of the States that my learned friend referred to. But we say if the true character of the offence is one that does give rise to a characterisation that is not distinguishable – and we say that is because of the court and the nature of the determination of guilt – then that is a determination in relation to which the work done by section 190 cannot save it and you do have an issue of both autrefois acquit and autrefois convict arising out of the determination of these offences. So the consequence, we say, is that there is not this parallel system that can co‑exist now because of this legislation. We say that gives rise to the section 80 argument and we say that then gives rise to the Melbourne Corporation argument and the integrated judicial system argument.  The integrated judicial system argument is simply that there are no exceptions and that there is just one universe and not a parallel universe that sits outside.

Your Honour, in relation to the service nexus argument, we respectfully submit, again my learned friend has failed to recognise that it is different legislation that has been addressed in those earlier cases and that the only constitutional test that has been formulated is one which assumes that the whole scope of the constitutional universe is one of purpose.  It leaves out of effect the work we say must be done by the other limitations arising not just from Chapter II and what are truly military disciplinary offences – and that is raised by our ground 1 – but also it involves then the extent to which this test of service connection can be reconciled with an integrated judicial system and the Melbourne Corporation principle.  If the Court pleases.

HIS HONOUR:   I am inclined to agree with the Commonwealth’s submission in relation to 4, 5 and 7, however, I would like to give it just a little further consideration in light of the submissions that have been made today.  What I propose to do is to give a ruling on Friday.  It will not be necessary for the parties to attend but we will deal with the directions aspect of the matter.  It will either be referred to the Full Court in the terms of the proposed further amended application or leave to further amend excluding all or some of those grounds.  I just want to make sure if I am going to say that something is unarguable that I have properly considered all of the submissions that have been made.

On the procedural side, I think, Mr Solicitor, you have put in an agreed statement of facts.  Is that actually agreed?

MR GAGELER:   Yes, it is, your Honour.

HIS HONOUR:   Yes.  So we are satisfied that all relevant facts are before the Court?

MR GAGELER:   Yes.  There is a paragraph at the end where the parties agree that inferences can be drawn from the existing facts, your Honour.

HIS HONOUR:   Yes.  To the extent there is non‑admissions, that is just in relation to the allegations which are to be put before the Australian Military Court?

MR GAGELER:   The actual alleged conduct of the offence, yes.

HIS HONOUR:   Yes.  In relation to the Defence Force Recruiting, I read in paragraph 2 of the agreed statement of facts that is part of the Australian Defence Force.  I see there is a private corporation involved, but when it is said it is part of the Australian Defence Force, it is not a separate entity?  In other words, it is an activity carried on by the Australian Defence Force under that name, Defence Force Recruiting?

MR GAGELER:   Yes, your Honour, that is what is intended to be conveyed by ‑ ‑ ‑

HIS HONOUR:   It is indistinguishable from somebody in effect doing some military duty within the Australian Defence Force?

MR GAGELER:   Yes.

HIS HONOUR:   Yes, all right.

MR GAGELER:   That is certainly our intention in framing paragraph 2 and it is the understanding of both sides of the Bar table, your Honour.

HIS HONOUR:   Now, so far as the timetabling is concerned, I think you put that at the end of your ‑ ‑ ‑

MR GAGELER:   At the end of our submissions.  Page 5 of our submissions, your Honour, we have in paragraph 19.7 the proposed timetabling.  The plaintiff, having put so much effort into the section 78B notice, feels fairly ready to go forward with written submissions, I am told, and that is why the date of 23 January has been put into the first of the steps there mentioned.

HIS HONOUR:   It might need to be adjusted a little bit for the fact I am just going to deal with it on Friday.

MR GAGELER:   That may need to be adjusted, your Honour, yes.  We would like to have as much time as reasonably available to prepare the written submissions given the magnitude of the case and given that it has been sitting around for some time anyway.  We had in mind working back from whatever your Honour were inclined to fix as the hearing date for the rest of the submissions.

HIS HONOUR:   Yes, all right.  I take it that no 78B notice has actually gone out at this stage, is that right?

MR STREET:   No.  The proposed 78B that we have sought to file in Court has not been served.  We were seeking to obviously await your Honour’s determination.  If your Honour does refer all grounds, then we will serve the notice as has been filed.  If your Honour excises grounds, we will serve an amended notice.

HIS HONOUR:   Yes.  The notice is, to use the Solicitor‑General’s polite term, comprehensive.  Section 78B of the Judiciary Act does speak of notice of the matter.

MR STREET:   Your Honour, it was done for two reasons; one, in order to assist my learned friend in this time of year in meeting what we had articulated were our grounds and ‑ ‑ ‑

HIS HONOUR:   That could have been done by separate submissions, of course.

MR STREET:   It could have, your Honour.  It was also, your Honour, done in order to perhaps assist in informing those that might consider the issue as to whether they wish to intervene.  Your Honour, to that extent,

what we were trying to do was ensure that they had a proper opportunity to consider what the arguments would be and that there are some interpretational principles that we have raised that we say would specifically be relevant to this case, but, your Honour, I accept it is longer than ordinarily would be the position.

HIS HONOUR:   Yes, all right. 

MR STREET:   Your Honour, we are still content to meet the timetable that we had identified depending on whatever your Honour’s outcome.

HIS HONOUR:   Subject to a ruling on Friday.

MR STREET:   Yes, your Honour.

HIS HONOUR:   All right.  I will adjourn the matter for further directions on Friday, 16 January 2009 at 9.30 am.  There will be no need for attendance.  Of course, if people wish to attend, they are free to do so, but I will simply be making the directions at that time.  Thank you.  We will adjourn.

AT 10.00 AM THE MATTER WAS ADJOURNED