Mavraganis v The Queen; Barbaro v The Queen

[1991] HCATrans 353

IN THE HIGH COURT OF AUSTRALIA

Registry No CS of 1991

B e t w e e n -

MARIA MAVRAGANIS

Applicant

and

THE QUEEN

Respondent

Registry No C6 of 1991

B e t w e e n -

GUISEPPE BARBARO

Applicant

and

THE QUEEN

Respondent

Mavraganis 1 11/12/91

Applications for removal

MASON CJ
DEANE J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 DECEMBER 1991, AT 2.46 PM

Copyright in the High Court of Australia

MRiz,, NICHOLSON, QC: If it please the Court, I appear with

my learned friend, MR J.F. LITTLE, for the

applicant, Barbaro. (instructed by Maliganis

Edwards Johnson)

MR G.D. WENDLER: If the Court pleases, I appear for the

applicant, Mavraganis. (instructed by Maliganis

Edwards Johnson)

MR D.L. HARPER, QC: If the Court pleases, I appear with my

learned friend, MR J.D. McARDLE, for the respondent

in both applications. (instructioned by the ACT

Director of Public Prosecutions)

MASON CJ: Yes, Mr Nicholson.

MR NICHOLSON:  Your Honour, the matter is an application

under section 40 for removal of the cause in

certain proceedings before Mr Justice Miles,

Chief Justice of the Supreme Court of the

Australian Capital Territory. The matter comes

before Your Honours from Friday, 29 November for

the purpose of this application.

At the outset, may I inform the Court that

notices pursuant to section 78B were forwarded to

the respective attorneys in each case and

that - - -

MASON CJ: Well, that does appear, does it not, from the

application book?

MR NICHOLSON:  Not quite, Your Honours. The notices

originally in the application book referred to

a - - -

MASON CJ:  proceedings in the supreme court.

MR NICHOLSON: - - - notice of motion in the supreme court

and in respect of this further notice of motion

before Your Honours. A further notice has been	sent in truncated form. Might I hand up five
copies of the particular affidavit of Mr Little concerning that matter. Might I inform the Court that five responses have been received by those
instructing me: from Western Australia, the Australia and Tasmania, each indicating no desire to be heard in this motion, but ask to be brought up to date if the matter proceeds any further.
Your Honours, might I hand up multiple copies of an outline of contention on behalf of the
applicant, and might I indicate that the outline refers to both applicants.

Mavraganis 2 11/12/91

MASON CJ:  By that do you mean that the outline covers the

submissions that Mr Wendler wishes to make as well

as your own?

MR NICHOLSON:  Yes, Mr Wendler will speak separately. We

are both on common ground in that outline,

Your Honours.

Your Honours, in broad terms, if I may go to

the application itself, the applicant has been

charged with a criminal offence under the Drugs of

Dependence Act, ordinance within the Australian Capital Territory.

being an Act of the Australian

During those proceedings a question of law arose as

to the validity of the original ordinance, being
the Drugs of Dependence Ordinance, and the validity

of the Drugs of Dependence Act into which it passed

following the (Self-Government) Act.

His Honour heard some argument concerning the

nature of the cause and indicated that because of

certain concerns he had about the nature that it

raised he intended to refer it to a full bench of
that court. That was the position. His Honour
then inquired as to whether, in the event of there

being adverse decision, either or both of the applicants would seek to take that particular

matter further. When informed to the affirmative

in respect of each applicant, His Honour indicated

that he would adjourn the cause, being that notice

of motion, in his court pending the bringing of

this application in this Court. That is what

brings us before Your Honours.

Your Honours, it is necessary for me to

initially go very briefly to the ordinance and

self-government legislation as each is in question.

The Drugs of Dependence Ordinance was legislation

passed pursuant to powers granted to the

Governor-General under the Seat of Government

(Administration) Act 1910, section 12(1).

Subsequently the passage of the Australian Capital

Territory (Self-Government) Act 1988 - - -

MASON CJ: Now, you are speaking of the Drugs of Dependence

Ordinance of 1989.

MR NICHOLSON: Yes.

MASON CJ:  Now you say, subsequently?

MR NICHOLSON: Subsequently the Australian Capital Territory

(Self-Government) Act came into effect, which

converted by its terms the existing ordinances

including that particular ordinance to the

Mavraganis 3 11/12/91

appellation of an enactment of the Australian

Capital Territory.

MASON CJ:	Now that is pursuant to 34(4)?
MR NICHOLSON:	Yes, Your Honour, that is correct.
McHUGH J:	I do not follow how the interest in questions

which you seek to argue in this case arise, having

regard to the facts in this particular case. Can I

say why, because the matter was originally made

under section 12 of the Seat of Government

(Administration) Act. It received its present

status by virtue of section 34(4), which is a law

of the Commonwealth, so what is the problem?

MR NICHOLSON:  Your Honour, the terms of section 12(1) of

Seat of Government (Administration) Act in

application at the relevant time, as set out in the

authority of Golden-Brown on the list. The basis

of the authority for that particular Commonwealth

legislation, the Seat of Government

(Administration) Act, is to be found in section 122
of the Constitution. That section has been in the

authority of Spratt v Hermes, the subject of

comment and, in particular, at page 242,

His Honour, the then Chief Justice, remarked that

the words "for the government of the Territory" in

section 122 were a condensation of the term for the

peace, order and good government. Those words are

the words of section 12(1) in application at the

relevant time, and also embraced in the

(Self-Government) Act - if I could use the term

transmogrification process that followed in

section 34(4).

