McKenna v The Queen

[1991] HCATrans 201

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IN THE HIGH COURT OF AUSTRALIA

Registry No C3 of 1991

B e t w e e n -

PETER JOHN McKENNA

Applicant

and

THE QUEEN

Respondent

Application for removal
pursuant to section 40

of the Judiciary Act 1903

BRENNAN J
DEANE J

DAWSON J

McKenna 1 7/8/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 AUGUST 1991, AT 10.19 AM

Copyright in the High Court of Australia

MR A.R. CASTAN, QC:  May it please the Court, I appear with

my learned friend, MR J.P. McMAHON, for the

applicant. (instructed by Walsh & Blair)

MR K. MASON, QC, Solicitor-General for New South Wales: May

it please the Court, I appear with my learned

friend, MR W. ROSER, for the respondent.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions)

BRENNAN J:  Yes, Mr Castan.

MR CASTAN: If the Court pleases, section 38(a) of the

Judiciary Act provides that in all:

matters arising directly under any treaty -

the High Court's jurisdiction - the original

jurisdiction provided for in section 75(i) is

exclusive.

The matters that were raised in these

proceedings before His Honour Judge Phelan in the

District Court at Wagga Wagga were matters relating

to the way in which the provisions of the

Crimes Act of New South Wales sat alongside the

provisions of the Sex Discrimination Act of the

Commonwealth.

The Sex Discrimination Act - and I will take

Your Honours to the provisions - the federal Act,

in its terms and in portion of its applicability,

purports to draw on the external affairs power by

annexing a convention on discrimination against

women and purports, in its terms, to give effect to

the convention and provides that it only takes

effect in certain areas, including those that are

relevant for present purposes, in so far as it

gives effect to the convention so that, in a

nutshell, to summarize the matter before taking the

Court to the details, the problem that is raised on

this application for removal is a problem that, if

it is correct that there are questions arising

under the convention which must be determined in

order to determine the interrelationship of the

Crimes Act with the Sex Discrimination Act, then,

as we would submit, they are matters which arise

under the convention, they are matters arising

under any treaty and, therefore, His Honour

Judge Phelan cannot deal with the issues if the

jurisdiction is exclusive.

BRENNAN J: That means, of course, that this Court must deal

with the matter, does it not?

MR CASTAN:  Yes, it is that this Court must deal with the matter, although section 38(a) provides that it

McKenna 2 7/8/91

operates subject to section 44, which provides for
remittal, so that the Court could take on the
matter, it could deal with such portion of the
matter as was appropriate for this Court to deal
with, and then, having dealt with that, remit the

matter back.

DAWSON J: But the matter does not arise directly under the

treaty, does it? I suppose that is what you are

going to convince us of.

MR CASTAN:  Yes, that is the issue, Your Honours, the real

issue, and that is why I prefaced the matter with
those remarks, because it did seem that that was

the essential issue.

BRENNAN J:  The antecedent problem is that the district

court has no jurisdiction.	How then can something
be removed?

MR CASTAN:  We would respectfully submit that that is not

the way that section 38(a) works. The way it works

is that if a matter is within the exclusive

jurisdiction of this Court and the matter is a matter which, as it transpires, is one arising

under a treaty and therefore within the exclusive

jurisdiction, the removal of that matter into this

Court would effectuate section 38(a). It would

effectively give this Court the original

jurisdiction by removing the matter and taking on

the jurisdiction.

Now, it is one of those cart and horse

questions, perhaps, when put as Your Honour has

just put it to me, but we would respectfully submit that to give effect to section 38(a) in a situation in which what we might call ordinary criminal

proceedings have been commenced, the appropriate

course is removal.

The other course, of course, is that the matter is simply brought to an end in that court

and the matter then has to be recommenced, in some

form or another, whether by some form of

declaration or some appropriate proceedings in this

Court. That is another alternative.

There is one case in which there appears to

have been consideration of the effects of

section 38(a), and it may be appropriate to deal

with that at the outset so that Your Honours have

the context of that question before turning to the

detail. Can I hand Your Honours a copy of the case of Bluett v Fadden. Bluett v Fadden was decided by

His Honour Mr Justice McLelland in the Supreme

Court of New South Wales, sitting in equity, in

(1956) SR(NSW) 254.

McKenna 3 7/8/91

What occurred there was that a suit was

brought alleging ownership of certain shares.	The
defence of the defendant, who was the then

Treasurer of the Commonwealth, was that the shares had vested as property that was property of an

enemy under the Trading with the Enemy Act 1939-

1952, pursuant to an agreement on reparation from

Germany on the establishment of a reparation

agency.

And so the defendant, in that case, pleaded in

defence to a claim in respect of certain shares,

pleaded, in effect a treaty, an international

agreement. The question that His Honour

Mr Justice McLelland then dealt with was whether

the matter was one arising under any treaty in
terms of section 38(a). Ultimately he did, after

some analysis at pages 26 to 261 of the term

"arising directly under" - that appears at the foot

of page 260 and 261, there is some analysis of that

matter, he says:

It appears that the phrase "arising under

any great" ins. 75 of the Constitution, as

also the phrases (i) "arising under this

Constitution, or involving its

interpretation"; and (ii) "arising under any

laws made by the Parliament" contained in

s. 76 were adopted from the American

Constitution, which provides that the judicial

power shall extend to "all cases, in law and

in equity, arising under this Constitution,

the Laws ..... and treaties.

