Leeth v The Commonwealth of Australia

[1992] HCATrans 195

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B25 of 1990

B e t w e e n -

RICHARD SHIERK LEETH

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Case Stated pursuant to

Section 18 of the Judiciary

Act 1903

MASON CJ
BRENNAN J
DEANE J

DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 24 SEPTEMBER 1991, AT 10.18 AM

Copyright in the High Court of Australia

Leeth 1 24/9/91

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR A. ROBERTSON, for the

plaintiff. (instructed by Bailey & Bailey)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned

friends, MR D.J. McGILL and MS S KENNY, for the

defendant. (instructed by the Australian

Government Solicitor)

We submit that this matter should be heard

first before the special leave matters,

Your Honour.

MASON CJ: Should be heard before the special leave matters?

MR GRIFFITH:	Yes.
MASON CJ:	Mr Solicitor for South Australia.

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

Australia: If the Court pleases, I appear with

MS C.F. SARRE, for the Attorney-General of South

Australia, to intervene on behalf of the State in support of the Commonwealth of Australia but only on the issue, of course, of the validity of the

legislation. (instructed by the Crown Solicitor

for South Australia)

MASON CJ:  Mr Jackson, do you have any comment to make on

the suggestion that we should confine our attention

in the first instance to this particular case and

then go on to hear the applications for special

leave?

MR JACKSON:  Your Honours, I really do not mind. Could I

just say something about it? I had proposed,

unless the Court desired to take a different

course, simply to go through the whole of the

argument I present on both cases. It is

possible - but I really do not mind doing the

validity question first - however, that in the

course of doing so I might refer to a couple of

aspects that do appear in the special leave

application.

MASON CJ: Yes, well it might convenient, I think, if you

confined it to this case, but in so far as it is
necessary for the presentation of your argument on

the question of validity, by all means refer to

aspects of the special leave application.

MR JACKSON:  Thank you, Your Honour. hand to the Court copies of our outline of Your Honours, may I

submissions, I am afraid in both cases, because

they are put in this volume together. The volume

simply contains, despite its size, some statutory

Leeth 24/9/91

provisions to which reference, perhaps, should have
been made and was not or, perhaps, have been

changed, and I may refer to some of them and other

parties may refer to some of them.

MASON CJ:  Yes, Mr Jackson.

MR JACKSON:  Thank you, Your Honour. Your Honours, as is

apparent from the outline of submissions, the case

is concerned with the validity, in terms of their application to a case such as the present, of the provisions of section 4(1) of the Commonwealth

Prisoners Act 1967 and of section 30(1) of the Crimes Legislation Amendment Act (No. 2) 1989.

Your Honours, may I say something generally, before

turning to the provisions in question. The

critical provision, so far as for present purposes,

is section 4(1) of the Commonwealth Prisoners Act

1967. That provision, however, has been repealed

and replaced, but the effect of the repealing

enactment is to purport to keep alive the order,

the subject of the present proceedings, at least on

one view of it.

May I come to the detail of that later.

Your Honours, the underlying issue in the

proceedings is whether Commonwealth legislation

prescribing a penalty for a Commonwealth offence

may also prescribe that the minimum period of

imprisonment on conviction will vary from State to

State, in the sense that the period will vary

depending on the State in which the conviction

occurs. Your Honours, our submission, of course is

that it may not, and may I go immediately to the

terms of the legislation in question before corning

to the argument in relation to validity.

Could I turn, Your Honours, first to

section 4(1), which Your Honours will find in a

booklet, which is described as "Book of relevant

legislation", and it appears at page 5.	Now,
Your Honours, the central provision is

section 4(1), and Your Honours will see that the

opening two lines of that provision contain the

condition of its operation in the sense that it

says:

Where a federal court or a court of a

State or Territory sentences a federal offender to a term of imprisonment.

And, Your Honours, that condition contains a number

of elements: first, it refers to a court there specified which could be a Federal Court, or it
could be a court of a State or a court of a

Territory. It requires that that court have

imposed a sentence. The second element of the

Leeth 24/9/91

condition is that the sentence be to a term of

imprisonment; and the third element is that the

person sentenced be what is described as a "federal

offender".

Your Honours, the term "federal offender" is one which is defined, the definition appearing in section 3(1), and not very surprisingly it defines

such a person as being -

a person convicted of an offence against a law

of the Commonwealth.

Your Honours, this was such a case because the

plaintiff was convicted of three such offences.

They are set out in paragraph 2 of the case which

Your Honours will see in another folder and at

page 21 of that document.	In paragraph 2 of the
questions reserved - - -

BRENNAN J:	What is the status of this document, Mr Jackson?
MR JACKSON:	Your Honour, this is the case which His Honour

the Chief Justice stated.

BRENNAN J:  I have seen an order which the Chief Justice

made for reserving questions. Is this a case

stated as well?

MR JACKSON:  Your Honour, I am sorry, I was describing it

loosely. I must say I had thought that His Honour

stated a case, in effect, pursuant to section 18

for the Court to deal with the questions reserved

at the bottom of page 24 and the top of page 25.

BRENNNAN J: It is not self-explanatory. I just do not know

what it is.

MR JACKSON: Your Honour, I am sorry. Perhaps we are on

different wavelengths, I suspect. Is Your Honour

looking at page 21?

BRENNAN J: Yes. It bears no seal nor signature, and I have

seen a document which does, which simply states the

two questions reserved, and I did not know what the

status of this document was.

MR JACKSON:  Your Honour, I am sorry. Somewhere along the

line the issue must have broken down because this

is a matter in which there is debate between the

parties about what should ..... the questions, and in

the event the matter set out on pages 21, 22 and 23

and 24 in paragraphs 1 to 11 were in the event

agreed. The matter came on before Your Honour the

Chief Justice, and I must say I had thought that

the result of it all was that in the ordinary way

it was a matter coming before the Court based on

Leeth 24/9/91

the facts set out in those paragraphs, the Court

then to answer the questions there referred to.

BRENNAN J: Well, there is no debate about it?

MR JACKSON:  I do not believe so. Your Honours, may I take

that under advisement, and if anything needs to be

done perhaps we could - - -

MASON J:  Yes, we can attend to the formalities, as long as

it is understood that the position is as you have

stated it to be, as between the parties.

MR JACKSON:  Yes, thank you. Your Honours, the plaintiff

was convicted of three federal offences which are

set out in paragraph 2 at page 21. That which is

material for present purposes is the count

described as count No 2, which is at the top of

page 22. It was a count of conspiracy to import
cannabis resin for which, as Your Honours will see
towards the end of that paragraph, he was

sentenced to:

imprisonment with hard labour for a term of 25

years, with a recommendation that the

Plaintiff not be considered for parole until

he had served 14 years of that term.

Your Honours, if I could come back from that

to s.4(1).	Your Honours will see that it is
divided up into two parts.	The first part works in

circumstances where, under the law of the State or

Territory where the offender is convicted:

court of the State or Territory is required

..... when sentencing a State offender or a

Territory offender to a like term of

imprisonment, to fix a lesser term of

imprisonment during which the State offender

or Territory offender is not to be eligible to

be released on parole - Now in those circumstances s.4(l)(a) says that:

the court shall fix ..... a lesser term of

imprisonment during which the federal offender

is not to be eligible to be released on

parole.

Your Honours will see that in the second line of

s.4(l)(a) it uses the expression "is required".

When one comes to s.4(l)(b) it contains rather

similar provisions but it speaks of circumstances

where the court of the State is permitted to fix a

non-parole period.

Leeth 24/9/91

There are several features of s.4(1) which we

would ask Your Honours to note. The first is that

it is clear, of course, that s.4(1) picks up, if I

can use the expression, the law, for fixing the
non-parole period which would be applicable when

sentencing a State offender for a like term of

imprisonment. The term "State offender" is defined

in s.3(1) in terms which reflect those of federal offender, and I do not to take You Honours to it.

The second feature is that section 4(1)

recognizes, in a number of ways, that the State

laws applicable may vary from State to State.

That that is so is manifest simply by, in effect,

picking up the State laws, but secondly, by the

very terms of section 4(1) in drawing the

distinction between "is required'' and "is

permitted" in the two paragraphs of it.

Your Honours, the third feature we would ask

Your Honours to note is that the law which becomes

applicable by virtue of section 4(1) is the law of

the State where the conviction occurs and,

Your Honours, that that is so appears from the

words of each of the subparagraphs but is also made

clear, in addition, by subsection (2).

Now, Your Honours, as is apparent from the

terms of the stated case the law in section 4(1)

was applied to the plaintiff by the Court of

Criminal Appeal, and the relevant Queensland

enactment was the Corrective Services Act 1988,

section 166, which appears at page 36 of the volume

of legislation, and if I could take Your Honours

very briefly to it, Your Honours will see from

subsection (1) that a prisoner to whom

section 165(l)(a)(i) refers is not eligible for

release on parole until he has served at least half

the term of imprisonment to which he was sentenced.

And then under subsection (3)(a), perhaps I should

preface that by saying, subsection (1) is expressed

to be subject to subsection (3) and

subsection (3)(a) provides that:

A Court may -

(a) upon sentencing a person convicted of an

offence to a term of imprisonment recommend

that he be eligible for release on parole

after such period of imprisonment under that

sentence as is specified in the

recommendation -

and Your Honours will see from the concluding words

of subsection (3) on page 37 that where the:

recommendation has been made -

Leeth 6 24/9/91

the person -

is eligible for release -

after serving that period. And, Your Honours, the

effect of section 166 is that eligibility for

parole depends on the period fixed in accordance
with subsection (3) and, in short, if the
conviction occurs in Queensland the minimum period

is half but the court may order a non-parole period

which is higher or which is lower. And,

Your Honours, if I could pause at that point, what

occurred in the present case was that the plaintiff
had been in prison for a period of approximately

18 months prior to conviction. Upon conviction the

judge at first instance imposed a non-parole period

of 14 years from the time of conviction. The Court

of Criminal Appeal reduced that to a period of

twelve and a half years.

I should perhaps also say, to put it shortly, that in doing so the court regarded the plaintiff's

position as comparable with that of a Mr Cornwell,

with whom Your Honours have just dealt a moment ago
I think, and he had been sentenced to a period of

23 years in New South Wales with a 14 year

non-parole period, but in each case the date from

which they started was the date of apprehension and

being in custody as distinct from the date of

conviction.

Your Honours, one comes then, of course - if I

could just move to the special leave application

for just a moment - to the fact that the material

there would demonstrate that there is a very

significant difference, in fact, in what is meant

by the two non-parole periods: the Queensland one

having the effect that he will serve 14 years in
toto in prison from the time of arrest and 12 and a

half years from the time of conviction: the

position in New South Wales meaning that if he

would, if he were in the same position there, serve

a period something in excess of eight years.

TOOHEY J:  Mr Jackson, section 166(3) is empowering, it is

not mandatory. Is there some provision that

qualifies a person for parole if the court does not

exercise a power under subsection (3)?

MR JACKSON:  Your Honour, if the Court does not exercise the

power under subsection (3), the result would be

that under subsection (1), it is half-time, in

effect.

TOOHEY J:  I wondered about that, because it is not quite

expressed that way, is it? It just simply says

that a person is not eligible for release on parole

Leeth	24/9/91 until he has served half, at least, of the term of imprisonment.
MR JACKSON:	Yes.
TOOHEY J:	But you read that as meaning that the board can then deal with the matter, can it?
MR JACKSON:	Yes, Your Honour, and subject to

subsections (3) and (4), (3) relates to the court's
fixation, subsection (4) relates to the board's

position. Your Honour, the interpretation of the

provision was dealt with by the Court of Criminal

Appeal, in a decision which, I think, is Reg v

Leonard, perhaps I could Your Honour a reference to

it a little later.

BRENNAN J:  Mr Jackson, are you relying on a disparity in

power, or a disparity in the operation of State

laws upon the terms of·a judgment expressed

precisely in the same words?

MR JACKSON:  Your Honours, could I say, what I am relying

on - it depends which application one is dealing

with. So far - if I could mention first the

special leave application: that assumes the

validity of the provisions, of course, and in

relation to that, the point which we would seek

there to agitate is that one looks at the powers of the two courts, and the manners of exercise of, for

example, two courts, say Queensland and New South

Wales: what one sees is that the Queensland court

applied the wrong test by not examining what, in

truth, "non-parole period" in New South Wales in a

case said to be comparable, meant. That is how the provisions are worked out. What I am dealing with, for the purpose of the constitutional question,

Your Honour, is this, that the operation of

section 4 has the result that the laws which are

applied are different laws. Your Honour, I do not

mean simply different, because one is - they are

different States, but they are, in fact, different.

So that the result being that the minimum period	I am about to go on to indicate the differences.
that one might serve, on any view, would depend on
the jurisdiction of conviction. The powers picked
up differ from State to State.

BRENNAN J: But if you succeed in striking down this

provision, what follows from that?

MR JACKSON: Your Honour, two things follow: the first, of

course, is that the plaintiff is in a position

where he has been sentenced for a period but there
would then be no non-parole period fixed in respect

of it.

Leeth 8 24/9/91

Your Honours, that would leave him in a

position where he is presently faced by two and

perhaps three possibilities.	The first possibility
is to apply for release upon licence;	I will
indicate to Your Honours the provisions later.	The
second is to seek to obtain the use in his favour

of the prerogative of mercy, which is preserved by

the enactments. The third - and I put it in the

realm of possibility - is because there is perhaps

a debatable question on whether the effect of the

new enactment would be, in circumstances such as

those which I am positing for the moment, that he

would then be dealt with by the Court of Criminal

Appeal, pursuant to the new Act, as a person who

had been sentenced but in respect of whom there had

not been a non-parole period fixed.

TOOHEY J:	Would section 165 then come into play?
MR JACKSON:	Your Honour, it is a little more complicated

than that, with respect, because the new

Commonwealth Act provides a new regime in respect

of non-parole periods and the court must fix a non-

parole period in respect of every federal prisoner

whose situation is similar to that of the applicant

and it is a regime which, really, in a sense, to

some extent, picks up State ones but largely is a

self-contained one.

DEANE J:  May it not be that if he were sentenced on the

basis that parole was available, when in fact it

was not, the sentence itself should be set aside?

MR JACKSON:  Your Honour, that is a possible view but,

Your Honour, the trend of cases - if I can put it

that way - would seem to have the result that the

sentence and the non-parole period are different

considerations. Now, undoubtedly, Your Honour, in

the exercise of sentencing powers, some attention -

one can see from time to time some overlapping in

discussion about it but, Your Honour, it is

difficult really to suggest that the sentence in
toto would go.	I would like to be able to but I do
not.

DEANE J: Is there anything in this Court that clearly

precludes that?

MR JACKSON:  Your Honour, the precise issue has not been

discussed but, of course, when I say "precise" I am

perhaps meaning a little more precise than

Your Honour. I am sorry, I just could not give

Your Honour a reference at the moment but I will

endeavour to.

Your Honours, what I have done so far was to

go to section 166. May I go - and I will do so as

Leeth 9 24/9/91

briefly as I can - to the position in the other

States. First, in relation to New South Wales, the

law applicable was the Probation and Parole Act

1983.      The starting point in relation to that is

section 19, which appears at page 42. It applies

to sentences for a term in excess of three years,

and I refer to section 19(b). And then the

concluding words of the section provide that the

court shall:

specify a period before the expiration of

which the person shall not be released on

parole pursuant to this Act, except as may be

provided otherwise by this Act.

The restrictions on the length of the period

which may be so fixed appear from section 20A,

which is at the bottom of page 43. That provides for a non-parole period, if the offence or one of the offences is a serious offence, and in such a

case the non-parole period is to be at least

three-quarters of the length of the sentence for

the only serious offence involved.

Now, Your Honours, one should say immediately

that the term "serious offences" is defined to

mean:

an offence referred to in Schedule 5.

Your Honours, I do not think Schedule 5 is amongst

those papers, but Schedule 5 contains a list of serious offences under State law, none of which appears exactly to mirror an offence of the kind in

question, but if I could just say this,

section 20A(2) has the effect that the non-parole

period in the case of a State serious offence is
ordinarily two-thirds of the sentence. While there

is no provision which would, so far as the

Commonwealth offences are concerned in New South

Wales, limit the discretion contained in

section 19, one would might expect that as a

practical matter the criterion expressed in

section 20A would be regarded as being germane to

the exercise of discretion in relation to offences

which were generally comparable.

Your Honours, in Victoria the legislation is

the Penalties and Sentences Act and, at page 59,

the rele~ant provision is section 17(1).

Your Honours, there has been a slight amendment to

that which Your Honours will see in the additional

papers, but it does not matter for present

purposes. What it says is this, that:

Leeth 10 24/9/91

where any person is convicted by a court of

any offence and sentenced to be imprisoned

then, if the term imposed is -

and Your Honours, I will leave out some words that

are inserted but do not apply to the present case

anyway -

not less than two years the court must -

"must", as part of the sentence:

fix a lesser term ..... that is at least six

months less than the term of the sentence

during which the offender shall not be

eligible to be released on parole.

So the effect of the provision is that the minimum

term must be at least six months less than the

sentence but, of course, it may be less than that

again.

In Tasmania the legislation is the Parole Act

1975, and at page 67 Your Honours will see that

section 12A of that Act is set out.	It provides
that:

the non-parole period in respect of a sentence

of imprisonment is -

(a)	a period of 6 months; or
(b)	a period equal to one-half of the period

of the sentence,

whichever is the greater.

Your Honours will also see subsection (2) which

excludes some cases from it, and then
section 12B(l)(d) provides that the court may

order:

that the person be not eligible for parole -

at all, or (e): 

that the person be not eligible for parole in

respect ..... of such non-parole period as is

specified in the order.

And, in subsection (2):

The non-parole period specified ..... in respect of a sentence of imprisonment -

of the nature referred to in section 12A(l) -

shall be not less than the non-parole period -

Leeth 11 24/9/91

which otherwise would be fixed pursuant to that

period, so it is the greater of a half or six

months or more under 12A(2). Then Your Honours

will see the provisions of 12C allowing for

exceptional circumstances which might warrant

earlier release than the period otherwise fixed by

the non-parole period.

Your Honours, in South Australia the

legislation is section 32 of the Criminal Law

(Sentencing) Act, 1988. That is in the

supplementary bundle, Your Honours, the manila

folder. Your Honours will see the Criminal Law

(Sentencing) Act, 1988 - there is a Division II at

the page numbered 348 in the left corner. I shall

not go through the terms of section 32, but it does

not provide for any particular restriction on the

exercise of the court's discretion.

Now, Your Honours, in Western Australia the

legislation is the Offenders Probation and Parole

Act 1963. It starts at page 101, Your Honours.

There is a definition at page 102 in section 4 of

Non-Parole Periods, and section 37A(l) which

appears at page 105 provides that -

the court may, if it considers that the making
of an order under this subsection is

appropriate, order that the convicted person

be eligible for parole.

(2) Where an order is made under

subsection (1) in respect of a term of

imprisonment the convicted person is eligible

to be released from prison on parole -

(a) where the term is not more than 6 years

after having served one-third of the term; or

(b) where the term is more than 6 years after

having served 2 years less than two-thirds of

the term.

BRENNAN J:  Mr Jackson, is the question of validity to be

determined according to the state of State law at

the time of enactment of the challenged Act, or is

it from time to time?

MR JACKSON:  Your Honour, could I say two things about that?

The first is that the possibility to which

Your Honour adverts indicates, in our submission, the likelihood that to have the Commonwealth Act

operate in a way where it has a validity which may

potentially come and go militates against the

notion of its being valid, we would submit. The

second thing, however, is, to answer Your Honour

directly, that it is possible, we would accept,

Leeth 12 24/9/91

that if the operation of the Commonwealth Act were
to pick up State laws, all of which were the same,

the Commonwealth Act would be valid. Once,

however, the effect of the Commonwealth Act is to

pick up State laws which have a different operation

then, in our submission, the Commonwealth law is

invalid.

Your Honour, it is possible, of course, that there are some differences which would not in the

end be germane, but where the differences are of a

significant kind affecting the liability to actual

imprisonment, we would submit they are of a

sufficiently significant kind to indicate the

differences mean invalidity.

Now, Your Honours will see, if I could go for

just a moment to the outline of submissions in

respect of the application for special leave, which

is the second document, that the issue is not one

which is purely academic. In the first place, what
one sees is that if one takes, for example, the

same offence in Queensland and in New South Wales, then the result is that the plaintiff must serve a

term of twelve and a half years in prison as the

minimum.

If one goes to Western Australia one sees that

he has to serve a period which is somewhat

different because it is two years less than
two-thirds of the sentence and, Your Honours, in

addition one sees the practicality in paragraph 2

if one looks at the operation of the different

systems he is likely to serve very different

periods. But I suspect I have taken Your Honour on

a slight wild goose chase with that last

observation. Your Honours, the point I simply

seek to make about it is that if one looks at the

various enactments that are picked up by the criteria in relation to the fixing of non-parole periods which have significantly different

operations.