The proposition I seek to draw from that and

to argue if, Your Honours, if the application is

approved, would be that section 122 empowers the

Federal Parliament to make laws for the peace,

order, good government of the Territory. Those

words - well, moving from that now to the Seat of Government (Administration) Act, bearing the same

appellation of the grant of power to the

Governor-General, I would seek to invoke what I might describe as principles extracted from

Dignan's case, where the power of Parliament to delegate legislations is beyond dispute, but brakes

were put upon the power in the judgment of

Mr Justice Dixon, as he then was - - -

McHUGH J: It was not a brake, he just left open the

question, did he not, as to whether or not what was

said in Initiative and Referendum?

MR NICHOLSON:  I think it goes a little further than that,

with respect, Your Honour. He goes to talk of the

Mavraganis 4 11/12/91

width or uncertainty taking a delegation, perhaps,

outside the ability of valid delegation. If you

start with the premises if there is a power to make

laws for the peace, order and good government of

the Territory, and the Governor-General is

empowered to make ordinances for the peace, order
and good government of the Territory, the question

arises whether what is happening there is a

delegation or a transference, first. Secondly, if

that be the case, does it amount to an abdication.

Thirdly, if the answer is in the negative to each

of those questions, is the repetition of the effect

of the Constitution so vague or uncertain or so

wide in its application to the grant of power to

the Governor-General to amount to an invalid

delegation by reason of the - - -

McHUGH J:	What do you mean by "the repetition"?
MR NICHOLSON:	If the effect of section 122 is to give power

to past laws for the peace, order and good

government, as in Spratt's case, and that is the

saying authority which is passed to the

Governor-General, then the question I would seek to

argue is whether, one, it is a transference, rather

than a delegation; or, on the other hand, if it is

a repetition of the previous provision of the

Constitution's effect, is it without sufficient

parameter as to be uncertain in its application,

too wide? If that be the case, then I would seek
to invoke what I would suggest, with respect to

Your Honours, are perceived limits on the power of

delegation embodied in the judgment of

Mr Justice Dixon, as he then was, in Dignan's case.

McHUGH J: What about what the present Chief Justice said in

Berwick v Gray?

MR NICHOLSON: Naturally, I must take that head on. There

is no issue taken on the nature of the power and in

Berwick v Gray His Honour pointed to the undoubted

scope of section 122 to allow the creation of

institutions according to the respective

development of the territory in question. What

His Honour did not address, however, in that

particular section of the judgment was the question

of whether the limits envisaged by Justices Dixon

and Evatt in Dignan's case had any effect on

His Honour's stated perception of the ambit of the section 122 power.

MASON CJ: But surely, when you look at the 122 power, it

must have contemplated a dealing with the

territories in terms of conferral of legislative

power on a staged development that might lead

ultimately to statehood?

Mavraganis 5 11/12/91

MR NICHOLSON:  Your Honour, I would like to answer that in

two stages. I can be quite short in each. The

first answer to the question is, "Yes".	The second
part of that answer - I hate to speak in

subparagraphs - is that when it envisages that

power being granted it does not, necessarily - it

does not follow that it envisaged a holus-bolus, a
complete transference of the authority to do all

those things in one hit without specific guidance. There are many paths to achieve the specific goal,

I think, envisaged in Your Honour's comments in

Berwick's case. The question here is whether the

path chosen by the Fderal Parliament, in each of

the two pieces of legislation, was the valid path

or whether it suffered by reference to the

parameters or curtailment factors I have suggested

occur in Dignan's case, in the effects of the

judgment of Justices Dixon and Evatt.

The question arises then, not inconsistent

with Your Honour's observations in Berwick but

consistent with them, not as to the application in

principle of section 122 but how it should be

applied, what are the valid ways to enact, on the

basis of the power of section 122. The challenge

here is not to the ambit of the power of

section 122 that it be plenary, that it does do

those things Your Honour suggests in Berwick, but

rather, it does not authorize a transferance in one

hit, as it were, of the same head of power to a

delegate of that power·, be it the executive or be

it the legislative assembly, as the case may be.

MASON CJ: You have got far more difficulty, have you not,

with your challenge to section 12 of the

Administration Act than you have, perhaps, with

your challenge to the (Self-Government) Act.

MR NICHOLSON: Yes, I think - - -

MASON CJ: Because the section 12 provision contemplates and

provides for continuing review by Parliament

itself. In other words, the ordinances are subject

to disallowance. Now, how can you say, in those

circumstances, that there is a complete

transferance of power?

MR NICHOLSON:  I go to the judgment of Justice Evatt in

Dignan's case where he sets out a number of

factors, I think totalling seven, which he declares

to be material factors when considering the

validity of legislation under challenge for excess
of delegation, in effect. One of the factors he

discounts as not a relevant factor is the ability

to repeal the enabling Act, or the ability to

change what has already happened.

Mavraganis 6 11/12/91

McHUGH J: But is not a question of repeal. Under

section 12 of the Seat of Government Act 1910, the
ordinances had to be laid before each House of

Parliament and to be disallowed.

MR NICHOLSON:  Yes. The act of disallowance is a correction

after an event, after an execution before it comes

into effect. I would seek to link that by analogy

to the repeal of enabling legislation which is also

an argument available, that if the Federal

Parliament did not wish the situation to continue it could simply repeal the legislation.

