Momcilovic v The Queen

[2011] HCATrans 145

[2011] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M134 of 2010

B e t w e e n -

VERA MOMCILOVIC

Appellant

and

THE QUEEN

First Respondent

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA

Second Respondent

VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION

Third Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 JUNE 2011, AT 10.16 AM

(Continued from 10/2/11)

Copyright in the High Court of Australia

__________________

MR M.J. CROUCHER:   May it please the Court, I appear with my learned friends, MS K.L. WALKER and MS C.A. BOSTON, on behalf of the appellant.  (instructed by Melasecca, Kelly & Zayler)

MR G.J.C. SILBERT, SC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, on behalf of the first respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

MR S.G.E. McLEISH, SC:   May it please the Court, I appear with my learned friends, MS J.M. DAVIDSON and MR A.M. DINELLI, for the second respondent.  (instructed by Victorian Government Solicitor)

MR S.P. DONAGHUE:   May it please the Court, I appear with my learned friend, MR E.M. NEKVAPIL, on behalf of the third respondent.  (instructed by Victorian Equal Opportunity and Human Rights Commission)

MR H.C. BURMESTER, QC:   If the Court pleases, I appear on behalf of the Attorney‑General for the Commonwealth intervening, with my learned friends, MS R.M. DOYLE, SC and MR A.D. POUND.  (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear on behalf of the Attorney‑General for Western Australia intervening, with my learned friends, MR R.M. MITCHELL, SC and MS C.L. CONLEY.  (instructed by State Solicitor (WA))

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS M.L. RABSCH, for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor (NSW))

MR G.L. SEALY, SC, Solicitor‑General for the State of Tasmania:   May it please the Court, I appear with my learned friend, MR S. GATES, on behalf of the Attorney‑General of Tasmania who intervenes in the proceedings.  (instructed by Crown Solicitor for Tasmania)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   May it please the Court, I appear with my learned friend, MR C. JACOBI, on behalf of the Attorney‑General for South Australia intervening.  (instructed by Crown Solicitor (SA))

MS M.A. PERRY, QC:   May it please the Court, I appear with my learned friend, MR P.J.F. GARRISSON, for the Attorney‑General for the Australian Capital Territory intervening.  (instructed by ACT Government Solicitor)

MR M.K. MOSHINSKY, SC:   May it please the Court, I appear with my learned friend, MR C.P. YOUNG, for the amicus.  Your Honour, since the hearing last time the name of the amicus has been slightly changed from Human Rights Law Resource Centre Ltd to the Human Rights Law Centre Ltd.  (instructed by Allens Arthur Robinson)

GUMMOW J:   Changed to?

MR MOSHINSKY:   It is to delete the word “Resource”.  So it is now the Human Rights Law Centre Ltd.

FRENCH CJ:   Thank you, Mr Moshinsky.  Yes, Mr Croucher.

MR CROUCHER:   Your Honours, I propose to address briefly the questions that were raised by the Court in the letter that was sent some time after the last hearing in February.  We have provided written submissions and I propose, subject to the Court’s questions, only briefly to elaborate on those. 

Dealing with the Court’s first question, which is:

Can the question of inconsistency between the relevant law of the Commonwealth (s 302.4) –

of the Code –

and the law of the State (s 71AC)

of the Drugs Act –

be determined by reference only to whether the elements of the offences in question differ –

our submission is yes, it can be, depending on the circumstances, but of course in this case there are additional matters which we rely on and there was debate last time about whether it is an elements question or whether it is a burden of proof question.  Insofar as it is properly characterised as a burden of proof question we say this, that the burden of proof is a fundamental matter in the criminal law, as is the standard of proof.  The Commonwealth law provides that the burden of proof of possession is on the Crown from the start to the finish and that that must be proved – that burden must be discharged beyond reasonable doubt.  So much is clear from sections 13.1 and 13.2 of the Commonwealth Code. 

The State law, on the other hand, insofar as section 5 operates in cases where drugs are found on premises, as in this case, takes away that right or that liberty.  The onus is of disproof on an accused person that he or she was in possession.  He or she is deemed to be in possession simply by virtue of being in occupation of premises on which drugs are found.  That, in our respectful submission, in and of itself is enough to create a direct collision, or direct inconsistency, as those terms are understood by the authorities.  Why?  Because the State law has the effect of taking away a liberty or right, that is, to be presumed innocent, which the Commonwealth law confers.

FRENCH CJ:   This is on the assumption that section 5 feeds into the notion of possession for sale?

MR CROUCHER:   Indeed, that is exactly right.  Now, the second question was, well – and I will not read it out – but if there are no relevant differences between the elements of the offences, are there other considerations that can come into play such as the method of determining that there has been a breach of the norm differs, the consequences of determination that there has been a breach affixed by reference to different requirements, including different maxima, and some combination of these considerations?  Well, yes, we say that those are additional considerations to which the court can have regard in determining the question of direct inconsistency in this case.

HAYNE J:   You say can have regard, is not the root question presented by 109, how does one identify the relevant law of the State and the relevant law of the Commonwealth?  In particular, is one to identify the relevant law of either the State or the Commonwealth only in this case by reference to the norm which each creates or do you take account of the consequences of contravention of the norm prescribed by each section?

MR CROUCHER:   Our submission is that it is enough to deal with this matter by reason of the difference between the burden of proof in each case.

HAYNE J:   I understand that.  Assume that were not so.

MR CROUCHER:   Then we say that the court is entitled, as the Court did in Dickson, to look at additional matters, such as the section 80 question, such as the difference in maximum penalty, such as the difference in penalty regime or sentencing regime. The Court in Dickson (2010) 241 CLR 491 at page 504, paragraph 22 of the judgment of the Court the Court said this:

The direct inconsistency in the present case is presented by the circumstance that s 321 of the Crimes Act (Vic) renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Criminal Code (Cth). In the absence of the operation of s 109 of the Constitution, the Crimes Act (Vic) will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law. The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. No room is left for the State law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury. To adapt remarks of Barwick CJ in Devondale Cream, the case is one of “direct collision” because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law.

So too here, the section 80 question arises in addition to the burden of proof question. The burden of proof question is, we say, even more fundamental than the difference in elements question that arose in Dickson’s Case. 

CRENNAN J: On the last occasion it was my impression, at the end of the hearing, that you seem to accept that if you won the construction point so that we are not dealing with differences between burdens of proof, you would not be pressing the section 109 point. Now, two questions arise, I suppose. One is, has your position changed and it seems from everything you have said so far, it may have, and the second question would be, if the construction point is decided in your favour and you were left with other matters, would something like a difference in penalties be enough?

MR CROUCHER:   Can I deal with the first point first, your Honour?

CRENNAN J:   Yes.

MR CROUCHER: Your Honour, our position has not changed. If the construction point were decided in our favour in this respect, then there is no need to have resort to section 109 and respect in which that is so is the construction discussed in argument, particularly by your Honour Justice Gummow and your Honour Justice Kiefel, which arises here in questions 4 of the further questions, namely, that if section 5 does not attach to or does not have any operation in respect of the phrase “have in possession for sale” in the extent of meaning of section 70 of the Drugs Act, then, yes, that is right. There is, in our submission, no issue that arises. Why? Because we accept – and this is perhaps in part answer to your Honour Justice Crennan’s second question – that by itself a difference in penalty might not be enough to invoke the section 109 question.

HAYNE J:   It seems to be you invite us to overrule Hume v Palmer.

MR CROUCHER: We are not saying that it cannot be in the right circumstances. All we are saying, your Honours, is that the trigger, if you like, in this case or the important consideration in this case is the difference between the burden and the standard of proof. The other matters highlight the problem and make it worse. To take my homespun example that I have referred to on a few occasions, it cannot be consonant with the purposes of section 109, we say, that you could have two people in the same house, one charged under section 71AC of the Drugs Act, and reliance is placed on section 5, and the other charged under the relevant provision of the Commonwealth Code where, of course, no equivalent reliance is provided for.

So, firstly, the person under the State provision is presumed effectively to be guilty, at least at the first level, the question of possession, whereas the other one is presumed to be innocent. Then, if convicted, they are subject to different – firstly, it is part of their trial, one is subject to section 80 of the Constitution and therefore must have a unanimous verdict, the other may receive a majority verdict. Take a step further, then if they are both convicted, the penalty regime that each faces is different; 15 years versus 10 years. That cannot be right, in our submission. I suppose there is a tension, which your Honour Justice Hayne has highlighted, in our position. We do not say that Hume v Palmer is wrong, quite the contrary.  We say that insofar as penalty alone may be all that we are left with, then of course we will grasp onto that if necessary.

HAYNE J:   But it comes again to that root question, how do you describe the law?  Can you describe a crime, a statute creating a crime, barely as the norm of behaviour or must you go on, which it seems to me at least is arguable, must you go on to identify the consequence of contravention of the norm, first because that is the nature of the criminal law?  The criminal law is not simply the ten commandments.  It is ten commandments plus consequences.  There is the root question, the question that your argument at the moment seems to be putting aside.

GUMMOW J:   In Clyde Engineering v Cowburn 37 CLR 466 at 497 Justice Isaacs made the point that the law is not a collection of words:

It consists of the “ rule ” resolved upon and adopted by the legislative organ of the community as that which is to be observed, positively and negatively, by action or inaction according to the tenor of the rule adopted.

So the notion of commands and rules is important, is it not, because the whole idea is that you have two sovereigns issuing what are said to be inconsistent commands.  Do you have to know the full command?

CRENNAN J:   If you think of the Austinian concept, you have got the command and, as Justice Hayne has pointed out, the sanction; they go together.

MR CROUCHER: Yes, and as it happens in this case, if it matters, they go together in a way that makes it more onerous for this appellant when charged under the State legislation; suffers the reverse onus of proof, suffers the absence of section 80 and its requirement of a unanimous verdict, suffers the higher maximum penalty, “suffers” might not be the right word, but is subject to a different sentencing regime by reason of the Crimes Act (Cth) compared with the State Sentencing Act.