Your Honours, the consequence of the

provisions to which we have made reference is that
the minimum term of imprisonment which may be
served may depend on the State in which the
conviction occurs, and the effect of the law is
thus, that it says if you are convicted, for

example·-· and I just pick one name, as it were -

for a particular Commonwealth offence, you are

liable to a minimum term of imprisonment of X; if

you are convicted in Tasmania, you are liable to a

minimum term of 2X.

Leeth 13 24/9/91

Your Honours, there are several other features

we would mention about it. One is that the

distinction between, as it were, X and 2X, has

nothing to do with the substance of the offence but

simply with the location in which the conviction

takes place. Your Honours, it is true, if one goes

to section 80 of the Constitution, that it

was committed in a State. But,

requires an indictable offence to be tried in the offence

Your Honours, that does not provide any necessarily

relevant relationship.

Your Honours, could I give an example in that

regard. Two persons might be convicted of

conspiracy to import a prohibited import into

Australia where the importation was to take place

in a particular State. Now, the conspiracy is

complete, of course, though not completed, upon

agreement. Before the acts in furtherance of the

conspiracy are carried out, the conspirators are

arrested.	The conversation might have been bugged,
for example, and they are arrested forthwith.	The

conspiracy - meaning by that, for the moment, the
agreement - took place in a different State from

the State where the acts the subject of it were to

be carried out, yet the accused must be charged in

the State where the agreement was made, not the

State where it was to be effected.

What I am simply seeking to demonstrate by

that, Your Honours, is that the place in which the

offence was committed does not necessarily provide

any criterion which would provide a basis for
determining that there should be a shorter or a

longer non-parole period.

Your Honours, a second example would occur

where the offence was committed in more than one

State or not in a State at all. If one takes

conspiracy as an example again: the offence, of

course, being complete but not completed, by

agreement, and continuing while acts are being done
in furtherance of it.	Your Honours, the accused

person could be charged in any of the States in

which the acts took place, as indeed is the case in the present case. The minimum term of imprisonment

would be liable to vary depending on the State in

which that person was convicted.

GAUDRON J: It would, in any event, Mr Jackson, would it

not, be liable to vary according to the sentence

imposed?

MR JACKSON:  I am sorry, Your Honour. Liable to vary?

Leeth 14 24/9/91

GAUDRON J: According to the sentence, according to the head

sentence; that there are inevitably factors which

will result in variation in sentences.

MR JACKSON:	Yes, Your Honour.
GAUDRON J:	And in non-parole periods, which are not

sentences, as such.

MR JACKSON:  Yes, Your Honour, I accept all that, with

respect. But, Your Honour, the point I am seeking

to make is that if one were - we are talking, of

course, about an offence which is a Commonwealth offence and, it being a Commonwealth offence the penalty for it is to be the same throughout

Australia.

GAUDRON J: It is the same.

MR JACKSON:  Yes, but, Your Honour, the point I am seeking

to make about it is that whilst the sentence that

might be imposed may vary, it will not vary, as it

were, from State to State.

GAUDRON J:  But it may.

MR JACKSON: Well, Your Honour, it will not vary by

reference to any criterion which has particular
relevance to that State, unless the offence is of

such a nature that it itself involves some element

peculiar to a State. Could I give Your Honour an

example of what I am seeking to convey?

Your Honours, if one took, for example, sugar cane, which I think is still grown only in

New South Wales and Queensland, and if it were made

a prohibited import to import into Australia some
item which was potentially dangerous to a sugar
cane crop, one could understand that a law which

was expressed in terms which provided for a heavier

penalty by an importation into Queensland, perhaps,

or an importation to New South Wales, would be a

law which would have some relationship to the

State. And one could understand a Commonwealth law

providing for a penalty which varied because of the

place of importation, the place being a State in

the particular danger. Apples in Tasmania might be

another example.

But, Your Honour, generally speaking - but I

should say, the penalty to which a person was

liable for committing that offence would be the

same wherever the person was convicted for it, and

the conviction might not necessarily take place at

all in the State to which it related. The penalty

would be the same, the liability to the penalty

Leeth 15 24/9/91

would be the same, wherever in Australia one were

convicted for it.

Your Honour, it is not, with respect, correct,

we would submit, to say that the penalty might vary

from State to State if what one means by that is

that the penalty might vary by reference to some

sentencing feature peculiar to the State.	And that
should not, we would submit, be the case.

DAWSON J: But what is magic about sentence? I mean, there

are many things which will vary according to where
the trial takes place because the laws of the State

are applied by the Judiciary Act or by some other

enactment.

MR JACKSON:	Your Honour, what is capable of variation, certainly, are matters of procedure, but what we
would submit is that the liability to punishment is not a matter which could be regarded as a matter
which is other than substantive and the provisions
of the Judiciary Act which relate to a case such as the present do not, we submit, pick up provisions of State laws which affect substantive matters of
that kind.
DAWSON J:	I am just asking why imprisonment has to be

uniform.

MR JACKSON:	Your Honour, I suppose one comes then to the question of the underlying nature of it, and that
is what I intend to go on to in just a moment if I
may.

DAWSON J: But the person will be imprisoned in the State in

which he is sentenced, that is clear enough, is it

not? He will be subjected to the prison system in

that State.

MR JACKSON:  Yes, Your Honour, he will, ordinarily speaking,

be imprisoned there. He may be removed some where

else but he would be imprisoned there.

GAUDRON J: Well, the Commonwealth does not have prisons.
MR JACKSON:	No, Your Honour.
GAUDRON J:	And the States are required to make their

prisons available to Commonwealth offenders.

MR JACKSON:	Yes.
GAUDRON J:	And in the ordinary course Commonwealth

offenders are imprisoned in the prisons of the

States in which they are convicted, and it is a

most exceptional circumstance in which some other

course is followed?

Leeth 16 24/9/91

MR JACKSON: Yes, Your Honour. It is exceptional in the

sense that the factors which might militate in

favour of a prisoner being moved are mostly

questions of humanity, I suppose, and also

questions of protection in some cases.

DEANE J:  Mr Jackson, do you really concede that, for

relevant purposes, the parole period is not part of

the sentence? Because you did, which surprised me.

MR JACKSON:  Your Honour, if I have gone too far on that -

perhaps I have gone too far and, Your Honour, if it

is essential to the argument I would not wish to go

as far as that because it is a matter of great

importance. Your Honour, if one were in a position

that the issue related to the two, then what I

would seek to do would be to amend the proceedings

to include that, to include an attack on that,

Your Honour, but I do not go quite as far as that

at the moment.

McHUGH J:  But do you not have to? Assume that the

circumstances of an offence are identical. For the

purposes of Commonwealth law, should not this

person get the same head sentence all around the

country and the non-parole period depend upon the

law of the individual State? Now, if that is right

the judges in Queensland should not have been

looking at the New South Wales situation on the

hypothesis on which your argument has been

proceeding, namely, that they are two separate

things.

MR JACKSON:  Your Honour, with respect, no. What one has is

a situation where, if it is not possible to - it

either is or is not possible to divide the two, if

I can put it that way. If it is possible to divide

up the two it does not really follow that the two

are not matters requiring uniformity.

Your Honour, if the sentence is something that

should be uniform throughout the Commonwealth -

and, Your Honour, it is uniform throughout the

Commonwealth, the Act provides that it is, provides a sentence for the events, so it is uniform

throughout the Commonwealth - it is then a

question, Your Honour, whether in a law which says

that when imposing a sentence based upon that you

can impose a sentence in which you can, in effect,

make the non-parole period vary, perhaps wildly,

from State to State is something which is

contemplated as an application of a Commonwealth

law, and that is the point we are seeking to make

about it, Your Honour.

McHUGH J: But your point is that you cannot have wide

variation, is it not?

Leeth 17 24/9/91

MR JACKSON:  Your Honour, my point really is that you cannot

have variation.

McHUGH J: Yes.

MR JACKSON:  Now, what I have said about the width of

variation was simply that it might be that if one

analysed provisions which, on their face, looked to

be different, in fact they operate in the same way

and there was not true variation, and what I was

simply seeking to do, Your Honour, was to say that

there might be a half-way house, in effect, between

saying that there has to be just a Commonwealth law

which says the whole thing, on the one hand, and on the other hand, that there may be State laws saying

all different things. What I was saying was that

it is possible to have a Commonwealth law which can

adopt State laws, which, although they may vary in

words, might have the same effect, but I was not

seeking to go beyond that.

DEANE J:  But your point is really this, is it not, that if

you had a Commonwealth Act which said that the

sentence will be 20 years for a particular offence
and the non-parole period will be 15 years if

convicted in Queensland, 10 years if convicted in

New South Wales, five if convicted in South

Australia, that would be invalid?

MR JACKSON:	Yes, Your Honour.
DEANE J:	Your next proposition which you have to make good,

if you make the first good, is that the fixing of a

non-parole period is not the type of procedural

matter in which the Commonwealth can simply adopt

whatever happens to apply in a State.

MR JACKSON:  Yes.

DEANE J: Well now, to deal with the second, and I am not

trying to lead you astray, but it seems to me you

have to face up to the significance of the

non-parole period in contemporary circumstances,

and that is why I was troubled about some of your

concessions in that they do not seem to me to lie

very well with the way your argument has to go if

it is eventually going to get you anywhere.

MR JACKSON:  Your Honour, may I say, first of all, that in

relation to it - I would - although perhaps words

might vary - generally be adopting the approach

which Your Honour was suggesting and we would be

seeking to adopt it from basically two points of

view, but, Your Honour, could I say in relation to

the other thing that Your Honour was mentioning to

me, and that is the relationship between the

sentence and the non-parole provision. Undoubtedly

Leeth 18 24/9/91

the one may take into account the other in the

sense that one looks to see how long a person is

actually likely to spend in prison. Your Honour,

if it be, and I do not want to put it in a

conditional way, but if it were that the Court were

of the view that it was necessary to examine both,

then we would seek to amend the proceedings in such

a way as to cover both. Your Honour, I said I do

not want to put it conditionally, because it is a

matter for me, not a matter for the Court, and I

appreciate that, but, Your Honour, may I ask not to
have to make that decision at the moment.

What Your Honour said to me, however, is correct in the sense that ultimately the question

becomes: is a Commonwealth law which said, if you

are convicted of conspiracy to import drugs into
Australia, you will, if convicted in Queensland, be
liable to a sentence of X years, or as the

provision in fact provides, for life, and your

liability to non-parole will be determined in a

particular way, but it will be different wherever

else you happen to be convicted, and if the law

said that expressly, would the law be a valid law?

Our submission is that it is not and may I proceed

to deal with that question?

BRENNAN J:  What does the variation consist in? Does it

consist in the scope of the discretion available?

MR JACKSON:  Yes, Your Honour.

BRENNAN J: In anything else?

MR JACKSON: It consists, Your Honour, in - it is the scope

of the discretion and the approach to discretion.

BRENNAN J: Factors to be taken into account?

MR JACKSON:  Yes.

BRENNAN J: But it may be that by an exercise of the discretion the same case would result in precisely the same sentence in each part of the Commonwealth.

MR JACKSON: It is possible, Your Honour, yes. But, of

course, one puts oneself in a situation where in

each case, whilst the discretion being exercised

may be one which, in the end, arrives at the same

result, the discretions are different in kind and

different criteria are germane.

BRENNAN J: Different in kind in the sense that they start

from different points?

MR JACKSON:  Yes. Your Honour, if one looks, for example,

at Western Australia, where in the ordinary course

Leeth 19 24/9/91

of events, unless you establish that the case is
not the ordinary course, you are liable for - I
think it is two years less than two-thirds, in

effect, or perhaps I have put that around the wrong

way; if it is in Queensland it is half. So that it

is not really possible to say that a person

convicted of the same offence in Western Australia

is being dealt with in the same way as he would be being dealt with in Queensland or in another place

where there is no starting point, no tariff, as it

were, to start with.

Your Honours, the point with which I was

dealing was that in a number of circumstances a

person could be convicted of an offence in a State

where the State has nothing very much to do with

the commission of the offence. The fact that the

particular State is the one has really nothing much

to do with it.	I have given, I think, two
other was a case which occurred in a number of	examples: one was the case of a conspiracy and the conspiracy, for example, took place was entirely outside any State. Your Honours, the point of all
that is that the accused person could be convicted
in any State or in any of the States where the acts took place, and the minimum term would vary, or be likely to vary, depending on the State in
which the conviction occurred.

The operation of section 4(1) also cannot be

related particularly to the fact that the court in

question is a State rather than a Federal Court,

because section 4(1) applies to both those courts.

The question is then whether the Parliament is

empowered to legislate in those terms and we would

accept immediately that there is no provision in

the Constitution which deals expressly with the

question. The substantive offence is created under

ssection Sl(i) or perhaps under a combination of
section Sl(i) and section Sl(xxxix).

Your Honours, so far as section 4(1) is

concerned, it appears to derive largely, one would

think, from section Sl(xxxix) in that it is a

provision of general application applying generally to offences under Commonwealth laws and, of course, it is a provision which applies to Commonwealth

laws as they come into operation or which applied

to Commo.nweal th laws as they come into operation.

Your Honours, the Court's decisions have made

it clear that the terms of the Constitution allow

certain implications to be made, the implications

deriving essentially from the nature of the

Constitution. Your Honours, a leading case,

Leeth 20 24/9/91

affirming the propriety of making some

implications, at least, is Queensland Electricity

Commission v the Commonwealth, (1985) 159 CLR 192.

Your Honours, in that case it was held that

unless it was otherwise apparent from the nature of
the Commonwealth legislative power, or from the

terms in which it was conferred, a Commonwealth law

would be invalid if it discriminated against the

States or their agencies in the sense that it

imposed on them some burden or disability which was

not imposed on persons generally. But the Court
recognised that other implications might exist.

Could I, in that regard, take Your Honours to

the judgment of Chief Justice Gibbs at page 205, in
the passage commencing about point 6 on the page

where His Honour said:

It is now clear in principle, and

established by authority, that the powers
granted bys 51 of the Constitution are
subject to certain limitations derived from

the federal nature of the Constitution.

The part to which I would wish to refer starts

there, goes then over to the next page to about

half-way down the page, and may I refer

particularly to page 206 - I am sorry,

Your Honours, I should have said goes to page 207,

about half-way down the page, but may I refer

particularly to page 206, about point 2:

It was recognized that it is not easy to

formulate exhaustively and authoritatively the

limitations that must be implied, and, indeed,

it is undesirable to attempt to so in the

abstract.

Your Honours, at page 212, about point 6,

Your Honour the Chief Justice referred there to the

Engineers' case and then, in the next paragraph,

said, in the second sentence: 

But the Engineers' Case .... . is not hostile to

the existence of such implications as are to

be necessarily derived from the federal nature

of the Constitution and are consistent with

its terms.

And then, Justice Wilson, at page 221, about

point 8, referred to the Engineers' case, and at

the top of page 222, said:

However, the exercise of the power is subject

to limitations, as yet not precisely

formulated, which are "necessarily drawn from

Leeth 21 24/9/91

the federal structure of the Constitution

itself".

Your Honours, may I - and I hope Your Honours will

forgive me for putting it this way - pass over Your

Honour Justice Brennan for a moment and go to

Justice Deane first and then I will come back.

Your Honours, at page 247, Your Honour

Justice Deane, at about point 8, after referring to

the Tasmanian Dam case, referred to the
discrimination against instrumentalities and then

said - the third last line on that page: That other arguable restraint would arise as

an implication of the underlying equality of the people of the Commonwealth under the law of the Constitution. Its effect would be that
the use or exercise of Commonwealth
legislative or executive power to single out
some of those people or their institutions for

discriminatory treatment can only be justified

if the nature of the relevant legislative

power is such as to authorize the actual

discriminatory treatment. The question of the

possible existence and scope of such an

implication was not explored in argument.

underlying equality of the people of the	Your Honour there refers to the "implication of the also goes on to refer, of course, then to the fact that if there is to be some different treatment of persons then one has to look for it in, in effect, the nature of the relevant legislative power.
Your Honours, that notion, in a sense, may be seen
too in the observations of Your Honour
Justice Brennan. If I could take Your Honours to page 230, at the start of Your Honour's judgment,
Your Honour said that:

a law which fairly which ..... "with respect to"
a subject of legislative power ..... may yet be

invalidated by a prohibition against the

making of the law implied in the Constitution.

Then, at page 233 Your Honour, at about point 2 on

the page, referring to the particular implication,
of course, Your Honour said:

It would state the implication too widely to say simply that the Commonwealth is prohibited

from making any discriminatory law which

involves the placing on the States of special

burdens.

Your Honour refers in the next sentence to the fact that one cannot:

Leeth 22 24/9/91

deny the validity of a discriminatory law

enacted under a power which supports the

discrimination.

That notion, Your Honours, appears also at page 235

at the start of the page going through to about

page 235 point 8. At page 238 Your Honour referred

to some observations of Justice Dixon in the

Melbourne Corporation case - that is page 238 about

point 7:

Although it is true to say that "the

greater number of powers contemplate

legislation of general application", the

meaning and nature of the power cannot be left

out of account ..... The conciliation and

arbitration power -

was a power of that kind.

BRENNAN J: This case was all about discrimination against

States.

MR JACKSON:  Yes. Your Honour, I appreciate that. What I

am simply seeking to indicate is that one can find

some observations of members of the Court which

support two things: the first is, of course, the

broad proposition that there are implications

which may be drawn from the nature of the

Constitution; the second thing is that, generally

speaking, laws of the Commonwealth are laws which

are not to single out individuals, as it were, or

single out States, or single out anyone, unless it

be that the nature of the power is such that it
permits that to happen.

Now, of course, there is an added feature when one comes to the position of the States because the States are part of the structure of the

Commonwealth and the Constitution contemplates

their continued existence, so that there is a

power of the Commonwealth to affect the States in special reason for requiring that the legislative such a way appear. Your Honour, one does

recognize, of course, the Commonwealth laws may

deal differently with people of the Commonwealth
but one must, generally speaking, look for

something in the legislative power which enables

that to happen. Now, Your Honour, if one is

looking.a~ a legislative power, which is a

legislative power to do things in aid, as it were,

or for the purpose of implementation, one does not

find the relevant kind of power in a case such as

the present. That is a slightly different point,

Your Honour, and I will come to that in just a moment.

Leeth 23 24/9/91

I shall not take Your Honours to the Melbourne

Corporation case, but His Honour said, of course, what Your Honours there set out, although I think the order of events was reversed. The passage at

page 81 in the Melbourne Corporation case was

referred to by other members of the Court in the

Electricity Commission case, though it is true to

say for other purposes. Could I just refer

Your Honours to pages 219, 222, and 248.

Your Honours, the notion too, we would submit,

derives some support from, first, some observations

of Your Honour Justice Deane in two other cases.

The first is a very broad, if I may say so with

respect, conceptual statement that Your Honour made

in University of Wollongong v Metwally,

(1984) 158 CLR 447. At page 476 at the bottom of

the page - and, Your Honours, this in a sense is

the obverse side of saying that Queensland

Electricity Commission just deals with a position

of the States because it is true to say the States

are a structural element in the Federation and have

a special position, but as Your Honour

Justice Deane said in Metwally's case at the bottom

of page 476:

the submission fails adequately to acknowledge
that the Australian federation was and is a

union of people and that, whatever may be

their immediate operation, the provisions of

the Constitution should properly be viewed as

ultimately concerned with the governance and

protection of the people from whom the

artificial entities called Commonwealth and

States derive their authority.

Your Honours, I said there was a broad conceptual statement but could I go, Your Honours,

also to what was said also by Your Honour in

Breavington v Godleman, (1988) 169 CLR 41, at page

121.     In the paragraph commencing at about point 2

on that page Your Honour referred to a unitary

system of law, recognized the possibility that a

unitary system of laws might, to use the inelegant

expression, pick up other, the laws of States and

Territories, but then went on to say, about half-

way down the page:

What is essential is that the substantive rule or rµles applicable to determine the

lawfulness and the legal consequences or

attributes of conduct, property or status at a

particular time in a particular part of the

national territory will be the same regardless

of whereabouts in that territory questions

concerning those matters or their legal

consequences may arise.

Leeth 24 24/9/91

Your Honours, could I refer also to some

observations of Your Honour Justice Toohey in

Street v Queensland Bar Association,

(1989) 168 CLR 461. First of all, Your Honours, at

page 554 in the first new paragraph on that page

referring to section 117, Your Honour said, in the

second line of that paragraph:

it is true that in its terminology s 117 is

the product of compromise. But there is

nothing to suggest that it represented any

compromise of the principle that Australia was

to be a commonwealth in which the law was to

apply equally to all its citizens.

Then, Your Honours, at page 559, at the bottom of

the page, Your Honour, speaking of section 117,

said:

But underlying the section is the notion to

which reference has already been made that

Australia is a commonwealth and its laws are

to apply equally to all its citizens.