Your Honour, it is instructive when

considering Your Honour's question to consider the
language of the Seat of Government (Administration)

Act at the time that it is brought into place, and

that is set out in Golden-Brown, as it originally

was, and it is simply a power to make ordinances

for the Territory and having the force of law.	The
qualification, so far as it went - - -

MASON CJ: Just stopping you there for a moment, has not

that been the historic way in which Parliament has

delegated law-making powers in relation to

territories of the Commonwealth?

MR NICHOLSON:  I am not sure it was not the first,

Your Honour.

MASON CJ: It was not the - - -?

MR NICHOLSON:  I am not sure that it was not in fact the

first delegation of that type.

MASON CJ: But has that not been true of the Northern

Territory and Papua New Guinea as well?

MR NICHOLSON: With respect, I do not believe so,

Your Honour. I understood from my reading that the

qualifications on those powers related to the good

government of those territories. Your Honour,

there was, I think, also some debate over whether

internal and external territories differed in that

regard, but I can take the Court no further on that

area.

But, Your Honour, the original grant of power

to the Governor-General undoubtedly had inbuilt to
it certain safeguards which allowed Parliament to

take a course if it wished to.

However, the original grant in the terms set

out in Golden-Brown was, to say the very least,

extraordinarily wide, so wide, I would submit, as

to at least attract the argument that they may be

invalid within the terms of Justice Dixon, as he

Mavraganis 11/12/91

then was, in Dignan's case for lack of certainty or

for width.

MASON CJ: What is the lack of certainty?

MR NICHOLSON:  To make ordinances, having the force of law

in the Territory.

MASON CJ: What is uncertain about that?

MR NICHOLSON:  It is not referenced by any particular

subject-matter.

McHUGH J: But neither is section 122.

MR NICHOLSON: Section 122, on the other hand, has been the

subject of interpretation for the peace, order and

good government of the Territory, rather than left

in its original state. It is said to be - I think

the term of the then Chief Justice was "a

condensation" of those words. I do not believe

that is the case in relation to the original grant

of ordinance making power to the Governor-General,

but I do agree that it is harder to take my stand

in relation to the grant of what I would submit is

an extremely wide power, so wide as to warrant

definition, as to defy definition, to the then

Governor-General.

MASON CJ:  I do not see that you make the point by pointing

to the width of the power that there is an

abdicastion of the power when in fact there is

specific provision for disallowance by Parliament

and when the Parliament is able to exercise its

capacity to repeal. How can you say in those

circumstances there is an abdication of power?

MR NICHOLSON:  I have sought, I hope, Your Honour, to couch

my submission to Your Honours on the question of

abdication on the combined effect of the judgments

of Your Honours in Dignan's case to embrace not

only the abdication principle, but to go further

and challenge it for want of definition, lack of

certainty, that the two together make it open to

challenge.

MASON CJ: But I do not see that there is lack of certainty

if there is a delegation, for example, of the

entirety of the power.

MR NICHOLSON:  At the time, with respect to Your Honour -

perhaps if I could put it this way:  I think the

propensity of this Court to view the Constitution

as a whole perhaps had not arisen and there was an

inclination to look at the Territory power as
rather disjointed from it and to be rather without

limit; in a sense almost analogous to an occupying

Mavraganis 8 11/12/91

army over an occupied people, that the obligations

of reciprocity inherent in the Constitution do not

appear to have had application to the Territory,

with the result that the definition of that

Territory's power was extraordinarily wide.

Your Honours, the nuts and bolts of the

question will come exactly to the areas
Your Honours have taken me to obviously with

thought in advance, and that is: is the effect of
section 122, stated clearly and not under challenge

by Your Honour in Berwick's case, the finish of the

matter or are there limitations upon it by reasons

of the content of the decisions in Dignan's case?

McHUGH J:  But what the Chief Justice said in Berwick is not

really directed to the situation that arises under

section 12 of the 1910 Act, is it? That was a case

of Parliament delegating to the Governor-General

the power to make ordinances. In no sense was

there any abandonment of the legislative power

under section 122. What is more, the Parliament

retained control over the enforcement of the

administration of those ordinances through the

theory of responsible government.

MR NICHOLSON:  I come back to the position I wish to debate

and that is that when the original grant of

ordinance making power goes across it is well to
suggest that errors can be corrected, but that does
not change the nature of the original grant. It
certainly provides machinery if you are trying to
correct everything that they do not like, but it
does not affect the original grant if it is not

defined by reference to specific topic matter.

I will come back to where I started, if I may,

Your Honour. When, in Berwick, the nature of the section 122 power was outlined, nothing was said about the type of legislation necessary to validly

delegate authority from section 122 through the

legislature.

McHUGH J: Except that sort of problem had been settled in

the previous century by Reg v Burah, Powell v

Apollo Candle Company. I mean, the legislature can

delegate powers to Governors-Generals.

MR NICHOLSON:	It is not the fact or the ability to delegate, Your Honour, it is the quality of the
delegation and, specifically, I seek again to draw
Your Honours back to the judgments of Justices Dixon and Evatt in Dignan, where certain
materiality tests are set out and certain
statements are made.  I think, for instance,
Justice Evatt, in that decision of his referred to, supposed there was a delegation of power to the

Mavraganis 9 11/12/91

Governor-General to make ordinances for trade and

commerce. Such an ordinance would undoubtedly be

invalid.

With respect to Your Honour, Your Honour's

testing approach to the proposition I have advanced

could equally be applied to that example quoted in

his judgment.

