Momcilovic v The Queen & Ors [2011] HCATrans 16
[2011] HCATrans 16
[2011] HCATrans 016
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
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 9 FEBRUARY 2011, AT 10.18 AM
(Continued from 8/2/2011)
Copyright in the High Court of Australia
__________________
MR GAGELER: Your Honour the Chief Justice asked yesterday for an indication of the proposed order of address of the interveners following the first and second respondents.
FRENCH CJ: Thank you.
MR GAGELER: The proposed order is first the Commonwealth, then New South Wales, then South Australia, then Western Australia, then the Australian Capital Territory, and then, if at all, the amicus. In terms of timing, your Honours, I would seek 45 minutes to an hour. Western Australia would seek about 30 minutes. The Australian Capital Territory, I think, wants equal time with Western Australia, and the others will be much shorter.
FRENCH CJ: Yes, all right, thank you, Mr Solicitor. Yes, Mr Silbert.
MR SILBERT: If the Court pleases. Your Honours, I propose to address grounds 3 and 2, and to adopt enthusiastically the submissions of the second respondent in relation to ground 1.
GUMMOW J: Why would your enthusiasm help?
MR SILBERT: Your Honour, I was in a situation where I had different submissions from the Attorney last time I appeared in this matter, and they seem to have modified somewhat in the interim, so that was enough to give me some encouragement. May I commence by addressing the interrogatories from your Honours - the six questions delivered the other evening, because they have an important bearing in relation to the applicability of the Charter, and commencing with the first one:
Is the Director of Public Prosecutions a public authority within the meaning of s 4 of the Charter of Human Rights and Responsibilities Act 2006 (Vic)?
With respect, that question is misconceived because the question really should be asking whether a Crown Prosecutor is a public authority within the meaning of section 4 of the Charter. The prosecution system in Victoria is sui generis. As far as I know, there is no comparable system that applies elsewhere in the Commonwealth and the situation, if I can just very briefly explain it, is that the establishment of the Director of Public Prosecutions occurs under the Constitution Act 1975 (Vic) in Part IIIAA, and sections 87AA through to 87AF provide for the establishment of a Director of Public Prosecutions on the same terms and conditions as a Supreme Court judge, and it provides for resignation, suspension and pension, but it provides under the Constitution Act no functions.
One is referred from the Constitution to the Public Prosecutions Act 1994 (Vic), and if one goes to section 22 of that Act, the Public Prosecutions Act 1994 (Vic), Part 4 is headed “Functions and Powers of the Director” and section 22(1)(a) is the relevant section for present purposes:
The functions of the Director are—
(a)to institute, prepare and conduct on behalf of the Crown, proceedings in the High Court, Supreme Court or County Court in respect of any indictable offence -
It is submitted that there is some significance in the conduct on behalf of the Crown. Although the indictments are brought in Victoria in the name of the Director of Public Prosecutions, they are brought on behalf of the Crown. Indeed, some years ago there was a case I think reported in the Commonwealth Law Reports called Zecevic v DPP after which the then Chief Justice directed the Principal Registrar of this Court that nothing coming out of Victoria was to be accepted unless the Queen was the party and that anything with the Director of Public Prosecutions as the party was not to be accepted. I suspect that since Zecevic v DPP everything that comes out of Victoria has been termed “the Queen against” because the proper party is the Crown.
GUMMOW J: If that is right, why do we have Victoria with two heads ‑ ‑ ‑
MR SILBERT: That is a fair question, your Honour.
GUMMOW J: ‑ ‑ ‑ not speaking from the same hymn sheet?
MR SILBERT: Your Honour, that is why I have eschewed any submissions in relation to ground 1 in relation to the Charter because, as far as the Crown in Victoria goes as a prosecuting authority, the indictment, or the presentment, was presented on behalf of the Crown, the trial was run on behalf of the Crown and the Crown in right of Victoria secured the conviction and was then a party to the appeal.
Now, Victoria with two heads comes about because the Charter seeks to give the Attorney-General locus standi to be a party to any litigation involving the Charter and that would probably seem to answer your Honour’s question. The consequence of this prosecution set up is that Crown prosecutors prosecute in Victoria and they are appointed by Order in Council. They are not public servants. They are not employees of the Director of Public Prosecutions and they have a statutory role which is set out in the Public Prosecutions Act under Part 5.
The terms and conditions of Crown Prosecutors are set out in the Act from sections 31 through to section 36. There is a division there between senior Crown Prosecutors and ordinary Crown Prosecutors. The senior Crown Prosecutors are appointed by Governor in Council. They are appointed on the same terms and conditions as the County Court judge including tenure and pension and conditions as to dismissal and they are effectively an independent indicting authority who are removed from the Public Administration Act by virtue of section 32(7) ‑ ‑ ‑
FRENCH CJ: Well, now the relevant is section 36(1), is that right?
MR SILBERT: Yes, your Honour. The relevant function for present purpose is 36(1):
The functions of a Crown Prosecutor are-
(a)in the name of the Director to –
make presentment of any person for an offence in accordance with section 353 of the Crimes Act.
FRENCH CJ: That is a document we see at page 1 of the appeal book, I think?
MR SILBERT: Yes it is, your Honour.
GUMMOW J: Why is that not a function of a public nature? It is not a function of a private nature.
