Mahendra v The Queen; Ahmad v The Queen

[2012] HCATrans 249

[2012] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin   No D5 of 2012

B e t w e e n -

MAHENDRA

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Darwin  No D6 of 2012

B e t w e e n -

AHMAD

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO DARWIN

ON FRIDAY, 5 OCTOBER 2012, AT 1.26 PM

Copyright in the High Court of Australia

____________________

MR A. WYVILL, SC:   Your Honours, if it pleases the Court, I appear with my learned friend, MR L.A. McCRIMMON, in both applications.  (instructed by Ward Keller Lawyers)

MS W.J. ABRAHAM, QC:   If it please the Court, I appear with my learned friend, MR L.K. CROWLEY, for the respondent in both applications.  (instructed by Commonwealth Director of Public Prosecutions)

MR WYVILL:   If your Honours please, may I just confirm that your Honours have the final document which we would seek to put before your Honours.

CRENNAN J:   Yes, you seek leave to amend the draft notices of appeal?

MR WYVILL:   Yes, we do, your Honour.  Any opposition to that?

MS ABRAHAM:   No, there is no objection to that.

CRENNAN J:   Yes, you have that leave.

MR WYVILL:   Thank you, your Honours.  Your Honours, just to confirm that your Honours have a copy of the Commonwealth Director of Public Prosecutions’ letter 3 October 2012 to our instructing solicitors confirming that there are approximately 175 matters which it appears may be affected by the outcome of this.

CRENNAN J:   Yes, we have that, thank you.

MR WYVILL:   Thank you, your Honours.  Your Honours, may I deal first with Mahendra.  The central issue, in our respectful submission, in Mahendra is whether the application of Division 14 of the Code would be inconsistent with section 228A of the Migration Act.  May I just take your Honours to those two provisions.  Your Honours have the two folders of statutory materials that we provided.  You will find section 14.1 – Division 14, at least, of the Code in the second volume at page 70 of the pagination at the very bottom of the page.  Your Honours will then find section 228A in the first volume at page 176.

CRENNAN J:   Just give me a moment.  Yes.

MR WYVILL:   Your Honours will have noted that the court below in Mahendra considered itself bound by the decision in Ahmad to apply the same reasoning.  It did not spell out in detail the reasoning it applied but one can assume it adopted the same finding that there was a direct inconsistency between Division 14 of the Code and section 228A of the Migration Act.  Your Honours, the relevant sections are found in the Ahmad application book.  This is of the judgments of the Northern Territory Court of Criminal Appeal in the Ahmad application books, book at least –

CRENNAN J:   Page 54?

MR WYVILL:   ‑ ‑ ‑ at 48, your Honour, first.  His Honour Justice Mildren’s judgment particularly at line 6 and line 16.  Contrary intention appears in section 228A at line 6 and then the suggestion or the statement in line 16 about the introduction of Division 14 would imply the repeal section 228A of the Act.  Then, if your Honours were to turn to the decision of their Honours Justices Southwood and Martin at page 56 and you will see a similar statement there and particularly that the specific provisions of 228A, this is about line 7 on page 56:

prevail over the general provisions of s 14.1 of the Code.

Your Honours, our submission is that the true position is the direct opposite of that.  That section 14.1 provides a specific provision.  In fact, its clear object is not in any way to act to provide a scheme that is inconsistent with section 228A but actually to provide a workable particular scheme as to how section 28A might be achieved.  That is obvious, in our respectful submission, from that fact that section 14.1 of the Code does, in fact, provide for an extraterritorial operation of provisions to which it is subject.

I can make that point good in two ways.  Firstly, by looking at section 14.1 generally, and if I can take your Honours to that, the relevant provision is 14.1 subsection (2).  We are not dealing with an ancillary offence so the relevant paragraphs of subsection (2) are (a) and (b) and, on their face they cover circumstances where at least some of the conduct and in paragraph (b) the outcome, or the result, occurs overseas. 