BRENNAN J:	Has any notice been given under section 78B?
MR CASTAN:	Yes, it has.
BRENNAN J:	To all Attorneys?

MR CASTAN:  Yes, it has, and they have all responded. has been pointed out not in relation to this point. It

We will check the form of the note. I would have

to answer saying it referred, as I would assume, we

will check the actual form, but I think it referred

only to the fact that there was a section 109 issue

raised in relation to the operation of the

Commonwealth Act as against the State Act, but not

in terms to the treaty question.

BRENNAN J: Yes. The latter is a question of more general

importance than the section 109 inconsistency

problem?

MR CASTAN:  Yes, Your Honour. I would have to accept that

the notice was given but not in terms which

referred to this matter.

McKenna	7/8/91
BRENNAN J:	Mr Castan, the Court would like to hear what the Solicitor-General has to say with regard to this
question of the arising under any treaty and
section 78B notice.

MR CASTAN: If the Court pleases.

BRENNAN J:  We do not wish you to respond fully to the

argument, but simply to indicate what course you

submit, if any, this Court should now take.

MR MASON:  Yes. The point about - the issue does not arise

in the motion as filed. I stand corrected, but I

think there is no reference to 38(a) or 75(iii) or

this treaty argument in the application, or in the

material filed in support of it which is confined

to a section 109 point. So, we would submit that

this application ought to be dealt with on the

merits that it proffered and if my friend is not

going to say anything in support of it it ought to

be dismissed.

Alternatively, the question that he is raising

is - - -

DEANE J:  When you say that, Mr Solicitor, do you mean we

should deal with the application for removal as if

removal lay in discretion?

MR MASON:  Yes. If this is a matter within the exclusive

jurisdiction of the High Court which we dispute,

then it would not be an appropriate matter for

removal. It would be some matter that would go to

the lack of jurisdiction of the district court

where perhaps the remedy would be prohibition.	But
it would not be removal.

BRENNAN J: 

Be it so, does not the matter so regarded

involve the interpretation of the Constitution, and
thus attract the operation of 78B?

MR MASON:  That matter would if it is contended that the

trial on indictment of charges under those sections
of the Crimes Act directly arises under a treaty,

something which we would say is preposterously

wrong. Then it would then follow that once that

jurisdictional point were taken in the district
court or if prohibition was sought here, then an

issue would arise and on the return of the order

nisi if one were granted, then notices perhaps

would need to be given. But we would submit that

the point is really just so fantastic that it ought

not to affect the disposition of this application,

and if my friend does not propose to put argument

in support of the application as filed, well it can

be disposed of and we can leave matters for another

day.

McKenna 7/8/91

DEANE J: Is your approach that where the notice has been

given it does not relate or disclose the point

involved, that the section precludes us proceeding

any further?

MR MASON: Section 78B or 78A?

DEANE J: Yes.

MR MASON:  Yes, Your Honour.

BRENNAN J: Is your submission further that if the point

that is taken is demonstrably erroneous that 78B

does not apply?

MR MASON:  I do not think I can put that, but if the point

that is taken has nothing to do with the

application before the Court, then the Court need

not consider that it impedes it in dealing with

that application.

BRENNAN J: In other words, the court refuses to hear that

submission.

MR MASON:  Yes, because it has not been made part of the

initiating process in the application, it is not

germane to that application. A person could not,

to take an extreme example, in the course of an

income tax matter, say, where there have been

pleadings filed, et cetera, "By the way I want to

contend", and then raise some totally extraneous

section 117 constitutional point. The court would

say, "Well, when that's relevant to the

proceedings, well, then, 78A impacts upon it".

The question of the explicitness of the

requirement of section 78A to detail the

constitutional issue has been discussed in one

Court of Appeal decision I am aware of in New South

Wales involving the State Bank and the Commonwealth

Bank where there was some detailed reasons given

there by the Court of Appeal for deciding that the

section had not been complied with through lack of

specificity in raising the point that was sought to

be agitated before the court.

DEANE J:  Mr Solicitor, assume for the moment though,

preposterous though you think it, that the point is

right. Well, then, if that is so we have an

application for removal of proceedings which have

been instituted and in which a defence has been

raised which it is incompetent for the district

court to deal with.

MR MASON:  Yes.

McKenna 6 7/8/91

DEANE J: It is not apparent to me that if that were the

situation that the appropriate order would not be

one of removal to this court to deal with the

treaty point and if it was dealt with in the way

you would contend to then remit the matter.

MR MASON:  A matter could perhaps arise directly under a

treaty by way of a matter of defence filed in

proceedings.

DEANE J:  I am not suggesting it does here and I take no

view on that but what I am simply wondering is

whether this is not a point within the confines of

the matter before the Court and if that is so how

78B operates in relation to it. There is nothing

in the section that makes it clear, to the extent

that Parliament has power to prevent this Court

from performing its functions, the section purports

to say the Court will proceed no further.	But it
may well be that the absence of a specific reference in the notice means the notice is
inadequate in a case such as this.

MR MASON:  I was, I think, embracing the point that removal

is not the remedy for invoking the exclusive

provision of the Judiciary Act, if these

proceedings either initially or because of some

foreshadowed defence fell within the exclusive

jurisdiction of the Court. I was raising - - -

DEANE J:  I appreciate that, but I was querying whether that

is not an unduly technical approach, in that one

could obviously envisage circumstances where, if a

point arose which could only be dealt with in this

Court, it would be a tragic waste if at that stage the proceedings became incompetent and this Court could not remove them on the basis of not having
been started in this Court, somehow we could not

deal with them.