Now, Your Honours, in addition, we would seek

to derive support from the approach adopted by the

Court in a number of contexts - which we will be

submitting are germane - and in those contexts the

Court has adopted the approach of inquiring whether

the means adopted are appropriate to the end. The

first and the most immediately relevant context is

in relation to the incidental power because, Your

Honours, one would think, if I could just go back

for just a moment, that a provision such as
section 4(1), applying across the range of

Commonwealth offences, is a provision which

principally is based upon the incidental power as

distinct from a provision based upon a kind of

cutting it up and applying it to each of the

several powers to which it may - exercise of power

to which it may have application.

But, Your Honours, in relation to the

incidental power, the approach taken by the Court may be seen in Burton v Honan, (1952) 86 CLR 169, and at page 178 - Your Honours will recall this is

the case dealing with forfeiture of goods imported

in circumstances contravening the customs laws - at

page 178 Chief Justice Dixon says at about point 2:

the Parliament may in the exercise of any of
the substantive powers given bys 51 make all

laws which are directed to the end of those

powers and which are reasonably incidental to

their complete fulfilment.

Then at page 179 in the first new paragraph:

Leeth 25 24/9/91

In the administration of the judicial

power ..... there are points at which matters of

degree seem sometimes to bring forth -

and so on.

The reason why this appears to be so is simply because a reasonable connection between the

law which is challenged and the subject of the power under which the legislature purported to enact it must be shown before the law can be

sustained under the incidental power.

Your Honours, "reasonable connection" between the

challenged law and "the subject of the

power ..... before the law can be sustained under the

incidental power".

Your Honours, that approach has been adopted

also in a number of other areas. If one goes first

to the implementation of powers such as the

external affairs power, that too involves the

notion, and I will come to that in just a moment.

So too does the question of determining whether a

law of a State which disadvantages interstate trade

is, in truth, directed to the protection of the

people of the State from danger or threat. And so

too has the test been applied in relation to the

validity of laws made under purposive powers, that

is, powers such as section Sl(vi) which involve the

notion of purpose or object.

Your Honours, in that regard could I go first

to Castlemaine Tooheys Ltd v South Australia,

(1990) 169 CLR 436, and at page 472 in the joint
judgment of Your Honour the Chief Justice and

Justices Brennan, Deane, Dawson and Toohey, the

passage is the one commencing at the bottom of
page 472. It goes through to the end of that
paragraph on page 473, and in the course of

recognizing that issues must very much be left to

the legislature, at the same time members of the

An analogous field is the legislative

implementation of treaty obligations ..... The
true object of the law in such a case is

critical to its validity.

Court said half-way down the page:

Their Honours then set out the test -

appropriate and adapted to the implementation

of the provisions of the treaty ..... But if the

means which the law adopts are

disproportionate to the object to be achieved,

the law has not been considered to be

appropriate to the achievement of the object.

Leeth 26 24/9/91

Your Honours, reference is made there to a number

of passages in the Tasmanian Dam case. I do not

want to go to all of them, of course, but I will go

to some in just a moment. But before doing so,

could I refer also, Your Honours, to page 480 and I
refer Your Honours to the first new paragraph on

that page in the joint judgment of Your Honours

Justice Gaudron and McHugh.

Your Honours, perhaps I could move from that

then to the Tasmanian Dam case, Commonwealth v

Tasmania, (1983) 158 CLR 1, and at page 130 the

relationship between the test in this context and

in other contexts may be seen in the last paragraph

on page 130, and I refer Your Honours to that

paragraph:

It is significant that this view of

Parliament's power -

and so on.

Then, Your Honours, at page 172,

Justice Murphy applies the same test in the first

new paragraph on that page, and at page 232,

Your Honour Justice Brennan, in the last paragraph

on the page, going over to page 233. Now, could I
also refer Your Honours to the passages - there are
one or two other passages, I think, referred to in
the passage in Castlemaine Tooheys, to which I gave
reference, but I do not need to go to them, I

think. Could I give Your Honours a reference

without going to the case, also to Richardson v

Forestry Commission, (1988) 164 CLR 261, at pages

295 to 296 and 311. Your Honours, the question was

adverted to also, in Street v Queensland Bar

Association, 168 CLR, at page 573, the judgment of

Your Honour Justice Gaudron, and Your Honour - that

was in the paragraph commencing in the middle of

the page - was there speaking of:

treatment assigned by reason of a relevant The question whether the different

difference is appropriate to that difference -

and Your Honour said - at the bottom of the page:

the question of appropriateness may be

answered by reference to the test applied to

determine the validity of legislation enacted

to secure a constitutional purpose, namely,

whether it is reasonably capable of being seen

as appropriate and adapted to that purpose.

Now, finally, Your Honours, in relation to these

cases, may I go to Re Nolan; Ex parte Young,

(1991) 65 ALJR 486, and in the passage in the joint

Leeth 27 24/9/91

judgment of Your Honours Justices Brennan and

Toohey, commencing at page 492, in the left column,

the paragraph commencing about two-thirds of the

way down the page "The legislative power",

Your Honours refer to that power, to the fact it is

one involving "the notion of purpose or object".

And then Your Honours discuss the application of

that to the particular case, in a passage which

goes on through the remainder of that page, and

then at page 493, in the left column, in the first

new paragraph, go on to say that:

The test of validity ..... is whether its

provisions are appropriate and adapted to the

achievement of the constitutional purposes

earlier mentioned -

which Your Honours then list, and then set out the

test there referred to. What those cases

demonstrate, in our submission, is that in relation

to provisions which have, as the common element of

them, if I could put it somewhat loosely, seeking

to - giving power to achieve an end. The test

which has been applied is that to which I have

adverted; one sees it in the several contexts to

which I have referred, and Your Honours, it is the

test which applies to provisions such as provisions

enacted pursuant to section 5l(xxxix), and,

Your Honours, when one comes to apply -

BRENNAN J:  Why do you say that that approach is applicable to 5l(xxxix)?

MR JACKSON: Because, Your Honour, provisions made under

section 59 are provisions which are designed to

achieve a purpose or an object, that being one set

out in the words of section 5l(xxxix), and what one

is looking to see is to see that the provisions

which are enacted in pursuance of that are ones

designed to effectuate, to put it inexactly, the

exercise of legislative power under some other
provision.	One is looking for a connection to see

that they are appropriate to the implementation of

it. Now, having said that, Your Honour - - -

DAWSON J: That is just what it is not. When you have a

purposive power the question is what is the law

for. When you have a power which is not purposive then the question is, is there a sufficient

connection with something. It is a different

thing, and the incidental power lies in the latter

category not the former.

GAUDRON J: Except you are talking of the express incidental

power, are you not, Mr Jackson?

Leeth 28 24/9/91

MR JACKSON:  Yes, Your Honour.

GAUDRON J: And I infer, perhaps wrongly, that you are

relating it to the exercise of judicical power?

MR JACKSON:  Your Honour, what I am doing is relating it to

two things as it were, with respect. One sees in

section 4(1) a provision which is related to any

Commonwealth enactment under any power, and it

requires that the courts then act in a particular

way in relation to the exercise of judicial power.

Now, Your Honours, undoubtedly there is some

connection between the head of substantive power -

in this case one would think section Sl(i), and the

exercise of power which results in the fixing of a non-parole period. Undoubtedly, however, there is
equally a connection between section Sl(xxxix) and

the provisions of Chapter III dealing with the

federal jurisdiction which has been given to the

State courts. So, the exercise of power in

section 4(1) one sees as an exercise which is

undoubtedly related to Chapter III; it is also

Your Honour, to some extent anyway, related to the

power under section Sl(i).

Now, Your Honour, if one is looking at

section Sl(i), what Burton v Honan, we would

submit, demonstrates is that the test to be

applicable in a case such as the present is the one

to which I was referring because that was, with

respect, the approach taken by the court in that

case, to look to see whether the means adopted were

appropriate to the end. I mean those are the words

of Burton v Honan, Your Honour, not mine.

BRENNAN J: But even if one adopts those words and applies

them to Sl(i) and (xxxix) the question is, is the

picking up of State laws appropriately adapted to a

system which punishes for offences against customs

laws?

MR JACKSON: 

Your Honour, that is the genus to which the

question belongs but is not, with respect, the
question. The question is whether the particular

law, because one must look at the particular law,
and, Your Honour, if it were that one were looking

at the issue in the abstract, I suppose, the
question which Your Honour just put to me would

have to be answered yes.  But if what one is

looking at is the question whether the particular

law is a law which satisfies the test the answer,

in our submission, is no because what one sees is

that the particular law of the Commonwealth is a

law which fails to identify any rational basis,

Your Honour, for the relevant difference in

treatment.

Leeth 29 24/9/91

McHUGH J:	But why is that so? It is operating in a context where a person has been convicted of the offence in
a State, where that person is being put into the
State prison system, where questions of
rehabilitation are matters in that State, are
matters of State policy and where the Commonwealth,
obviously, would not want to discriminate between
State and federal offenders.  Why in the one prison
system should a person convicted under a State Act
and getting, say, 10 years, be treated differently
for purposes of parole than a federal offender who
has got 10 years?
MR JACKSON:	Your Honour may declare the new Act invalid on

that basis perhaps. Could I start at the start, as

it were, with that? One looks to see what one is

dealing with and one sees that - perhaps I could

put it this way: What Your Honour has put to me

really starts at the end rather than the start,

with respect, and perhaps one gets a different
impression of it, depending where one does start.

What one is looking to see in terms of the

Commonwealth Prisoners Act is to see what provision

is made in respect of the length of time that must

be served for an offence which is a Commonwealth

offence.

Your Honour, the Commonwealth offence is one

that provides the same penalty throughout

Australia, and one looks to see what possible

reason there is for saying, in respect to that

Commonwealth offence, you are liable to serve, say,

12 years in one place, 5 years in another. The

reason assigned for it must therefore be, one would

think, twofold. The first is, does the fact that

the offence was committed in a particular State

give rise to any relevant distinction? The answer,
in our submission, is no, because it is difficult

to see that the fact of commission of the offence in the State, which is the feature referred to in

section 80 of the Constitution, has any potentially

different effect upon treatment. I exclude, of

course, cases where it is possible - I gave two
instances earlier - for the location where an

offence occurs to have some potential difference in

relation to penalty as distinct from, one would

think, non-parole period. But that may affect

penalty and, Your Honours, it is particularly

difficult to see that there is any relevance of the

State of commission where the offence is one that

may occur in a number of States or may occur in

none. That is the first thing, Your Honour.

So that one then comes to the second aspect of

the situation, which Your Honour mentioned, and

that is the part which perhaps derives from

section 120 and that is the States are obliged, if

Leeth 24/9/91

required by the Commonwealth, to keep prisoners in

their prisons, and the Commonwealth may legislate

to permit that.

Your Honours, it really starts, we would

submit, at the wrong end to say, in respect of a

commonwealth, in respect of the new polity, it is to be subservient to the States in respect of the

way in which prisoners are kept just because it

will, for some time and for as long as may be

convenient, choose to use the State prisons. Why,

one would ask - hypothetically, of course - should

the terms of imprisonment, or terms of deprivation
of custody, for example, of persons convicted of

Commonwealth offences, choose to be, or have to be,

regulated by whatever happens to be the view - and

I do not mean this in the slightest sense badly -

taken of punishment in a particular State. The

views taken as to punishment in the States vary

from time to time. From time to time views are

benign; from time to time they become more harsh.

It depends on a number of matters which the States

are perfectly entitled to take into account.

But why, Your Honour, we ask hypothetically,

should Commonwealth prisoners be treated as

constitutionally subject to whatever happens to be

the common denominator or the lack of a common

denominator, amongst the States.

DAWSON J:  It is convenient to do so, that is all. You

could say the same thing about any differences.	I
mean, why should I be tried in a State where I

cannot make a statement from the dock when I could

be tried in a State where I can make a statement

from the dock, and so on?

MR JACKSON:  Your Honour, that is because - undoubtedly

there is a line to be drawn somewhere, and it may

well be that matters of that kind, which are in a

sense procedural - - -

DAWSON J:  What is different about imprisonment?

MR JACKSON: Well, Your Honour, it is a fundamental

difference really, we would submit. One is that

one may or may not be able to make a statement from

the dock. In earlier days one might or might not

have been able to give evidence in one's defence in

a criminal case. But in the end those things

relate to the procedure.

DAWSON J: They relate to a fair trial, which is

fundamental.

Leeth 31 24/9/91

MR JACKSON:  Your Honour, I do not doubt that for a moment,

but that is a matter undoubtedly upon which views

can differ from time to time. It might be thought

DAWSON J:  They can differ on the question of punishment

too. The Commonwealth sees it as convenient, for a

variety of reasons, when you have different prison

systems, to make a provision such as this. It is

convenient to do so and it does so.

MR JACKSON:  Yes. Your Honour asked me what was the

difference and perhaps I have not answered that

yet.	Your Honour, what I was seeking to say was
that the difference is one of kind, really.	The

person may or may not be permitted by a statute or
by the procedure of a court to make a statement
from the dock, or to utilize or be subject to some

procedural requirement or provision of a law. But

it is a very different thing, we would submit, to

consider whether a person is or is not guilty of an

offence and is or is not deprived of liberty and,

if so, for how long.	Your Honour, it is a question
of kind.

McHUGH J: What about the majority verdicts? For instance,

in some states you can be convicted on a majority

verdict; in another State you would be acquitted.

MR JACKSON:  Your Honour, it depends to a degree - I am

sorry to hesitate in answer to that. It depends on

the view one takes of section 80, because

section 80 says:

The trial ..... shall be by jury -

though it does not say precisely what the jury is.

Now, it may well be that in the cases to which

section 80 applies, the concept of trial by jury

does not necessarily involve that there be

12 persons, all of whom were there the whole time.

It may be that if one gets sick, you go down to 11,

or legislation could provide for these things. It

may be that it would go to a majority of 10 to 2,

perhaps. But it may be that at the heart of it all

there is a core, which is perhaps hard to identify

precisely except by reference, by particular cases,

but in the end is something that is capable of

description as trial by jury.

So, Your Honour, there is a constitutional

guarantee of that. The precise ambit of it may

vary but, Your Honour, I do not know that I can

answer that further.

Leeth 32 24/9/91

GAUDRON J: Is it that your right to be considered for

release is really more properly to be classified as

a substantive right that a procedural right?

MR JACKSON:  Your Honour, however one puts it, that is what

we are seeking to say, that it is not a procedural

right at all.

DAWSON J:  But we are not talking about guarantees or rights

or anything here. What you are saying is that it

is incidental to the trade and commerce power to
provide for offences and for the conviction and

punishment of offenders, but when it comes to the

punishment of offenders the law ceases to be

incidental if it provides for punishment in a way

that does not result in uniformity, but is

incidental if it provides for uniformity. That is

what you are saying, is it not?

MR JACKSON:  Your Honour, that is one way of putting it,

yes, Your Honour.

DAWSON J: That is the way you are putting it, is it not?

MR JACKSON:  Your Honour, what I am saying, is that the

law - - -

DEANE J: It sounded more enthusiastic when you put it.

MR JACKSON:  Your Honour, I do not doubt that, or I hope it

would, if I can put it that way.	Yes,
Your Honour, that is what we are saying.	We would
put it in another way though, of course.	We do
not abjure the underlying constitutional

implication we have put forward and that is that

there is to be uniformity in the application of

Commonwealth laws unless the Commonwealth law

indicates some reason why not.

GAUDRON J: Well, is your argument not strengthened, though,

to the extent you tie it into judicial power?	When
you speak of implications, is it not stronger that

there might be implied a prohibition against the

unequal treatment of people in the exercise of

judicial power?

MR JACKSON:  Your Honour, certainly. Your Honour, I was

going to mention that in passing in going through

the several provisions of the Constitution because

what on~ does see, we would submit, is that the

various enactments of the Commonwealth may give

rise to matters in a number of courts. One sees

that the Constitution makes provision for Federal

Courts and for State courts. There seems no

particular reason, we would submit, why the rights

of a person - if I can put it neutrally for the

moment - should vary substantially in relation to

Leeth 33 24/9/91

the application of a federal law depending on the

court in which the person was being dealt with
and, in particular, depending on whether in

respect of a Commonwealth law the proceeding was in a court of one State or in respect of a court of another.

I am not dealing, of course, Your Honour, with

cases such as ones under section 64 where the

Commonwealth can adjust its own rights but what I
am dealing with is cases where a law of the

Commonwealth of general application in its ordinary

way is one which is to be applied by a number of

courts throughout Australia and, Your Honours,

prima facie, we would submit, the whole notion of the Commonwealth would imply that that law is one

to be applied uniformly.

McHUGH J: Could not the Commonwealth legislate to provide

that no non-Australian resident convicted in this

country should not be eligible for parole?

MR JACKSON:  Should - sorry, Your Honour?

McHUGH J: Should not be eligible for parole.

MR JACKSON: Should be eligible, I think, with respect.

McHUGH J: No, should not be entitled to have a parole -

MR JACKSON: Sorry, that no non-Australian should not be

entitled to be?

MCHUGH J: Yes.

MR JACKSON: Well, Your Honour, that would perhaps derive

from the power to deal with aliens, I suspect.

McHUGH J: But not incidentally.

MR JACKSON: Perhaps it might derive in immigration, and so

on, but - - -

McHUGH J:  I suppose the reason we have heard nothing about

section 117 here is because your client is a United

States citizen.

MR JACKSON:  An American, yes.

McHUGH J: But does the presence of section 117 in the

Cons ti tut'ion tell against your argument?

MR JACKSON: Not really, Your Honour. It is a provision

which, in a sense like the other provisions that

mentions specifically preference and

discrimination, is one which is fundamentally

emphatic rather than anything else, and goes also,

Leeth 34 24/9/91

we would submit, to substantive laws and in respect

of those makes it clear that laws must possess or

not possess particular characteristics.

McHUGH J: Except we know historically that section 117

takes its form because certain States, or at least

one State, wanted to continue legislation which did

discriminate against a certain class of aliens.

Admittedly, that is State law, but - - -

MR JACKSON:  Yes. Your Honour, we are not seeking to create

a notion that every Commonwealth law must have a

uniform application.	I do not suggest that for a
moment.	Some Commonwealth laws of their very

nature contemplate they will not apply uniformly,

and that is a matter of substantive law, and one

looks to the power. If one had a Commonwealth

parole law that excluded from its operations

persons who are aliens, then one might say that

that part of the provision was one that was based

on the power in relation to aliens. But the

remainder of the exercise of the power would, prima

facie, be based on section Sl(xxxix), and it is a

question then of looking to see whether that law is

one which has an operation throughout Australia

which is the same.

BRENNAN J:  Mr Jackson, if the Constitution accepts the

autochthonous expedient, the expedient obviously

imports a certain disparity in some respects. One

could accept readily that procedural matters can be

the subject of such a disparity. You seek to place

the sentencing discretion outside that area?

MR JACKSON:	Yes.
BRENNAN J:	The real question may be, may it not, whether

you can place it outside that area, having regard

to the provisions of section 120?

MR JACKSON: Well, Your Honour, I am going to come to

section 120 in a moment if a may.	But if one looks
at section 120, what it says is:

Every State shall make provision for the

detention in its prisons of persons accused or persons.

convicted of offences against the laws of the

Now, Your Honours, that provision is dealing with,

prima facie, an obligation of a State, no doubt, to

make provision for the detention and for the

punishment of persons convicted of offences against

the laws of the Commonwealth. It says nothing

about the sentencing of those persons, and it

simply speaks of the provision for detention and

Leeth 35 24/9/91

provision for their punishment. Provision for

their punishment no doubt includes matters such as

the question of the provision of the labour, which

is hard labour, if I can put it that way, and for

dealing with a number of other matters of that

nature, Your Honour.

BRENNAN J:  Why does it not include release from imprisonment on parole?

MR JACKSON: Well, Your Honour, it includes release from

prison when paroled, but it does not, in our

submission, include a power in the State to

determine when parole should occur.

DEANE J:  Do you not need to distinguish between the

sentencing discretion and the statutory controls of

the sentencing discretion?	I mean, they are quite
different things.

MR JACKSON:  I am sorry, I am not entirely sure what

Your Honour means by that.

DEANE J: It was put to you that, concerned with the

sentencing discretion, you are not concerned with

that. You are concerned with the statutory

provisions that confer and control a sentencing

discretion.

MR JACKSON:	Yes, Your Honour.
McHUGH J:	So your argument is that section 4 is not made

pursuant to section 120, it is only incidental?

MR JACKSON:  Yes, Your Honour. It is not at all made

pursuant to section 4.

McHUGH J:  I must say, until this argument, in the back of

my mind I had always thought it was, but just in a

general way, I had never thought it out. But I

think you are probably right, that it is not.