I am sorry, I should qualify that.  Paragraph (b) is only triggered where all of the conduct is outside Australia and the result is in Australia.  So, one can see that this does provide for the operation of offence provisions beyond the boundaries of Australia.  Indeed, that is confirmed by subparagraph (3) which provides a defence based upon the fact that the conduct relied upon, if it occurred entirely outside Australia and is not an offence under the law of a country where it occurred, that will provide a full defence to any prosecution under a provision subject to section 14.1.

The existence of subparagraph (3), clearly demonstrates that 14.1 does not have an operation – to use the expression from section 228A – “outside Australia”.  Your Honours should note also the extended definition of “conduct” in section 16.2, if one can find that at page 81 of the statutory materials – at same volume – and your Honours will see that “conduct” includes sending a thing from “outside Australia to a point in Australia”.  That may be just a letter or, in our submission, it could easily also be a boat.

The second point I wanted to make about why this has extraterritorial operation is to look at how those provisions would operate specifically in relation to section 233C. If your Honours then go to our volume 1 you will find section 233C behind tab 2 at page 42. In our submission, one can see how any acts of organisation or facilitation occurring anywhere in the world can be relied upon as an element of that offence providing - even assuming the construction put forward by my learned friend is correct – providing that there is at least one element of conduct that occurs within Australia.

Of course, bearing I mind the extended definition of “conduct” in section 16.2, that may actually mean that the accused never in fact crosses the boundary of the Australian territorial sea. So, one can see, in our respectful submission, that there is an operation even on foreigners beyond the boundary of Australia outside Australia, but most particularly and most clearly your Honours will see that given the reference in section 14.1(2) to conduct on “an Australian aircraft or Australian ship” anybody anywhere in the world on an Australian ship who engages in conduct that falls within section 233C will not be able to call upon section 14.1 to avoid the application of the Act. So it does have an operation “outside Australia”, to use the words in 228A.

Your Honours, this should come as no surprise, in our respectful submission, when one looks at why in both the second reading speech and the explanatory document, these provisions, section 14, were enacted.  Can I take your Honours briefly to that?  If your Honours turn to tab 6 of our second volume of materials, your Honours will find the explanatory memorandum to the legislation that introduced ‑ ‑ ‑

CRENNAN J:   I am sorry, where do we find it?

MR WYVILL:   It is at tab 6, your Honours, volume 2.  That is the explanatory document which ‑ ‑ ‑

CRENNAN J:   What part of it do you wish us to look at?

MR WYVILL:   The second bullet point on page 3.  Then, when your Honours have read that if your Honours would turn ‑ ‑ ‑

CRENNAN J:   Mine does not seem to have bullet points.  Page 3?

MR WYVILL:   This is tab 6.

CRENNAN J:   Yes.

MR WYVILL:   Your Honours, is that an explanatory memorandum?

KIEFEL J:   No, it is a second reading speech.

CRENNAN J:   I am sorry, it is a second reading speech.

MR WYVILL:   I am sorry, I must have a different folder to your Honours.  Does your Honour have a ‑ ‑ ‑

CRENNAN J:   Perhaps it is out of order.  The explanatory memorandum you are looking for perhaps is at tab 5 and you want us to go to page 3 and look at the second bullet point.

MR WYVILL:   Thank you, your Honours.

CRENNAN J:   Yes, we now have that.

MR WYVILL:   When your Honours have read that if your Honours would note paragraph 15 on page 19 of the explanatory document.  Once your Honours have noted that, I would advise your Honours to turn over to what I suspect is the next tab in your Honours’ bundle, tab 6, which should be the second reading speech and if your Honours would turn to page 5 of that, particularly the second column, the first complete paragraph.  I would just invite your Honours to read that paragraph.

Your Honours will see that almost precisely the same words as appear in 228A are referred to their by the Minister.  Your Honours, just for the record the Crimes Act section 3A, which is referred to there – although 3A is not mentioned, that is the provision that is referred to – is still in force, running alongside section 14 and following of Chapter 2.7.  Similarly, your Honours, if your Honours go to the next paragraph and read to the reference to McDonald v Bojkovic. 