HAYNE J:   Because both laws in question presuppose the engagement of the judicial power.  The laws, yes, speak to the citizen, but by their prescription of penalty they are presupposing that contravention engages the judicial power and thus, why you would confine the description of the relevant law of the State or the law of the Commonwealth to a statement about the content of the norm that is created is at least a question.  You have the engagement of judicial power, you have the very nature of crime, but crime is not just public statement of “do not do this”, it is public statement of “do not do this and if you do, this follows”.

MR CROUCHER: I suppose, to be frank, your Honours, it is a fear of the broader consequences of overreach, but I understand your Honours’ function is different from mine at one level. Mine is obviously, apart from assisting the Court, to identify the problem as I see it in this case, or as we see it in this case for this appellant and for this appellant all four of those criteria that I have mentioned, the burden of proof, the section 80 question, the penalty and the different regime, all of those things in combination make it more onerous for her and we say plainly engage the section 109 question and amount to a direct collision.

FRENCH CJ:   In terms of practical implications, if you were to succeed on the construction point, that is to say, that 5 does not enter into 71AC with or without the help of section 32 of the Charter, you have a difficulty in asking for a direct acquittal – which is I see the relief you claim in the notice of appeal – whereas if you were to succeed on the 109 point, then there would be a different remedy available to you.

MR CROUCHER: Well, certainly a different remedy would be mandated. If the section 109 point succeeded ‑ ‑ ‑

GUMMOW J:   You would be entitled to quash, would you not?

FRENCH CJ:   Yes.

MR CROUCHER:   Exactly, it is quashed, and there could not be any retrial by definition.

FRENCH CJ:   Could not be a retrial.

MR CROUCHER:   Clearly, on the other grounds by definition there could be, but we say for the reasons we put in our original written submissions that it should be a directed acquittal anyway.

FRENCH CJ:   There is an argument about that.

MR CROUCHER: Indeed, there is, no doubt about that. So, yes, I accept that that difference matters. Perhaps if we have seemed inconsistent about it, may I say this, your Honours. If we are wrong about the primacy or validity of the argument about the reverse onus, we do say that you can rely on the other matters in combination to raise a section 109 question in this case, but we just say that it is not necessary to deal with or to answer those questions favourably to us in this case to win the section 109 point.

Now, when Justice Crennan asked the question earlier about if you win the construction point that may have consequences for the 109 question, I said very deliberately that if we were to win the construction point on the basis that is now raised in question 4, that is one thing.  Why, because if you take away the operation of section 5 upon the phrase “have in possession for sale” in section 70 then there is no reverse onus either at a legal burden level, balance of probabilities, or at an evidential burden level.

FRENCH CJ:   Just a case of simple possession at common law and has to be proven?

MR CROUCHER:   Indeed.  However, if that point – that construction point raised in the further question 4 failed but our other construction point, namely that there is only an evidential onus in section 5 that does, in fact, apply to the compendious phrase or the compound phrase “have in possession for sale” then the 109 question is still raised albeit to a lesser degree, the lesser degree being the difference between a reverse legal burden of proof and a reverse evidential burden of proof. 

The extent, if you like, of the intrusion or taking away of rights is obviously not as great.  Indeed, when the Court of Appeal were considering that question for the purposes of the Charter issues, that difference mattered and we accepted that it mattered and we still do, that whilst both an evidential onus and a legal onus undermine the presumption of innocence, not undermine, they remove the presumption of innocence, nevertheless an evidential onus is a justifiable limitation within the meaning of the Charter for the purposes of the Charter.  There is that extra twist in the matter.

HAYNE J:   If your appeal were to be allowed on any ground, could we form the consequential orders without confronting 109?

MR CROUCHER:   Yes.

HAYNE J:   How?

MR CROUCHER:   For the reasons I put before, that if the Court allowed the appeal on either the simple construction argument, namely that the proper reading of section 5 is that it casts only an evidential onus or, in conjunction with the Charter it ought to be read that way or, applying the argument that was raised by Justice Gummow initially last time that section 5 has no operation or no application to the phrase “have in possession for sale” in section 70 or our original and simple ground that under or by reason of the principle outlined by Justice Callaway in Tragear’s Case at paragraphs 43 to 44, that irrespective of the operation of section 5 upon the phrase “have in possession for sale”, nevertheless, the Crown must still prove beyond reasonable doubt knowledge of the drug in order to have it in possession for sale and given that those directions that were given by the judge in this case did not make that point, then on any of those four, I think, grounds that I just mentioned then, of course, the conviction would have to be set aside.  The usual order upon any of those grounds succeeding would be a direction for a retrial, but, for all of the reasons we have put in the written submissions, it would be open to order and, we would submit, that you should order by way of discretion an acquittal.

HAYNE J:   You accept, I take it, that there is a distinction between entry of verdict of acquittal as a consequential order and quashing the indictment?

MR CROUCHER:   Indeed.

HAYNE J:   One constitutes a plea in bar, the other does not.

MR CROUCHER:   That is right.  So in that sense, in some ways it is a preferable order ‑ ‑ ‑

HAYNE J:   You would like the plea in bar.

MR CROUCHER:   Thank you, your Honour.  Yes, we would.

HAYNE J:   You astonish me.

MR CROUCHER:   Although, that said, it would be extraordinary if the 109 point succeeded, that the prosecution would subsequently be mounted upon the Commonwealth provision, one would have thought, but who knows.

KIEFEL J:   I think at an earlier point in your submissions in this matter reference was made to the differing quantities of drugs required for each of the offences, by way of explanation I think, that there was of the differing penalties applicable.

MR CROUCHER:   I think someone else might have raised that.

KIEFEL J:   I might have got confused with the parties.  Do you place any reliance upon – if one is viewing the law as a whole rule, do you place any weight upon that difference?

MR CROUCHER:   Well, I say two things in response to that, your Honour.  One is, it is another feature of the rule as a whole and, I suppose, regard might be had to.  However, we do not in this case.  That is the second point.  We do not because the simple point is that one is subject to a 15 year penalty compared with a 10 year penalty under the Commonwealth regime.  That, in our submission, trumps any minor difference there might be between thresholds.

KIEFEL J:   The difference is not great.

MR CROUCHER:   No.  I think it might have been South Australia that mentioned that.  I might be wrong about that. 

KIEFEL J:   Thank you.

MR CROUCHER:   Just formally going through the questions.  We have, I think, dealt with questions 1 and 2.  Question 3, dealing with the concurrency clause, well, we say with the greatest respect that those that have put arguments to the contrary have missed the point.  The concurrency clause has no work to do in a direct collision case, that is the end of it, and, curiously, for what it is worth, the concurrency clause in section 300.4, whilst it lists various things which are said to be effectively consummate with the idea that there can be concurrent operation, namely, in section 300.4(3)(a) providing for a different penalty, (b) providing for a different fault element, (c) providing for a different defence, and whilst that is not, of course, an exhaustive list necessarily, it is telling perhaps that nowhere in that concurrency clause is there mentioned anything about a reversal of the onus of proof; the most fundamental thing in the criminal law.  So that even if section 300.4 is thought to have any work to do in a direct collision case like this, it does not get there on such a fundamental matter. 

Now, as to question 4, and that is the construction of question about whether or not section 5 has any operation or any application to the extended meaning of “traffick” in section 70 and, in particular, the question, does section 32 of the Charter have any or can it assist in resolving the issue, well, we say, firstly, you do need to go that far on a simple construction, which I think was described last time by the first respondent as an acceptable construction, or words to that effect.  One does not need to have resort to section 32.  However, if resort is thought necessary, then, yes, it does assist.  Insofar as our learned friends for the third respondent and also for the Human Rights Law Resource Centre have put submissions in writing on this particular point, we respectfully adopt those written submissions.

On question 5, as we have indicated in the written submissions, we do not wish to put any submissions on that question.  Just one final issue, your Honours, it is this.  Following the hearing last time, on 23 February I think it was, a letter was sent to the Registry on behalf of the appellant requesting that leave be granted to put in a submission on the question of costs.  We would formally seek that leave now, if we might put in a written submission to the Court, or otherwise if your Honours wish to hear about it now, we can deal with it.

FRENCH CJ:   Perhaps you could put briefly to us now what you want to say about costs.

MR CROUCHER:   Might Ms Walker deal with that matter, please?

FRENCH CJ:   Yes.

MS WALKER:   If the Court pleases, the appellant seeks costs against the first and second respondents regardless of the outcome of the proceedings, although I will indicate to your Honours that the precise terms of any order might be different depending upon the outcome and, of course, we do not want to ‑ ‑ ‑

GUMMOW J:   I am sorry; say that again.

MS WALKER:   I beg your pardon, your Honour?

GUMMOW J:   You seek costs against the first and second respondents?

MS WALKER:   That is right.

GUMMOW J:   But you added something.

MS WALKER:   We seek the costs regardless of the outcome, but the precise terms of any order might well be different depending on the outcome, and of course we do not want to ‑ ‑ ‑

GUMMOW J:   How would it be different?

MS WALKER:   Certainly if the appellant is successful in her appeal, she would seek the entirety of her costs.  If she is not successful in her appeal, she would, in fact, in the first instance seek the entirety of her costs but if the Court thought that was not appropriate, she would seek a proportion of her costs to reflect a number of issues that I am going to raise with the Court but in particular to reflect the fact that this proceeding has involved argument, preparation time to be devoted to a number of legal issues that have no bearing on the appellant’s rights or liabilities, but she has been put to the expense of attending the Court and becoming familiar with, having her counsel prepare in relation to those issues in order to form a view about whether they were or were not relevant.  So if she is unsuccessful ultimately, she nonetheless contends that, firstly, perhaps she could be entitled to her full costs but certainly she should be entitled to a proportion of them.

Your Honours, I doubt that it would be disputed that the Court has jurisdiction to make an order for costs, notwithstanding that, of course, it is accepted that the practice in criminal matters is that the Crown is not generally ordered to pay costs.  Rule 50.01 is in unfettered terms and the appellant relies on those unfettered terms.  This Court has also held in R v Whitworth (1988) 164 CLR 500 that costs can be awarded against the Crown. The practice is that they are generally not but that in an exceptional case they may be. Your Honours, the appellant would contend that that conclusion is consistent with the more recent decision of this Court in Oshlack, which ‑ ‑ ‑

GUMMOW J:   What is the citation?