MR JACKSON:  What section 120 is doing is to perform a

number of functions. The first is, Your Honour,

that it requires the States to make physical

provision, and it requires the States to look after and deal with the persons who are imprisoned during

the time that they are, but it does not say
anything at all, with respect, if one pauses at the

second comma in section 120, about the States

making laws which affect the length of time which a

person may serve. It does not say anything at all

about the States making laws which would be laws

affecting sentence. Those are matters to be

determined, we would submit, pursuant to the laws

of the Commonwealth:

Leeth 36 24/9/91

the Parliament of the Commonwealth -

in section 120 -

may make laws to give effect to this provision

but the effect of the Commonwealth law	is one which
gives effect to the matters which have	occurred
after the sentence, in our submission.	Your
Honour, I do not - - -

BRENNAN J:  Mr Jackson, I can see the force of the argument

that you put in relation to the limit of operation

of section 120, but I wonder if I could have your

submission on the question of whether, once the

Constitution contemplates that the disposition of federal prisoners will be by putting them into

State gaols, that circumstance may not carry a law

with respect to the scope, if you wish, of a

sentencing discretion into an area which justifies

discrimination as between the States.

MR JACKSON:  We would submit that it does not, first, but

could I saying some things about it? Your Honour,

the possible sources of power to make such a law

would seem to be potentially four. One would be

the power itself, the substantive power in
section 51; the second would be section 51(xxxix);
the third would be section Sl(xxxix), I suppose, as
applied to Chapter III; and the fourth would be
section 120.

Now, Your Honour, section 120 itself, in our submission, does not go far enough, and I will not

go over that. Nor, we would submit, once one moves

section 120 to the side and just has a situation

where section 120 contemplates that the States may

- not necessarily will, forever, but may - be

required to detain and punish persons convicted of

Commonwealth offences. It does not carry with it,

in our submission, the notion that not only will

one, if convicted, be detained in a State prison,

but one will be detained in a State prison for a

term which will vary, depending on what State one

was convicted in, Your Honour.

One reason why it does not is that it would

make it, particularly in cases where there is no

State, or no one State, where a person can be said to have committed the offence, it would make it

something very open to abuse, because a person

could be charged in any State with the offence, and

the potential liability to punishment vary

depending upon the State in which the trial took

place. Your Honour, it would add, with respect,

first a new terror, but then we would submit that

Leeth 24/9/91

section 120 is really a self-contained provision,

it does not - - -

BRENNAN J: It does not strike one immediately as

necessarily odd, though. If you have one State,

for example, that has a new prison, enlightened

prison policies, prospects of real rehabilitation,

and another State has a hell hole, one can

understand readily why there may be different

sentencing policies adopted in each place and why

the laws of each place might be different.

MR JACKSON:  Yes, Your Honour, and the police officer says,

"If you confess to us, we'll try you in Albury, and

if you don't confess we'll try you in Wodonga",

Wodonga being the less enlightened, with respect,

Your Honour.

BRENNAN J:  I do not know about the example you have chosen,

but - - -

MR JACKSON: Well, Your Honour, Tweed Heads and Coolangatta.

BRENNAN J:	I am not sure about that one either.
MR JACKSON:	But, Your Honour, it is open to very

considerable abuse, with respect, if the result is

that under a Commonwealth law there is not a

uniform liability in this regard. And, Your

Honour, that is a matter of importance. It seems, we would submit, a very very odd thing that one

should be liable to different periods of

imprisonment for the same Commonwealth offence.

McHUGH J:  I notice that in paragraph 9 of the amended

defence, the Commonwealth does not seek to rely on

section 120 as a source of the validity of

section 4.

MR JACKSON: Well, Your Honour, I suppose one waits and

sees.

DEANE J:  Mr Jackson, while you have been diverted, I do not

quite follow why it is you suggest we deal with

this case without regard to section 117. Is it
that you fear section 4(1) might survive as the law

with respect to aliens?

MR JACKSON:  No, Your Honour. I have not quite got to

section 117.

DEANE J:	You are going to deal with it?
MR JACKSON:	Your Honour, what I was proposing to do -
DEANE J:	I am sorry, I thought you had just put it to one

side.

Leeth 38 24/9/91

MR JACKSON: It would be difficult, Your Honour, to submit,

if the point that Your Honour is getting to is

what is meant by the term "subject of the

Queen" - - -

DEANE J: No, what I was wondering about is: if

section 4(1) were invalid in its application to "a subject of the Queen" the whole section would fall

unless you could categorize it as a law with

respect to aliens.

MR JACKSON:  Yes. Your Honour, what I was going to do was

to go through the several provisions of the

Constitution with a view to doing two things. One

is to suggest that they are either neutral on the

topic or they suggest that the laws would be the

same in a case such as the present. The second is

to go through to provisions such as section 117 and

say that they certainly would invalidate the

provision - or section 117 would invalidate the
provision, we would submit, if it were applicable

to a subject of the Queen.

McHUGH J:  I thought section 117 did not invalidate laws; it

just enabled those that are ignored.

MR JACKSON: Well, Your Honour, I am sorry, I was doing it

by analogy. I was not -

DEANE J: That is possibly the answer to what I was asking.

MR JACKSON: Yes, it is because of its nature, Your Honour.

Now, Your Honours, could I then turn to the

provisions of the Constitution and, Your Honours,

could I preface what I am about to say by saying

that one is not going to find in the particular

words the sparkling answer to the question, but I

would hope to derive from it some indications

which, if they do not support, at least do not deny

the proposition which we are seeking to advance.

Your Honours, could I go first to the terms of

the Constitution Act. Your Honours will see, of

course, in the preamble the "uniting of the

people"; the proposition to which I referred

earlier. In section 3 one sees a reference to the

"unity of people". In section 5 one sees the reach
of Commonwealth laws and, Your Honours, the terms
of covering clause 5 have a slightly declamatory
aspect to them, not surprisingly in view of the

nature of them. But what they do tend to suggest

is that one has the new polity, the laws of which

have, generally speaking, a uniform application.

Your Honours, if one goes to the group of trade and commerce provisions, the emphasis in them

is an emphasis upon uniformity. Could I, in that

Leeth 39 24/9/91

regard, go to those provisions? First of all,

section 5l(i) speaks generally, of course, of laws:

with respect to:-

(i) Trade and commerce with other countries,

and among the States.

Section 88 speaks of:

Uniform duties of customs -

and, Your Honours, the uniformity of customs laws

was, of course, a well known matter. There is then

a group of sections which emphasize uniformity in

respect of duties. Those sections, and I shall not

go to the wording, are sections 89, 90, 92, 93, 94

and 95. Section 99 provided for there not to be

any:

preference to one State or any part thereof -

by -

any law or regulation of trade, commerce, or

revenue -

Now, Your Honours, it is no doubt right to say

that the application of section 4(1) in the present

case does not give preference to one State over

another State, but section 99 does, we would

submit, convey the general notion that at least

laws made pursuant to section 51(i) were, in broad

terms, to be laws which were of uniform

application.

Your Honours, if one goes from that to section 112 it too speaks of uniform duties of

customs. Now, Your Honours, what one sees then is

that in a number of other contexts particular forms

of discrimination in substantive laws are

mentioned, and one sees, for example,

section Sl(ii) and section Sl(iii) and their

limitations on the substantive law making power.

If one goes to section 117 one sees that it conveys

the notion that the persons to whom it refers will

be treated equally in all the States, or equally

with their residents of States in all the States,

and, Your Honours, what we would submit overall is

that th~re is not anything in the Constitution,

apart from the particular nature of powers or the

nature of particular powers, which conveys the
notion that there is to be some kind of different

treatment.

Now, Your Honours, if one goes then to Chapter

III - - -

Leeth 40 24/9/91

DEANE J: If your client "were a subject of the Queen" would

you submit that section 117 was applicable?

MR JACKSON:  Yes, I would, Your Honour.

DEANE J: If that is so, can you simply say that section 117

does not invalidate laws? In some cases it does

not but if, for example, you had a law which said,

"subject to the Queen resident in New South Wales

shall be subject to the following discrimination in

Queensland", now would not section 117 invalidate

the law completely?

MR JACKSON:  Your Honour, in a case which is as simple as

that the answer may well be yes, however, one must
bear in mind that section 4 does not operate by

reference to residence, it operates by reference to

the place where the conviction occurs. Now,

Your Honour, that may or may not be residence.

DEANE J:  I follow that, but it is not self-evident to me

that if you be right section 117 would not

invalidate section 4(l)(a) to the extent that its

operation, itself, represented discrimination

between residents of different States. Now, if one

reached that stage it is not self-evident to me

that section 4(l)(a) could survive otherwise than

as a law with respect to aliens - - -

MR JACKSON:  Yes, Your Honour.

DEANE J:  - - - which would be a rather strange step. I am

not suggesting section 117 does apply I am just

trying to understand why it is that it goes out of

the case so readily?

MR JACKSON:  Your Honour, I suppose it goes out of the case

in perhaps a number of ways. Your Honour, one is,

of course, that first of all it is not a case of

direct application because of the "subject of the

Queen". The second thing, however, is that - the

difficulty in seeking to apply it, Your Honour, is	really what it says - what it says on the one hand
and what section 4 says on the other. What
section 4 says, in obedience or perhaps purported obedience to section 80 of the Constitution, is
that it applies the law - I am sorry, I will start
again, Your Honour. Section 80 says that you have
to be charged in the place "where the offence was
committed", except in places where there is no such
State. Now that, of course, need have nothing to
do with the place where the person resides.

Your Honour, if a person who commits an

offence in Victoria is a person who at the time of

commission of it is a person who is resident in New

South Wales, he is not subject in Victoria to a

Leeth 41 24/9/91

disability or discrimination by virtue of section 4

which would not be equally applicable if he were a

Victorian resident in Victoria, Your Honour, and vice versa, of course. That seems to be, with respect, Your Honour, the difficulty in the

application of it. The operation of section 4 has

no concern with residence. People convicted of

Commonwealth offences often will reside in the
place of commission. Often they will be people who

do not reside in the place of commission but it

does not seem to be something which would attract

the operation of section 117 in the ordinary case.

Your Honour, what section 117 is, is one of a

number of provisions which reflect, in our

submission, an underlying notion of equality.

McHUGH J:  But is there not a serious question as to whether

section 117 applies to the Commonwealth?

MR JACKSON:  Your Honour, there is, but the notion that it

does not perhaps derives less from its words than

its place in the Chapter.

MCHUGH J: Yes.

MR JACKSON:  Your Honour, if one says, "Why does section 117

not apply to the Commonwealth?", one might also

say, "Why does section 118 apply to the

Commonwealth?". Your Honour, one cannot disregard

the heading but one should not disregard the

words.

BRENNAN J:	Mr Jackson, in your itemizing of the uniformity provisions of the Constitution you did not refer to
section 71 and I wonder whether your submission is
that the powers which are conferred by section 4
are part of the judicial power of the Commonwealth
and, if so, whether section 71 contemplates the
conferring on State courts of judicial power
expressed in differing terms otherwise than on
matters of procedure?
MR JACKSON:	Your Honour, I was going to come to

Chapter III, but Your Honour has really put, in a

sense, to me what I was going to say about it but

with a qualification, with respect, the

qualification being that when one speaks of the

judicial power of the Commonwealth, one is

speaking at least of what is contained in

sections 73, 75 and 76. Your Honour, I say "at

least of" because I suspect I may be arguing that

question tomorrow, but one is speaking at least to

that.

If one looks at the terms of sections 75

and 76 and also section 78, there are cases,

Leeth 42 24/9/91

Your Honour, where the exercise of judicial power

on substantive matters could vary from State to

State. Your Honour, what I mean by that is that if

one looks at the jurisdiction conferred by, for

example, section 75(iv), matters between residents
of different States; if one looks at, for example,
the matters that are referred to in
section 75(iii), bearing in mind the possible
exercise of Commonwealth power under section 78 in

relation to the Commonwealth, then the substantive

law may vary - and I do no more than refer

Your Honours to the cases under section 64 of the

Judiciary Act - but when one is looking at

provisions such as the jurisdiction being exercised

under section 76(ii), matters:

Arising under any laws made by the

Parliament -

then a somewhat different situation emerges,

Your Honour. The situation is different in this

way: if it be that the subject-matter of the

legislative power which has resulted in the law

made by the Parliament under section 76(ii) is one

which itself contemplates that there may be

different applications of the law in relation to

different States, then there would seem to be no particular objection to the courts in exercising judicial power having to apply that law.

Subject to that, however, what we would submit

is that when one comes to the provisions of

chapter 3 and in particular section 71 and
section 77 deriving from that, it does contemplate

that in substantive matters the law to be applied

will be law which is to be applied as the same law

throughout Australia. While the procedure of the

courts may differ, the substantive law is the same.

Your Honours, I should have mentioned when

dealing with - I dealt a little with section 120 -

I should simply add a reference to a decision of

the Court on section 120. That is Reg v Turnbull

and Another; ex parte Taylor, (1968) 123 CLR 28.

Your Honours, in that case it was held that a

person convicted in the Australian Capital

Territory could be removed from it only upon strict compliance with the Removal of Prisoners

(Territories) Act, and section 120 was dealt with

at page.~7 in the judgment of

Chief Justice Barwick. At about point 4 he said:

No doubt this provision does bind the

States to receive and hold federal prisoners including accused as well as convicted

persons; and in a proper case the section

could give rise to judicial proceedings at the

Leeth 43 24/9/91

instance of the Commonwealth to enforce the

obligations it creates. But in the first

place the section does not create any right in

any person to remove a prisoner from the

territory -

I do not think I need to read it out, but if

Your Honours look at the whole of that paragraph

that is, I think, the only part of the case which

deals with section 120.

Your Honours, I have gone so far to deal with section 4(1) but of course that provision has been

repealed.	May I move then to the repealing
legislation.	The repealing legislation is the
Crimes Legislation Amendment Act (No 2) 1989.	I

will take Your Honours to that Act in a moment. It came into force on 18 July 1990. There are several

provisions of it which are material. The first is

section 29 - perhaps I could just say first,

Your Honours - that it simply repealed the
Commonwealth Prisoners Act - section 29.

Section 30(1) dealt with existing orders of the kind presently in question and Your Honours

will see that in the book of relevant legislation,

and section 29 appears at page 21, and section 30

appears immediately after it on the same page.

Your Honours will see that it says:

Where:

(a) a person was sentenced before the

commencing day - now the commencing day, Your Honours, was

18 July 1990, so it applies to this case, and -

(b) a court had fixed or purported to fix a

lesser term of imprisonment under

section 4 ..... as the period during which the

person is not eligible to be released on

parole; and

(c) on that day -

meaning the commencing day -

that lesser period ..... had not been

serv~d .....

that lesser term is to be treated ..... for all

purposes of -

what is described as -

the Principle Act as amended by this Act -

Leeth 44 24/9/91

could I pause there, Your Honours, to say that is

the Crimes Act -

as if it were a non-parole period that had
been duly fixed in respect of that sentence
under Division 4 of the Principal Act as so

a.mended. Now, Your Honours, the reference to "Division 4 of

the Principal Act as so a.mended" is a reference to in that volume, but is in the manila folder and -
the provision which is section 19AB of the Crimes

Your Honours, may I inquire if it is there?

MASON CJ: Yes.

MR JACKSON:  Your Honours will see that the provision which

is section 19AB is part of Division 4, Division 4

being a new part of the Crimes Act, which was

inserted by the Crimes Legislation Amendment Act

(No. 2). Now, it provides, in 19AB(l), that:

Where:

a person is convicted of a federal offence, or

2 or more federal offences ..... and

(b) the court imposes on the person ..... a

sentence or sentences exceeding ..... 3 years;

the court must fix a single non-parole period

in respect of the sentence or sentences unless

it makes a recognizance release order.

Now, Your Honour, section 19AB is the

provision which would apply to the imposition of a non-parole period for a Commonwealth offence after the date to which I earlier referred, 18 July.

Your Honours, I should perhaps mention in relation

to section 19AB that the succeeding provisions of

that division deal with the circumstances in which

could refer particularly to section 19AH, which	non-parole periods are fixed and operate and, if I
allows the making of a non-parole order where a court has failed to fix, or properly to fix, such
an order.

Your Honours, in section 19AG there is a

reference to the fact that:

In calculating a non-parole period ..... the

court .....

(a) must take into account the fact that,

under section 19AA, any non-parole

period ..... will not be subject to remission or

Leeth 45 24/9/91

reduction other than a remission or reduction

applying under subsection 19AA(4); and

(b) must adjust the period accordingly.

Your Honours, what that is designed to do, if

I could put it shortly rather than go to the

provisions, is to recognize the fact that some

State laws provide for remissions from non-parole

periods, some do not, and to try to adjust a

federal sentence wherever imposed so that it will

take account of remissions from non-parole periods.

Now, Your Honours, coming back then to section 19AB Your Honours will see that it is a

provision which now empowers and requires the

fixing of non-parole periods. If one goes back

from that to section 30 of the same Act, what one

sees is that it is the provision to which the last

few lines of section 30(1) apply, that is -

as if it were a non-parole period that had

been duly fixed in respect of that sentence

under Division 4 of the Principal Act so

amended.

Now, Your Honours, in our submission, the

provisions of section 30 work on the assumption

that section 4 was a valid enactment and that there

were cases where non-parole periods had been fixed

pursuant to section 4; or in cases where there had

been an attempt to do so, but the attempt had not been successful because of some failure to comply

with the terms of section 4. We would submit that

section 30 is not intended to seek to give validity

to constitutionally invalid purported exercises of

power, and that if it were, it is subject to the

same defects that were possessed, if we are right,

by section 4(1).	Your Honour, those are our
submissions.

MASON CJ: Thank you, Mr Jackson. Yes, Mr Solicitor.
MR GRIFFITH:	I hand the Court our contentions.  Could I

begin, if the Court pleases, by giving a short historical overview of the Commonwealth parole provisions. In relation to Commonwealth offenders,

remission of sentences and pardons were not

originally the subject-matter of legislation, and

was instead dealt with in the Letters Patent of

29 October 1900 relating to the office of

Governor-General. In a relevant way, these Letters

Patent were not revoked until 1984.

Parole, as a form of conditional release, grew

out of the New South Wales ticket of leave system and in Victoria in early 20th century legislation

Leeth 46 24/9/91

governing indeterminate sentences. This is

discussed in Fox and Frieberg Sentencing State &

Federal Law published in 1986, and if I may hand

the Court a short extract from that publication

which does summarize the history of parole.	I will
not take the Court to that summary.

There was no specific Commonwealth

legislation, on the subject of parole, until

section 19A was introduced into the Commonwealth

Crimes Act in 1960. Before then there were very

few Commonwealth offenders, indeed today there is

only just over 500, but before 1960 there were not

very many at all in the prisons and it would seem,

so far as one can discover, that the practice was

to treat State and federal offenders alike,

arguable in reliance upon section 120 of the the Judiciary Act. But it seems no issue arose as

to the practice then, perhaps not surprisingly,

that no prisoner would complain if he was released

earlier than the time fixed by his head sentence. Section 19A empowering the Governor-General to

release prisoners on licence was introduced in

1960, and was expressed in the second reading
speech by Sir Garfield Barwick as being in

recognition of changes in theory and practice of the treatment of offenders. If I could hand the

Court that second reading speech but I will not

take the Court to the speech. This was followed by

the Commonwealth Prisoners Act 1967, of course

section 4 to which my learned friend has taken the

Court, and in the case of that Act it was

introduced following the decision of the Victorian

Court of Criminal Appeal in Reg v Mirkovic, (1966)

VR 371, to the effect that Victorian State parole

provisions did not apply to federal offenders, and
on the basis of that decision of the court the 1967

provisions were introduced, and if I could hand the

Court also as background the 1967 second reading

speech indicating that that was a precipitating

factor upon the enactment of the 1967 provisions.

Also, if it assists the Court I will hand the Court

the Mirkovic decision.	I will not take the Court
to that decision.

So that, although to some extent the problem

thrown up by the plaintiff's submissions in this
case perhaps are implicit in the constitutional
provisions dealing with punishment and Commonwealth

laws dealing with punishment since Federation, very

much the problem is one that seems to have emerged

only since the 1960s, and to that extent perhaps

there is not all that much assistance being derived

from authority which is older than the 1960s.

Leeth 47 24/9/91

Turning from this brief historical survey to

the matters of substance, perhaps this is an
opportunity to break for the luncheon adjournment,

although I am happy to proceed.

MASON CJ: Yes, we will adjourn now and resume at 2.15.

MR GRIFFITHS: If the Court pleases.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr Solicitor.

MR GRIFFITH: If the Court pleases. Justice Brennan

referred this morning to the status of the document

appearing in pages 21 to 25 of the book.	As we
understand the position, Your Honour

the Chief Justice did initial and sign a document with some manuscript alterations on 22 April 1991

in this form and the document which appears in the

book is a retype of that document, typing out the

manuscript alteration so that there is a document

on the Court file, I am instructed, which is

exactly in the form of this document with

Your Honour the Chief Justice's initials dated

22 April 1991. So that if that date was added to

the document it would represent a copy of the

document in the Court file.