Your Honours should note that the relevant provision of the Proceeds of Crime Act 1987 is section 12, which again uses the term “applies outside Australia”. Hence, your Honours, we say that all of this additional material supports the obvious purpose of section 14 to provide a code, in relation to extraterritoriality, to give it clarity and consistency ‑ ‑ ‑

CRENNAN J:   That may be, but do you not have to grapple with the meaning of section 228A?

KIEFEL J:   Of the Migration Act?

CRENNAN J:  Of the Migration Act?

MR WYVILL:   Yes, your Honours.  Your Honours, its effect, if I can put it this way, is to say that when one comes to construe the sections that followed one does not assume or presume that they are not to operate extraterritorially.  So, for sections on their true meaning, operate extraterritorially.  One is not to be reluctant about drawing that conclusion.  That is, we say, the effect of it and of course a difficult question, which is unanswered by that section, which is what Justice Tadgell referred to in McDonald v Bojkovic is how, and that is a difficult question which is not answered by section 228A but is answered by Chapter 2.7 of the Code. Your Honours, it is important to note in relation to section 228 that some of those provisions in the Migration Act in that division plainly do not operate extraterritorially.  For example, if one looks at the effect ‑ ‑ ‑

CRENNAN J:   Well, what about focusing on 232A, which is page 181 of your book, volume 1.  Was not the debate about whether or not words such as “bringing” or “coming to Australia” equated with entry?

MR WYVILL:   That is another element of the errors, in our respectful submission, that were made below.  That is exactly how the court approached it and in doing so it overlooked the fact that “enter Australia” has a special definition under the Migration Act which makes it completely coherent to have two phrases there, one “bringing or coming to Australia” in the normal sense, and the other “entry or proposed entry into the migration zone”.  That is the point.

CRENNAN J:   What is the meaning of “proposed entry” in terms of this argument about narrowing all this down to entry alone?

MR WYVILL:   In our submission, proposed entry is somebody who crosses the boundary, to use the example of a ship, of the Australian territorial sea proposing to enter the migration zone.  That is reflected, your Honours – perhaps if we move on to this point – that is reflected in the visa scheme in the Act.  Visa schemes, unsurprisingly, are normally confined within national boundaries like this one is.  To follow your Honour’s point, if I can take your Honour straight to that now to answer it ‑ ‑ ‑

CRENNAN J:   Well, I understand you were contending that the offence is not complete until there is entry.

MR WYVILL:   No, your Honour.  The offence is not complete until the boundary of Australian territorial sea is crossed because only then is there conduct within Australia within the meaning of section 14.1.  Now, “enter Australia” is a very dangerous term here because it is “enter the migration zone” under the Act, and that is the point the Northern Territory Criminal Court of Appeal overlooked.

So, your Honours, if I can make good this point by following through the visa regime.  If your Honours look at firstly the objects of the Act which make it clear that there is, in our respectful submission, at least the starting point of the Act is it is not intending to create a visa regime that operates outside the boundaries of Australia.  Section 4 on page 38, if your Honours look at subsections (1) and (2), “enter or remain in Australia”, et cetera, it is clearly a scheme unsurprisingly for visas in relation to entering Australia. 

If your Honours then turn to page 44, you will see at the middle of the page that “enter Australia” is defined as “enter the migration zone”.  If your Honours then turn to page 48, you will see “leave Australia” has a similar definition, “leave the migration zone”.  Your Honours probably already know that “migration zone” can be most easily described as Australia without the excised offshore places and its territorial sea outside of ports.

Similarly, at page 53, “remain in Australia” is defined as the “migration zone”.  Your Honours should note at page 55, that “visa” is defined as “the meaning given by section 29” which I will come to very shortly.  Then, importantly, if I can take your Honours to section 6 of the Act which is the provision which the Northern Territory Criminal Court of Appeal did not, in our respectful submission, have in mind when it was decided the case of Ahmad.  You will see that it makes it clear that “enter Australia”, “leave Australia” and “remain in Australia”, including the expressions similar to that which arise under section 18A of the Acts Interpretation Act, have that special meaning in relation to migration zone but other uses of “Australia” do not.