MS WALKER:   I probably do not need to take the Court to Oshlack 193 CLR 72. That case did not concern precisely the same issue but certainly indicated that the general discretion conferred on courts in relation to the ability to award costs is a general one and that practices or guidance that have grown up around the power to award costs ought not generally be regarded as having been narrowed or fettered. So the practice of not awarding costs in relation to criminal appeals of this kind is a practice, it is a guidance to the court but it has not hardened into a rule of law. The first submission is that the Court does have the jurisdiction and that it ought to be exercised in this case because there are exceptional circumstances.

Can I explain to the Court what we say the exceptional circumstances are?  Firstly, as your Honours would be aware, this case has had an unusual trajectory in this Court.  There have been three separate sets of written submissions and now, of course, two oral hearings.  This is unusual.  The appellant, as indicated in the further submissions provided to the Court in answer to the Court’s letter of 1 March, indicated that she would have been content to have the Court determine the matter on the written submissions and not to be brought back for a further hearing but, of course, the position of the intervening Attorneys was that the Court ought to have further legal argument and, of course, if a hearing is to be held, the appellant must be here.

Secondly, your Honours, due to the position in particular adopted by the second respondent, the appeal has involved argument and submissions on issues, as I indicated earlier, that have no relevance to the appellant’s rights or duties:  firstly, your Honours, the constitutional issues concerning the jurisdiction of the Supreme Court of Victoria to make a declaration of inconsistent operation pursuant to section 36 of the Charter - the constitutional validity of that section has no relevance to the appellant’s rights and duties; secondly and relatedly, the constitutional issues concerning the ability of this Court to set aside a declaration of inconsistent operation on appeal, a position that the Attorney for Victoria has urged upon the Court; and the third issue that has no relevance, we say, to the appellant’s ultimate rights and liabilities is the question of whether the matter was heard in federal jurisdiction or in State jurisdiction. 

Your Honours, not only were those matters not necessary for the appellant to deal with and irrelevant but they contributed to the length of the initial hearing which was three days, an unusual amount of time for a criminal appeal and to some extent have contributed to the hearing today in relation to question 5 posed by the Court.

A further exceptional feature in the appellant’s submission is that this case has, as a consequence of a variety of positions taken by a variety of parties including the appellant, offered a vehicle to resolve, firstly an issue of fundamental importance to Australian federalism, namely, the operation of section 109 in relation to the kind of concurrent criminal laws that we see in issue here. Indeed, the appellant would contend that the public importance of that issue is revealed by the joint submissions filed by the second respondent and the intervening Attorneys, including the Attorney‑General for the Commonwealth, something, certainly, unprecedented to the appellant’s knowledge.

In addition to the constitutional question of fundamental importance this appeal has provided the second respondent with the opportunity to have corrected what it has contended are errors in the judgment of the Court of Appeal in relation to the operation of section 32 of the Charter and that, of course, is a matter of great public importance within Victoria and, indeed, also within the Australian Capital Territory. 

In that regard also it should be noted that in earlier parts of the proceedings the appellant consented to the second respondent’s application for a vacation of the initial hearing date for this matter, pending the conduct of the State election in Victoria, and also consented to the second respondent filing his notice of contention out of time, following the change of position by the Attorney‑General for Victoria, consequent on the change of government in Victoria. 

So the appellant, through her conduct of the case, has provided the Victorian Attorney‑General with an opportunity to have this Court resolve fundamental issues about the operation of the Charter.  Finally, the appellant has provided the first respondent with the opportunity to have the operation and constitutional validity of section 5 tested and clarified by this Court.

GUMMOW J: This is not just a criminal law case, you say. This is a case arising on the interpretation of the Constitution.

MS WALKER:   That is right, your Honour.  Finally, and more personally to the appellant in light of the above matters, the matters I have already mentioned, the costs of this appeal have now escalated well beyond the financial means of the appellant.  The appellant contends that the remarks of Chief Justice Mason in Latoudis v Casey 170 CLR 534 at page 542 are apposite to her case. Now that case, we accept, was different because it concerned a specific discretion to award costs in summary criminal proceedings. But the remarks of his Honour, and I will not take the Court to them but simply refer to them, that his Honour really remarked upon the burden upon a successful defendant who has to bear the entire payment of her costs, notwithstanding that she has been successful.

The financial burden, his Honour said, might be substantial, indeed, crippling by reason of bringing a criminal charge which in the event should not have been brought.  Those words are obviously apposite only if the appellant is successful.  But if she is successful we contend that the unfairness to her of bearing the burden of this unusual criminal appeal ought to be taken into account and that she ought to have all her costs if she is successful.  As I have indicated if she is unsuccessful ‑ ‑ ‑

GUMMOW J:   You say all her costs - in this Court?  There was no costs order in the Court of Appeal, was there?

MS WALKER:   No, there was not, your Honour.  Certainly in this Court, but all costs of the proceeding, in my submission.

GUMMOW J:   All of it?

MS WALKER:   Yes, your Honour.

GUMMOW J:   Including the trial?

MS WALKER:   Yes, your Honour.  But, as I have also indicated, if she is unsuccessful, then the Court may think it more appropriate to order at least a proportion of her costs in this Court to reflect the particular and unusual features of this case and, in particular, the burden she has borne in relation to issues that have no relevance to her.  If the Court has no further questions, those are submissions.

GUMMOW J:   We need to look at section 26 of the Judiciary Act, do we not, as well as rule 50.01?

MS WALKER:   I am sorry, your Honour?

GUMMOW J:   Section 26 of the Judiciary Act?

MS WALKER:   Yes, your Honour, it is a combination of the section and the rule.

KIEFEL J:   There was nothing, though, in the conduct of the criminal trial to distinguish it from any other criminal trial, was there?  The questions relating to the Charter and the constitutional questions only arose in the Court of Appeal.

MS WALKER:   Yes, your Honour is correct in relation to the conduct of the original trial and the appellant would be content not to press that point, but in the Court of Appeal, of course, the Charter issues were raised.  Those do have the same character of fundamental importance and in that respect the appellant would maintain her submission in relation to the Court of Appeal costs.

GUMMOW J:   Perhaps in addition to section 26 you need to look at section 32, which we had to look at in Edwards v Santos Justice Heydon reminds me?

MS WALKER:   Yes, your Honour.

FRENCH CJ:   Thank you, Ms Walker.

MS WALKER:   Thank you, your Honours.

MR BURMESTER:   If it please the Court, the respondents and interveners have a proposal in terms of order of the address, if I could put that to the Court, and that is that I, on behalf of the Commonwealth Attorney‑General, should speak also on behalf of the second respondent, Victoria, New South Wales, Western Australia, South Australia, Tasmania and the Australian Capital Territory in relation to questions 1 to 3, the inconsistency issues.  South Australia may then come next and supplement briefly what I might have said on questions 1 to 3, and then the first respondent, Victoria, Western Australia, New South Wales and Tasmania would follow primarily not to speak on questions 1 to 3 but to deal with the other questions as they see fit, if that is agreeable to the Court?

FRENCH CJ:   Yes, Mr Burmester.

MR BURMESTER: Thank you, your Honour. We have distributed an outline which stays very closely to the further written submissions that were jointly submitted by the second respondent and the intervening Attorneys. Before turning to the specific questions, as those written submissions make clear, it is important, in our submission, to consider first the question of the purpose of section 109 and then the test for inconsistency because that clearly informs the answers one gives to the specific questions.

In our submission, section 109 is there to resolve questions of inconsistency and until one finds a situation of inconsistency, it has no role or place in the resolution of the issue. It is not, in our submission, there to ensure that there are never concurrent or cumulative duties arising from different legal systems. It is only if those concurrent or cumulative duties do, in fact, involve an inconsistency that section 109 would operate and so, in our submission, it would be an error to imply from section 109 itself some additional constitutional purpose or effect such as to establish in some way a single law system or to support some broad presumption that once there is a Commonwealth offence no other offence is allowed to operate.

In the Metwally decision (1984) 158 CLR 447, where there was this reference to the concerns about the citizen knowing the position, that was in the context of a very unusual situation where the law had been changed retrospectively and the Court said a citizen was entitled to know at the time conduct was committed which of two inconsistent laws applied, but that is all that the statement in Metwally about the concerns to protect the citizen was concerned with. In our submission, it does not support any broader purpose being given to section 109.

If I can then briefly go to the test for inconsistency as was said in some detail by the Commonwealth Solicitor at the last hearing, particularly in transcript at lines 7805 to 8010, the starting point for inconsistency is always legislative intention or the construction of the statutory provisions in accordance with the words, the context and their purpose.

FRENCH CJ:   It is construction first, is it not?

MR BURMESTER:   It is construction first.

FRENCH CJ:   Legislative intention is really an “after the event” statement that we got it right.

MR BURMESTER:   I understand that, your Honour.  I use them interchangeably.  But construction, that is right.  It is a question of construction.

HAYNE J:   Well, the metaphor is apt to mislead.  The metaphor misleads because it suggests that we are engaged in some collective psychoanalysis, and we are not.

MR BURMESTER:   I accept that, your Honour.  It is a matter of construction - looking at the statutory provisions, the words, the context, the purpose.  So that is the starting point in an inconsistency situation.  Your Honours, I am sure, do not need to be taken to the statement in the McLean Case yet again, 43 CLR 472 at page 483 where Sir Owen Dixon makes this focus clear.

GUMMOW J:   Sir Owen Dixon never used this expression “covering the field”, I think in the 1930s cases.

MR BURMESTER:   That is true, your Honour, and what I was going on to say was really the references that then follow to direct or indirect, or direct and covering the field, are really different ways in which one concludes, as a matter of construction, that Parliament has indicated how its legislation is to work.

GUMMOW J:   Well, there may be an express negative or there may be an implicit negative, I suppose.