MR MASON:  Yes. I am trying to recollect what provision the

Judiciary Act made about the old inter se matters
- - -

DEANE J:	They just went out the window, if you recall.
MR MASON:	But the Act actually provided that the

proceedings shot across - - -

DEANE J:	You could be on your feet in the supreme court and be told that the matter was on its way up to Oxford
Street.

MR MASON:  Yes. The Constitution is more silent about these

matters directly arising under the treaty.

So we say the point, even if meritorious, does

not arise within the confines of this particular

McKenna 7/8/91

application and secondly, recognizing the force of

what Your Honour Mr Justice Deane is putting to me,

the point, if good, operates a jurisdiction

impediment and it would make the proceedings

incompetent before the district court rather than

removeable under s.40 of the Judiciary Act.

BRENNAN J:  You might like to address that question first as

to the course which should be taken at this stage,

Mr Castan.

MR CASTAN: Yes. It is our submission that - I should

indicate first, Your Honours, that at the time when

the notice was sent, of course, attention had not

been directed to section 38(a). It was not

something that had come to those who were involved

in the sending of the 78B notice, and that has only

come in very recent times to our attention. But,

on the other hand, as I indicated at the start, it

seemed an important matter to draw to the Court's

attention at the outset.

It is our respectful submission that section 40 is there for a practical purpose and

should be applied in a practical way to deal with

the real position. It is not, in our respectful

submission, the practical implementation of a

provision like section 40 which provides for

removal of matters to, as we would respectfully

submit, put the cart before the horse and say,

"Well, there is no jurisdiction in the court below,

therefore nothing to remove", There was

jurisdiction. It is not as if this was a case that

was commenced without jurisdiction. The point only

arises at the stage at which the defence is raised,

at the point at which it then becomes arguable.

That is manifest from the Bluett case I was

taking Your Honours to where His Honour in that

case at first said, as a matter of construction of

the pleadings, that it was clear that the matter

did not arise under the treaty but there was an
under the treaty and His Honour said he

amendment to the pleadings subsequently and the questions

would proceed no further.

So that it is not a case of an absence of

jurisdiction at the outset. It is rather a case of

the matter raised then makes it clear that at that

point a matter arising under the treaty is

involved. Now, in our respectful submission, that

being the case, once it has come to the attention
of those at the stage after the removal application
has already been founded, but this additional
matter comes to the attention of those involved,

that the appropriate course for this Court, the

McKenna 7/8/91

matter having been drawn to its attention, is to
apply section 40 in what we would respectfully
submit is the practical way and take up the issue

rather than leave the matter to, in effect, go

round in a circle and possibly come back to this

Court in another way.

The difficulty about it is that otherwise the

very question itself, that is to say the question

of whether it is a matter arising under a treaty,

would have to be itself determined by the trial

judge, which in turn involves him in deciding the

constitutional question, and there is a kind of

circle that is undesirable. It is that precise

question that we would respectfully submit

section 40 is designed to avoid. That precise
problem, I should say, that the section, in a

practical way, enables the Court to avoid.

Now, the other problem of the 78B notice

occurs for the same reason; it is because the

notice was sent out at the time and there was not a

consciousness of the problem raised by

section 38(a) and, in our respectful submission,

the notice - I now have a copy of it and it does

refer to the submission, and it refers to

section 109. It does not in its terms, of course,

as I anticipated, refer to section 38(a).

In our respectful submission, section 78B

requires attention to be drawn to the fact that
there are constitutional questions raised but does
not impose an impediment on this Court's capacity

to deal procedurally at this stage with questions

such as removal. It would be obviously - - -

DAWSON J: All you have to give notice of under 78B is of

the matter. That is what you have to give notice

of.

MR CASTAN:  Yes, and we have given notice of the matter

being the entirety of the proceedings that we seek

to have removed, and they have been drawn to the

attention of all the State Attorneys-General and

they were sent copies of the relevant material.	So
they have had their attention drawn to the matter
that was -

DAWSON J:  And that is as distinct from, say, section 40

which talks of any part of the cause arising under

the Constitution?

MR CASTAN:  Yes, Your Honour. We would respectfully submit

that their attention has	been drawn to the entirety
of those proceedings and	that that suffices for the
purposes of section 78B.	Unfortunately, I cannot

McKenna 9 7/8/91

assist Your Honours with any further authority on

the construction of section 78B.

BRENNAN J:  What do you say as to the meaning of the words

"specifying the nature of the matter"?

MR CASTAN:  We would submit we have certainly given notice of the cause. We specified the nature of the

matter being the section 109 matter.	We have to
concede that we have not - - -

DAWSON J: It raises the question of the Commonwealth

Act -

MR CASTAN:  It raises the question of the Commonwealth

Act -

DAWSON J:  - which has appended to it the treaty.

MR CASTAN:  Yes. All of those matters are drawn to the

attention of those receiving the notice. We would

concede it does not in terms refer to section 38(a)

or draw attention to section 75(i) and that

question of jurisdiction and exclusivity in the

High Court, but we would nevertheless - - -

DEANE J: Well, section 75(i) only arises quite a way down

the path. I mean, you might have a fairly good

argument on 75(i), but when you come to 38(a) you

have to face the word arising "directly" under any

treaty.