CRENNAN J:   But, the real point is whether the phrases “bringing” or “coming” to Australia, or “proposed entry into Australia” as they occur in 232A must somehow be narrowly construed to refer only to entry. 

MR WYVILL:   No, your Honours.  That is not our point.  Our point is that the “bringing” or “coming” to Australia means exactly that.  “Bringing” or “coming” in the sense ‑ ‑ ‑

CRENNAN J:   Means exactly what?

MR WYVILL:   To come to the boundary of Australia.

CRENNAN J:   To come to the boundary?

MR WYVILL:   To come to the boundary of Australia, and “entry or proposed entry” into Australia, means entry into the migration zone – a different concept. 

KIEFEL J:   How does this feed into your argument about the result of conduct?  This part of your argument assumes that section 14.1 applies, does it not?

MR WYVILL:   Yes, your Honour, yes.

KIEFEL J:   How does it feed into the argument that about the result of conduct?

MR WYVILL:   Your Honours, if section 14.1 applies then, as I hope we have made clear in our supplemental note, it does not really matter how one construes sub‑paragraph (a) of 233C or, indeed, 232A.  Whether it is simply conduct, or whether it is conduct and a result of conduct, does not matter because none of section 14.1 are satisfied here and, hence, no offence has been committed.  It is relevant, as your Honour, I think, is suggesting to me, if it does not apply.  And, then we say it is relevant because that is the outcome – the construction for which we contend about conduct and result is the outcome of applying the – I should say this.  Firstly, bearing in mind the provisions in the Act about visa schemes and, secondly, applying the natural prudential approach that one should apply in construing statutes

which operate internationally, and that is where it is relevant.  But, your Honour is right to say that it does not apply to 14.1.

I just before the bell rings wanted to take your Honours to make good the point about the distinction between “enter” and “travel” and “remaining in Australia” and “coming to Australia”.  If your Honours turn to section 29 at page 76, this is the definition of “visa” and it creates a provision where:

the Minister may grant a non‑citizen permission, to be known as a visa, to do either or both of the following:

(a)       travel to and enter Australia;

(b)       remain in Australia.

Now, “enter Australia” of course there is enter the migration zone.  Query – and this is a point which is not clear – whether “Australia” in that sentence has a different meaning in relation to “travel to” or whether it means travel to the migration zone.  Your Honours, I have heard the bell but I wanted to complete this point by taking your Honours briefly to section 42 at page 89 – and these two provisions together of course create the visa scheme:  the power in the Minister to grant permission and the prohibition in section 42 if someone does not have that permission.

Your Honours, number one, neither of these provisions purport to have an extraterritorial effect.  That is unsurprising.  It is a visa scheme to operate within Australia.  When one bears that in mind, that is why we say coming to Australia means arriving at the boundary of a territorial – and crossing the boundary of a territorial sea.  The reason why we have two expressions in 232A and 233C is simply because of the special definition of “migration zone”.

Your Honours, in relation to the question of public importance, we would respectfully submit that, if your Honours do consider that there is an argument here that, given the number of people who are affected by the proposed appeal, special leave ought to be granted.  Unless there is something further, your Honours, they are the submissions for the applicant in both matters.

CRENNAN J:   Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, the arguments in Ahmad and Mahendra below were about the elements of the offence. So whilst my friend puts the issue today as whether section 14.1 of the Code is inconsistent with section 228A of the Migration Act that was only to support a conclusion that he was seeking that there was a result of conduct element of the offence, which required entry to Australia.  I notice today my friend submits that bringing or coming to Australia – in this case it was charged bringing to Australia – means, I think, to the territorial sea, but not further. 