McHUGH J: Section 51 provisions may raise different

questions to 122 questions.

MR NICHOLSON: With respect, Your Honour, I disagree. I

would seek to argue to the contrary. The

Constitution, to be construed as a whole, would

allow me to look at the nature of the power and

whether it has to be exercised by reference to

section 51 is another matter. But the grant of

power does not depend on the subject-matter, it

depends on the form of the grant. The form of the

grant here in challenge is extremely similar to

that anticipated and disapproved of by

Justice Evatt in Dignan.

MASON CJ: Tell me, why in theory should the delegation of

the entirety of a particular legislative power be

invalid? What is the theory that supports that

view?

MR NICHOLSON:  A transference or an abdication on one hand.

MASON CJ: But if it is always subject to repeal by the

Parliament, why is it an abdication of power?

MR NICHOLSON: Perhaps I could complete that, and then I

will answer Your Honour. The other part of the

argument is, and this is again advanced from memory

in the judgment of Justice Evatt in Dignan, that

such a delegation would be a delegation of the

power to make laws with respect to that topic.

There is, on Justice Evatt's perception, no power

of itself, so broad, vested in the Federal

Parliament.

McHUGH J: But he is the only one who has ever pronounced

that view, and it goes back to his argument as

counsel in ex parte Walsh and Johnson, does it not?

MR NICHOLSON:  Yes. There is not, to my knowledge, and I

have been searching hopefully. I have been

searching for it but I do not find in my researches

a pronouncement of this Court on this issue. That

is another argument I would advance to Your Honours

in ·favour of the application.

Mavraganis 10 11/12/91

DEANE J: Where is the particular paragraph in Dignan that

you rely on? Is it the paragraphs 1 to 7 on

pages 120 to 121?

MR NICHOLSON:  Yes, I will turn it up precisely. It is

between 119 and 121, I think, from memory. The

example to which I referred Your Honour was at 119

at about point 6. The conclusion concerning the

examples is at the commencement of the next

paragraph, and the argument that I have most

recently advanced to Your Honours occurs at the top

of page 120 in the second sentence. The ultimate

conclusions to which I seek to take Your Honours
occur at the base of page 121 in the last
paragraph, commencing with the words, "On final

analysis" and it is, as I have repeated in my

submission, that applies to powers generally.

Would Your Honours like me to give you the references to the judgment of Mr Justice Dixon as

he then was while I am here?

MASON CJ: Yes.

MR NICHOLSON:  I will omit entirely the question of the

delegation maximum, Your Honours. It does not

appear to arise in a serious way since. That is

the American source of that power.

McHUGH J: The American cases are against you anyway, are

they not? The Americans recognized that Congress

can give full power to regulate the districts of

Columbia.

MR NICHOLSON:  Your Honour is no doubt much better informed

than I on such matters, but I think that the

historical position is that the constitutional

theory underpinning the American Constitution is

that the people of the union entrust a power to the

government, which power being taken on trust cannot

be delegated, to which there are exceptions - and I	am sure that Your Honour is correct in what Your
Honour says. We do not start off with that
position of entrustment; we start off with a position of sovereignty where there is a devolution
of power rather than an entrustment upwards. I
think that is the best I can do with the American
situation, Your Honour.

MCHUGH J: Thank you.

MR NICHOLSON: At page 101, I think, is a convenient

position to start, Your Honour. I refer to 101,

about point 3, the section commencing with the

words, "This does not mean", and concluding in the

second sentence with, "any particular head or heads

of legislative power". I think in respect of that

Mavraganis 11 11/12/91

historical perception of Your Honour's concerning the background of Mr Justice Evatt as an advocate,

I think in fact Justice Dixon might have been the

advocate for the estate of Mr Kronheimer in the

authority referred to in Dignan, 10 years earlier.

McHUGH J: Yes.

MR NICHOLSON:  And perhaps that goes some way to explaining

how the respective threads have come in to the

decisions.

McHUGH J: But that was an even wider - in Kronheimer,

because it was a delegation to give effect to the

economic clauses of the Treaty of Versailles.

MR NICHOLSON: Well, there are two aspects of Kronheimer.

However, without wishing to be distracted too far

into that, Your Honour, the first is that the court

looked at the - if I may generalize - position,

looked at the date and looked at the defence power,

and came to certain conclusions about the notion of

the defence power which perhaps go a long way to

providing a rational basis for the reasoning

process in Kronheimer; and secondly, in Kronheimer

there was a real issue, I think, as to whether when

what was purported to be specified in the

delegation was but a repetition of something with

great specifity, being the economic clause to the

Treaty of Versailles material into which Australia

had entered which had been approved by the Federal

Parliament, the question arose whether, in fact, there could be any excess because what was being

delegated was really a machinery to do precisely

what Parliament had indicated should be done. And so I do not think that Kronheimer can be taken too

far forward because of those specific items perhaps

distinguishing it. ·

Certainly, Roche v Kronheimer is an

delegation, but as I indicated at the outset, that	appropriate starting point to confirm the power of	is simply not in question. It is the manner, the
method, the type of transference and the
parameters, or lack of them, of the power granted
which I seek to litigate.

Your Honours, I cannot put the position of

Justice Dixon higher than that position I have

indicated at page 101 of the authority. It might

assist Your Honours if I go back to then the

decision of Justice Evatt. I earlier referred

Your Honours to the material indicators relevant to

the question of testing validity of legislation or

delegated legislation. They are set out at

pages 120 to 121 enumerated 1 to 7. Considerable

importance was placed upon the scope and extent of

Mavraganis 12 11/12/91

the power of regulation-making_conferred.