I should indicate that we are agreed on the content of this document, of course. Having said

that to Your Honours, on comparing this copy it

seems to be slightly different in form, so perhaps

it should go back in to be recommitted. I was

going to say, Your Honour, paragraph 7 of the

document, in the book, represents a mere assertion,

by way of contention by the plaintiff which we did

not admit as a fact or admit as having been made

out but I see that this document does not have that

paragraph in it. So, I am sorry if my attempt to

assist the Court is only an interim measure.

MASON CJ: Perhaps the parties could discuss the matter and

see what the history of it is and what the

appropriate document is can be placed before the

Court.

MR GRIFFITH:  I am sorry, Your Honour. We thought we had

got the history, but I think at the end of the day

Leeth 48 24/9/91

there will be no difficulty other than the comment

I make that we say that the present paragraph 7 is

a mere contention and one that is not made out.

It is our general submission that Parliament

may validly legislate on the matter otherwise
within power by reference to the law of a State in

which the Commonwealth law is to be applied.	So
that the Constitution - including, we say,

Chapter III - in our submission does not require

Commonwealth laws to operate in the same fashion

everywhere, regardless of place.

So for that reason we would say that to

challenge section 4 is not invalid simply because

its operation may vary from one State to another.

If I may pick up the expression of Your Honour

Justice Brennan, we would say the autochthonous

expedient - - -

MASON CJ:	Mr Solicitor, just returning to the form of the document, I notice following the substantive part of the document there seems to be a backsheet,
"Amended questions reserved", which would seem to
indicate that at some stage the parties did have in
mind amending the questions.

MR GRIFFITH: Yes, Your Honour. There were originally three

questions, and question 3 had a paragraph (a) and

(b). We did agree, Your Honour, to limit to two

questions and, perhaps to assist the Court,

Your Honour, we could indicate now that as far as

question (b) is concerned, we were never entirely

clear what my learned friend's point was. On

reflection we thought, Your Honour, from what we

picked up in some earlier reference, that it was

intended to be a judicial power point, but from my

learned friend's submissions this morning,

Your Honour, it is merely, as we see it, a

consequential question arising from assumed success

on question (a).

It would perhaps assist the Court if we

indicate to Your Honour that if the answer to

question (a) is yes - in other words, is

section 4(1) invalid - we would then concede,

Your Honour, that section 30 would not have the

effect of picking up and making valid what has

followed from the consequence of section 4 being

declared .invalid. So that there would be no real

issue on the result arising from question (b) in

that circumstance. Does that deal with Your Honour

the Chief Justice's query?

MASON CJ:  Yes it does, so far as it goes, and we can

explore the status of the actual - - -

Leeth	49	24/9/91
MR GRIFFITH:	Yes. be able to settle in final form this afternoon - - -	Your Honour, it may be that we will not

MASON CJ:	No, I realize that.
MR GRIFFITH:	- - - but I imagine we can do it, probably by

tomorrow morning, when some of us may still be

here. Your Honour, it is our submission as to

whether section 4 is supported, that the

legislation we say principally is supported under

section 51(i) of the Constitution, as being part of

the trade and commerce power necessary incidental

to it, and of course, reference can be made as

needs be to placitum (xxxix), although we submit

that it, clearly, we would say that legislation

providing for the punishment of Customs Act

offences of this kind which would be regarded as

within power, for example, if I could refer to

Milicevic v Campbell, 132 CLR 307, at page 313, we

would say that it must follow if there is a power

to create the offence, Parliament may also
legislate in relation to the parole of persons

convicted of those offences. We would say, as

needs be, the power could arguably be regarded as

supplemented by section 120, but, of course, it is

not necessary to engage the argument as to whether

section 120 itself, by its terms, could be regarded

as supporting legislation of this sort, dealing

with punishment. Arguably, at least, with the

assistance of section 68 of the Judiciary Act one

might get to that result, but in our submission, a

law does not cease to be part of the power under

section 51 because it does not provide to operate

uniformly in all aspects of punishment.

McHUGH J:  Mr Solicitor, could you tell me, what is the

legislative purpose of section 4? Is it, in
effect, to direct the judge, sitting in federal

jurisdiction, to approach the matter as if he was

applying a State law problem in his jurisdiction,

or is he entitled to look across and see how the

parole system works in other States in relation

federal law?

MR GRIFFITH:  Your Honour, the primary function of the judge

is to see how it works in the particular State, in

our submission, to get an appropriate result.	So
that when one is dealing with the question of

appropriate result, Your Honour, one gets, we would

submit, to the issue of whether or not in the

sentencing process, having regard both to the

parole provisions and also the remission provisions

as might have existed in the States at that time.

Under the 1989 amendments, Your Honour, remissions

do not count to reduce the parole period. Up to

Leeth 50 24/9/91

that time, Your Honour, there was a discrepancy in

operation between the States.

McHUGH J:  So it was part of Parliament's purpose that

although a person might get 15 years for a federal

offence in New South Wales and Western Australia,

it may work out quite differently in terms of when

he would be eligible for parole?

MR GRIFFITH:  Your Honour, we would submit, it is more a

unifying purpose, that one would expect by and

large in Australian-wide operation to get something

approaching the usual uniformity of result. Of

course, it is not uniform, Your Honour, there are
discrepancies within States between different

sentencing judges and perhaps sentencing courts

within States. There may be discrepancies between
what is regarded as a usual tariff when comparing

States but, we would submit, Your Honour, the function of section 4 in its operation was intended

to fall within those usual ranges.

But one cannot, we would submit, Your Honour, assume, as alleged in paragraph 7 of the

contentions in the application book, the question

stated, that there would be a disparity of result

and of outcome. We would submit, Your Honour, the

assumption may well be to the contrary, that one

would expect a judge to have regard to these factors and produce something which would be

regarded as falling within, one might put it,

Your Honour, the usual range.

McHUGH J:  Then why did Parliament seize on the legislation

of the particular State or Territory as the

discrimen for the - - -?

MR GRIFFITH:  Your Honour, we submit that it is a natural

concomitant of the vesting of criminal jurisdiction

in federal matters in the States. That has

occurred since Federation, Your Honour, and the

creation of the federal courts has not altered the

fact that criminal jurisdiction in the federal

sphere is exercised by State courts and, we submit,

Your Honour, it is a natural corollary of that to

have regard to these issues of punishment by regard

to the State provisions.

Of course, Your Honour, at the end of the day

it is a matter of legislative choice, and under the

1989 amendments, Your Honour, the choice has been

exercised to produce at least a uniformity of
operation in fixing of non-parole periods, and also
uniformity of operation that remission provisions,

if they exist in a State, are not to apply to

reduce the non-parole period. But, we submit,

Your Honour, that it is a matter of choice and that

Leeth 51 24/9/91

a natural provision is the sort that is picked in
section 4, Your Honour, until such time for some

policy reason for Parliament to determine different

procedures taken, the one taken in the 1989

legislation.

McHUGH J:	Does that mean on a special leave application that it is a matter of significance, if there is a
variation between the sentence handed down in this
case and does the sentence take into account eligibility for parole which would operate in some other State?

MR GRIFFITH: Well, Your Honour, we do not seek to get

involved in the issue of special leave in this

case, but we would submit that the question of
having regard to comparative sentencing is a matter

where the court should bring to bear the ordinary

principles that the court brings to bear in

sentencing appeals. Of course, Your Honour, having

regard to the authorities of this Court to which I

can take the Court, the Court by and large does not

get involved in sentencing issues, does not get too
involved in efforts to mark out that there are
discrepancies between the States in sentencing or

within the States. Those principles are well

enough known, Your Honour, but we would not submit

that their application is excluded from

consideration on an appeal on sentence by way of

application for special leave in connection with a

sentence, including one fixing a minimum term,

under section 4(1) of the repealed Act.

TOOHEY J:  It makes it a little hard to understand the way

then in which subsection (2) operates,

Mr Solicitor, because in fixing the term, and the

power to fix is dictated by subsection (1), but -

in fixing the term the Court is required to

have regard to the matters to which it would

have regard if the law of the State or

Territory in which the offender was convicted

were applicable.

MR GRIFFITH: Yes.

TOOHEY J:  I am not sure what is meant by "matters". Some

Acts direct the matters to which the Court shall

have regard in determining a non-parole period. Is

that what it means, or does it mean something more

than that?

MR GRIFFITH: Well, of course, Your Honour, in some States

it is at least the practice, if not directed, that

the trial judge shall not have regard to the fact
that remissions may reduce the non-parole period,

and yet, Your Honour, it is clear enough that

Leeth 52 24/9/91

judges do take that factor into account. We would

suppose that that could be a factor which could be

taken into account.

TOOHEY J:  But it would seem to preclude the sentencing

judge from having regard to a matter dictated by

the law of a State other than the State in which

the sentence is being imposed.

Your Honour, perhaps it is not a matter of a

sentencing judge having regard to Australia wide

issues, it is more a question of the sentencing

judge having regard to what is the appropriate

sentence to impose here. As to that aspect,

Your Honour, we feel we can go some way along with

the proposition that if one is to regard the fixing
of a minimum parole period as part of the sentence
itself, possibly a procedural part, that is an

aspect of the sentencing process.

As to that, and it was an issue raised by

Justice Deane with my learned friend, could I refer

the Court to the decision of this Court in Reg v

Shrestha, (1991) 65 ALJR 432 - I have copies to

hand to the Court. Has the Court got that report

- I have extracts here to hand up.

MASON CJ:  I think we have it, Mr Solicitor. No, if you

would hand it up, apparently at least one member of

the Court does not have one.

MR GRIFFITH: If I could take the Court firstly to the - - -

MASON CJ: That member of the Court has been supplied with

one. Hand it in at any rate, perhaps two copies

of it will not go amiss with that member of the

Court.

MR GRIFFITH:  Thank you, Your Honour. judgment of Justices Brennan and McHugh - this is Page 437 of the

quite a fresh one so I do not think I need bother

the Court too much with the detail of it, but we

would take that what Your Honours there say at page page 441, in particular left-hand column beginning between Band C and ending at just before G, that
437, right-hand column, begining at about point 3
ttBefore turning to these matters, tt and what Your

at least to some extent it may fairly be regarded

that th~ sentencing judge, as part of the

sentencing process in formulating the overall
sentence, is regarded as being involved in the
sentencing process in dealing with the non-parole

period.

That might not be the same thing as saying

that as a matter of substantive law the non-parole

Leeth 53 24/9/91

period, as fixed, is part of the sentence. It is
different, of course, from the issue of the head
sentence. Indeed, when one looks at the early

decisions of the Court in Power v Reg, (1974)

131 CLR 623 at 629, which is referred to just below

Din the left hand column of page 441, one can see

some indication that the Court tended to regard the sentence itself as the head sentence. But whatever

ambiguity may lie there, we would submit that at

least the non-parole period may be regarded as a
procedural part of the sentence. It does not fix a
sentence, it merely creates a gateway of

opportunity for the exercise of the parole

jurisdiction under the various parole laws which

may apply and one is dealing with State

jurisdiction only or with the jurisdiction vested

by the now repealed 1967 Act or indeed the present

Act.

We would submit, Your Honour, that at least

the fixing of a non-parole period is regarded as

part of the sentencing process, although, as I
mentioned, our submission is that absent particular

legislation, it is a procedural part of the

sentence. Some of the legislations my learned

friend referred to in passing this morning have

special provision. For example, the Tasmanian

provision, section 12A, specifically provides that

the non-parole period is part of the sentence and
where there is such legislation I think that it

does appear in other of the legislations of the

States.	Of course, the question is answered by the
terms of the legislation itself.	The fact that

legislation provides that may be an indication that

absent specific provision, it is in a somewhat more

shadowy area of being related to the sentence

whilst not perhaps necessarily being part of the

sentence itself. But we would concede and agree

that it is a matter to which the Court may have

regard in connection with an appeal seeking to
review a sentence.

My learned friend, Mr Jackson, has indicated

to me that he would intend to rely on this

authority in connection with the special leave
application but otherwise I will let him speak for

himself about it.

We were submitting that, in our submission,

the provisions of section 4 are within power under

section Sl(i) itself and if needs be supported by

the incidental power. And it may be that when one

has regard to my learned friend's submission one

has seen more an implication which is sought to be drawn from Chapter III than one is from the nature

of the plenary power under section Sl(i).

Leeth 54 24/9/91

It is our submission that having regard to the

nature of the Australian Federation, in the
ordinary exercise of its power, Parliament may
choose to exercise its legislative power on the
matter by reference to corresponding State

enactments, either by giving the State law force of

Commonwealth law or by providing that Commonwealth

law should operation in an analogous fashion; that

is, we say Parliament has a choice to pick up State

to State variations as they may operate from time
to time in the operation of Commonwealth laws, such

as flow from the differences in their States and in

their legal systems.

The Constitution, we submit, is predicated

upon elements of State to State diversity and just

as there may be State to State variation in the
operation of State laws on similar topics, we
submit that so subject to the some circumscribed
and particular limitations under the Constitution
there may be State to State variations in the

operation of Commonwealth law.

The Court has, of course, in other contexts,

accepted the validity of Commonwealths laws which

embrace State variations. Could we mention,

briefly, Hooper v Hooper, 91 CLR 529. There, the

Court held that Part III of the Matrimonial Causes

Act 1945 validly gave effect to State matrimonial laws as they existed from time to time; in other

words, the Court recognized, particularly at

page 536, that Parliament could choose "to give the

force of federal law to the State law" and thus to

provide that the substantive rules governing a

subject vary from State to State depending on State

law.

At page 537, the Court stated:

the view that State laws for the purposes of

the Act have the force of laws of the

Commonwealth does not involve any startling

consequences. The State laws to which that

force is given are the State laws as they may

exist from time to time -

so, in the result, the Commonwealth was able to

pick up or leave in place the differing State

regimes; in this case, that covered by the

Matrimonial Causes Act, Part III.

We would submit that there is a similar

approach in the Commonwealth Places (Application of Laws) Act 1970. Indeed, it was two members of this

Court, in particular, that explained to a

legislature the mechanism whereby this process of

applying State law to Commonwealth places might

Leeth 55 24/9/91

readily be provided by Commonwealth law. As to

that, see Worthing v Rowell and Muston Pty Limited,

123 CLR 89, in particular, the Chief Justice at

page 103, and Justice Windeyer at page 120; and if

I could also refer to page 132. On this aspect,

may I also refer to Reg v Holmes, a decision of the

Court of Criminal Appeal of South Australia,

93 FLR 405.

Of course, the effect of the Commonwealth

Places Act is that particular conduct may

constitute a particular offence in only one State.

A person charged with such offence could be tried

in that State, in a State court, according to the

procedures of that State and if convicted will be

to sentence by a State judge whose sentence would be under the supervision of a State Appeals Court
to a term of imprisonment which would be served in

a State prison.

We submit that it would seem to be somewhat

inconsistent with that, as a matter of
constitutional power and operation under

Commonwealth legislation, to say that as a matter

of necessary implication from the Constitution,

release on parole could only be affected under a

Commonwealth law which applied uniformly throughout

Australia.

We do submit that it is within Commonwealth

power for Commonwealth laws to apply differently to

different places, including Commonwealth criminal

laws. Perhaps if I could give an example. If, for

example, it were regarded as appropriate to protect

abalone fisheries in the Tasmanian Bass Strait

area, we submit that a Commonwealth law could

validly provide that it was an offence punishable

by gaol to seek to export abalone caught from the

waters off Tasmania, whilst at the same time either

providing no penalty or providing a reduced penalty

in respect of exports of abalone caught without

authority from other parts of Australia. There are

other examples one may think of, but we give that

as an indication of our basic proposition, which is

that we would say whatever implications may be

made, including under Chapter III of the

Constitution, as to absence of discrimination being

a requirement for the operation of Commonwealth

law, we submit that the requirement of absence of

discrimination as to place is not a matter which is

necessarily embraced, either in any implied or
implicit implication to be drawn from the

Constitution. Of course, we do not refer to the express prohibitions of discrimination under the Constitution which, of course, operate according to

their terms.

Leeth 56 24/9/91

The Court would recall, in Polyukhovich there

was argument made to the Court - that is reported

now in 101 ALR 545 - to the effect that the War

Crimes legislation was invalid because the
applicable law varied by reference to the State or
Territory in which the proceedings were brought.

There there was the additional ingredient that the

time when the alleged offence was committed, and

the time when the charge was laid, were also

relevant criteria as to the actionability under the

War Crimes legislation. I will not take the Court

to the detail of that argument, which the Court

probably has, with distressing clarity, retained,

having recently given its judgment, but the comment

we make is that whilst this matter is not dealt
with at length at all in the judgments, the

submission was unsuccessful.

We also see the decision of the Court in Reg v

Paivinen, 158 CLR 489, particularly at page 497, as

assuming the validity of section 19 of the

Commonwealth Prisoners Act which provided:

The provisions of a law of a State or

Territory relating to the reduction or

remission of sentences or minimum terms of

imprisonment apply to a federal offender who

is serving a sentence of imprisonment in a

prison of that State or Territory in like

manner as those provisions apply in relation

to a State offender.

Although the Court did not refer specifically to the question of validity, it would seem to have

been assumed.

The Constitution, we say, contemplates in

several places, if not many places, that the
administration of justice under Commonwealth law
will not necessarily be a matter exclusively for

Commonwealth institutions, but that State laws will

be involved. Obvious examples already mentioned

are section 71 and section 77(iii), but we mention

in passing also placitum 5l(xxiv),

placitum Sl(xxv), section 118 dealing with full

faith and credit and, of course, as has been

mentioned, section 120.

It has been accepted, and I do not think we

need labour the point, the Commonwealth, when

exercising power under section 77(iii), is
concerned with investing federal jurisdiction in a

court created under State law. Although there are

some controlling factors such as section 79 or

section 80 in conditions which may validly be

imposed by laws under section 77(iii), the

Leeth 57 24/9/91

Constitution contemplates that laws of the

Commonwealth may be administered under judicial

systems established by the States. These, we

submit, are likely to be diverse rather than

unified, and if we could give a passing reference

to the Hospital Contribution Fund case, 150 CLR 49,

and also Reg v Brown, 160 CLR 171, in particular at

page 198, Justice Brennan, and page 218,

Justice Dawson.

Turning then to section 120, we would see that

section as contemplating, absent Commonwealth

legislation to the contrary, that Commonwealth

prisoners will take State prisons as they find

them. There is no reason to assume uniformity.

Diversity, of course, is inherent in any State

institution and this possibility, of course, was

turned up, we say, by way of merely theoretical
example by my learned friend's reference to

possible cross-border choice as to where

proceedings might be taken.

But whatever might be perceived differences in

treatment, we submit it could not be said that the
detention of Commonwealth prisoners in a particular

State could ever be regarded as unconstitutional because the prisons in that State were regarded as

more unpleasant than the prisons of other States.

Section 120 requires a State when dealing with a

person under Commonwealth law required to be

imprisoned for a nominated period of time to detain

that person in something, we submit, which is

identifiably a prison. But otherwise it is

entirely a matter of State law as to how he is

detained.

TOOHEY J:  Mr Solicitor, what do the words "for the

punishment of persons" mean in section 120?

MR GRIFFITH:  Your Honour, at the very least they would

mean, we would submit, the concept of implementing

a term of imprisonment or the terms of punishment
provided for under the Commonwealth law.	We would

submit, Your Honour, that would embrace issues

relating to parole and remission as well.

TOOHEY J:	But not the term of imprisonment presumably?
MR GRIFFITH:	Your Honour, it is pointed out to me that, of

course, in 1901 there was capital punishment as a

possibility.

TOOHEY J:  I suppose the State might have to provide some

rocks for the prisoner to serve hard labour when

hard labour meant what it said.

Leeth 58 24/9/91

MR GRIFFITH: Indeed they would, Your Honour. There are now

specific provisions - I do not know offhand when

they were incorporated - preventing sentences for

corporal punishment for Commonwealth prisoners.	So
that would exclude the possibility of a State
administering corporal punishment even as part of

prison discipline, even if that was provided for in

the States, we would submit. Your Honour, the

concept of punishment would seem to be wider than

that of detention, but it may also, we would

submit, deal with the incidences of detention,

namely, the circumstances on which the detention

might be ameliorated with open release or something

of that sort, parole, remissions and things of that

sort; and, of course, subject, as my learned

friend pointed out, to Commonwealth legislation

providing specifically as to what is meant.

I should point out, Your Honour, that acting

Justice Bull in British Columbia in Reg v Johnson,

(1972) 2 West LR 145 at pages 146 and 147 said -

this is not on my list of authorities, Your Honour,

but I am handed an opinion, in fact, I gave some

time ago - but if I could just quote from the quote

and not from the opinion:

I can see no difference in principle between a

convicted accused being ordered to pay a sum

of money as a fine and being ordered to

perform certain action or abide by certain

conditions of conduct. In either case, the

accused is sentenced by the court to a penalty

because of his conviction of an offence, and

hence is being sentenced to a punishment.

So that gives the broad view of punishment.

BRENNAN J:  Mr Solicitor, one can understand that there may

be room for discrimination between various parts of

the Commonwealth in the case of substantive laws

which create offences. One can understand that

there may be room for discrimination with respect

to the position of penalties once judicially

imposed under section 120, but what is the

justification for discrimination in the sentencing

process?