I had understood before in his written submissions he had argued that it meant crossing the territorial seas because he cannot, with respect, be suggesting today that you actually have to get to the border and stop.  Here are the territorial seas we stop; this is what it applies to.  On what he has said today one assumes anything coming up to that you are fine, you come within the elements of the offence.  That is what this accused was – he was outside the territorial sea.  So, on what my friend said today, bringing to Australia means that was satisfied in this case.  As I said, the argument related to the elements of the offence ‑ ‑ ‑

CRENNAN J:   Then I think added to that is, as I apprehend it anyway, it is submitted today that proposed entry into Australia only means entry into the migration zone.

MS ABRAHAM: Your Honour, section 5 of the Migration Act was put to the court in Ahmad.  Not surprisingly it is not referred to in the judgments because, with respect, it is irrelevant to determining the elements of the offence.  There is no basis to contend that – even assume that my friend is right about the entry part, what is proposed between the Australian territorial waters and the migration zone?  What is there that limits the word “proposed”?  It is an ordinary word.  In my submission, not only is it an ordinary word that you would think would cover anything up until entry, it is inconsistent, in my submission, with the plain meaning of the section.

What has occurred, in my submission, the Court of
Appeal in Ahmad, correctly determined the elements of the offence by applying Part 2.2 of the Code to the offence provision as it was required to and the Court concluded ‑ ‑ ‑

CRENNAN J:   Where do we see that?

MS ABRAHAM:   Your Honour, it is easier just to go the Ahmad appeal book at page 59.  In paragraph [47], the elements are set out.  They are in paragraph 10 of our submissions.  As the Court says in paragraph [48], they are “consistent” with the application of Chapter 2.  There are two physical and two‑fold elements.  The element under “argument” was the first physical element – the conduct.  The Court found the element was conduct – namely, bringing to Australia a group of five or more persons, the fault element being intention.  So, the argument below was my friend saying, well no, that is not right.  You have to prove that you actually entered Australia, or at least in the argument.

KIEFEL J:   The point is the elements do not require that.

MS ABRAHAM:   No.

KIEFEL J:   Hence the search for 14.1.

MS ABRAHAM:   Yes.  So, all my friend has done is instead of applying 2.2, in fact it has been conspicuous by its absence.  He started with a conclusion and tried to come up with arguments that might support that conclusion.  And, in effect, whilst he has changed his argument a bit today and, indeed, in his reply it is slightly different, what he is saying is that you start – in determining the elements of the offence, you start with Part 2.7 – that is section 14 – work out whether that applies, then you use that and that dictates what your elements of the offence are.  In my submission, there is absolutely no support in the Code for that.  My friend has not today, or indeed in his written submissions, ever indicated what it is in the Code that give rise to that as a proper reasoning process and, indeed, is plainly inconsistent with the Code and how one determines the elements.

So, with respect, section 14 has nothing to do with the elements of the offence.  What the court in Ahmad did conclude, as I said, is that the elements, they have indicated, are consistent with Part 2.2, but importantly, they also recognised that they were consistent with the plain words, plain meaning, of the legislation which is unambiguous.  It is consistent with the purpose and object of the legislation as described in Ahmad and, indeed, in Mahendra and in the recent Victorian case of PJ and the earlier case of Rutu, consistent with that, and it is consistent with the history of the legislation.

I might add, it is also consistent with the relevant extrinsic material.  The Explanatory Memorandum to 233C says that first element is the element of conduct, as the court has decided.  So, in my submission, the court below is clearly correct.  My friend’s argument, which is to reason inversely, has absolutely no basis in the Code.  It has no relevance at all to the elements of the offence and, in our submission, really as an aside, the Act does not apply to these offences in any event because of 228A of the Act.

CRENNAN J:   And the express terms, I dare say, of section 14.1(a).