MR BURMESTER:   That is true, your Honour.  We would caution against applying labels to types of inconsistency whether direct or covering the field as Telstra v Worthing indicated.  There are dangers in getting too focused on constructions, or tests or names, rather than looking at as a matter of construction how does this Commonwealth law operate alongside the relevant State law that is alleged to create an inconsistency.

GUMMOW J:   When you say “operate”, that brings into play another idea of Sir Owen Dixon, does it not - the Kakariki idea where the legislation confers a power.

MR BURMESTER:   Yes, your Honour.  That is certainly one of the examples ‑ ‑ ‑

GUMMOW J:   It is sort of a delayed scrutiny, as it were.

MR BURMESTER:   Until someone does something then the conflict does not arise; there is no ‑ ‑ ‑

GUMMOW J:   How does that match up with two criminal laws and two possible prosecution authorities?

MR BURMESTER:   Yes, your Honour, if I can go then to the specific questions.  The first question asks about elements.  As the McWaters v Day Case (1989) 168 CLR 289 at page 296 makes clear, the mere fact of differences, whether in elements or other aspects, does not provide an automatic answer as to whether you have an inconsistency in ‑ ‑ ‑

CRENNAN J:   At the end of the day, the simplest way of putting the test is you have to ask, do you not, whether there is a real conflict between what the Commonwealth is providing and what the States are providing?

MR BURMESTER:   Yes, your Honour, and that conflict may emerge in one of two ways.  There may be a direct conflict and it may be the conclusion that in the sense, as we have set out in paragraph 13 of the written submissions, a direct conflict in the sense of “alter” or “impairing” the Commonwealth law, the operation of the Commonwealth law, and one example of that altering or impairing is that the State law would take away a liberty or right which the Commonwealth law confers.  So that is one way you conclude there is a conflict.  Another way you might conclude there is a conflict is that, as a matter of construction, one concludes the Commonwealth law is intended to be the exclusive statement on the matter.

CRENNAN J:   But however you approach it, the conflict has to be a real conflict.

MR BURMESTER:   Yes, your Honour.

CRENNAN J:   That is the touchstone, in a sense.  It is in many of the cases.

MR BURMESTER: Yes, until you get to an inconsistency, or until you get to a conflict, section 109 has nothing to do. So, yes, your Honour, we agree. You have to find a difference that is properly characterised as a conflict. What we say is that one does that by a matter of construction. In relation to elements of offences, it may be easier to find a direct conflict in the sense of an impairment to the operation of a Commonwealth law if the elements are different - and hence in Dickson, where there was an inference that there was a clear intention not to occupy a particular area there was found to be a direct conflict.

CRENNAN J:   If you accept that it is possibly not enough just to look at the elements, if you accept that you should consider not only the command but also the sanction which is involved in the exercise of judicial power, and if you have different penalties in the context of the same offence, cognate offences being covered, the question becomes, does it not, do you get a real conflict arising in that setting?

MR BURMESTER:   Yes, your Honour.  I think the joint submissions make clear approach questions of elements rather differently from issues of penalties or proof or sanctions ‑ ‑ ‑

HAYNE J:   Why do you approach them differently?  Is it because one is part of the law and the other is not, for 109 purposes?

MR BURMESTER:   No, your Honour.

HAYNE J:   Why are they different?

MR BURMESTER:   They are different because the element is the norm of conduct ‑ ‑ ‑

HAYNE J:   Yes.

GUMMOW J:   If we are talking in Austinian terms, for a minute, that is only part of the story, is it not? 

MR BURMESTER:   Yes, your Honour.

GUMMOW J:   Command plus a sanction.  That is the law, is it not?

MR BURMESTER:   But we would submit that things like penalties or mode of trial or sentencing do not go to the norm of conduct and may give rise to ‑ ‑ ‑

GUMMOW J: They may not, but they are necessarily part of the law for section 109.

MR BURMESTER:   Yes, your Honour, I am not denying that.

GUMMOW J:   Otherwise you are just looking at it as part of a text.

MR BURMESTER:   I am not denying that they are part of the law one construes.  However, in terms of finding a direct conflict we say that things like sentence, penalties and so on do not give rise, are not capable of giving rise to direct conflict.

HAYNE J:   Why?  You say it does not, but why?

MR BURMESTER:   Your Honour, if there is a clear intention by the Commonwealth that ‑ ‑ ‑

HAYNE J:   No.  Leave aside intention, Mr Burmester.  Intention is a metaphor that will mislead us.

MR BURMESTER:   Sorry, your Honour.  If there is a statement, such as section 300.4 ‑ ‑ ‑

HAYNE J:   We shall come to the significance of 300.4.  That is a delight that awaits us both, Mr Burmester.  Let us leave 300.4 aside.  You say we treat the statement of maximum sentence differently from the way in which we treat the statement of the norm.  My fundamental question is why?

MR BURMESTER:   Your Honour, in our submission, one cannot leave statements about construction to a second stage.  One can only answer the question of whether there is a direct conflict having regard to a provision like section 300.4.  It would be a mistake, in our submission, to somehow ask yourselves the question, is there a direct conflict and then say, can it be taken away by then looking at that provision.  It is part of the total construction exercise.

HAYNE J:   That assumes, does it not, that direct conflict turns upon what you describe as intention, is that right?

MR BURMESTER:   Yes, your Honour.

HAYNE J:   That is, the test is, you put in point 3 of your written outline handed up, the test for inconsistency always turns on Commonwealth intention, is that right?

MR BURMESTER:   Yes, your Honour, that is correct. 

HAYNE J:   Is that not to make one if not two logical errors; first, to confuse what is sufficient for inconsistency with what is necessary and, second, to confuse premise with conclusion?  You take what is sufficient for inconsistency, namely, intention ascertained in accordance with construction and you say that is sufficient to get to the answer of inconsistency and you then flip that proposition and say not only is it sufficient, it is necessary.  Why do you do that?  It may be that you should, but why?

MR BURMESTER:   Your Honour, the reason we say it is central is because one is construing a set of Commonwealth provisions and asking yourself, how do they interact with a set of State provisions, and the first step you have to do is to construe those Commonwealth provisions in order to find the way in which there is any contradiction, conflict running up against or alongside the relevant State provisions.  That is why we say it is the starting point and it informs all examples of inconsistency.  It is not as if one only sees it as relevant, where there is covering the field or some indirect inconsistency.  One sees it as the starting point in all cases.

In working out, as a matter of construction, the way in which the State and Commonwealth laws interact, if one can find different commands as in offences with different elements, then it may be easier to conclude there is a direct conflict and general statements of construction may not be able to overcome that direct conflict.  So, in some of the cases we see statements that provisions like section 300.4 were in the Code are only relevant in situations of indirect or covering the field inconsistency.  That assumes that as a matter of construction one has reached the conclusion there is a direct conflict and that that particular statutory provision cannot, as it were, necessarily achieve what on its face it would seem to achieve because there is, as a matter of construction, some direct conflict.

KIEFEL J:   Where the conduct dealt with by Commonwealth and State laws is substantially the same and the difference lies in the penalty, what might be relevant to determining the intention of the Commonwealth law with respect to penalty for the subject matter?  Does one look to matters such as whether or not a different sentencing regime might impair or detract from the Commonwealth’s decision – the federal law’s decision to deal with the subject matter with the particular consequences that attach to it.  If so, how does one assess this in relation to sentencing?

MR BURMESTER:   Well, your Honour, it is a case of looking at the full picture.  In our submission, it would be a mistake to have a series of boxes.  Are the penalties the same?  Is the mode of trial the same?  Are the sentencing principles the same? 

KIEFEL J:   But one has to determine ‑ ‑ ‑

MR BURMESTER:   Once you put a cross that somehow you have an inconsistency you have to look at the whole picture.

KIEFEL J:   Yes, yes, I know, but do you not have to look at what it is about the operation of the State law with respect to sentencing for the same conduct that might have an impact upon the Commonwealth law?  Is that not what was left open in Ex parte McLean when Justice Dixon said there might be an inconsistency where there are differences in sentencing but that is because it reveals something about the intention of the Commonwealth law.

MR BURMESTER:   Yes, your Honour, and what it might reveal is that the Commonwealth law is intended to be the full and exhaustive statement on the particular issue.

KIEFEL J:   How does one determine that by reference to something like sentencing?  That is the conceptual difficulty I have, sentencing for the same subject.  If you see it as a composite that answers your question, that means that sentencing attached to the conduct simply means that once conduct and sentencing, as they must do, are dealt with together then there is your answer.  If conduct – if the federal law deals with that conduct then you have potentially an inconsistency where the sentencing is different but surely it must be more complicated than that.

MR BURMESTER:   Well, it is, your Honour, as I said.  It is not a question of simply looking for differences and once you find any difference you therefore say there is a direct conflict.  The two laws cannot co‑exist.

KIEFEL J:   So what are we looking for where the difference lies in penalty?

MR BURMESTER:   In the joint submissions we submit that you look first at the elements of the offence and if they are the same then there is no direct inconsistency.  One can comply with the same command.  One shall not possess drugs – that is the same command, Commonwealth and State.  You then go on for the purpose of seeing if the Commonwealth law is intended to be exhaustive and any other operation of the State law on it would intrude into the area that the Commonwealth has claimed for its own.  You may, as in Dickson, find that the Commonwealth has dealt with a specific particular area, Commonwealth property, and the surrounding circumstances suggest that it was designed to be the law on the subject of Commonwealth property.

Here, where you have two general laws, you look to all the circumstances.  There may be differences in sentencing, in mode of trial, in penalties, but the question is are they such that you conclude that there is no room for that State law to operate alongside it?  In our submission, when one has a provision like 300.4, it is much easier to conclude that there is room for the two to operate alongside each other.  There is no reason to conclude that there must only be one offence in the same area of conduct.

KIEFEL J:   I was really speaking – putting 300.4 aside because it says that, even if the penalties are different, it is meant to go side by side.  Putting that provision aside, how does one determine the effect on Commonwealth law where penalty is different?

CRENNAN J:   Could I perhaps just add to Justice Kiefel’s question, which may be of assistance – I do not know – but in the passage to which her Honour is referring in Ex parte McLean, his Honour Justice Dixon goes on to say:

If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties.