MR GRIFFITH:  Your Honour, the example I gave in respect to

abalone fisheries might be a good example.

BRENNAN J:  One can understand that, that is the creation of

the offence.

MR GRIFFITH:  Yes.

Leeth 59 24/9/91

BRENNAN J: It is an offence to take abalone from around

Tasmania, it is not to take them from the Gulf of

Carpentaria.

MR GRIFFITH:  Your Honour, perhaps I did not express the

example well. The offence might be created as an

Australian-wide offence, Your Honour, with

different penalties depending on where the offence

occurred because of the different range of value

regarded as being attached to the protection.

BRENNAN J:	Even so, you have then got a substantive law which imposes a range of penalties according to
differing conduct, that is, that the differing
conduct will give rise to a liability to a penalty,
but we are concerned here with the imposition, the
judicial imposition, of the penalty and where is
there room for divergence or differences in
judicial imposition of penalty?

MR GRIFFITH:	Your Honour, perhaps I should indicate that in giving interchange this morning with my learned friend on the question we put to my learned friend, "Well, what you are really saying is that the Commonwealth	that example I was dealing with
law cannot impose different penalties according to
place".  Now, Your Honour, in dealing with that
issue I gave an example saying, "Well, in some
circumstances it may". But, Your Honour, we do not
say, for a moment, that that is the situation here
because we say that the issue of whether or not one
can have a Commonwealth law which does discriminate
as to places to sentencing - actively discriminate
by making substantive rules, Your Honour, is not
the issue which arises here.

The issue which arises here is, Your Honours,

whether in connection with the issue of sentencing

and punishment being a matter covered by section 120 by the terms of section 120,

Your Honour, it is constitutionally permissible for	the Commonwealth to exercise a choice, as it did up
to 1989, of adopting a sentencing result to adopt
the sentencing and corrective system practices of the State so as to operate on a basis of uniformity of practice and operation on a State by State basis so there is assimilation with the position of convicted persons within that State, both under
State and Commonwealth Law, as compared with the
choice that - we say it is a choice of the
legislature exercised by the 1989 amendments to provide restrictions on that operation, in particular to provide a mandatory provision that
there should be a non-parole period fixed in all cases of sentencing coming within the minimum requirements.

Leeth 60 24/9/91

So that, Your Honour, in that area we say the matter of inquiry is not one at large, as perhaps

was postulated by Your Honour's question, but one

as to whether or not it was permissible for the

Commonwealth, in providing for a mechanism for sentencing, to opt on the uniformity of operation in the State solution rather than to opt for the uniformity in operation in all federal offences solution, which is the choice adopted by the

amendments.

BRENNAN J:	I can understand the way you put it, I think, but could I just ask you this: are you saying that
the Commonwealth could choose the State by State uniformity solution because the process with which the legislation was dealing was a sentencing plus
punishment process, because if you are not saying
that, that is linking the section 120 power to the
judicial power, because if you are not saying that
I do not understand why the Commonwealth should, as a mere matter of judicial power, provide for a
sentence for a State by State differentiation.
MR GRIFFITH:	Your Honour, we do make the connection, but we

also make the connection with the power itself,

under section 51. We say, Your Honour, that having

regard to the provisions in respect of the vesting
of federal jurisdiction in the States, Your Honour,
including in criminal jurisdiction, is confirmed by
both section 39(2) and section 68 of the Judiciary

Act, which, of course, had its precursor right back

to 1901. In that case, Your Honour, it is really,

we submit, implicit in the scheme of the

Constitution, including Chapter III, that the

mechanism adopted in respect of punishment and

sentencing might be expected to have been the State

by State operation, rather than the uniformity of

result throughout the application of Commonwealth

law through the Commonwealth, which is now the more

mature solution adopted after the 1989 amendments.

So, Your Honour, our basic submission: it is an

integral part of the constitutional structure,

rather than something which, in any way, is to be

isolated and regarded as repugnant to it.

So that it is our submission that the

possibility of State to State variations must be
admitted, and that they cannot be assumed, for some
reason, to be implied from section 71 or

section 77(iii) or Chapter III, to be repugnant to

the judicial power, and hence beyond power. We

submit also, that there is some support to be drawn

from section 80 dealing with the venue requirements
in respect of indictable offences. At least there

there is some hint of recognition of State

variations in the requirement that the trial, and

Leeth 61 24/9/91

therefore the conviction and punishment of a person, be regulated within the State of the offence, and indeed, my learned friend's examples

in respect of agreements for conspiracy outside a

State to commit an act within a State, would seem

merely to confirm the fact of relevant connection.

In his examples, to the State where the agreement

was made, that is the State where the offence

occurred and it would be the State of punishment.

Section 80 would seem to require the trial to

be in that same State and we say there is no

incongruity in then applying the law of that State

in respect of determining the terms of punishment

and sentencing. So that it is our general

submission that when one looks for pointers in the

Constitution, they seem to recognize implicitly, or

explicitly, diversity of the administration of

Commonwealth criminal law attributable to State to

State variations, and the fact that the

Commonwealth has power to eliminate that diversity,

as has now been done in respect of parole, in our

submission, is beside the point.

We further submit that the guarantee which the

Court is invited to apply sits very uneasily, we

say, with the distinct, but none the less limited,

terms of express constitutional protections. The

Constitution plainly precludes discriminations of

specific kinds. My learned friend referred briefly

to them and they are, of course, drawn together by

Your Honour Justice Deane in your judgment in

Street v Queensland Bar Association, 168 CLR at

pages 521 and 522. We submit that none of those

provisions against preference or discrimination

apply there, and indeed, we would say further, that

none of those provisions themselves suggest any

limitation such as is sought to be drawn.

Turning in particular to section 117, firstly

there is the outstanding issue as to whether or not

that binds the Commonwealth, but putting that on

one side, we submit that there is no assistance to

be drawn from that section, whether or not the
applicant here is a subject of the Queen or not,

for there is nothing in the previous or present

Commonwealth legislation, which gives rise to any

discrimination against a person convicted of a

Crimes Act offence in any particular State on the

basis of, his residence or non-residence in that

State. For example, it would be different if the

plaintiff's opportunity for parole would have been

affected by his out-of-State residence. This was

the kind of matter Your Honour Justice Brennan

referred to in Street, 168 CLR at page 504, but

here we submit that State residence is not a

criterion by reference to which the legislation

Leeth 62 24/9/91

operates, and the fact that section 117 is

expressed in the terms that it is, in our

submission, tells against the argument that there is a general implication, apart from the specific implication by reference to residence made by

section 117.

The guarantee of the kind which the plaintiff seeks to invoke we see as being out of keeping, in

effect, with section 117, and the other specific

guarantees which I have referred to.

Your Honour Justice Dawson observed in

Street's case at page 548:

it should be borne in mind that -

the purpose of section 117 -

does not deny the separate responsibilities of

the States which, together with the

Commonwealth, make up the Australian

federation. It does not require the

uniformity of laws throughout the land.

And, indeed, by providing that persons be dealt
with uniformly in some States, section 117 assumes

that persons may be dealt with differently in

different States.

Turning to the notion of implied limitations

on constitutional authority, we submit that

principles relevant to the circumstances sought to
be raised in this case before the Court, are very

circumscribed. Although the limitation has been

recognized in the context of implied limitation

against legislation which discriminates against

States, as in the Queensland Electricity Commission

case, to which my learned friend referred the

Court, we say that that has been given a very

narrow application.

In the Queensland Electricity Commission case,

Your Honour Justice Brennan, in 159 CLR at 270-271,

said:

Any implications affecting the specific powers granted by the Constitution must be drawn from the Constitution itself.

And not from extra-constitutional theories.

Such implications, we submit, cannot

contradict an express grant of power, and if the

law is authorized by a particular head of

Commonwealth power, the fact that the law has the

effect of interfering:

Leeth 63 24/9/91

with the exercise by the States of their

powers to regulate a particular

subject-matter -

would not render that law invalid. This was said

by members of the Court in Re Lees; Ex Parte

Harper, 160 CLR 430 at 453.

Turning to Chapter III, we submit that

sections 71 and 77(iii) of the Constitution and, of
course, sections 39(2), section 68 and section 79
of the Judiciary Act made pursuant to Chapter III

of the Constitution, have together supported

Commonwealth laws adopting State laws concerning

court organization, rules of evidence and procedure

and other matters, arrest, custody, bail, trial

procedure. This, of course, is given to many State

to State variations. Your Honour Justice Dawson

referred to some of them: the question of a

statement from the dock.	I think Justice McHugh
mentioned majority verdicts in juries.	And one

could think of many other examples of variations

that could quite easily be decisive of result in

the course of criminal proceedings, not just merely

going to aspects of procedural or sentence but, we

submit, decisive to the result of whether there

should be a verdict of guilt or not guilty.

The framers of the Constitution, and certainly Sir Samuel Griffith, we would submit, foresaw that

under section 77(iii) federal jurisdiction would be
invested generally in State courts, because this

was provided in section 39(2) of the draft of the

Judiciary Act which he produced over one Christmas

vacation in 1902, which became the Judiciary Act

1903.

Thus, sections 71 and 77(iii) reflect the

assumption of State to State variations, in our

submission, that the States are regarded as the

natural agents of federal jurisdiction as part of

the Australian federal-style federalism. After

1903, matters arising under Commonwealth laws were

dealt with in whatever happened to be the court
structure of the particular State hearing the

matter, both as to original jurisdiction and as to appeals, even though this might vary from State to

State. So that the practical operation of

section 39(2) was to make State courts the

principal agents of federal jurisdiction and adopt in both civil and criminal jurisdictions.

Court over the years, commencing with Ah Yick v

Lehmert, (1905) 2 CLR 593, particularly at

page 605. If I could refer the Court also to The

Leeth 64 24/9/91

Commonwealth v District Court of the Metropolitan

District, (1954) 90 CLR 13 at 20-21, and Brown v

Reg, (1986) 160 CLR 171, especially 198

Justice Brennan and 218 Justice Dawson.

The vesting of federal jurisdiction was

thought to be a convenient means of avoiding a

multiplicity of tribunals and the concomitant

expense. This was noted by Your Honour

Justice Deane in Breavington, 169 CLR at page 124

and page 132.

DEANE J:  Mr Solicitor, can I divert you for just one

moment?

MR GRIFFITH: Yes.

DEANE J:  What would you say as to the validity of - and I

am looking at section 71(1) of the Crimes Act which
deals with stealing property of the Commonwealth -
if, at the bottom of that section, instead of
penalty imprisonment for seven years it said

"Imprisonment for seven years if convicted in

Queensland;	10 years if convicted in New South
Wales;	20 years if convicted in Victoria"?

MR GRIFFITH:  I thought Your Honour might ask me that. Our

first answer is to say that that is not the

situation which arises here.

DEANE J:  I understand that, that you say that is not this

case, but it is something that one needs to direct

one's mind to here to deal with this case in

context.

MR GRIFFITH:  Your Honour, my second answer would be that I

hope Your Honour would accept my first answer.	The
third answer, Your Honour, is to say that on that

very high example one could admit that there is a possibility of serious argument as to whether one could say that either by reference to the

particular power or by reference to Chapter III

considerations, absent some other factual matrix

which would seem to support the rationality of

discrimination, as to whether there had been an

unacceptable discrimination which was regarded as

impugning in some way, perhaps, an implication

arising from Chapter III or section 71 on its own.

DEANE J: But may not section 117 have something to say to

that, even though - I mean, put it round the

opposite, if the Parliament said whoever receives

his unemployment benefits in Queensland will get

$100 a week, in New South Wales $150, Victoria

$200, it would really seem to be possibly not

critical to say, "But he could draw them in

Leeth 65 24/9/91

Queensland even though he's a resident of New South

Wales"?

MR GRIFFITH:  I am sorry, I did not focus on Your Honour's

question whether the discrimen was the residence or

the place.

DEANE J:  No, what I said is assume nothing at all said

about residence but the law says, "Whoever draws
his unemployment benefits in Queensland gets $100,

in New South Wales $150, in Victoria $200"?

MR GRIFFITH:  Your Honour, we would tend to regard

section 117 as being somewhat negative to an

argument for invalidity. Firstly, there is the

issue whether it binds the Commonwealth; secondly,

Your Honour's example, as I hear it, does not fix

upon the issue of residence as being the factor.

DEANE J:	No, it says nothing about residence.
MR GRIFFITH:	Your Honour, one could then draw an

implication that section 17 expressly does not

cover it; therefore, by implication, it is not a

matter which is prohibited. So that it might

assist an argument for validity as far as 117 is

concerned, in our submission.

DEANE J: Except it is not a great step to say that

section 17 applies to differences imposed by

references to where you are or where you do

something.

MR GRIFFITH:  Your Honour, I do not want to go around

suggesting arguments for invalidity but we would

incline to the view, Your Honour, that an attack

might more likely come from Chapter III generally

before it came from 117.

DEANE J:  I see.

MR GRIFFITH:

I think that would be our view on it. But,

Your Honour, by saying that, I do not want to

encourage anyone to use Chapter III as a vehicle to cover Your Honour's situation. But perhaps suffice

to say that would be an interesting and serious question to argue but one that we say certainly

does not arise here.

DEANE J: Except, .if you are looking at section 117 and you

are dealing with convictions of people or

sentencing of people who are going to be

imprisoned, which is all we are concerned with, you

are going to have involuntary residence for the

purpose of section 117 anyway.

Leeth 66 24/9/91

MR GRIFFITH: Well, Your Honour, then we get involved in the

issue of what is a resident, Your Honour, of

course, and when I was studying in Oxford I

discovered I was a resident for Australia for

taxation purposes and although I did not like it

very much, one cannot be hard and fast, we would

submit, on the concept of residents as used in

section 117 to cover involuntary residence.

Certainly, it would not go so far as domicile was

concerned, Your Honour, but we submit, Your Honour,

here the criterion is merely the place of

conviction and punishment and we just have

difficulty in - - -

DEANE J: It is the place of conviction of somebody in a

State in circumstances which affect him while he is

held in imprisonment in that State.

MR GRIFFITH:  Of course, Your Honour, my learned friend had

difficulty putting his own client within

section 117 but, Your Honour - - -

DEANE J: Well, that is a different question.

MR GRIFFITH:  - - - his difficulty perhaps turns up the

problem of section 117 in that it really only is

useful, we submit, to out of town residents

basically unless it is a law that discriminates

against the residents within the State itself which

would be unlikely and, we would submit,

Your Honour, that would tend to inhibit somewhat

the capacity of 117 to do work of what probably,

Your Honour, is an implication sought to be of a

more general - - -

DEANE J: Well, I will ask you one further question or

example. I mean assume, for example, that the

Commonwealth law was framed to say, "A person

imprisoned in Queensland will not be eligible for

parole unless", and then said, "A person in prison

in New South Wales will be eligible for parole on

more favourable terms", are you not within the

absolute letter of section 117?

MR GRIFFITH:	A person within or resident?
DEANE J:	"A person imprisoned in Queensland will be

eligible for parole", or put it conversely, "A

person imprisoned in New South Wales will be

eligible for parole on these favourable terms.

Those terms won't be available to a person

imprisoned in Queensland. His terms will be plus

four years".

MR GRIFFITH:  Your Honour, I appreciate the issues of

fairness which dictate a reaction to those sort of

examples but, we submit that Your Honour is perhaps

Leeth 67 24/9/91

emphasizing the unsatisfactory nature of

section 117 itself rather than - - -

DEANE J: Well, I suggest to you that section 117 - that

that would be within the letter of section 117.

MR GRIFFITH:  Your Honour, apart from repeating as often as

I need to the question of whether or not it binds

the Commonwealth, Your Honour, we say that what

section 117 says, in effect, is that it is all right if there is uniform treatment within the

State; so that if Your Honour's example is dealing

with uniform treatment within the State our

submission would be that that would not seem to be

attacked by 117.

McHUGH J:  But is there not an antecedent question about

section 71, because is it not a characteristic or

assumption of the exercise of judicial power that

the law will be applied equally and impartially to
those whose circumstances are the same, and a law

of the Commonwealth which sought in some way to

undermine that characteristic or assumption would

seem, prima facie, to me to run foul of

Chapter III?

MR GRIFFITH:	Your Honour, I think our entire argument has admitted that possibility by saying it does not
seem to be a section 51 problem; it does not seem
to be 117. If there is an area for attack, it
would seem to be through Chapter III, particularly
section 71, but we say that that is not a problem
here.

McHUGH J: It is a problem for me, Mr Solicitor.

MR GRIFFITH:  Your Honour, can I help resolve the problem?

McHUGH J: In this, because it seems to me to be at the

heart of the whole case.

MR GRIFFITH: Yes. Your Honour, we say at the heart of the

whole case - - -

McHUGH J: Because section 4 is directed to courts

exercising federal judicial power.

MR GRIFFITH:	Your Honour, within the structure of the exercise of judicial power which since Federation
has been on the basis of operating on a State by
State basis, picking up State courts, State
procedures in both civil and criminal law as, we say, is contemplated both by the Constitution, has been operated by the Judiciary Act,
section 39B, 68, 79 since Federation and we say, Your Honour, in that context, it is just what one

Leeth 68 24/9/91

would expect. It is the normality of our federal

system rather than the opposite.

McHUGH J: Mainly those matters are clearly procedural

matters, but you are talking about the sentence as

part of - - -

MR GRIFFITH:  Your Honour, section 64 of the Judiciary Act,

for example, has been construed by this Court to

involve substantive matters so that its operation

is ambulatory when you issue against the

Commonwealth, Your Honour, you get the benefit of

the substantive laws of the particular State where

you issue, Evans Deakin shows that. Now, Your

Honour, we say that there is no magic in the

difference between substantive and procedural in
considering this position, and we have already made
the point that we would tend to define the fixing

of non-parole periods as more a procedural aspect,

because it does not establish a right to freedom,

it just establishes a threshold of eligibility to

be treated then under an administrative system

providing for release but, Your Honour, perhaps

that is not the crucial difference, but what we do

say is the case is this is the constitutional

normality in Australia.	We say there is nothing
expressly in the Constitution to prohibit it.	We

say there is nothing implied, but when one looks at

the operation of vesting of federal jurisdiction

and civil and criminal jurisdictions throughout

Australia, and up to the creation of the Federal

Court and the Family Court, exclusively,

Your Honour, one operated on this State to State

basis and it is a natural corollary to have an

assimilation of result, as Your Honour put it, I

think, to my learned friend this morning, of

similarity of result of prisoners within the State.

That is what operated up to the repeal of section 4 and it is what one would expect, until such time as the Commonwealth, as it has the power, Your Honour,

either under section 51, or supported by

section 120, or section 68, or as you like,

Your Honour, make different provision, which has

now been - - -

McHUGH J: Well, supposing you read section 4 differently to

the way you ask us to read it. In other words,

that it is a legislative direction for courts

exercising federal jurisdictions in individual

States t9, in effect, apply the substantive law of

sentence differently, simply because of the place

where the court is sitting.

MR GRIFFITH:  Your Honour, what we say it is, it is a

direction for them to find the appropriate sentence

and one of our terminal submissions was to be to

the effect that one would expect, within this

Leeth 69 24/9/91

scheme, to get basically an acceptable uniform

result across Australia, notwithstanding,

Your Honour -

McHUGH J: Well, can I put it to you in terms: supposing -

this is where I run foul of Chapter III for other

reasons - a judge was directed, if an offence

occurred in Queensland, the range was between 10

and seven years; if it was in Western Australia it

was between four and six years, now, would that

infringe Chapter III?

MR GRIFFITH:  Your Honour wants me to say yes, or no. I

will say, Your Honour, give me a case where that is

the issue and I will argue it, Your Honour, but one

can see a difficulty in adopting that approach,

but the issue here is that, in effect, there is the
equivalent of no provision; all you are doing is
assimilating the State law as you have for all the
other aspects of vesting jurisdiction in the State

court, the trial, the conviction and the

punishment, so it is just a natural,

non-discriminatory corollary of that aspect, in our

submission.

GAUDRON J: Is there not a particular difficulty, though,

with the State law involved? It is not State law

which actually embodies principles of sentencing

law, so much as the policy considerations of the

particular State in relation to the administration

of their presence. So you really have something
quite different from a vacuum which is filled by

State law that operates in an ordinary legal

context.

MR GRIFFITH:  Your Honour is right. There are two aspects:

one is the State parole laws, the second is the

State remission laws. Now the remission aspect has

never been regarded as part of the sentencing

process, that is regarded as - - -

GAUDRON J: Except that would 4(1) not bring it into play in

certain States?