MR CASTAN:	Yes.
DEANE J:	And I would have thought, subject to what you say,

that is the great wall in your path, that this

arises directly under a treaty in a context where

the Constitution does not use the word "directly".

MR CASTAN:  Yes, Your Honour. Our contention is, if I can

respond to that if that is appropriate at this

time, that the matter arises directly under the

treaty because section 9(10) of the Sex

Discrimination Act itself invokes the treaty and

its terms as the foundation for the operative

provisions of the Commonwealth Act.

Of course, a matter can never arise directly

under a treaty in the absolute literal sense

because a treaty is not capable of - - -

DEANE J: That may be so, and the Constitution says "arising

under" not "directly".

MR CASTAN:  Yes, but to give meaning, if I may say so with

respect, to section 38(a) we would respectfully

submit that in a case like this where section 9(10)

McKenna 10 7/8/91

of the Sex Discrimination Act itself picks up the

treaty which is then annexed to the Act and says,

if the convention is in force - and it came into

force in 1983 - that certain provisions -

have effect in relation to discrimination

against women, to the extent that the

provisions give effect to the Convention.

The operation of those provisions is,

therefore, only to that extent. This is not merely

the case as sometimes might occur when indirectly

one might have to consider the treaty because a

question arises as to whether or not it falls

within power and one might have to argue whether or

not it is within the external affairs power and all

the debates about whether or not it sufficiently is linked to the source of the external matter being a
treaty. That is an argument about power, but here

the legislation itself provides the treaty and

invokes the words of the treaty as the governing

criterion by which to deal with each of the

provisions of the Act.

BRENNAN J: But only to avoid discrimination against women,

is it not?

MR CASTAN: That is right, Your Honour, and that means that

in each case, because the Act itself is expressed
in gender neutral terms and seeks to prevent

discrimination against or and women, either - - -

BRENNAN J: Section 9(10) applies only to give effect to the

provisions:

in relation to discrimination against women.

MR CASTAN:  Yes, Your Honour, but the point I was seeking to

make is that when one turns to the operative

provisions of the Act, the actual substantive

provisions that are the relevant ones to consider,

they are not expressed in language that is

restricted to preventing discrimination against

women. So one has to, in respect of any given

section of the Act, the one substantive section as

distinct from section 9 which is the, what we might

call the source of the power section or the

governing or limiting section, when one turns to an

operative section such as section 22, which I will

take the Court to, it is not expressed in terms of

preventing discrimination against women nor are the
definitions in the Act which deal with what

discrimination amounts to expressed in terms of

discrimination against women. There is a

deliberate attempt here made by the legislature to

outlaw various forms of discrimination against men

and against women. It is in itself - - -

McKenna 11 7/8/91

BRENNAN J: Well, in the interpretation and operation of

section 22, does the convention have any role to

play?

MR CASTAN: Yes, Your Honour, it does. That is precisely

why I have raised the matter.

DAWSON J:  Only in relation to women. I mean if you are

concerned with a woman, you would look at

section 22 and say, "Well, maybe the source of
power for section 22 is the treaty", and you go to
the treaty, but if you have a man you do not go to

the treaty.

MR CASTAN: That is precisely the point.

DAWSON J:  We have a man here.

MR CASTAN:  No, Your Honour. The concern we have here is

that the provisions of the Crimes Act are

discriminatory against female victims. Our

contentions in relation to this arise because the
Crimes Act discriminates. It gives a greater level
of protection to children who are males than
children who are females. It provides a different
penalty in terms of offences against children who
are males and it provides a different age of
consent for children who are males than children

who are females and operates differently in

relation to them. So that the sex of the victim

becomes a criterion for the operation of the Crimes

Act and different and specific provisions are made

giving a greater degree of protection.

Males up to the age of 18 are given the protection of these provisions. Females are given

protection only up to the age of 16. Males are

given the protection of a greater degree of penalty

imposed on those who perpetrate a particular

offence against them - 10 years as a total

sentence. Females who have particular sexual

offences perpetrated against them are protected to

the extent that the penalty represents society's

protection of those who are in need of protection

and cannot give consent and are protected only to

the extent of an eight year penalty. So the

discrimination turns, among other matters, on the

sex of the victim and, in our respectful
submission, that amounts to a discrimination.

Now, the question of whether that is in breach of the Sex Discrimination Act then turns on whether it operates in relation to State criminal law where there is a relevant provision and in determining

that one is concerned to look at a section such as

a section like 22 or any of those others that are the operative provisions dealing with employment,

McKenna 12 7/8/91

education or services or the operation of functions

performed by States and delimit them where there is

no other basis. So if it is a Commonwealth agency,

well, of course, one is not limited by the

convention.

But where there is no other basis, such as in

a case like this, one is forced to interpret the

operative section - in this case it would be

section 22 - by reference to the convention. One

needs to then test because, not just as a matter of

constitutional - a general operation of external

power but because section 9(10) itself requires

that the section be tested by reference to the

convention. One is forced by section 9 to go to

the convention and to then apply it only in respect

of such discrimination as operates against women.