Following that through, and putting section 300.4 aside, are you mounting an argument of that sort?  I am agreeing with Justice Kiefel about the question – when you have cognate offences and different penalties, how do you articulate an argument that the Commonwealth law is supplementary?

MR BURMESTER:   Your Honour, in our submission, in answer to the questions from both of your Honours, the cases dealing with different penalties all find inconsistency only because they have concluded that the Commonwealth law was intended to be an exhaustive statement on the issue.  They do not reach the conclusion there is inconsistency simply because there are different penalties.

HAYNE J:   Or is the statement made in those cases, particularly in Hume v Palmer, of an intention to legislate exhaustively to be understood simply as expression, in other words, of the consequence of 109?  It is this confusion between premise and conclusion that I invite attention to.  We can see through many of the 109 cases statements to the effect the Commonwealth law is the sole repository of the rules that govern this area, but is that a statement of conclusion or is it, as you have it, a premise from which 109 argument proceeds?

MR BURMESTER: Your Honour, until – as I said at the very beginning – you find any inconsistency, in our submission, section 109 does not come into play. So in order to find an inconsistency, yes, you may have to reach a conclusion that the Commonwealth law is intended to be exhaustive. You may have to find a direct conflict in terms of the norms of conduct.

FRENCH CJ:   Now, that question whether a Commonwealth law is intended to be exhaustive, how does that differ from the question whether the Commonwealth law is exhaustive?  Are we are conjuring some sort of emergent property in the first case which does not exist in the second?

MR BURMESTER:   No, your Honour.  I do not think I am trying to make a distinction there.  As a matter of construction, do you conclude the Commonwealth law is exhaustive?  It is not.  If I am falling back into that intention and prospective or something, I apologise.

FRENCH CJ:   Well, it is there in the cases.

GUMMOW J:   Can we look a little more closely at 483 of McLean that Justice Crennan and Justice Kiefel were asking about?

MR BURMESTER:   Yes, your Honour.

GUMMOW J:   Like some of Sir Owen Dixon’s statements, it is a bit terse.  He refers to Hume v Palmer.  If one looks at Hume v Palmer, the regulations were in the same terms about what the captain of the vessel had to do, I think.  The New South Wales regulation and the federal regulation, they were both copied from the Merchant Shipping Act of 1894, the imperial Act, but the point was that if you went on, I think, and you looked at the New South Wales statute, which is the Navigation Act of 1901, you found in section 115 that as a matter of State law you had to have a wilful default.

MR BURMESTER:   Yes.

GUMMOW J:   That is wrapped in the penalty prosecution provision of section 115.

MR BURMESTER:   Yes.

GUMMOW J:   At 258 of a federal Navigation Act said, well, in cases of a wilful default there has to be an indictable offence.  If it is not wilful, there can be a summary offence.  That opened up, it seemed to me, a relevant contrast ‑ ‑ ‑

MR BURMESTER:   Yes, your Honour.  Hume v Palmer, in our submission, is not a case that turns simply on a difference in penalty. If one looks at page 450 in 38 CLR 441 in Justice Isaacs’ opinion, bottom of page 450, he refers to three factors that led him to the conclusion that there was no room for the State law.

GUMMOW J:   Well, he latched on method of trial.

MR BURMESTER:   General supersession, the jurisdiction to convict summarily, the penalty.  It is only one of the factors.

GUMMOW J:   But the penalty was wrapped up with the method of trial and the penalty was wrapped up with an element of mental attitude on the part of a ship’s captain. 

MR BURMESTER:   That is right, your Honour.

GUMMOW J:   So they were all locked in together somehow.

MR BURMESTER:   They looked at all the factors and concluded that the Commonwealth law operated to cover the whole subject matter of the State regulations.  That is clear in Justice Starke’s judgment at the top of 462 and ‑ ‑ ‑

GUMMOW J:   It is not all that clear in Chief Justice Knox, though, at 448.

MR BURMESTER:   Well, even in Chief Justice Knox’s judgment, your Honour ‑ ‑ ‑

GUMMOW J:   He says the rules were substantially identical but the penalties differ.

MR BURMESTER:   That is right.

GUMMOW J:   That is not quite accurate.

MR BURMESTER:   That is right.

GUMMOW J:   If the rules were innocent of notions of wilful default, which very much entered into the method of trial and the penalty, I think.

MR BURMESTER:   Yes.  So, in our submission, Hume v Palmer is not a simple case of saying there is a difference in penalty, therefore there is an inconsistency but rather, having looked at all the circumstances, the proper basis of that decision was that the Commonwealth law is intended to occupy the field.  It was because Justice Higgins reached a different conclusion on that that he was in dissent.

KIEFEL J:   Hume v Palmer, of course, deals with quite a different topic.  Chief Justice Knox at 447 describes the Commonwealth law as providing:

a code of rules for avoiding collisions which is intended to be the law –

regardless of place, so he is talking about the whole means of collisions of ships.  Likewise, Justice Starke at 462 refers to a:

code of sea rules “a uniform whole,” –

and it is in that context that different sanction – his Honour goes on to say –

It is not difficult to see that the Federal code would be “disturbed or deranged” if the State code applied a different sanction –

in that context.  Absent that particular context and that preliminary conclusion about it offering a code, it might be difficult to say that sentence alone can impair or detract.

MR BURMESTER:   That is certainly our submission, your Honour; that is right.

KIEFEL J:   Here we are in an area of criminal law which – I think South Australia spent some time upon this in its earlier submissions – it may be difficult to avoid the historical understanding of the States dealing with criminal law in their own field and the Commonwealth doing likewise.  It might be different to come to this with a slightly different perspective.

MR BURMESTER:   Yes, your Honour, and the South Australian Solicitor may say some more about that.

CRENNAN J:   A piece of legislation may start its life as an intended model code but not finish up there, as it were.

MR BURMESTER:   That can happen all too often, your Honour, yes.  The lack of uniformity, in our submission, is not a basis by itself to conclude that the Commonwealth law must operate to the exclusion of any State with a law occupying the same criminal law area.

KIEFEL J:   Indeed, one might say that an attempt by the Commonwealth to lead the way in relation to achieving uniformity might itself be an acknowledgment of concurrent laws intended to operate concurrently with the desire that they at some point mesh, but that might be too generalised.

MR BURMESTER:   Yes, your Honour, and often one jurisdiction will lead the way and others may come along slightly later.  In our submission, it should not – the fact that there is a minor difference between 10 and 15 years, for instance, in penalty should not be critical.

HAYNE J:   I would hate to see a major difference, Mr Burmester.

MR BURMESTER:   Well, a major difference may well be ‑ ‑ ‑

HAYNE J:   Five years is five years.  It is not to be dismissed as a minor difference.

MR BURMESTER:  A summary offence – it is a difference, your Honour.  Adjectives are always dangerous.

HAYNE J:   Yes.

MR BURMESTER:   It is a difference, but one can have some differences that lead you to suggest, well, the Commonwealth legislative policy for instance is to treat this as a very serious crime, while a State policy may be to treat it as a summary jurisdiction, on the spot fine situation.  Faced with that sort of difference one may reach a quite different conclusion from a set of regimes that seem to be able to operate in parallel where the elements of the offence are essentially the same and, yes, there may be differences in trial and maximum penalty, but in terms of outcome one could properly conclude that the Commonwealth did not intend to exclude the State law and that there is no direct conflict.

HAYNE J:   But can I just follow that point out with you a little further.  You accept, do you, that if we flipped the example you gave of the Commonwealth providing lesser penalty, significantly lesser penalty, than State law did for a particular crime, that there may come a point where the difference in penalty is such that there is impair, altering or detraction? 

MR BURMESTER:   Or that the Commonwealth should be taken to have clearly spoken in this field and, that is right, a State law would either alter or impair but more likely would intrude into an area where the Commonwealth has spoken.  It is said this particular type of conduct should be treated leniently and if the State comes along and says it should be treated harshly, then one can say that they are incompatible in the sense the Commonwealth law covers the field, it has spoken on the matter.

KIEFEL J:   But does that mean that you can have a degree of effect in the operation of the State law from which inconsistency might be inferred?  That inconsistency might depend upon the degree of effect.

MR BURMESTER:   Well, your Honour, yes.  I mean, it is not scientific, it is not a question of ticking boxes, it is not a question of saying, well, there is a 10 per cent difference here and ‑ ‑ ‑

KIEFEL J:   Quite so, but that might be taken up in words such as “detract” or “impair” which are qualitative assessments.

MR BURMESTER:   Yes, that is right, your Honour.  It is an exercise in construction.  You may have to reach those sort of judgments.  It is not a necessarily simple tick a box answer.

GUMMOW J:   You may have to because of the phrase “to the extent”.

MR BURMESTER:   Yes, your Honour.  It is only to the extent you conclude there is an inconsistency.  However, when you reach that conclusion the State law ceases to operate, is it becomes inoperative.

FRENCH CJ:   The way you expressed it earlier in terms of difference in penalty and the Commonwealth says this past conduct is to be treated leniently, relatively speaking, then a State comes along and passes a law which treats the same class of conduct harshly, that would not be a question of exhaustive legislation by the Commonwealth.  That rather sounds like a case of direct inconsistency, does it not?  I just wondered how you were characterising it.

MR BURMESTER:   Your Honour, I am trying to still keep it in the class of exhaustive statement by the Commonwealth rather than direct inconsistency because in the joint submissions we say things like penalties, the consequences, if you like, of the normal conduct only give rise to, covering the field, indirect inconsistency.  They cannot in themselves give rise to direct inconsistency.  So where you find entirely different penalties, that helps you reach the conclusion that the Commonwealth intended to cover the field exhaustively because it has clearly expressed a particular policy there.

FRENCH CJ:   You cannot use a State law to construe the Commonwealth law.  The question whether the Commonwealth law exhaustively deals with a particular topic is a question to be answered by reference to the Commonwealth law, not by reference to a State law, which might come along later.

MR BURMESTER:   Your Honour, though, when the State law comes along later that is when the question of inconsistency may arise.