Your Honour the Chief Justice earlier made the

remark that I was on more difficult terrain with

the question of the delegation to the executive,

and that is, of course, consistent with the first

condition set out by Justice Evatt at page 120, in

that one could not view the legislative assembly of

the Territory as comprising the executive of the

Federal Government.

McHUGH J: That is what I put to you near the beginning of

your argument. Really, no question arises as to

the validity of the Self-Government Act of 1988

does it, because even if that Act was invalid, you

would still have to overcome the problem created

for you by section 12 of the 1910 Act together with

34 - - -

MR NICHOLSON: Yes, Your Honour. Putting it that way, I

embrace really the proposition that for my argument

to have any consequences for this particular piece
of litigation beyond formalities of process to
which the applicant has been subjected, by virtue

of the consequences of self-government legislation

they could be at an end if that legislation were

not held to be valid. So in that sense there is a

very real consequence. But to take the - - -

McHUGH J: But the court system itself does not depend upon

the 1988 Act, does it?

MR NICHOLSON:  No, not at the moment, Your Honour, but I

understand in July of next year that situation is

about to undergo some change, and that was the

subject of some discussion before His Honour the

Chief Justice too.

MASON CJ: This case hopefully will be finished before July,

will it not?

MR NICHOLSON:	I sincerely hope so, Your Honour.
MR NICHOLSON:	I sincerely hope so, Your Honour.
DEANE J:	Who presents the indictment in this case?
MR NICHOLSON:	In this case the Director of Public Prosecutions within the Australian Capital
Territory, I think, presented the indictment.

DEANE J: Where does his authority come from?

MR NICHOLSON: His authority, like the courts, as I

understand it, is vested still in federal

legislation, but my friend perhaps could correct me

in relation to the Director of Public Prosecutions,

but the court system itself is intact. My friend

Mavraganis 13 11/12/91

might assist me with the director's office. I have

not looked at it. Your Honour, I simply cannot

directly respond to that question.

There are consequences concerning the position

of the ACT (Self-Government) Act, but to take - I

hesitate to use the word "beauty" of the

proposition that I seek to advance to its ultimate,

it would apply and have to apply to both

enactments. But certainly, if it were ultimately
held that the (Self-Government) Act was an Act in

excess of delegation, for whatever reason, that

would have direct consequences for each of the

applicants.

MASON CJ:  What would those consequences be? I have not

perceived them at the moment.

MR NICHOLSON: There is the question of the criminal

process.

McHUGH J:	What do you mean by criminal process?
MR NICHOLSON:	The process from arrest, charge and committal

to indictment.

McHUGH J: But that is all dealt with. It does not depend

upon the (Self-Government) Act, does it?

MR NICHOLSON:  I think it does, with respect, Your Honour,

because the charge itself was brought under an

enactment of the ACT Parliament through that

transmogrification effect of the legislation. To

take Your Honour's point a little further: if all

of that were put asunder, and assuming that there
was no argument that the original ordinance had not
continued, then if the ordinance had originally

continued, then there would be another problem

arising of a similar type.

MASON CJ: What problem?
MR NICHOLSON:	The problem for the applicant would be that

the original ordinance, if it continued, if it was

left undisturbed, would have authorized the Drugs

of Dependence Ordinance which predated the

(Self-Government) Act with the consequence being

that if that ordinance had continued beyond the

date of commencement of the (Self-Government) Act,

then the applicant could have been charged under

the previous ordinance. That is his situation if

only the (Self-Government) Act - - -

MASON CJ: But is this not the pos.ition, that the ordinance

was made in 1989?

MR NICHOLSON: Yes.

Mavraganis 14 11/12/91

MASON CJ: It continued as an ordinance until the

(Self-Government) Act came into operation when, by

virtue of that Act, it was deemed to be an

enactment.

MR NICHOLSON:  Yes, by section 34(4).

MASON CJ: If the (Self-Government) Act is invalid on the

argument that you present, would the ordinance

still not be in operation?

MR NICHOLSON:  My answer is yes, it would still be in

operation and the - there was no - - -

MASON CJ: And its provisions, so far as the offence is

concerned with which your client is charged, are

identical. There has been no alteration

whatsoever.

MR NICHOLSON:	Not as regards his particular offence, no. There were some variations to others, but they do
not affect this applicant. There was an amending
Act passed but it did not affect this applicant's
position. Your Honours, I take on board the
challenge of having to upset both items.

MASON CJ: Is not the position this, that the offence with

which your client is charged is something that

occurred, in effect, whilst the ordinance was in

operation as an ordinance?

MR NICHOLSON:  No, with respect, Your Honour. The

ordinance, as things stand, had been transmogrified

into an enactment prior - - -

MASON CJ: But was that before or after?

MR NICHOLSON: Prior.

MASON CJ: Prior?
MR NICHOLSON:	Yes, a matter of months earlier.

McHUGH J: Well, if your argument is right, there has never

been valid ordinance passed in the Territory since

1910, has there?

MR NICHOLSON:  The consequence had occurred to me,

Your Honour, but I am afraid I have restricted

myself to the current problem rather than take on board the weight of that argument, but certainly,

that is, in respect of the particular Territory,

that would have to be a probable consequence.

McHUGH J: You will have to open the gaols.