So that in our respectful submission the Act

itself has invoked the treaty and requires one to

say - and the treaty is not - when one actually

looks at the treaty, it becomes apparent that there
are real questions. Thus, section 22 is expressed
in terms of provision of goods and services, it is
expressed to bind the Crown and it is expressed to
bind the Crown in right of a State and "services"

are defined elsewhere in section 4 as services

provided by government instrumentalities and by

governments.

So there is a clear argument, we would submit,

that it includes the protections provided by the

State to young persons by the operation of

statutory provisions which deter and punish those

who engage in certain kinds of conduct in relation to young persons who are not of the age of consent.

In order to test whether a provision expressed in

that framework, section 22, operates in a case like
this, one must go to the convention, we would

submit.	When one looks at the convention, one
finds it is not expressed in words about the

provision of goods and services as such. It is

expressed in the language that perhaps one might
expect to find in a treaty. It is expressed that

States parties undertake to adopt appropriate

legislative measures, including sanctions

prohibiting discrimination against women. And

there is a question then of whether this is a

proper implementation of that, is giving effect to

that provision.

BRENNAN J: 

Is it right to say that your argument as to the

application of the word "directly" in the Judiciary
Act turns on the operation of section 9(10) in the

Sex Discrimination Act?

McKenna 13 7/8/91

MR MASON:  Yes, Your Honour, because if that was not there

it may be that a question would be raised about

constitutional validity because an argument was put

by a party saying, "Well, the Act is not a valid

exercise of the external affairs power." Then it

might arise but not directly. In our respectful

submission, it arises directly where the Act itself

invokes the words of the treaty as the basis upon

which the operation of each of the operative

sections, such as section 22, is to be tested.

DAWSON J: That is only a question of interpretation of the

section. The matter is the matter between the

Crown and the accused, is it not?

MR MASON:	Yes.
DAWSON J:	And that arises under the Crimes Act, directly

and indirectly that you come to.

MR MASON:  Undoubtedly it does arise under the Crimes Act,

but, in our respectful - - -

DAWSON J: Well, it does arise directly under the other, it

has an indirect effect, if any.

MR MASON:  In our respectful submission, it arises directly

because - the difficulty about this, if I may say

so, with respect, is - - -

DAWSON J:  The question of interpretation arises perhaps

directly under the treaty but that is an incidental

question.

MR MASON:  In our respectful submission, to give that

interpretation to the Judiciary Act provision would

be to render it almost incapable of any meaning and

this is commented on in the New South Wales case.

There is a great difficulty about it, given that

treaties do not operate in what we might call the

American way and do not themselves have the force of law. The question of something arising under a

treaty can only arise by reason of it arising under

a statute or otherwise via some other Act that

brings to bear a treaty provision.

DAWSON J: That is right.

MR CASTAN:  And, in our respectful submission, one cannot -

the Court should not adopt an interpretation that

renders section 38(a) meaningless or having no

operation or effect. And, in our respectful

submission, where one has, as in this case, an Act

which itself expressly invokes the treaty and its

words as the criterion for the operation of its
operative provisions, then the matter arises once

the defence is raised.

McKenna 14 7/8/91

Of course the matter arises in the first place

under the Crimes Act, but a matter may arise

directly - - -

DAWSON J:  And then a question arises under the section, and

then a subsidiary question in relation to the

extent of the question brings in the treaty. Well,

that is hardly very direct.

MR CASTAN:	Yes, well, we would respectfully submit that in the light of section 9(10) it is, and we would
submit, for the reasons we have explained or sought
to contend, that one could not get a case, we would respectfully submit, arising directly under a
treaty if this case is not one.
DAWSON J:	On the other hand, every time a treaty is

mentioned, on your argument, the matter arises

directly under it. Well, perhaps not mentioned;

whenever one has to go to the treaty for any

purpose, then the matter arises directly under the

treaty. That is equally unacceptable.

MR CASTAN:  We would respectfully submit that that may well

be a result which should not be regarded as

unacceptable; that in the nature - and there has

been much said in some of the external affairs

cases about the plenary way in which the whole

question of external affairs was granted to the

Federal Government at Federation, both at the

legislative, the executive, and in the judicial
arm, and there is some comment in some of the
earlier cases about the comprehensive way in which

the Constitution has vested that area of operation

in the federal structure in all of its arms. And

it is no accident, we would respectfully submit,

that section 38(a) is there, and no accident that

it is the High Court that - - -

DAWSON J:  What is the difference between the phrases,

"matter arising under a treaty" and "matter arising

directly under a treaty"?

MR CASTAN: Well, we would give as an example the case where

a matter may arise under a treaty because a

question of constitutional validity is raised, and

the source of validity that is then sought to be

relied on is a treaty, though not necessarily

expressly adopted by legislation, but it is said,

"We can support this legislation because we have

entered into a treaty and so we are implementing

the treaty".

That is a different kind of case, we would

respectfully submit, to the case where the

Parliament itself has annexed the treaty as a

schedule and then said, "The operative provisions

McKenna 15 7/8/91

only operate to the extent to which the treaty says
they operate", because then it is directly - the
question of interpretation, the question of dealing

with the matter, directly involves the treaty

itself. We cannot put it any higher than that, I

think, Your Honours, but that is the basis on which

we submit the question arises here.

There may have been some misunderstanding on

my learned friend's part. I did not intend, by

raising this matter, to abandon or not pursue any

of the other matters that have - - -

DEANE J:  Mr Castan, I do not want to take time but I would

take you up on your suggestion that 38(a) would
have no operation. One could think of many cases.