MS ABRAHAM:   Yes, exactly.  Clearly there is a contrary intention and, in my submission, that is abundantly clear in 228A.  On my friend’s argument, it appears now 228A was sort of inserted to, in effect, narrow the offences, not broaden them, to confine them in some way.  So, if there was any doubt you could say you could use it outside but that is why it there, as opposed to its obvious effect to reflect that it has extraterritorial operation

which is consistent with the earlier Northern Territory decision of Rutu, and your Honours will have seen in our submissions it came in after Rutu.  Rutu found the earlier provision was extraterritorial without 228A because of the very words of the section and, in my submission, that is perfectly correct.  In light of how it has been argued today, I obviously rely on our written submissions, but I have no further submissions.

CRENNAN J:   Anything in reply, Mr Wyvill?

MR WYVILL:   Yes, your Honours, very briefly.  It is critical, your Honours, to note what is recorded by his Honour Justice Mildren, in Ahmad in the Ahmad application book page 48, paragraph 20, where the very submission which it suggested was not made below is recorded.  Our case has always been, both in Ahmad and Mahendra, that regardless of how one construes the various elements of the two offences, whether my learned friend is correct or whether we are correct in relation to the concession of a result requirement, section 14.1 is not satisfied.  Now, in relation to the next point my learned friend makes about what is its point, its point is exactly, she said ‑ ‑ ‑

CRENNAN J:   Why should Part 2.7 apply if the circumstance referred to in section 14.1(1)(a) obtains?

MR WYVILL:   If your Honours could just bear with me for one moment. That assumes that one can draw from section 228A the contrary intention. As we were at pains to submit below, and we are at pains to submit here, applying 14.1 to section 233C and 232A does not rob them of an operation beyond Australia’s boundary. They have very clear and very obvious and very effective operations, even if they are compliant with section 14.1 and that was the point I had made in my submissions.

Both of these provisions will capture conduct throughout the world on an Australian ship, they will capture conduct through the world of a foreigner if there is either the delivery of a thing beyond the Australian territorial sea or if there is some action by the accused which is within the boundary of the Australian territorial sea.  That is the third point I wanted to say in reply, which is, our submission is and again has always been, that it is the crossing of a territorial sea which results then in there being conduct in Australia which satisfies section 14.1, which is critical, however one construes the elements.

Finally, your Honours, in relation to section 228A, that provision and its equivalents remain on the Commonwealth statute books, including in the Crimes Act, and yet those provisions like section 14, section 15.1 and the various extended jurisdictions are continually adopted, and that indicates our primary submission, which is that these two provisions run side by side,

228A was inserted for the avoidance of doubt to avoid any presumption about a lack of territorial operation and now you are given, as the Minister’s second reading speech makes clear, a particular operation beyond the boundaries of the Australian territorial sea that these provisions have extra territorially to meet the requirements of 228A.

CRENNAN J:   Thank you, Mr Wyvill.

MR WYVILL:   Thank you, your Honour.

CRENNAN J:   These applications concern the applicants’ convictions in the Supreme Court of the Northern Territory for offences contrary to the Migration Act 1958 (Cth). On 1 September 2011, the applicant in proceeding D5/2012, Mahendra Mahendra, was convicted in the Supreme Court of the Northern Territory for the aggravated offence of people smuggling in respect of a group of five or more people contrary to section 233C of the Migration Act.  Mahendra now applies to this Court for special leave to appeal against the order of the Court of Criminal Appeal of the Northern Territory made on 4 June 2012 dismissing his appeal against conviction to that Court.

On 3 February 2012, the applicant in proceeding D6/2012, Ahmad Ahmad, was convicted in the Supreme Court of the Northern Territory for the offence of facilitating the bringing of a group of five or more non‑citizens to Australia contrary to section 232A of the Migration Act.  Ahmad now applies to this Court for special leave to appeal against the order of the Court of Criminal Appeal of the Northern Territory made on 4 June 2012 dismissing his appeal against conviction to that Court. 

We are not persuaded that there is any reason to doubt the correctness of the orders made by the Court of Criminal Appeal on 4 June 2012 in relation to each of these proceedings. 

Special leave is refused. 

AT 2.00 PM THE MATTERS WERE CONCLUDED