Mavraganis 15 11/12/91

MR NICHOLSON: Well, not me personally, Your Honour. But,

consequences and the matter is one which can be

Your Honour, levity apart, the question is one of,

finally determined by this Court in a way which

will resolve not only this particular application

and his position, but which will have certain

social benefits as well, and - - -

MASON CJ: What do you mean by that?

MR NICHOLSON: Well, social benefits to which I refer,

Your Honour, are the clear statement of what, on my

submission, is an as yet unresolved accommodation

between the judgments of Justices Dixon and Evatt

in Dignan and the view espoused by Your Honour in

Berwick's case.

McHUGH J: There is no necessary conflict between

those - - -

MR NICHOLSON:  No I did not suggest conflict, but I

suggested they are a little apart; they have not

joined, they are running in tandem, and the benefit

I would see, apart from the obvious position of the applicant, is that the litigation would afford the

Court an opportunity to take direction there.

MASON CJ:  It may be that we could produce a social benefit

by saying that these questions should be resolved

by stating that they do not have sufficient

substance in them to warrant consideration by the

Full Court. That is a different social benefit

from the one that you envisage.

MR NICHOLSON: It certainly is, Your Honour. It was not the

one that sprang readily to mind.

MASON CJ: No.

MR NICHOLSON:  Your Honour, short of being more precise as

to page numbers and page references, I feel that I

have put the principles to Your Honour - - -

MASON CJ:	Yes you have.
MR NICHOLSON:	- that I seek to litigate.
MASON CJ:	We are in possession of the argument you want to present.

MR NICHOLSON: That is what I seek to do. Thank you,

Your Honours.

MASON CJ:  Mr Wendler.

Mavraganis 16 11/12/91

MR WENDLER:  If the Court pleases, Your Honours will be

relieved to know that I will not be very long since

my learned friend, Mr Nicholson, has adequately

identified the issues that the applicants pursue in

this invitation of the Court to make an order

pursuant to section 40.

If the Court pleases, can I commence quickly

by identifying a matter of procedure. This is an

application pursuant to section 40 and it is an

application that has been brought by the parties

for sufficient cause shown. The criteria in

relation for an order being made under section 40

is not the same as the criteria for an application

for special leave to appeal. In my respectful

submission, the respondents would have to literally
say that the applicants' position is unarguable.

In my respectful submission, that is not the case

and, in my respectful submission, there are

genuine issues of constitutional law involved.

There is a practical effect in relation to my

client. On page 2 of the application for removal

book, is - can I just invite Your Honours to that

for a moment - is a copy or a photocopy of the

information as is described in the Territory, and

that clearly identifies and pleads the Drugs of

Dependence Act, because the applicants were

arrested and charged in August 1989 and the

(Self-Government) Act came into operation in May of

that year, thus transmogrifying, by its provisions,

all ordinances that were about the place, including

the ordinance which charges the applicants.

So there is a very practical consequence in

law, so far as it affects the criminal process -

very important practical consequence for the

applicant, because if Your Honours are not moved to

definitively resolve this issue concerning really a

matter of characterization - a matter concerning

Constitution, then it may well be that the	the ambit and nature of section 122 of the
community - well certainly the legal community, and
the community as a whole, will not be in possession
of some definitive pronouncement concerning the constitutionality of the (Self-Government) Act.

Indeed, the learned Chief Justice of the

Supreme Court of the Australian Capital Territory

remarked to me in argument that it was desirable

that this matter be resolved since it may become,

to use his words, "fashionable" in the courts of

the Territory.

McHUGH J: But how does the (Self-Government) Act bear on

the issues in this case?

Mavraganis 17 11/12/91

MR WENDLER:  Your Honours, it is that Act which purports to

legitimize in law the legislation under which my

client is charged.

McHUGH J: But if the (Self-Government) Act was totally

invalid, this ordinance would still be in force and

still apply to your client. You cannot get your

case off the ground unless you show that the

ordinance was always invalid.

MR WENDLER:  Your Honours, we are not frightened of this

ordinance.	We propose to take it on and make
serious submissions concerning its legality.	We
are not frightened of it.

McHUGH J:  I am not suggesting that you are. What I am

suggesting to you is that if the ordinance was good

under section 12 of the 1910 Act that is the end of

the matter, irrespective of the validity or

otherwise of the (Self-Government) Act.

MR WENDLER: Quite so, and the critical question, if it is

good in law; and all the applicants seek is another

hearing to canvass these issues in greater depth

and detail, and that is really what this vehicle,

this section 40 vehicle, is about, an application
to go one step ahead to fashion further and more
detailed submissions in relation not only to the

Territory Act but to this allegedly or supposedly

omnipotent ordinance which it may well be is, in

the end, a paper tiger.

But, Your Honours, all the applicants are submitting at this stage is that there is a genuine

constitutional issue; it affects the criminal

process; it affects, directly, the circumstances in

law that the applicants find themselves in. If, as

a consequence of that, the applicants have to

confront further this ordinance of 1910, so be it,

but at the moment there is an information which has

which pleads an Act, albeit a transmogrified Act,	been raised, it has activated a criminal process,
which, in my respectful submission, is null and
void.

If the Court pleases, I cannot pursue it much

further. My learned friend, Mr Nicholson,

identified the matters of principle and he did it

in detail, and I would just be repeating that.

Unless there is anything else, if the Court

pleases, they are my submissions.