One would be if an Act of the Parliament said that any treaty made on a specific subject will have the

force of law. Another would be if the Parliament

were to confer jurisdiction on this Court to deal

with, by declaratory decree, for example, questions

arising out of a treaty. But when you look at

subsection (10), it is obviously aimed at questions of legislative power and is confining the operation of the Act to bring it within the Commonwealth's

legislative power with respect to external affairs,

which is quite a different thing.

MR CASTAN: That is undoubtedly the reason why it is there,

but the effect of it, Your Honour, is to make the
treaty the touchstone, so to speak, of the

operative effect of these provisions and to require

one, as a matter of determination of the operation

of those provisions, is to go to the treaty.

DEANE J: Is there any suggestion in this case that the provisions of the treaty cut back the relevant provisions of the Sex Discrimination Act?

MR CASTAN: Yes, Your Honour, because the treaty itself only

deals with discrimination against women and the

sections, in their terms, are expressed to outlaw

discrimination generally. So the treaty does cut

back - - -

DEANE J: Subsection (10) does that?

MR CASTAN:  Yes, and subsection (10) does not in terms say

that it only operates in relation to women.

Subsection (10) says the treaty is to be - - -

DAWSON J:  The question was, does it cut back. Here we are

dealing - the way you are putting your argument, it
is discrimination against women so does the treaty
operate in any way to curtail the meaning of the
words of section 22 in so far as they apply to

discrimination against women?

McKenna	16	7/8/91
MR CASTAN:	We certainly do not contend so.	We contend

that - - -

DAWSON J:	We do not go to the treaty then, do we?
MR CASTAN:	We do not seek to contend here, we seek to

contend that section 22 operates so as to place a

restriction in relation to women and that

restriction is operative so as to lead to the

result that these provisions in the Crimes Act

cannot operate or are in conflict, so - - -

BRENNAN J:  No defence that is sought to be raised in this

case, or no privative of criminal responsibility

which is sought to be raised in this case which

depends in any way upon the application of the

treaty?

MR CASTAN:  No. Our position is that we rely upon the

treaty as a valid source of power for the operation

of the sections which we in turn rely on. It is

not our contention that the treaty cuts it down, it

may be that, ultimately, that will be argued by

somebody else if the occasion arises, but

certainly, no, not from from our point of view.

BRENNAN J:  In this matter is there any question which the

defence would seek to raise, that is your party

would seek to raise, which depends in any way upon

the treaty other than its being a source of power
for the enactment of the Sex Discrimination Act if

the validity of that Act were challenged?

MR CASTAN:	No, subject to what I have put in relation to section 9(10) no, Your Honour. It is not our
submission that the treaty cuts down or limits
section 22, it is our submission that that provides
a proper foundation for the operation of
section 22. The answer to Your Honour's question I
think is, no, so far as the defendant is concerned
would then be contended by others that the treaty in relations to the operation. Whether or not it
in applying section 9(10) imposes some restriction
such that section 22 does not amount to a provision
which conflicts with the Crimes Act provision is a
matter of course that we cannot speak to.
BRENNAN J:	If you do not invoke the treaty as the source of

any ground of defence or non-liability, can it be

said that whether or not this is a matter arising

under the treaty it arises directly?

MR CASTAN:  I cannot put it beyond the way in which we have

put it, Your Honours. We rely on section 9(10).

It is a source of power provision. It does in turn

delimit the operation of section 22 which is

expressed in wider words. The treaty is the

McKenna 17 7/8/91

criteria for operation of section 22. It is our

contention that the treaty does not restrict the

operation of section 22 so as to amount to a

conflict with the Crimes Act provisions.	I cannot
put it any higher than that.

BRENNAN J:  The Court will adjourn briefly to consider the

course which it should take.

AT 11.06 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.14 AM:

BRENNAN J:  Mr Castan, have you concluded all that you wish

to say on the question of the meaning of the word

directly" in section 38(a) of the - - -

MR CASTAN:	Yes, I have.
BRENNAN J:	In this case whether or not the matter which the applicant seeks to have removed can be said to have
arisen under a treaty, it cannot be said to have
arisen directly under a treaty.  As the applicants
have given a general notice under section 78B we
propose to deal with the application on that basis
and without requiring the giving of a further
notice under section 78B.
MR CASTAN:	The application for removal, Your Honours, was

founded on the basis that section 40 provides for
the Court to have the power to remove in cases

arising under the Constitution.

In this case it is contended that section 109

matter arises because of the way in which the

Crimes Act provisions operate, and if I could

briefly take Your Honours to the detail of those

provisions to see how they operate. There are two

sets - - -

BRENNAN J: Before you come to that, what is the provision

of the Sex Discrimination Act with which it is said

the Crimes Act is inconsistent?

MR CASTAN:	We would respectfully submit that the operative provision is section 22 which has earlier been
referred to, but that in looking at section 22 and
the inconsistency question one has to go to other sections which give section 22 its meaning and
effect. Perhaps to deal with - - -

McKenna 18 7/8/91

BRENNAN J:  And it is consistent with 22 because the State,

being a person, is providing services which you

identify as protection of minors.

MR CASTAN:  Yes, the protection of minors in this case is

the relevant category, we would respectfully

submit.

BRENNAN J: Protection by the provision of law.