FRENCH CJ:   That is when it arises, but the constructional question is logically anterior, is it not, so far as the Commonwealth law is concerned?

MR BURMESTER:   I understand what your Honour is saying.  I am not sure that the State law is entirely irrelevant in that process.  I agree that the primary issue is the construction of the Commonwealth law.  If the Commonwealth law clearly says it is intended to operate alongside State laws, then, in our submission, the State law that comes along and it seems similar in many respects, may clearly be able to operate alongside it, you may conclude that the Commonwealth did not intend to cover the field. 

On the other hand, if one is presented with an entirely different State law, you might reach the opposite conclusion, the Commonwealth did intend to cover the field because – in other words, there may be scope for State laws to operate if they take a particular form, if they also treat the conduct as serious.  There may not be scope to operate if they treat it as lenient.  So one, in a sense, has concluded as a matter of construction what the scope of common law is, but you do not need to ask the question.  You do not want to ask what was it intended to do until you get a State law to put alongside it where the question arises.

So while in a case like this you might conclude State law and the Commonwealth offences, they are essentially the same or similar, they are based and derived from model code work, the Commonwealth intended there to be scope for State laws, the answer that you give in another situation but an entirely different State law may be, well, it intended there to be State laws but only State laws of a certain character.  You will not ask the question until you get the State law to which you are comparing the Commonwealth law.  I do not know if that answers your Honour’s question.

FRENCH CJ:   You are answering it by reference to provisions of the kind found in 300.4.

MR BURMESTER:   Yes, your Honour.  Just before I turn to that provision and concurrent operation, just in relation to sentencing principles, in our submission, sentencing principles – differences in sentencing principles alone cannot give rise to inconsistency as the joint submissions indicate, particularly in paragraph 16 and by reference to the Putland Case (2004) 218 CLR 174. The reality is that in many instances the sentencing principles applied to Commonwealth offences will differ depending on the State in which the trial has taken place.

So in our submission, sentencing principles are very unlikely to help in reaching conclusions whether or not there is an inconsistency.  Despite the differences, the bottom line is generally that the key components will always be the same as they stand at present - prior convictions, the quantity of the drugs.  In our submission, one cannot derive any real assistance from sentencing principles.

HAYNE J:   Would that be so if there were State legislative prescription of things like standard minimum terms or standard non‑parole periods?  That was the Hili and Jones issue.

MR BURMESTER:   Yes, your Honour.

HAYNE J:   In the sense that it affects directly the amount of time the offender spends inside.

MR BURMESTER:   I would have classed those sorts of things under the penalty rather than sentencing principles.  I can see that they merge into each other.  In terms of sentencing principles if one is talking about the general discretion the judge exercises when reaching a sentence, in our submission, they are not the sort of thing that gives rise to inconsistency.  If they are more substantive things like – they are dealt with in a certain way, one always goes to gaol, that may be relevant in the penalty context.  Again, they inform this debate, this matter of construction.

HAYNE J:   And necessarily yield, do they, to a statement of negative intention of the kind found in 300.4?

MR BURMESTER:   If the differences are in these consequential matters, in our submission, yes, your Honour.

HAYNE J:   Consequential matters are everything except the norm. 

MR BURMESTER:   Yes, your Honour.

HAYNE J:   The law is to be approached from a two‑step process of the norm.  You look at double obedience, do you?

MR BURMESTER:   Yes.

HAYNE J:   And what else?  Other matters come to intention, do they?

MR BURMESTER:   They come to intention.  This is our submissions, your Honour.  If I can come then to question 3 which deals with the meaning of concurrence.  In our submission, a provision like section 300.4 has both substantive effect in that it makes it clear one can contravene both Commonwealth and State laws at the same time, and it may have consequential effect in the sense that it may enliven different powers to prosecute under the different legal systems which, as a matter of substance, are able to operate.

In the meaning of “concurrent” we have given in our outline a reference to a case in the Federal Court of Grace Bros Pty Ltd v Magistrates, Local Courts of NSW where Justice Gummow, when on the Federal Court, considered the meaning of “concurrent” and we do not consider that our submissions say anything different.  It can mean that two substantive laws can operate at the same time.  That is one of the ways in which concurrent can take effect.

In particular, the fact that it gives rise to prosecutorial discretion does not, in our submission, give rise to any difficulties in terms of section 109. It simply means that if one reaches the conclusion that the two laws in the two different systems can operate at the same time, alongside each other, then different powers to prosecute are enlivened. That is nothing unusual. The choice that is made will occur in the usual working outs of these sorts of things. Whoever has investigated the offence may be the more likely person to prosecute, but we say there is nothing contrary to any constitutional purpose of section 109 that arises from the fact that there are choices as to which legal system one finds oneself prosecuted under.

GUMMOW J:   You say the two powers are enlivened.  Does a question then arise where there is an exercise of one but not the other?

MR BURMESTER:   Yes, your Honour.  It may be like the Kakariki Case. Once one polity enlivens the power, then that may, as it were, effectively exhaust the ability of the other to intrude, but is not this case, but the mere existence of these two powers does not give rise to inconsistency or display anything that is not consonant with the purpose of section 109. It is really something that results from the fact that one has reached the conclusion that

because there is no direct conflict there is an ability for the two laws to operate alongside each other. 

The statement by the Commonwealth Parliament that it wishes there to be concurrent operation is able to be given effect and once one gives effect to that so that one has two substantive laws operating at the same time, then prosecutorial discretion just arises under the respective systems in the ordinary course of matters.  Your Honours, unless there are any more questions, that is all I propose to say on questions 1 to 3 on behalf of the respondents and the intervening States.  The Commonwealth relies on its written submissions in relation to question 5.

GUMMOW J:   You have dealt with 300.4, I suppose?

MR BURMESTER:   I had thought I had, your Honour.

GUMMOW J:   Yes.  I was wondering if you were not the author of these provisions.  You do not have to answer that.

MR BURMESTER:   I would never claim that, your Honour.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Burmester.  Yes, Mr Solicitor for South Australia.

MR HINTON:   If the Court pleases, we have handed up rather a fulsome note that is intended to supplement paragraph 23 of the joint submissions.  That paragraph, of course, deals with the practical implications in general terms of concurrent federal and State powers to investigate and prosecute criminal offences.  I do not propose to go through it, it is provided to the Court for the Court’s assistance.  We have used South Australia as an exemplar and we have attempted to demonstrate that there are within the system protections.

The primary authority that your Honours may wish to have regard to, of course, is that of Pearce v The Queen in this Court which deals in passing with double prosecution, the pleas in bar, double punishment and the availability of a stay in the event that there is a second prosecution on substantially the same facts, but, of course, the pleas in bar are not satisfied. 

One other case that perhaps your Honour Justice Gummow may be interested in is that of R v Lipohar. The citation I believe is in the footnotes to the joint submissions, 200 CLR 535. I say it may be of interest to your Honour, minded of that last interchange between your Honour and Mr Burmester, because that was a case involving a conspiracy perpetrated somewhere between Thailand, Queensland, Victoria and South Australia where there was but one overt act committed in South Australia. The question was, was there an offence known to the law of South Australia?

It concerned a fraud upon a South Australian corporate entity with respect to a building in Melbourne.  It was equally open then to the Victorian authorities to prosecute for the fraud as it was to the South Australian authorities.  All that had happened was that the South Australian authorities got in first; the primary reason for that was because the victim was South Australian and the victim stood to lose the billions or whatever in the rent‑free period. 

The point is there are in combination with prosecutorial discretion, pleas in bar, stays, delegations between Commonwealth and State directors means by which concurrent offences for a long time have been prosecuted without the sorts of difficulty that arise in the theoretical case of someone being twice vexed for in effect the same act or omission.  Can I take up one other very brief point?

FRENCH CJ:   You point to the possibility rather than the actual existence of such arrangements for the purpose of the constitutional question?

MR HINTON:   Yes, your Honour.  In terms of the construction, CIC v Bankstown, it is part of the context, is it not?  It does not necessarily help you when one comes to the specific language but it is part of the existent context against which the Commonwealth Parliament then enacts its series of serious drug offences, and in particular 300.4.  Your Honour Justice Hayne and other members of the Court were noting that, of course, there is the prescription as to the norm and the penalty, and the two go together, and of course, there is implicit in that – and this is the issue I want to deal with very quickly – the implication that if you do this by virtue of an exercise of judicial power the penalty will be exacted.

Now, the implication that the penalty will be exacted after an exercise of judicial power involves two steps.  Firstly, that exercise has to be engaged and that is where we go to the powers of the directors.  Secondly, it is not necessarily implicit in that process of reasoning, the statement of the offence and the prescribed penalty, that the exercise of judicial power will follow the same in every case, mode of trial, if you like, same procedural steps.  So when one starts comparing mode of trial, we suddenly find ourselves looking at two different laws, not the same laws, unless it can be said that the law of the Commonwealth with respect to which there is the asserted conflict necessarily requires a particular mode of trial to be followed and, of course, that will arise where we have a Code that is self‑contained that deals with the matter in which the particular offences are to be prosecuted.  That is something that we do not have here. 

So then when we have that implication that the prescribed norm will result in a penalty, assuming the judicial power is engaged and exercised, we have a minimum content of the judicial power, but it does not allow us to go any further in terms of statutory construction in this case to look at the particular mode of trial because there is no indicator that a particular mode of trial must be undertaken before you can find a person guilty of this particular law.  Similarly, the implicit exercise of judicial power in arriving at the appropriate penalty there is no indicator as to the process that will be engaged there.  If the Court pleases, those are my submissions.

HEYDON J:   Mr Solicitor, at the start you mentioned a fulsome submission in support of paragraph 23 of the joint submissions.  That is something distinct from your oral submission, your outline, oral argument, is it?

MR HINTON:   Sorry.  It is to supplement that, your Honour, yes.  Have I answered your Honour’s question?

HEYDON J:   I have oral submissions of the Attorney‑General for the State of South Australia intervening.

MR HINTON:   Yes.

HEYDON J:   Is there another document?