MASON CJ: Thank you, Mr Wendler. Now, Mr Harper, one

question you might assist us on is this: if the

applicants' argument on the invalidity of

section 22 has substance in it, then it would

appear that the Act under which the applicants have

Mavraganis 18 11/12/91

been charged was not an Act at the time at all, but

an ordinance. What do you have to say about that?

MR HARPER:  If their submissions on section 122 of the

Constitution are upheld, Your Honour, then the

ordinance itself has no validity because it was

enacted pursuant to a power which the Parliament
did not have.

MASON CJ: But I was rather directing the question to that part of the challenge made by the applicants that is directed to section 22 of the 1988 Act, the

(Self-Government) Act, putting to one side the

(Administration) Act, the 1910-1973 Act, and

assuming for the moment that that was valid.

MR HARPER: Well, if I understand the question correctly,

Your Honour, the answer is, in our respectful

submission, the one put by His Honour

Mr Justice McHugh. The ordinance remains valid

even if section 22 of the (Self-Government) Act is

invalid.

McHUGH J: But the Chief Justice is putting a different

point to you. The point he is putting to you, if I

understand it, is that these applicants are charged

under the Act and not the ordinance. So if there

is no Act, then the have never been validly

charged.

MR HARPER:  The Act is only an Act - the Act is an Act

pursuant to two pieces of legislation; the first is

the (Self-Government) Act, but it was made an Act

and so described by the Self-Government (Citation

of Laws) Ordinance 1989 which provides, by

section 5, that each enactment that - - -

MASON CJ: What is this instrument?

MR HARPER:  The Self-Government (Citation of Laws) Ordinance

of 1989 which was part of the legislative package

that led to self-government.

MASON CJ: We do not have this instrument. Have you got

copies of it for us?

MR HARPER:  I certainly have one copy, Your Honour. If I

could hand that to the Bench.

MASON CJ: Thank you. Now, this ordinance was made, was it,

before the (Self-Government) Act came into

operation?

MR HARPER:  I understand so, Your Honour, yes. But it was

part of the package of legislation which led to

self-government, and it provided that:

Mavraganis 19 11/12/91

All ordinances, should henceforth - - -

MASON CJ: It should be styled as Acts, on self-government

taking effect?

MR HARPER:  Yes, Your Honour, that is so. Then, pursuant to

section 34 of the (Self-Government) Act, those ordinances, now Acts, became enactments of the

local authority, the Legislative Assembly of the

Australian Capital Territory.

DEANE J:  So that means the only operative effect of 34(4)

is to enable a previous ordinance, now Act, to be

amended by the legislature of the Australian

Capital Territory?

MR HARPER:  Yes, Your Honour. It comes within the

legislative package which by a deeming provision, I

suppose it could be described as, the Legislative

Assembly then has power to deal with, to amend or,

subject to the Act, repeal.

DEANE J: Having dealt with that, can I ask you this? If

the ordinance, apart from the irrelevant amendment,

is valid, but there is an argument as to the

validity of the 1989 Act, would that argument, if

upheld, affect the procedures or the validity of

the procedures leading to prosecution? If, for

example, the indictment had been presented by the

Attorney-General, who holds office under the 1989

legislation, it would obviously be a nullity if the

legislation fell. Would there be any fault like

that in the process leading up to these

·proceedings?

MR HARPER: There would, as I understand it, Your Honour,

because the Director of Public Prosecutions for the director, was created by an Act of the Legislative

Assembly and if the submissions of our friends are

upheld all those enactments would fall.

DEANE J: And you have no client, or you are appearing for

the Crown.

MR HARPER:  Yes.

McHUGH J: They may have to challenge your retainer.

MR HARPER:  Yes.

MASON CJ: Well, that may indicate that the form of

challenge they have made is incorrect in terms of seeking some effective relief on the footing that

the argument, the substantial argument they want to

present, is soundly based.

Mavraganis 20 11/12/91

MR HARPER:  Yes, Your Honour, it would indicate that,

because if they are right then the indictment was

an indictment - - -

MASON CJ: The indictment ought to be quashed because it has

been presented by someone with no authority to

present it.

MR HARPER:	Yes, Your Honour, that is so.
DEANE J:	Or to put it differently, if they are half right

they cannot be sent away because their being half

right is irrelevant. One must look at the deeper

question.

MR HARPER: Well, yes, Your Honour. In those circumstances,

no doubt the court would find that in the terms of

section 40 of the Judiciary Act this was a case

which if sufficient cause, should be removed to the

High Court. It is our submission, however, that

there has been no sufficient cause shown, and that
the trend of authorities is entirely against the

submissions which our learned friends have made and

that there is no basis upon which Your Honours

could find a sufficient cause here so as to remove

the matter from the Supreme Court of the Australian

Capital Territory to the High Court.

MASON CJ:  In other words, you are endeavouring to meet

their principal argument head on when you say that?

MR HARPER:  Head on, Your Honour, yes.

McHUGH J: Except in the Initiative and Referendum case in

the Privy Council, the Privy Council left open the

question of Parliament setting up a legislature for

a territory. Mr Justice Dixon seemed to reserve

that question in Dignan's case, and in Cobb & Co v

Cropp in the Privy Council, the question was also

said to be a serious question, was it not? So it

is not a question that can be said to be finally

determined.