MR CASTAN:  It is by the provision of law and one can test

that, although at first glance it appears to be

perhaps an unusual way of characterizing the

passage of laws and the provision of the kinds of

facilities that are involved in the prosecution of

offenders. But one can test that by considering

other forms of services that might be considered.

If one starts with what might seem to be an easier

kind of case, if a State as it does, say, in

Victoria and perhaps in other States, provides work care type provisions, compensation for work-related

injuries without establishing any fault, then one

could characterize that as a service. There is

legislation. There are provisions of benefits to

people and, in our respectful submission, it is

quite relatively easy to see that that would be

covered by a section such as section 22.

If one then goes a step further and says,

well, is the provision of the courts themselves,
the very fact that the courts are available to the

public, that one can come to the court - there is

Supreme Court Act, Mmagistrate Courts we might broadly call the system of justice and provide for those in the community to have access

the there are

to it, provide for the issue of writs and the like" - we would respectfully submit that also is clearly

enough caught by section 22, and if there were

relevant provisions that discriminated in a way

under State law, they would be picked up by it.

And so with the provision of police is another
example.	We would respectfully submit that

provision of protection to the public by a police
force which functions and operates in the community

is a service of the kind referred to here.

DAWSON J:	What is the particular service you rely on here?
MR CASTAN:	The service we rely on here is the service of prosecuting those who interfere with minors in a
set of prescribed ways.  It is the protection
provided to a particular group in the community by penalizing those who behave in certain ways in relation to them. And that, in our respectful
submission, is a service.

McKenna 19 7/8/91

Can I refer Your Honours to section 4 of the

Sex Discrimination Act on this question of the

meaning of section 22 because section 4 contains

definitions which include a definition of

"services", and so one needs to keep that in mind

when looking at section 22.	"Services" is defined
to include:

(a) services relating to banking, insurance
and the provision of grants, loans, credit or

finance;

(b) services relating to entertainment,

recreation or refreshment;

(c) services relating to transport or travel;

(d) services of the kind provided by the

members of any profession or trade; and

(e) services of the kind provided by a

government, a government authority or a local

government body.

Now, Your Honours will have noticed that

section 22(2) provides that having provided that

there shall be no discrimination in relation to

services then goes on to say:

This section binds the Crown in right of a

State.

That is significant because of the provisions of section 12(1) of the Act because 12(1) provides

that the -

Act binds the Crown in right of the

Commonwealth and of Norfolk Island but, except

as otherwise expressly provided by this Act,

does not bind the Crown in right of a State.

So, there is a general exemption, or a deliberate

policy not to include a State but section 22,

including its definition of "services" in

section 4, expressly includes both in the

definition and in the provision dealing with the:

Crown in right of a State -

expressly includes services of the kind provides by

a government. The matter comes down ultimately to

the question, and not an easy question we concede,

but it is - - -

DAWSON J: But does subsection (2) mean that a person is the

Crown?

McKenna	20	7/8/91
MR CASTAN:	Yes, Your Honour.	"Person" is:

a body politic.

The word "person" not being defined in a

Commonwealth Act is defined in the Acts Interpretation Act, section 22(l)(a) as:

shall include a body politic -

where not otherwise defined:

"Person" and "party" shall include a body

politic or corporate as well as an individual.

A combination of that definition, the definition of
"services" in section 4(1), the express exclusion

of States in section 12 save:

except as otherwise expressly provided -

and the express inclusion of "State" in

section 22(2) - the combination of those, in our

respectful submission, lead to a provision where

one must examine each characteristic of the

function of a State to see whether it is correctly

to be characterized as a service in the sense that

is defined in section 4(1).

That leads to the difficult question, and we

would respectfully concede difficulty but, we would

respectfully submit, important question of whether

the provision of the criminal law, the protection

provided to a particular group in the community by

the criminal law, are a service and we would

concede, and we would respectfully submit, that

that is a matter properly to be raised and that

should be ultimately dealt with by this Court.

DAWSON J: So, that is the service, the creation and

definition of "criminal offences"?

MR CASTAN:  Yes. The service itself is the protection of

those who are the young in the community.	The
means by which - - -

DAWSON J:  No, the service - I mean, that may be the purpose

of the service, but what is the service?

MR CASTAN:	The service -
DAWSON J:	It must be the creation of criminal offences.
MR CASTAN:	Yes, and together with that goes a number of other things: the provision of penitentiaries to
lock up those who are convicted.  I mean, there are

McKenna 21 7/8/91

a number of services that are provided to effect

the purpose as Your Honour has put it.

DAWSON J: There is no discrimination not alleging that.

You are alleging the discrimination is in the

creation of the criminal offence.

MR CASTAN:  Yes, ultimately one comes down to that and it is

our respectful submission that that is - - -

DAWSON J:  And it is Parliament that creates the criminal

laws.

MR CASTAN:	Yes, and it raises the question, and one of the questions that is then raised is - and some
assistance is gained in looking at why it is that
this Act which contains numerous exemptions - the Act itself contains numerous exemptions because,
obviously, there has been an awareness of all those
kinds of cases where a law which provides for no
discrimination on the grounds of sex are totally inappropriate and one finds in the Act quite a
substantial number of provisions which exempt,
starting with section 30, dealing with all sorts of cases - child care situations, charity situations,
religious bodies which are entitled to discriminate
on the grounds of sex. There are a number of categories of activity which are permitted to discriminate. Sport, in certain categories, where
it depends on strength, stamina, or physique is
dealt with in section 42. Combat duties in the
armed forces is expressly exempted in section 43, and so on, so this is not a case of words which are
used without regard to the fact that there will be certain kinds of cases which should properly be
exempt.