MR GRIFFITH:  Your Honour is probably right. As I

understand it, Your Honour, in some States it is

stated that judges may not have regard to

remissions, but it is assumed that they do to get a

result or - one can put it in a negative way - a

result which within the State will not be

susceptible to a successful application for special

leave to this Court because it is so out of

relationship having regard to the extent to which

this Court accepts State by State jurisdiction, by

jurisdiction variations. I am not sure whether

that answers Your Honour's question, but - - -

Leeth 70 24/9/91

GAUDRON J:	The question really is this: there may be something really quite different about the parole
laws that are picked up from the laws that are
otherwise picked up by reason that the Judiciary Act allows a State law to fill a vacuum as it were.
MR GRIFFITH:	Your Honour, admitting there may be some

difference, the question is whatever is the

difference result in something so that is

constitutionally impermissible.

GAUDRON J:  The difference is that, while it is not actually

regulating substantive rights, it none the less

immediately and directly brings about a situation

where people are simply not equal before and under

the law, and a judge is being asked to treat them

as unequals or treat them unequally in conflict

with that fairly basic - - -

MR GRIFFITH:  Yes. One question would be where do you

search for the inequality, Your Honour, because if
one searches for equality of the operation of the
criminal justice within the State, having regard to
federal and State jurisdiction being vested in

State courts, there is an easy uniformity and one

can see the obvious reasons why that should be
regarded as appropriate. But, Your Honour,

although one can then say, "Yes, but it is

different because there is not an Australian-wide

uniformity of requirement" as there now is under

section 30, the question remains, Your Honour,

whether this is constitutionally impermissible, not
whether, or not one result is more uniform so far

as Commonwealth convicted persons are concerned.

And we submit, Your Honour, that is for my

learned friend to make out - and he must make it by

implication because we say there is nothing

specific in the Constitution, including section 117, that in the context of the contemplation of the Constitution of complete

vesting of federal jurisdiction, particularly in

criminal law in the States, is there an implied
prohibition against a provision of this sort which

deals with, we submit, the procedural aspects of

when does a discretion of what, in effect, is a

State parole body picked up by Commonwealth law

engage dealing with early release. And as this Court pointed out in the Power case, it remains that the sentence to be served is the head sentence

and one is dealing with the necessary issues of

discretion, including administrative discretion,

which arise on the question of whether or not one

is released consistent with orders made by a judge

as to minimum terms if made before the expiry of

that sentence. We submit, Your Honour, at the end

of the day you are not going to have uniformity

Leeth 71 24/9/91

either way when one adopts the State prison system

engaging section 120 in the way it has been

engaged.

McHUGH J: But, Mr Solicitor, it is one thing for the

Commonwealth to provide for different laws of

procedure, but it is another thing as section 4(2)

does of the 1967 Act to direct a court to take into

account matters depending upon which jurisdiction

the court is sitting in. That seems to me to be a

direction that goes to the court itself and tells

it how to go about its task in an unequal way, or

which may have the effect of bringing about

unequal results.

MR GRIFFITH:  Your Honour, it might depend on what we regard

as unequal. Our prime submission is, Your Honour,

it is just an ordinary corollary to the vesting of

jurisdiction which controls every other aspect of

the criminal process of the trial, everything else

is according to State law. So that not to have

such a provision, Your Honour, is to pull something

out rather than to put in something, we submit,
that is unacceptable. But, I think, Your Honour,

we are engaged on this but that is our approach.

BRENNAN J:  Mr Solicitor, could I just ask you this

hypothetical question. Let it be assumed that the offence is conspiracy entered into in Hong Kong to import cannabis in a commercial quantity into

Australia, and the conspirators enter Australia.

One enters in Melbourne, one enters in Brisbane;
they are both equally guilty; they both merit

18 years as a head sentence. The judge in Victoria

is told, if I understand it correctly, that he must

fix a non-parole period not less than nine years;

the judge in Queensland is given a discretion.	He
can fix, if he wishes, four years.	Now that means

that two people, precisely in the same situation,

can be dealt with differently according to the

place where they are tried. Let it be - let me add

one other factor: the two of them enter through

Sydney; one of them gets a friendly policeman who sends him to Queensland for trial, the other gets

an unfriendly one who sends him to Victoria for

trial. How could that be?

MR GRIFFITH:  Your Honour, I was just going to check on the

Judiciary Act provisions dealing with trials in

connection with - there is no obvious State
connection, I think, where one can have a choice.

Your Honour, one element in that might be that one

could apply to have the trial in the other place,

but Your Honour's example assumes that the

trial - - -

Leeth 72 24/9/91

DEANE J: Section 80 requires that the Parliament prescribe

the place of the trial.

MR GRIFFITH:  Yes. I have forgotten the precise terms of

the Judiciary Act provision, but that deals with

places. The other aspect - Your Honour has got me

on the hop somewhat - is that I am not sure whether
the Victorian rule would enable the judge to

determine a lesser period than that fixed by the

Victorian Act in some circumstances.	I think most
of the - - -

BRENNAN J:  I have just read it. I thought that the

Victorian discretion was limited so they could not

impose less than half but maybe I am wrong - - -

MR GRIFFITH:  I have not checked whether there is an

exception to that, Your Honour. I picked up in
some of the sections that they tended to have an

exception further on, a permissible exception.

BRENNAN J:  That may be so. It does not make much

difference to the principle because the question is, if they have got to approach the exercise of the discretionary power in a different way, then

how can that be?

MR GRIFFITH: If Your Honour sheers off all these matters as

not making a difference. At the end of the day,

Your Honour, we say this is permissible because it

jurisdiction and in as much as it is an

is an integral part of the scheme of the criminal

inequality, Your Honour, it is one which is
embodied in the Constitution, contemplated by it

and it is one of these consequences, Your Honour,

that one wears other disparities and resolved in

the federal system.

BRENNAN J: Well that is what it comes down to, is it not?

You must accept it because the autochthonous

expedient contemplates it, or you do not.

MR GRIFFITH:  Yes. I do not know what it all comes down to,

Your Honour, but if in doubt, we submit that gives

the result but we say it is the contemplation of

the Constitution rather than something that is

denied, that one can get to that result. We

notice, Your Honour, that my learned friend has a

chart in his submissions in the special leave

matter, in which I will not be engaged, of showing

different periods that other people might serve in

other States or Leeth might have served in other

States. As I understand it, Your Honour, that

table embodies also remission provisions as well as

Leeth 73 24/9/91

BRENNAN J:	My question was not based on the result of the exercise of the power, but the nature of the power
which is to be exercised.
MR GRIFFITH:	We say, Your Honour, that all this is

contemplated by the Constitution rather than denied
by it and we say it is the choice of Parliament

whether to use the vesting provisions for the

administration of federal criminal law including

for punishment, or whether to adopt a course which

has now been adopted to provide a certain

uniformity of result, although not completely

isolated from the State punishment system, as

indeed it cannot be until such time as there is an

exclusive - - -

McHUGH J:  The difficulty with this argument seems to me is

that what is vested in the State courts is the
judicial power of the Commonwealth, and as I said
earlier, that seems to me to involve a

characteristic or assumption that it will be so

exercised that the law will be applied equally to

those whose circumstances are the same and that to

undermine that is to interfere with the judicial

power of the Commonwealth.

MR GRIFFITH:  Your Honour, we say that within each State,

State by State, it is exactly the same, and that is consistent with all the other aspects of taking

State jurisdictions as you find them, and our submission is that in the sentencing aspect there

is no logical answer on way or the other to opt for

Commonwealth uniformity or uniformity of people

convicted within a State, and we say Parliament has

the choice either way without having a result

dictated because of the constitutional implication.

Your Honour, the fact that it has taken till 1991

for the suggestion to be made to the contrary would
tend to indicate that there has been at least by

neglect an assumption that there was this choice

there.

McHUGH J: Yes, but this problem has only been a live issue

in the last few years, has it not?

MR GRIFFITH: Since 1960 perhaps, Your Honour, yes. One

could point to other aspects of imprisonment

perhaps, but say in the last 30 years, if you like,

Your Honour.

McHUGH J: It took a long time for the Boilermakers' point

to be recognized and given effect to, Mr Holicitor.

MR GRIFFITH:  Yes. I am not relying on the effluxion of

time, Your Honour, but at the first bell,

Your Honour, the Judiciary Act went this way, and

we say it is the sort of variation that one can

Leeth 24/9/91

pick out and as I think Justice Dawson, by
implication, pointed out, variations which could

dictate the result of the trial are accepted State

by State.

Your Honour, we submit it is a large step for

this Court to adopt the view that in this
particular aspect there has been since 1901, since
parole was developed perhaps in 1960, a mandated
result inconsistent with what seems to be implicit
in the general vestings of 39 to 68, 79, et cetera,

but it is pointless for me to say that again, so I

will restrain myself.

As to section 68, may I give the Court a

reference of Reg v Bull, 131 CLR 203 at page 358.

Section 68 had its origins in the Punishment of

Offenders Act 1901 which, of course, predates this

Court by two years. Section 2 of that Act
contained all that is in the present section 68 and

a little bit more and is discussed in Ah Yick v

Lehmert that I have referred to, 2 CLR 593,

particularly at pages 604 to 606.

Like its earlier counterpart, section 2 of the 1901 Act, the consequence of section 68 is a person

may, in some circumstances, receive a different

treatment for breach of Commonwealth criminal law

depending on the State in which he is tried. I

have just made the point so I should not say it

again, that it has never given rise to any

suggestion of invalidity, but Justice Dixon in

Williams v R (No 2), 50 CLR 551, in particular at

page 560, said the general policy disclosed by the

enactment - this is section 68 - is to -

place the administration of the criminal law
of the Commonwealth in each State upon the
same footing as that of the State and to avoid
the establishment of two independent systems

of criminal justice. It is, in my opinion, no

objection to the validity of such a provision

that the State law adopted varies in the

different States.

Justice Rich, similarly at page 558.

McHUGH J:  Did Justice Dixon's views ultimately prevail in

Peel, which was the later case after Williams?	The
Court divided in Williams, did it not?

MR GRIFFITH:  I think in Williams (No 1) they divided,

Your Honour. Justice Rich, at page 558, said:

I take the object of the provision to be to assimilate criminal procedure, including

Leeth 75 24/9/91

remedies by way of appeal, in State and

Federal offences. The policy upon which the

provision is based is that the administration

of the criminal law should be uniform in any

given State although some of the offences are

created by Federal legislation and the others

exist under State law.

Your Honour, it is pointed out to me that the Court also divided equally in No 2, but not on this

issue, we submit.

We submit that this understanding remained unchanged. In Reg v Murphy, 158 CLR 596, at

page 617, the Court said:

In 1903 the Punishment of Offences Act was

replaced by the relevant provisions of the

Judiciary Act, including s 68, which has stood

unchallenged for eighty-two years as a central

provision in the administration and

enforcement of federal criminal law. What is

more, s 68 fulfils an important role in

ensuring that federal criminal law is
administered in each State upon the same
footing as State law and avoids the

establishment of two independent systems of

justice, this being the object which lies

behind the grant by the Constitution of power

to invest State courts with federal

jurisdiction. The importance of s 68 in this

respect has been expressly recognized in the

judgments of this Court.

We observe also that our submission is section 79

of the Judiciary Act operates so that the rights of

parties to a suit may vary quite considerably from

State to State. It may pick up substantive

provisions as, of course, we have submitted does

section 64. Although this characteristic of

section 79 is obvious, its validity has not been

impugned; see, for example, the judgment of

Justice Dixon in Huddart Parker Ltd v The Ship Mill

Hill, (1950) 81 CLR 502 at page 507, and judgments

of members of this Court in Breavington v Godleman,

(1988) 169 CLR 41, in particular Justices Wilson
and Gaudron at page 87 and Justice Deane at

page 136. We accept what Your Honour Justice Deane

also said in Breavington at page 121, that a single

Federal system of law -

may well incorporate State or other local

rules applying to persons, acts and things

within the relevant State -

and that that, we submit, necessarily may involve

embracing State to State variations which, as we

Leeth 76 24/9/91

have submitted, hitherto have not been seen as

giving rise to constitutional difficulties.

In the particular case here, of course, the

was convicted. And so the result, in the same fact

law does not vary in relation to one set of facts.

situation, will be the same. The fact that

section 39(2), section 68 and section 79 of the

Judiciary Act have not thought, by adopting varying

State laws, to give rise to any constitutional

impediment or difficulty, we submit goes to support

the operation of section 4. The outcome, of

course, is to assimilate a degree of variation from

one State to another but we say that this is a

perfectly constitutional result. It just

represents the choice of the Parliament to adopt

either that choice or, as we have seen now, the

choice embraced by section 19AB of the Crimes Act.

The plaintiff's submissions seem to assume

that the nominal sentence is going to be the same

in each State but we would submit that as all State

laws require it or give the sentencing judge a

discretion, there is a similar discretion in a

State judge sentencing under Commonwealth law,

pursuant to the provisions of section 4. And we

have already referred to the parts of the judgment
in Reg v Shrestha which indicate the role of a
judge in having regard to parole periods and fixing

the sentence as a totality.

McHUGH J: But it must necessarily follow from your

submissions that the sentence will be different

from State to State, will it not, in relation to an

offence where the circumstances are the same?

MR GRIFFITH: It may not, Your Honour, but it may be the

same, Your Honour, but we say it could be expected

to be within the permissible range so far as

outcome is concerned. Now, as to whether you have

a range in head sentence, having regard to State

minimums under section 4(1) or whether you have

regard to special circumstances under - there might

be a matter of fluctuation, Your Honour, but we

would submit that a judge doing his duty, as

indicated in this Court in Reg v Shrestha and other

judgments of this Court, Your Honour, and having

regard to the disinclination of this Court to get

involved in variations as indicated in decisions of

this Court, in particular Hunter v Reg,
62 ALJR 424, that one would expect that there would

be an acceptable range of outcome under

section 4(1), just as one would expect to be

acceptable range of outcome in trials by different

judges in different courts under the present

provisions.

Leeth 77 24/9/91

My learned friend's assumption is to the

contrary. He says it is just a matter of charting

through but we submit, Your Honour, that the very

thing that a judge would be under a duty to do

would be to take these factors into account and

produce, we would say, not uniformity but a result

within the acceptable range; so that we would

submit, Your Honour, that the basic structure of

this legislation is to provide a reasonable

sentencing structure to provide appropriate
sentencing throughout Australia on a basis which

may well work more or less uniformly within that

range that is permitted in the context of the

conventional system of the vesting of federal

jurisdiction within the States.

Now, that is an assertion, Your Honour,

perhaps no more capable of proof than my learned

friend's assertion other than to say hitherto there

has not been detected unacceptable range that has

at least attracted the interests of this Court on

sentencing appeals and federal offences under the

now repealed section 4. So that we would submit,

Your Honour, that even admitting the possibility

that there could be in some Commonwealth provision

some trespass upon Chapter III, this case in no way

gives rise to it even as a matter of theory or as a

matter of practical operation. And that really

gets us back to our basic proposition that we say

that the implication sought is only one to be made

out with textual support, of which we say there is

none, the pointers are all to the opposite, or by

some implication and we say my learned friend does
not get himself close enough to any possible

implication of the sort which might be engaged in

the examples initially opened up by Your Honour

Justice Deane with me.

I have already indicated that there would seem

to be no issue on question (b), because we would

not seek to support section 30 if it were held that

section 4(1) were invalid. I think the only other

outstanding matter is that we would hope that
overnight we can resolve the issue of the form of

the case which is before the Court.

DEANE J:  Mr Solicitor, are you aware of anything helpful in

United States or Canadian literature to assist us

here?

MR GRIFFITH:  Your Honour, we took the view that, I think it

is Article 3 section (1), is of no assistance

because of its different terms. That is the

Bill of Rights provision. Your Honour, Canada, I

cannot say we have found anything on it, but

perhaps we should answer Your Honour's question

Leeth 78 24/9/91

specifically and indicate that if we do we will let

the Court know.

DEANE J:	Thank you.
McHUGH J:	The equal prevention clause, I suppose, has problems?
MR GRIFFITH:	Your Honour, I am told the position in Canada

is, it has a uniform code, so we did not find

anything of assistance for that reason. I am

sorry, I was unfairly assuming that the absence of

reference was because we had not looked at it

rather than because it was of no assistance.

DEANE J:  Thank you.

MR GRIFFITH: If the Court pleases.

MASON CJ:	Mr Solicitor for South Australia.
MR DOYLE:	Does the Court have our outline of submissions?

MASON CJ: Yes, we do.

MR DOYLE:  Your Honours, the first part of the outline deals

with the issues in paragraph 2 of the outline, but

as the argument unfolded - that is the argument

from my learned friend, Mr Jackson - it appeared

that the proposition being put was not one along
the lines of those put, at least in paragraph 2(a),

and as I understood his argument it was more along

the lines of the proposition contained in

paragraph 8 of the outline. In other words, a
proposition that, under certain circumstances,

Commonwealth law could not discriminate against

people, the subject of those laws.

So, on that basis, Your Honours, I am

proposing to leave paragraphs 1 to 7 really to

speak for themselves and to deal with paragraphs 8

and following.	Could I, before doing that, just
attempt to approach in a slightly different way two

of the matters that were put to my learned friend

the Solicitor for the Commonwealth, and they are

revolved around the question of how one does

justify a Commonwealth law which provides in terms

that if an offence is committed the punishment will

be different in a different State - for example,

for a given offence, seven years in South

Australia, five years in Victoria - or, as here, a

Commonwealth law which refers one to the law of the

State and has the same effect. What I am about to

say may not differ in substance from what he said

but I would seek just to put it this way.

Leeth 79 24/9/91

In our respectful submission, what is

significant here is that we are dealing with

punishment for an offence for which the conviction

was recorded in a given community. In our

respectful submission, in the Australian

Federation, to provide for the punishment of an offender, according to the standards which prevail in that community, must be acceptable. We would,

with respect, draw a distinction between a

Commonwealth law which says, "The punishment for

this offence is: South Australia, seven years;

Victoria, five years", and a Commonwealth law which

says, as this one does, in relation to non-parole periods, in effect, refer to South Australian law

and Victorian law, because one provides for the

punishment of the offender according to the

standards of the community in which he was

convicted and in which ordinarily he will be

detained and punished.	The other, at least prima
facie, does not do that.

Facts may show that, in some way not immediately obvious, the Commonwealth law is in

fact picking up the standards of punishment in the community but, in our respectful submission, there is that significant difference and those two

different rationales for the laws, or perhaps I

should - - -

McHUGH J:  Mr Solicitor, I accept the force of what you say

and it would have more force for me if the

legislation was dealing with the place where the

offence was committed, but that is not - - -

MR DOYLE:  Yes. Your Honour, it is accepted that there is

an element of chance or fortuity in the place of

conviction but again, in our respectful submission,

not too much weight should be put on that.	In
other words, the place where the offence was

committed should not be seen as the be-all and the

end-all and, in our respectful submission, just as

significant is the place where the person is to be

punished. I think it was Your Honour who this

morning referred in the course of argument to the

slightly odd contrast between, in a given State,

Commonwealth offenders in relation to non-parole

periods being treated according to one regime and

State offenders according to another.

Now, it is not suggested for a moment by us

that such differences cannot arise and that a

Commonwealth law which created a different regime would be in any sense invalid. We are simply

putting the negative proposition that in this
particular Federation the notion of regulating the
punishment of offenders according to the laws of

the community in which they are convicted and

Leeth 80 24/9/91

punished is in no sense irrational, in no sense

offensive to the unity which underlies our

Constitution because it is a constitution which

provides for States having differing bodies of law,

or the potential for differing bodies of law and,

in our respectful submission, when one talks about

an underlying notion of equality or unity one must,

as I think Justice Brennan pointed out in one case,

be careful to draw that concept of unity or

equality from the Constitution as it is because

that is, in a sense, the only Federation we have

and one must be careful, in our respectful

submission, not to draw from outside some ideal

notion of unity or equality and then to say, "Well

now, we'll fit this on to our Constitution", and

what our Constitution provides for is the
continuation of States with their continuing bodies

of law and the structure of the Constitution is

such that we can talk meaningfully of standards in

the different States as communities, standards of

punishment which will differ from community to

community. And in our respectful submission, in

that context really there is nothing odd about

saying the punishment will be in accordance with

the standards of the community where it is
administered and where the person undergoes it.

And so the possible difference I would draw, between what I have put and what my learned friend

the solicitor put, is that we would accept there

may well then be a difference when one comes to a

Commonwealth law which just says bluntly, "South

Australia it's seven years; Victoria, it's five years", because if there is some underlying

principle of equality under Commonwealth law such a

provision might be offensive to that but, in our

respectful submission, the provision which refers

one to the law of the community where the

punishment is to be administered is not in this

Federation offensive to any underlying notion of unity or equality before the law. That is the first point I would seek to make.

The second point, Your Honours: it is a very

similar one really and it may be the same thing but

it is in relation to the suggestion that one can

draw from the judicial power the requirement that

the laws be administered in substance in the same

way State by State, or to put it slightly

differently, the requirement that the substance of

the law to be applied be the same State by State.