MR HINTON:   No.  That is intended to supplement the joint.  Sorry, your Honour.  Thank you, your Honours.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Silbert.

MR SILBERT: If the Court pleases, the first respondent regards itself as largely redundant in relation to the section 109 question. The essential points raised by Justice Crennan as to where the real conflict is and by your Honour Justice Hayne as to what is sufficient and what is necessary obviously makes necessary some sort of quantitative assessment in order to reach a premise and then follow through to a conclusion. We do not think we can add anything to what the Commonwealth has put in the joint submissions with the States in relation to questions 1 to 3.

My learned friend, the Solicitor‑General from South Australia, has just referred in his submission to protocols in existence for the prosecution of State offences by the Commonwealth and Commonwealth offences by the State in South Australia.  There are similar protocols in existence in Victoria which govern the prosecution of offences by each authority in relation to the offences of the other jurisdiction.  In relation to the appellant’s application for costs, the submission simply is that there is

nothing exceptional that takes this matter out of the normal rule cited by my friend that would warrant a grant of costs.  I think probably then I can defer to the Solicitor‑General for Victoria whose submissions I propose to adopt.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Silbert.  Solicitor‑General for Victoria.

MR McLEISH:   If it please the Court, I propose to address the Court on question 5 in the Court’s letter.  The Attorney for Victoria adopts what has been submitted this morning by my learned friends, Mr Burmester and the Solicitor‑General for the State of South Australia, in relation to questions 1 to 3, as well, of course, as the joint submissions.

Your Honours, question 5, of course, is the question whether the diversity jurisdiction in section 75(iv) of the Constitution extends to criminal matters. I would say at the outset that it is not in issue, from our point of view, that a matter is capable of being criminal in nature. That was held by the two members of the Court, of course, in Kidman (1915) 20 CLR 425. That was a case about section 75(iii), of course, and much of what informed the reasoning in that case was the desirability or perhaps inevitability of the High Court having jurisdiction in criminal matters given that the Commonwealth could enact criminal laws. The introductory word “matters” in section 75, we accept, is capable of embracing a criminal matter. However, it is our submission that paragraph (iv) does not extend to criminal matters and we say that for several reasons. The first is that the flavour, if I can use that term, of paragraph (iv) is civil in nature. It reads:

between States, or between residents of different States, or between a State and a resident of another State –

So the words which, it might be argued, give rise to criminal jurisdiction in that paragraph are the concluding words “between a State and a resident of another State”.  We accept that those words are capable of a literal reading which extends to a criminal matter.  However, insofar as the drafting history reveals anything, we submit that it does not support that conclusion.  We also submit that to confer on this Court criminal jurisdiction in relation to such matters would serve no apparent constitutional purpose.

GUMMOW J:   This notion that there is a replication of Article 3 is a proposition that has some dangers to it, is it not?  In the first case, it is both too narrow and too wide.  In the first case, as I understand the diversity jurisdiction in the United States, it would not allow for custody disputes, divorce, whereas it clearly does here; Oregan 97 CLR 323. On the other side, in the United States residents includes corporations. It does not here. So there we are.

MR McLEISH:   We should really insert the word “relevantly” in paragraph 2 of the oral submissions, your Honour.  We accept there are all sorts of differences between the United States and the Australian position and they include the word “controversies”, of course.  They also include, as our learned friends for Western Australia point out, the greater preparedness in the United States to treat the states as separate countries or law areas.  That gives rise to further differences. 

GUMMOW J:   And as distinct sovereigns so you can understand why they would be nervous about criminal law.

MR McLEISH:   Indeed, your Honour.  So the reasons are quite different in both cases.  However, our submission is that it was the intention or the drafting history shows that what was intended was to replicate the United States position and relevantly, the United States position at that time plainly did not extend to criminal jurisdiction.

GUMMOW J:   It did not extend to other things, too, that are within Chapter III, so that is your problem.

MR McLEISH:   We accept that, your Honour.  There are two further aspects.  The first is that the reference to ‑ ‑ ‑

GUMMOW J:   History can be a help or a hindrance.  In this case, it might be a hindrance.

MR McLEISH:   It is only one element of our argument, your Honour, and if it was merely the United States position, we would not be making this argument.  The two other aspects we rely on in short are firstly that the drafting history shows that the words “between a state and a resident of another state” were a late addition to what had been, up to that point, separate clauses in successive drafts conferring jurisdiction in relation to matters between States on the one hand, firstly, and secondly, between residents of different States. 

All that appears in the Convention debates as your Honours would see from the secondary materials we have handed up is a very brief note.  It is at tab 6 that the Convention in 1898 simply adopted the additional words.  It is at page 1885 of the debates.  There was no discussion as to the reason for that.  We are not assisted by anything from the Convention.  Suffice to say that it can at least be said that there was no high constitutional purpose advanced for the addition of ‑ ‑ ‑

GUMMOW J:   The problem with these materials, which I think is a point Sir Garfield Barwick used to make, is we do not know what happened in the drafting committees. 

MR McLEISH:   We do not, your Honour.

GUMMOW J:   Any lawyer will tell you that is where it all happens.  What is then said in public may be another cup of tea.

MR McLEISH: We accept that, of course, your Honour. The final aspect though to which we point is that no apparent constitutional purpose is served by this Court having criminal jurisdiction in relation to matters in which one State brings prosecution against the resident of another State. The Constitution contemplates that criminal process would be served throughout the Commonwealth pursuant to laws of the Commonwealth in section 51(xxiv) and the States by virtue of having their own criminal laws and processes in any event had ample jurisdiction to try criminal cases against residents of other States. Processes of extradition and service of process were ‑ ‑ ‑

GUMMOW J:   It then engages federal jurisdiction. 

MR McLEISH:   ‑ ‑ ‑ were able to be dealt with in the exercise ‑ ‑ ‑

GUMMOW J: And it thereby engages section 73(ii) of the Constitution.

MR McLEISH:   Yes, your Honour, but ‑ ‑ ‑

GUMMOW J:   There is no Kirk problem.

MR McLEISH:   No Kirk problem but, similarly, no reason to read the words of section 75(iv) in the literal manner which would give rise to this Court having jurisdiction to conduct criminal trials simply by reason of the fact that the defendant was a resident of another State. So the words, we submit, are capable of being read either literally so as to embrace a criminal jurisdiction ‑ ‑ ‑

GUMMOW J:   There is another problem we you have to face too; what do you mean by criminal?  You said more than once that it is not a bright line.

MR McLEISH: It suffices for this case to say that we do not need to go near questions of penal laws in a private international law context, your Honour. They may likewise be treated differently. Our submission is that the words can be read both ways. The flavour of section 75(iv) is overwhelmingly civil in nature. It refers to disputes which are inherently civil and then adds words which are capable of being read in the way that is contended against us. We submit, that would have no apparent constitutional purpose.

FRENCH CJ:   What is the constitutional purpose on the construction for which you contend?

MR McLEISH:   The highest we can put it, your Honour, is that it was – and we really rely on what Cowen and Zines say in this regard by reference to the materials assembled there, at tab 1 – intended to follow what was done in the United States.  There has been much criticism of that in that the United States provision was thought to be in there for reasons of the avoidance of partiality among State courts and it has been pointed out in authorities and subsequent statements which Cowen and Zines refer to that that rationale really had no real application in Australia.  So it is difficult to identify any rationale, in our submission but a fortiori we say in relation to criminal jurisdiction.

BELL J:   You say that one cannot identify a constitutional purpose for the inclusion of criminal proceedings.  Do you submit that there is any particular inconvenience if they are included within 75(iv)?

MR McLEISH:   It is a level of complexity is the highest I can put it, your Honour, that the State ordinarily in criminal law, of course, makes its own laws.  It brings the defendant within the jurisdiction.  It conducts the trials and in the exercise of State judicial power it is an anomaly, we would submit, that there are occasions when that happens under State law in the exercise of federal judicial power and ‑ ‑ ‑

GUMMOW J:   That is overcome by section 68, is it not, of the Judiciary Act?

MR McLEISH: Largely, your Honour, but it is capable of giving rise to questions of residence. It is capable of giving rise to difficulty where one defendant is and one is not a resident of the particular State. There is a question of what time, at what point the question of residence is to be asked. So there are practical considerations, we would submit, that tend against the wider reading of section 75(iv). Your Honours, I do not know whether your Honours wish to hear from me briefly on the question of costs.

FRENCH CJ:   Yes, I think it would be helpful.

MR McLEISH:   Our submission in short is that there are no exceptional circumstances.  In relation to the matters that were raised by our learned friend, Ms Walker, the first point was that there were a number of issues not dealt with by the appellant - or that did not concern the appellant and that it was said that those extended the hearing time.  Our submission is that if they did not concern the appellant, and the matters I have just been submitting to your Honour are in that category, they would not have contributed in any appreciable way to costs, and nor did they contribute, we

would submit, in any significant manner to the hearing time.  The more substantial point that was raised was that this was a vehicle to raise questions of fundamental public importance.  As of that, we would submit that that is always the case where special leave is granted.  These are arguments that have been raised by the appellant.

GUMMOW ACJ:   Not just public importance, because they are constitutional questions, which will not always be true, hopefully, every time we grant special leave.

MR McLEISH:   Yes, your Honour, there is nothing exceptional about a case that has been granted special leave raising questions of fundamental public importance.  Reference was made to the change of position consequent upon the change in the Victorian Government.  That took place well before submissions were prepared for the hearing, and it is submitted that is not an exceptional matter either.

Finally, a submission was made based on Latoudis v Casey about the financial burden upon the appellant.  There is no material before your Honour to be able to ascertain the quantity of that burden or her ability to pay and that is not, of itself either, we would submit, an exceptional matter.  Ultimately, the matters that my learned friend referred to all flow from the arguments that have been put on her behalf in this Court.  If the Court pleases, those are the submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  Solicitor for Western Australia.

MR MEADOWS:   May it please the Court, my learned friend, Mr Mitchell, will present the Attorney’s submissions.