In our respectful submission, the absence of

an exemption of the criminal law is of some

significance because - - -

DAWSON J: But this section operates as a direct

curtailment on the law-making function, that is, on

the power of the State to make laws. It does not

operate by way of inconsistency, it operates

directly as a command to the State not to make laws
in a particular way. That would be wildly

unconstitutional, would it not?

MR CASTAN: Well, that characterization is one that, we

would respectfully submit, goes beyond what

section 22 does. What section 22 -

DAWSON J: But you said the services was the creation of

offences. Offences are created by law, by the body

which makes the law; it must be right.

McKenna 22 7/8/91

MR CASTAN:  Yes, the way it is expressed is to provide that

it is unlawful for a person who provides goods or

services or makes - - -

DAWSON J: "Services" being the creation of the offence. It

is unlawful, in other words, to make a law.

MR CASTAN:  To discriminate. That, in our respectful

submission, is the question that is raised here.

We would respectfully concede, if that is the

appropriate word, to Your Honour, that that is the

issue that is raised and, in our respectful

submission, it does raise this question of conflict

in a very direct way because the Parliament has not

chosen to do what one might have expected, given

that there are a whole series of clear exemptions

dealt with. It has not chosen to say, "The

operation of State criminal law shall be exempt",

and one might have expected, given the broad words

of a provision such as section 22, and the broad

aims of the Act, and the extended operation beyond

Commonwealth authorities that has been provided for

in section 9(10) - one might have expected that

there would be something that expressly dealt with

this.

On the contrary, what one finds is that the

section is expressly stated to bind the Crown in

right of a State. So there is no question but that

the Federal Parliament was contemplating

restricting States in this area. That appears to

be explicit, notwithstanding the general, if I can

call it that, exemption of the Crown in right of a

State in section 12, but this one has been not so

exempted. So the matter, in our respectful

submission, is squarely raised and is an

appropriate matter for removal.

On that topic more generally, we would

respectfully submit that it is a matter which, by

its nature, is not in the category - if

Your Honours accept that the question is raised in

the way we have contended for - then it is the kind of question that is not appropriate, as might occur

in some instances, simply to say, "Well, it is a

matter which perhaps can be dealt with by the court in which the matter originally commenced and in due

course come through the appellate courts". In our

respectful submission, the nature of the matter

raised, and its importance, if it is accepted as we

have contended that it is so raised, is such that

it would not be appropriate to have the matter

dealt with and to, if I may say so with respect,

impose on the district court judge the task of

dealing with what are obviously complex and

difficult questions.

McKenna 23 7/8/91

DEANE J: But, of course, the persuasiveness of the point,

as a matter of assessment, is relevant to the
question whether the ordinary procedure in relation
to section 109 matters should be departed from and
this Court should intervene and thereby deprive
itself of, among other things, the opinion of the

Court of Appeal of New South Wales, or the Court of Criminal Appeal, which would no doubt be, in a case such as this, somewhat similar.

MR CASTAN:  Yes. With respect, Your Honour, that as a

general proposition would not seek to differ from

what Your Honour's put - - -

DEANE J:  I mean, the plain fact of it is, we could not

continue to exist if every time a 109 point was

raised we were expected to deal with it as a matter

of first instance.

MR CASTAN:  Yes, Your Honour, and we are acutely aware of

the general strictures that have been expressed by

this Court concerning the undesirability of removal

in every instance, merely because some 109 or some

constitutional point is raised, we are conscious of
that. It is that this is difficult and, we would

respectfully submit, the question of persuasiveness

and the question of the difficulty of the problem

may merge. It is one of those questions which, at

first glance perhaps, appears to be drawing a long

bow but which, on reflection, and perhaps extended

debate, perhaps takes on a different level of

significance and, of course, it is of enormous

importance, if I can speak about that more general

matter, because we are dealing here with a very,

very large section of the population and of, what

we might call, potential victims and potential

accused persons.

We are dealing here with that difficult area of social and legislative policy, of whether or not

be treated differently from those who are engaged those who are engaged in homosexual activity should	in heterosexual activity, and whether the victims
of that activity should be treated differently.

Now that, in reality, encompasses a very, very

large group in relative terms. It is not, as might

sometimes be the case, in important matters like,

one might say and does say that, for instance,

murder is a very important matter, obviously it is

because it is a very serious crime, but the numbers

of people involved throughout the community are not

very great. The numbers of people involved in this

issue are very great and the issue of social policy

is a very difficult one and it affects a very large

number of people. And that, in our respectful

McKenna 24 7/8/91

submission, should bear on Your Honours

consideration of these matters.

If Your Honours please, those are the

submissions.

BRENNAN J: We need not trouble you, Mr Solicitor. If there

be a point warranting consideration relating to

inconsistency between the Sex Discrimination Act,

1984, Cth and the Crimes Act New South Wales under

which the applicant stands charged before the

District Court, it is a point which, in the

circumstances of this case, can appropriately be

decided by His Honour the Presiding Judge in the

ordinary course of the proceedings in that court. The application for removal of the matter to this

Court is refused.

AT 11.33 AM THE MATTER WAS ADJOURNED SINE DIE

McKenna 25 7/8/91