MR HARPER: Well, with respect, we would differ,

Your Honour, because, in our submission, those

courts and those judges which have looked at the

question, albeit not directly, because it has not

been raised, I think, in such a stark form as it is

raised here, have all made statements which are

consistent only with the proposition that the

powers given to the Commonwealth Parliament by

section 122 of the Constitution extend at least so

far as to enable the federal legislature to enact

such - - -

McHUGH J: But this question does not merely concern 122,

does it? It concerns section 52 of the

Mavraganis 21 11/12/91

Constitution, and section 52 says that the

Parliament of the Commonwealth shall have exclusive

power in relation to the Seat of Government.

MR HARPER:  Yes, it does possibly raise section 52

questions, Your Honour, but the authorities, in our

submission, are all in support of the proposition

that section 122 itself is as full as is required

to enable the Federal Parliament to pass

legislation which is in question here, and that

there is no need therefore to look to section 52

for any further power. And section 52 does not in

any way detract from the power given to the Federal

Parliament by section 122.

MASON CJ: That is not quite correct, is it? I had thought

that the effect of the authorities, reading Spratt

v Hermes and Worthing v Rowell together, was that

there was an undefined degree of overlap between

overlap there was exclusivity flowing from 52(1)

122 and 52(1) in its application to the Australian

whatever exclusivity might mean in that context.

Do you deny that?

MR HARPER:  No, Your Honour, but we submit that nothing

Your Honour has said detracts from the thrust

anyway of the proposition that I just put, that

section 52 does not take away any of the powers

which would otherwise properly be said to be

derived from section 122.

MASON CJ: That is partly because exclusivity means

exclusive, for the Commonwealth as against the

States.

MR HARPER:  Yes, Your Honour.

DEANE J: Does it come to this, that you can see if the

point in relation to the validity of the Territory

(Self-Government) Act is arguable, you say nothing
against removal.	Your submission is that in the

light of authority and so on, it simply is not

arguable.

MR HARPER:  Yes, Your Honour. If there is a real question

arising from section 22 of the (Self-Government)

Act, then no doubt this Court ought to deal with

it, because the proper resolution of the issue just

raised is one that directly affects the entire

legislative package of ACT laws and may very well,

and probably will, affect the Northern Territory as

well.

The Northern Territory Legislative Assembly is

in very much the same position as the Australian
Capital Territory Assembly in that the relevant

Mavraganis 22 11/12/91

provision of the Northern Territory Act is in very

similar terms to section 22 of the Australian

Capital Territory (Self-Government) Act.

MASON CJ:  I think we can take that for granted, Mr Harper.

I do not think there is any occasion to refer us to

the legislation.

MR HARPER:  No, Your Honour. I intended to take

Your Honours very briefly to the authorities upon

which we rely to support the proposition that there

is no arguable point here.

MASON CJ: Would you just indicate what those authorities

are without taking us to them, because it is very
probable that we are aware of them all, but in case
we are not, we will be able to ascertain from your

reading out to us what the authorities are.

MR HARPER:  Yes, Your Honour. On the width of section 122

of the Constitution, we rely upon Spratt v Hermes.

I have some page references to various judgments,

if that would assist the Court: the Chief Justice

Sir Garfield Barwick at pages 241 to 242,

Mr Justice Kitto at pages 250 to 251,

Mr Justice Taylor at page 266, and

Mr Justice Windeyer at page 273. We also rely upon

Berwick Ltd v Gray and Your Honour the

Chief Justice's -

MASON CJ:  We are aware of that; you need not worry about

that.

MR NICHOLSON:  On the validity of section 12 of the Seat of

Government (Administration) Act, we rely upon

Esmond Motors Pty Ltd v the Commonwealth, which is

cited in the list of authorities, and Rees v Mccay.

That case, Your Honour, I think is one which is not

referred to in our friend's list of authorities.

We have a supplementary list which, if I may, I

will hand to the - - -

MASON CJ: What court is that?

MR NICHOLSON: That is the Federal Court, Your Honour, and

it is reported in (1975) 26 FLR. We have noted

simply three cases there which are not referred to

by our friends. We also rely upon another Federal

Court case, Golden-Brown v Hunt. That covers the

section 12 point, Your Honour. Then there are

various authorities, all of which are listed in our

friend's list of authorities on the power to

delegate. The effect of those authorities, in our

submission, is as I have already indicated.

Mavraganis 23 11/12/91

Your Honours, we did prepare an outline of

submissions which, if we may, I will also hand to

the bench.

In argument the Court referred to a number of matters which, if I may, I will take up briefly.	I
am not sure, in fact, that they have not been
covered now, Your Honours. I think I would be
traversing ground that I have already covered.
Apart from taking Your Honours to specific passages
in the judgments to which I have referred, there is nothing further, I think, that I can add.

MASON CJ:  Thank you. Mr Nicholson, do you wish to reply?

MR NICHOLSON:  Only in the slightest context of the last

reference to Esmond Motors case, Your Honours.

That was the case in which the judgments of

Justices Evatt and Dixon were, in fact, employed in

the text of the dicta without any express
disclaimer concerning the reservations expressed by

those Justices in that case. Thank you,

Your Honours.

MASON CJ:	Mr Wendler, do you wish to reply?
MR WENDLER:	No, Your Honours.

MASON CJ: The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 3.56 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.03 PM

MASON CJ: The Court has decided that it will adjourn this matter

part heard until 9.45 am tomorrow. At that time counsel

should be here because there is the possibility that the

Court might require some further argument of the case at

that time. So the only order that the Court will make,

at this stage, is that the application will stand

adjourned until 9.45 am tomorrow morning.

AT 4.04 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 12 DECEMBER 1991

Mavraganis 24 11/12/91