MR MITCHELL: If the please the Court, I will deal with two matters in oral submissions. One is to respond to the written and oral submissions of the Attorney‑General for Victoria asserting that the jurisdiction conferred on this Court by section 75(iv) does not encompass proceedings charging a resident of a State with an offence against a law of another State and, secondly, to add one reference to the section 109 issue and in the course of doing so deal with your Honour Justice Hayne’s question concerning premise and conclusion.

In relation to question 5, we have handed up our points of contention.  We say it is clear and we do not understand it to be disputed, that at least in some circumstances a criminal charge by a State authority under State law may fall within federal jurisdiction, for example, where there is a constitutional defence.  The question then is whether any different result follows where the asserted basis for the existence of federal jurisdiction is that criminal proceedings are between a State and a resident of another State.

The Victorian submissions point to the position of federation in the United States.  We say that is not of any assistance for two reasons:  firstly, that the term “matter” involves a broader concept than that of “controversies” in the relevant provision of the United States Constitution.  This Court recognised as much in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at the passages referred to at paragraph 1(a) of the outline. That appreciation that the concept of “matter” was broader than that of cases or controversies was appreciated at federation. At paragraph (b) we have referred to some of the contemporary material to that effect.

The basis on which in the United States the plurality jurisdiction has been seen to exclude criminal matters has been the application for the polities of that country of the principle of public or private international law that the courts of one country do not enforce the penal law of another.  That rule has been recognised in Australia as applying to the enforcement of the laws of other countries and we have referred to Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd 165 CLR 30 at 40 to 45.

As the discussion there indicates the rule was based upon the principle of comity of nations and the adverse impact on Australia’s international relations that may flow from Australian courts ruling on the validity of enforcement action taken by governments of other nations. The obvious point in the context of section 75(iv) is that the States are not other countries for the purposes of the exercise of federal jurisdiction. So much was recognised by this Court in Sweedman v Transport Accident Commission 226 CLR 362 at page 404, paragraph 35, where the Court noted, beginning at the very bottom of 403:

but it is not suggested that New South Wales should refuse to recognise s 104(1) on the grounds of its public policy. Section 118 of the Constitution would appear to foreclose any such reliance upon public policy (210).  Within the Commonwealth, considerations of the kind considered in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (211) would not arise (212).

A footnote reference to passages from the judgment of his Honour Justice Kirby – and we would also rely on what was said by the joint judgment at paragraph 2.

We say that the existence of federal jurisdiction potentially in State criminal matters is not without utility.  There is a matter to which

your Honour Justice Gummow adverted – that is, one engages the entrenched appellate jurisdiction of this Court in matters of federal jurisdiction.  One also may have a removal directly to this Court in an appropriate case of a State criminal matter.

In relation to section 109, can I identify first what we would put as a premise for our argument. That premise is that it is within the heads of Commonwealth legislative power. The Commonwealth may create norms of conduct and sanctions for contravention of those norms which are cumulative or supplementary upon State law. That seems, in our submission, to be the corollary of what was held in decisions such as the Native Title Act Case 183 CLR 373 at 466 to the effect that the Commonwealth can express an intention to exclude State law.

The question which then arises from that premise is one of construction, that is, whether the Commonwealth law is, in fact, cumulative or supplementary upon State law and in answering that question, one may have regard to statements of parliamentary intention and the significance of those statements of parliamentary intention is illustrated by the decision of this Court in the Work Choices Case 229 CLR 1 where one of the provisions challenged what was section 16 of the Work Choices Act, which appears at pages 159 to 160 of the judgment, including section 16(4) which provided:

This Act is intended to apply to the exclusion of a law of a State or Territory –

That is prescribed by the regulations for the purposes of this subsection, that is, the regulations, in a sense, could switch on or off the same substantive Commonwealth provisions either to exclude or not exclude State law.  The Court rejected the various grounds of challenge to that provision at pages 166 to 169 of that judgment.  If it please the Court, those are those submissions.

FRENCH CJ:   Yes, thank you, Mr Mitchell.

MR SEXTON:   If the Court pleases, in relation to questions 1, 2 and 3 in the Court’s letter, we do not wish to add to what has been said by Mr Burmester on behalf of the interveners, including ourselves.  In relation to questions 4 and 5, we have not previously and we do not now make submissions on those questions.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor.  Solicitor for Tasmania.

MR SEALEY:   Your Honours, we desire to make only one brief submission by way of emphasising the point raised by his Honour

Justice Hayne this morning that when it comes to the application of section 109, the question is, from first to last, a question of construction and not a question of intention. We are accustomed to speak in terms of the intention of Parliament but it really is, of course, the inferred intention rather than the subjective intention and the language of intention tends to deflect one from the real task which is to construe the Commonwealth law to determine what its scope of operation is and having completed that task, to then, in respect of any State law that might become relevant, to consider whether or not the operation of that State law intrudes upon an area which, on its true construction, the Commonwealth law has sought to occupy.

One of the issues that may be central to the issue of construction may be the legislative power of the Commonwealth in any given case and this case, in our submission, points up that matter because, as your Honours would be aware, section 300.1 of the Criminal Code (Cth), which is the first section in Chapter 9, again, unfortunately using the language of purpose which sounds rather like intention but nonetheless, refers to the fact that the purpose of the Part is to give effect to Australia’s international treaty obligations. That, in our submission, that fact, not only the statement but the fact that that is the source of the legislative power informs one’s construction of the operation of the Part. In other words, Part 9 of the Criminal Code can be seen as an enactment by the Commonwealth of provisions designed to ensure that Australia as a nation complies with its international obligations under that treaty.  So that if, for example, a rogue State were to repeal its drug laws, that would not mean that that jurisdiction, that part of Australia, was in breach of the treaty obligations. 

There was reference, I think, on the previous occasion to the purpose of this law being to cover gaps and I think it was his Honour Justice Gummow who indicated he could see no gaps. It may be that the use of the term “gap” is again a confusing metaphor. It is really not gaps that Part 9 is intended to plug, but rather that it is to operate as a kind of safety net or back stop against the possibility that State legislation may fail in an individual, or even more than one jurisdiction, fail to carry out and give proper effect to the international obligations which the Commonwealth has assumed. Having regard to that provision, it is, we submit, in this case relatively easy to conclude that on its true construction Part 9 of the Code was not intended to make exclusive legislative provision with respect to the subject matter with which it deals. May it please.

FRENCH CJ:   Yes, thank you Mr Sealey.  Yes, Mr Donaghue.

MR DONAGHUE:   Your Honours, the fourth question that the Court asked in its supplementary note concerned whether or not section 32 assists in resolution of the Crown question of whether section 5 of the Drugs Act applies to the phrase “possession for sale” in section 70.  The third

respondent has filed detailed written submissions in relation to that question and we propose simply to rely upon those submissions unless the Court has any questions in relation to them.

FRENCH CJ:   Thank you, Mr Donaghue.  Yes, Mr Moshinsky.

MR MOSHINSKY:   If your Honours please, the centre folder a short written submission in relation to question 4 and we propose to rely on our written submission, unless the Court has any questions.

FRENCH CJ:   Thank you, Mr Moshinsky.  Yes, Mr Croucher.

MR CROUCHER: Can I make three points in reply, your Honours. Firstly, as I understood it, Mr Burmester, on behalf of various parties, accepted that a difference in penalty, if sufficiently different, could be enough to give rise to inconsistency under section 109. If that is right then a fortiori a difference in a matter as fundamental as the burden of proof can be determinative of the section 109 question, either on its own or in combination with the difference in penalty that exists here – 15 years versus 10 years – and, as in Dickson, the section 80 unanimous verdict issue that arises here as well.

The second point we wish to make in reply is that Mr Burmester, as I understood it, said that a norm of conduct can be assessed by reference only effectively to the double obedience question.  We say that the authorities make clear that an impairment of a liberty or right under the Commonwealth law that the Commonwealth law confers is enough, in and of itself.  Here, because of the reverse burden of proof in section 5, if drugs are found on an accused person’s premises without more that accused person is guilty of the offence of possession and may be guilty of the offence of trafficking, based on possession for sale unless the accused proves, on the balance of probabilities, that he or she was not in possession, whereas, under the Commonwealth law one is presumed to be innocent of trafficking or possession in those same circumstances when drugs are found on one’s premises. 

That right or liberty, namely, the right or liberty to be presumed innocent, the one expressly conferred by sections 13.1 and 13.2 of the Commonwealth Code, is thereby removed by the State law and therefore within the meaning of the authorities alters, impairs or detracts from the Commonwealth law.

The third point we wanted to deal with was on the question of costs and we make four sub‑points about that.  Firstly, it is said against us that these are not exceptional circumstances.  Well, if ever there were exceptional circumstances, these are exceptional circumstances.  Secondly,

insofar as it is said, well, there are questions that we have not contributed to, well we still have to consider them on behalf of the appellant obviously. 

Thirdly, a recent case in this Court where an undertaking was given by the Crown to pay costs in a test case type of matter was R v Tang (2008) 237 CLR 1, and at paragraph 58 of the reasons that is briefly explained, and of course, the Court made the order for costs. An undertaking was made by the Crown, but it is not uncommon for the Crown in such cases to given an undertaking like that. It often happens obviously in tax cases, but the Court has never doubted its power to make those sorts of orders. Fourthly, whilst we do not press the claim for costs for the trial, if the section 109 point succeeds in any form, then there ought not to have been a trial in this case at all. That is pretty exceptional, it is submitted. Those are our submissions.

FRENCH CJ:   Thank you, Mr Croucher.  I notice, Ms Perry, that the ACT had joined in with the joint submissions.  Is there anything you wanted to add?

MS PERRY:   No, your Honour, we were content to rely on the joint submissions which had been filed by the second respondent and also the oral submissions of Mr Burmester.  In addition, we agreed with paragraphs 3 to 15 of the third respondent’s further submissions on question 4 dealing with the construction of section 32 of the Charter.

FRENCH CJ:   Thank you.

MS PERRY:   Thank you.

FRENCH CJ:   All right.  The Court will reserve its decision and adjourns to 9.45 am tomorrow morning for pronouncement of orders.

AT 12.25 PM THE MATTER WAS ADJOURNED