As to that - and I think that was a matter

raised by Your Honour Justice Brennan - could we

put this submission. The judicial power - and I

only put this forward as an approximation - is that

part of Commonwealth power which is the power to

Leeth 81 24/9/91

decide in a binding way and in a judicial manner

controversies as to rights. That is what the

judicial power is. As I have said, that part of

Commonwealth power which is power to decide in a binding way and in a judicial manner controversies

as to rights. What controversies a court deals

with or decides, that is a matter of jurisdiction which is something closely linked to but separate

from judicial power and then what body of law is

applied by a court exercising judicial power and

exercising a particular jurisdiction, what body of

law is applied is again another thing.

So, while judicial power is a single concept,

in my submission, there is·nothing inherent in it

which means that the one court exercising law which differs from another court exercising the same Commonwealth judicial power, even though the

subject-matter is the same. And although the

danger of the example I am about to give is that I,

in a sense, seek to prove the proposition from an

example that might be under a cloud, if one takes

section 64 of the Judiciary Act again, in a very
general way, one can say that in an action in tort
that will apply to the Commonwealth the law of the

place where the tort is committed.

Now, if the notion of judicial power requires

that the court always applies in respect of similar

or equal events the same corpus of law, that
provision would seem to be offensive to it because
section 64 in the area of tort says, "apply to the

Commonwealth the laws which prevail where the tort

is committed." And again, in my submission, the

answer to it is again very similar to the one I

gave a moment ago, that in this Federation,

allocating the issue of tort liability to the laws

of the place where the tort occurred, is in no

sense offensive to any concept of unity or

equality. It fits in perfectly with the sort of

Federation we have: one in which many such matters

are already regulated by State laws.

In another Federation, with a different

balance of powers, the section such as section 64

might seem offensive to some underlying aspect of

the Federation. But, in our submission, it is not

here and, as I said, I would seek to draw that

distinction between the concept of the judicial

power itself which is a single concept and has a

unity to it, but then the body of law applied by a

court exercising the judicial power and, in my

submission, that is a different thing and one

cannot readily conclude that because the judicial

power is a single thing, as I concede it is, that

the body of law applied by a court exercising the

Leeth 82 24/9/91

judicial power must always be an identical or

uniform body of law giving like results for like

events.

There is also the difficulty with that

proposition, and of course if it is what the

Constitution requires then so be it, but I

understood my learned friend, Mr Jackson, to

concede that this principle which I understood him

to adopt, that is drawing on the judicial power and

producing a requirement of uniformity, would not go

to matters of procedure and it would give a new

life, in a constitutional context, to one of the

most arid and unproductive controversies in the

area of the law, the distinction between matters of

substance and procedure, and one can do no more

than put it as a cautionary footnote that any

principle which goes to validity and which requires

that sort of distinction to be drawn is a

principle, in my submission, to be approached with

a good deal of caution, because it is almost

certainly going to produce at times rather erratic
results as courts endeavour to draw that

distinction, and particularly in our system of law

where substance and procedure are so closely

blended together.

So, in our submission, in so far as my friend

draws on judicial power such unity as there is in
the concept, or finds its expression in section 72
dealing with tenure in the separation of powers

principle in the nature of the concept the power to

decide controversies, but one cannot draw from that

unity which there is in the concept of judicial

power the quite separate principle that the laws to

be applied in the exercise of judicial power must

be identical.

Could I go then, Your Honours, relatively

briefly, because much of the matter has been

covered, to paragraph 8 of the outline and

following. The proposition put in paragraph 8 is

really drawn, as the paragraph indicates, from what

Your Honour Justice Deane said in Queensland

Electricity Commission v The Commonwealth and what

Your Honour Justice Toohey said in Street's case,

and I think, as I recall my learned friend's

argument, when he got to that aspect of it, he

founded it on those same dicta. But, in

particular, what Your Honour Justice Deane said, in

that case, recognized that such a principle would

only invalidate laws which singled out people or

their institutions for discriminatory treatment

which could not be justified having regard to the

terms of the relevant head of power. So, in truth,

stated that way, if that is a fair way of stating

it, it is not a principle really which requires

Leeth 83 24/9/91

uniformity of treatment or uniformity in the terms

of the law throughout Australia, or at least, it is

not an overarching principle. It takes one back to

the head of power and to ask a question: What is

discriminatory treatment in the context of that

head of power? And indeed, as I understood my

learned friend Mr Jackson's argument, he accepted

that, as to a number of Commonwealth heads of

power, operational differential treatment was

readily to be anticipated, and on that I would just

refer to paragraphs 5 and 6 of our outline, where

we have given some instances of heads of power

which envisage, either explicitly or, one would

think, as a matter of common sense, laws having a

differential operation.

Your Honours, if the principle is then, in

truth, one which is all about discrimination, as

distinct from mere lack of uniformity, that drives

one to consider what is discrimination, and I do

not propose to endeavour any comprehensive

treatment of that, it was considered by a number of

Your Honours in Street's case, but the essence of

it seems to be, either unjustified under the

circumstances, or irrational adverse treatment of

people in like circumstances, or on the other hand,

treating people who are in different circumstances

as if they were in like circumstances. And again,

Your Honours, although one can see an underlying

sense in which one would expect Commonwealth laws

to operate without discrimination, could I again -

without wanting to sound like one to whom

Lord Denning referred, I think, as clanking the chains of the past in the face of progress, or

something like that - if this is to be the basis of

a constitutional principle, for the Court to adopt

it would be a very significant step, in my

respectful submission.

It is one thing for the Court to test validity in terms of whether a particular law has a

sufficient connection with the head of power, and

it is another thing, with purposive powers, to

consider whether the law is, putting it briefly,

reasonably proportionate to the end of the power.

But for the Court to say that a law is invalid, if

it discriminates in a manner which is not warranted

having regard to the head of power or the

circumstances of the law, is for the Court to play

a quite different role, in my submission. And for

the Court, on the issue of validity, to involve

itself quite closely in the merits of the law - and

it is an involvement which, in my submission, is

unavoidable - and while one does readily, in a

sense, approach the Constitution thinking it is not

to be expected that Commonwealth law will operate

unequally on the people subject to it and without a

Leeth 84 24/9/91

remedy for that from the Court, on the other hand,

the difficulty is, if one accepts that it is not a

principle which says Commonwealth laws must be

uniform but a principle which, as I submit it is

the most it could be, prohibits unjustified

discrimination, then it does intrude the Court in a

very real way, in my submission, into the

assessment of the merits of laws and in a way in

which it - and to assess those laws in a manner in

which it has not in the past on the issue of

validity and, in my submission, that should make

one very cautious about accepting such a principle,

however worthy, in a sense, it may be.

As to this particular case, in our respectful

submission, the position is relatively clear,

namely that there is no discrimination here,

assuming some such principle exists. First of

all - and I appreciate there is a danger of it

being said this answer confuses substance with form

- all offenders against the Commonwealth law are
treated in one respect in a like manner, namely on
the basis of the law which applies in the place

where the conviction is recorded and, in my

submission, in a federation, our federation, prima

facie that does not look like the sort of

discrimination that one should not have in a

federation. In truth, like cases are being treated

in a like manner; they are all being treated
according to the law of the place of the
conviction.

Secondly - and now I really just come back to the points I made at the outset - in our

submission, in this Federation there is nothing

offensive to the notion of equality, nothing

irrational, in treating a convicted person

according to the law of the place of the

conviction, simply because he has been convicted in

that community, it is a community which has its own

body of laws, and it is quite appropriate to treat

him according to them.	So, in our submission, in
that context there is nothing offensive to any

principle of equality under Commonwealth law in the

law providing as it does here.

Thirdly, if one comes back and says, "Well, we

should look at the particular head of power here

rather than deal in these generalities", if one

looks at it first of all as the power in relation

to trade and commerce and considers in what sense

unity or equality is an aspect of that power, in my

submission, what the cases have drawn out is that

the power in relation to trade and commerce and the

provision prohibiting preference as between States

is a power which is in truth against preference

being given, and it is a power which is directed

Leeth 85 24/9/91

towards equal access within the Federation to the

markets and the trade and commerce of the

Federation. And, in our submission, it just does

not sit easily with that head of power to say it is

talking about uniformity. It is talking about the

not giving of preference, it is talking about equal

access, but what this law does is far removed from

that.

McHUGH J: But that does throw up the point in one sense,

does it not, in the sense that the Constitution is

obviously very concerned with uniformity throughout

the Commonwealth: uniformity of bounties,

uniformity of taxation, uniformity of customs dues.

It would be odd that, under an incidental power, you could have disconformity in relation to prison

sentences.

MR DOYLE:  Yes, but as to that, Your Honour, could I say

this, that in the area of trade and commerce and

tariffs there is a clear concern with uniformity,
but if the Court is asked to draw some overarching

or underriding implication which applies generally

to Commonwealth powers, surely it is relevant to

look at the object sought to be achieved by those

laws and, in my submission, it would in one sense

overstate and in another sense understate that
object to say the object is equality.

In my submission, the object is, in a sense,

creation of a market in which all have equal access

to it. And, in our submission, it is very

difficult from that to draw a principle which leads

one to say it is now offensive to the relevant

principle that a person should be punished in

accordance with the law of the State in which

punishment is inflicted. In our submission,

anything one can draw from the constellation of

powers relating to trade and tariffs is a principle

in terms of equal access to markets. It is not a

principle, if one can put it that way, in terms of

equality of Commonwealth laws. At times the

difference may be subtle but, in my submission,

there is a significant difference between saying
that there is a requirement for Commonwealth laws
that they be equal and a requirement that they not

be discriminatory.

DEANE J:  How far does it go, Mr Solicitor? On your

argument,. could the Commonwealth say that the

penalty will be death in those States where capital
punishment still exists, and be 10 years

imprisonment in the other States?

MR DOYLE:  Your Honour, I think my proposition requires me

to say that if in a given State capital punishment

applies, the Commonwealth may by adopting the laws

Leeth 86 24/9/91

of that State for the punishment of Commonwealth

offences produce that result and that, again, to

deny that would be to, in truth, deny a fundamental

aspect of our Federation which is the continued
existence of the States in which the people of the

Commonwealth are not in a sense bifurcated - we are

not half Commonwealth people and half State people.

We are simply people and we operate in a Federation in which we live in States where there are those

differing bodies of law and if that fact is not

offensive to the Federation, as one can hardly say

it could be, how then can it be offensive to the

underlying concept of our Federation for the

Commonwealth to say that in a given respect it will

apply the law of the community in which the people

are or the event occurs.

Of course, it need not not do that. It may

validly create its own system of punishment if it

sees fit but, in my submission, it is strange to

say it cannot do that.

DEANE J: But it is not applying the law of the community.

It is applying its law and saying if an Australian

happens to live in a community that believes in

hanging, he will be hanged, but if an Australian

who commits the same offence does not happen to be

convicted in a community which believes in hanging,

he will only spend five years in prison.

MR DOYLE:  I do not want to be pedantic, Your Honour, but

with respect, it does not say by analogy if an

Australian lives in a community which believes in

hanging he will - - -

DEANE J: It was my example. It can say whatever I say it

says.

MR DOYLE:  Yes, but the point is, Your Honour, that the law

here provides, if he is convicted in a community

which believes in hanging and is to be punished

there, then he will be hanged and, in my respectful

submission, in our Federation there is nothing odd

or irrational about that, nothing contrary to the

underlying unity of our Federation.

DEANE J:  I just picked you up on your statement it was

applying the law of the community. It is not doing

that. It is applying the law of the Commonwealth

to an Australian and saying the punishment for a

breach of the law of the Commonwealth by an

Australian will be different according to the views

of the community in which he happens to be

convicted.

MR DOYLE:  Yes. I accept that, Your Honour, but in my

submission, there is truly a fundamental and

Leeth 87 24/9/91

significant difference between such a law which

produces the differing results because, although

Commonwealth law, it refers to the content of the

State or community law and such a Commonwealth law which without reference to any such body of law

simply says, "If you do this in South Australia

you'll be hanged and if you do it in Victoria
you'll get life imprisonment". That, I accept, is

a fundamental difference of substance but, in my

submission, the critical thing here is that the
relevant law is referring to the law of the
community of the place where, at the risk of

repeating myself, the conviction is recorded and

the punishment is to be administered and that is a

rational thing and in our Federation that is not to

treat people unequally and to suggest it is, in my

respectful submission is, we would submit, to deny

one of the true fundamentals of the Constitution,

but it is starting to sound a bit like a political

speech now, Your Honour, and I am just repeating

myself.

Your Honours, just one or two other points. I

think these have perhaps been made, but if

Mr Jackson's submission is right, then there does

seem to be difficulty, not only with section 64 of

the Judiciary Act, but also with the law in

relation to Commonwealth places and also some

aspects of the provisions of section 68 of the

Judiciary Act.

Your Honours, the submission I have been

putting is not based on the terms of section 80 or

section 120, although in a general way I suppose it

draws on their presence, but we do, as a further

submission, put just very briefly that in the face

of section 120 again it seems all the harder to

draw an implication, however it may be expressed,

that Commonwealth law cannot refer to the content

of State law when Commonwealth law provides for the

punishment of offenders. Section 120, in our

anticipating the treatment of Commonwealth	submission, has such a flavour about it of
offenders in accordance with State laws that to
draw that implication seems difficult in the face
of section 120.
Finally, Your Honours - and that is all I wish to say in relation to the question of whether there
is what I call a constitutional implication which
governs this case - if my friend's argument is, as
at times it seemed to be, really an argument that
having regard to this particular head of power, or perhaps section 5l(xxxix), that in relation to
those particular heads of power this particular law
cannot be justified as not reasonably proportioned
or appropriate to the end, well again, we would

Leeth 88 24/9/91

make the same answers	in substance and submit that
they are a sufficient	answer to that much more
limited proposition.	They are our submissions, if
the Court pleases.

MASON CJ:  Thank you, Mr Solicitor. Yes, Mr Jackson.

MR JACKSON:  Your Honours, may I deal with a number of

matters in response to my learned friends. If I

could go first to the abalone, one could have a

situation, Your Honours, where the abalone are

found in the waters off Tasmania. The persons who

commit the offence therefore do not commit the

offence within any State. The possibilities are

then that they may be - and I will come to the

provisions in a moment - charged with the offence

in any State. Now, it may well be that the

significant relevance of protection of the abalone

is to Tasmania, but they are charged and convicted

in Victoria where there is a non-parole period

which is, for example, a relatively long one. On

the other hand, had they been charged and convicted

in Tasmania, the non-parole period might have been

relatively short. Now, Your Honours, that seems a

strange result in respect of federal power.

Your Honours, if I could go to sections 70 and

70A of the Judiciary Act, section 70 deals with the

situation where an offence against the laws of the

Commonwealth is begun in one State or part of the
Commonwealth and completed in another; then the

offender may be dealt with, tried and punished in

either State as if the offence had been committed

in that. Then section 70A deals with trial on

indictment against a law where the offence has not

been committed within any State, and that is, in a

case where it is not an offence to which section 70

applies, then it may be held in any State or

Territory.

So, if one is talking about the community then

one has to ask: what is the relevant community?

We would submit, if one is looking at the community	one is talking about, it is the national community.
It is, in a sense, akin to executive power. The
Commonwealth has some executive power, not merely
an executive power to execute statutes of the
Commonwealth derived from the fact that it is a
polity.
Now~ Your Honours, there may be debates, of course, about what the ambit of it is but there is
no doubt that it acquires something by virtue of
its existence. So, too, is the relevant community, the national community, the community of that
polity.

Leeth 89 24/9/91

Your Honours, the next thing with which I want

to deal is this: one speaks of the ability to

confer federal jurisdiction upon the courts of the

States as being the autochthonous expedient. But

what has to be borne in mind, Your Honours, is that

both those words are involved; it is an expedient

and it should not be the concept which rules the

Constitution thereafter. The Constitution does not

effect a complete vesting in State courts. There

is an ability to vest; not a vesting by the

Constitution.

Your Honours, if I could move from that to the

next matter with which I wish to deal. If one goes

to the decision in Hooper v Hooper, that was the

decision of the Court in which all that was done
was, in the postwar period, to exercise the power

to make laws with respect to marriage and divorce

by saying, that persons who were resident in a

particular jurisdiction in Australia could utilize

the laws of that jurisdiction even though they were

not domiciled there but were simply resident. All

that was done was to give an additional right to

people throughout Australia. Your Honours, it

certainly does not, in our submission, decide that

any law having substantive effect may be made by

the Commonwealth and the substantive effect may

vary throughout the Commonwealth. Your Honours, if I could go then to

section 120 for just a moment. Your Honours,

section 120, in our submission, does not go far

enough. One should realize that the lawmaking

power expressed in section 120 is not a lawmaking

power prefaced by the words "with respect to". It

is a lawmaking power which is expressed to operate

so that Parliament may make laws to give effect to

the provision and one must look at the words of the

provision to see the matters to which Parliament

may give it effect.

Your Honours, my learned friend, the Solicitor-General for South Australia, said that

the Court should be hesitant about looking at the

merits of legislation. Undoubtedly that is true,
but to some degree the course of examination of the merits of legislation is inevitably involved in the

several contexts to which we earlier referred when

one is looking at the object of legislation. But it is done, of course, not in an officious way by

the Court, but in a limited sense and for a limited

purpose.

Your Honours, if I could go then to the

submission that was made in summation, as it were,

on behalf of the Commonwealth. My learned friend

said that their case is no more an assertion than

Leeth 90 24/9/91

ours, but we would put it this way, Your Honours.

The difference, we submit, is that the assertion,

if one calls it that, that we make about the

operation of the Constitution is that our assertion

gives effect to the words of section 3, that is

that the people of the Commonwealth are united in

one indissoluble federal Commonwealth, whereas the

argument being advanced on behalf of the

Commonwealth gives validation to a kind of

institutionalized Balkanization of the law in this

area. Those are the submissions -

BRENNAN J: That really does not answer the problem, does

it? The dichotomy is not between those, the

question is whether the indissoluble Commonwealth

is in itself Balkanized.

MR JACKSON:  I accept what Your Honour puts to me, but it is

Balkanized for some purposes, and undoubtedly for

the purposes of the States.	They exist as polities
having their own powers.	The Commonwealth exists
as a polity having its own powers.	Your Honour,

the question is whether, looking at the it, if I can put it that way, is that the

Commonwealth laws of a kind such as that presently

in question will have a distributive operation

brought about simply because they pick up and adopt

laws of the other constituent parts of the

Federation, and what I am seeking to say in

relation to that is simply that if one is looking

at the nature of the Constitution one would think

that at the heartland of the matters sought to be

achieved by Federation in the end was to have

criminal laws having a uniform application

throughout Australia in the sense of making

individuals liable to the same effective penalty

throughout Australia wherever the offence might

have been committed if it was an offence against a

law of the Commonwealth.

The substance of the law might change, the

substance of the law might vary depending upon the

nature and location of the offence, but the

liability of a person to punishment for the offence

should not vary where in Australia the person was

tried for it. It should not vary, we submit,

simply by reference to the application of the laws

of a particular part of the polity, that should not

vary, Your Honour, in that way, and how strange it

would be if, for example, a federal court had to

apply in Albury the law of New South Wales and had

to apply the law of Victoria in Wodonga in respect

of Commonwealth fences. I am not speaking about

procedure, I am speaking about particular aspects

with which we are concerned.

Leeth 91 24/9/91

Your Honours, could I say one final thing, and

it concerns the various provisions of the Judiciary

Act. Your Honours, the pot has been stirred

somewhat about the Judiciary Act to suggest that

dire consequences might follow in relation to the

operation of section 68, 64 and 79 concerning the exercise by courts of the jurisdiction and powers

and rights dealt with in those provisions.

Your Honours, section 64, if I could go to it

first, is a provision made in exercise of a

specific constitutional power, section 78, and

perhaps other powers which derive from the nature

of the Commonwealth at least. There is no

particular difficulty in taking the view, as has

been taken in the past, that the specific power

allows the Commonwealth to legislate for the laws

that will be applicable to the polities in the

circumstances contemplated by it. The argument

which we are advancing is not affected anyway by

that proposition nor is that proposition affected

by our argument.

When one goes to section 68, one needs to look

to see precisely what section 68 does. Section 68
provides for a number of laws to be applicable.

Section 68(1) speaks of:

laws ..... respecting the arrest and

custody ..... and the procedure for -

the matters set out there. It speaks of matters of

procedure. Section 68(2) speaks of matters of

jurisdiction. Your Honours, I do not think I need

to go to the other parts of section 68.	When one
goes to section 79, it speaks of:

The laws of each State or Territory, including

the laws relating to procedure ..... shall,

except as otherwise provided by the

Constitution or the laws of the Commonwealth,

be binding -

and it contemplates, in our submission, that there

may be limitations upon the applications of State

law because of two things: one, the Constitution;

two, the Commonwealth laws.

Your Honours, those are the submissions I

wanted to make in relation to the action. I had

proposed then to move on to the special leave

application.

Leeth 92 24/9/91

MASON CJ: At this stage I should say that the Court will

consider its decision in the action.

AT 4.22 PM THE MATTER WAS ADJOURNED SINE DIE

Leeth 93 24/9/91