MR SILBERT: That comes to the question of what the function of making presentment is and there seems to be some authority in relation to that. It was reviewed by a Court of Appeal decision in Victoria called R v Parker [1977] VR 22 and one sees there a history of effectively what the meaning of making presentment is and the history is related by the then Chief Justice. It goes back to the grand jury and the presentment of true Bill.
FRENCH CJ: I am sorry, Mr Silbert. I am not quite sure where we are going in relation to the questions.
MR SILBERT: Yes, your Honour.
FRENCH CJ: The questions were directed to the status of the Director of Public Prosecutions as a public authority. Now, it seems to me that what you may be saying is that the relevant public authority is the Crown Prosecutor exercising functions under section 36.
MR SILBERT: Correct, your Honour.
FRENCH CJ: But putting that to one side, is there any controversy that the making of a presentment is a public function or the function of a public authority?
MR SILBERT: Well, it is submitted that it does not fall within section 38. If one looks at section 4 of the Charter, then the only conceivable subparagraph of section 4(1) that could encompass the making of a presentment is (b):
an entity established by a statutory provision that has functions of a public nature –
Now, the submission in relation to that is that the making of a presentment as defined effectively in Parker’s Case is that it is not a function of a public nature and that the making of a presentment is not – that a Crown Prosecutor is not a public authority within the meaning of section 4(1)(b).
GUMMOW J: You do not seem to be looking at section 4(2)(a) in conjunction with section 22 of the Public Prosecutions Act.
MR SILBERT: Well, I do, your Honour, but ‑ ‑ ‑
GUMMOW J: It actually uses the word “function”.
MR SILBERT: Yes, I wanted to go from section 4. Section 4, for example, 4(1)(d) includes “Victoria Police”. Now, there is no specified inclusion of a crown prosecutor under section 4, but if your Honours look at section 6, then section 6(2) says:
This Charter applies to –
. . .
(c)public authorities, to the extent that they have functions under Division 4 of Part 3.
That then refers one on to section 38. If you go to section 6(4):
This Charter binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
GUMMOW J: There might be a question about the last part of subsection (4).
MR SILBERT: Yes, your Honour, and I am drawing your Honour’s attention to that because ‑ ‑ ‑
GUMMOW J: I know; I saw it yesterday.
MR SILBERT: Yes. If the Crown Prosecutor was included as a public authority under section 4 then what is the meaning of section 6(4)? What is the need for it and why is it there? The submission is that 6(4) indicates that the Crown Prosecutor is not included within the meaning of section 4.
GUMMOW J: These expressions “the Crown in the right of this State” and “the Crown in the right of that State” are some sort of metaphor which ignores the constitutional structure which talks about the Commonwealth and the States and the Executive Governments of the Commonwealth and the Executive Governments of the States.
MR SILBERT: Yes, your Honour.
GUMMOW J: We are just talking about the Executive Government, are we not, as distinct from the legislative branch and the judicial branch?
MR SILBERT: Whether a crown prosecutor who is exercising a prerogative of the Crown in making a presentment is included in section 6(4).
GUMMOW J: He is doing it because a statute has delegated it to him. No statute, he would not be there.
MR SILBERT: Yes, your Honour; no statute, he would not be there. The question becomes the function of making presentment. Now, the relevance goes on to the subsequent questions as to whether he falls within section 38 in relation to the making of a decision and whether he is encompassed by section 38 and then on to questions 5 and 6.
GUMMOW J: Just before we leave Parker [1977] VR 22, which you referred us to, what Sir John Young was adverting to there undoubtedly was the pre‑DPP system – if you look at page 24, section 353 of the Crimes Act.
MR SILBERT: Yes, he was. I was going to take your Honour, though, to the post‑DPP system ‑ ‑ ‑
GUMMOW J: As I understood it, these statutory DPPs were created to, as it were, get prosecution decisions out of the immediate hands of the Executive.
MR SILBERT: Yes, your Honour, and Crown Prosecutors in Victoria ‑ ‑ ‑
GUMMOW J: Entrenching their independence.
MR SILBERT: Yes, and Crown Prosecutors in Victoria to have the same function. Your Honour has actually remarked on the function in, I think, Maxwell v The Queen (1995) 185 CLR 501 at page 534 where, in a joint judgment of your Honour Justice Gummow and Justice Gaudron, your Honour at page 534 looks at:
The power of the Attorney‑General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred as “the prosecutorial discretion”. In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts. That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute, such as that conferred on a prosecutor by s 394A of the Act.
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex offico, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.
GUMMOW J: That has to be read with what is said at 535 as the second qualification.
MR SILBERT: Yes, your Honour.
FRENCH CJ: The House of Lords in I think, as it was in the Privy Council, have explored that issue in relatively recent times, a serious fraud office case, in I think cases of Mohit and Sharma coming out of Mauritius and Trinidad and Tobago.
MR SILBERT: Yes, your Honour. The reason why I draw attention to it is the relevance to questions 5 and 6 as to whether an abuse of process could be alleged, and whether a stay is claimable in respect of a non‑compliance with section 38 of the Charter, if 38 of the Charter was said to apply, and that is the reason why I draw your Honours’ attention to that.
GUMMOW J: I think in the United Kingdom, the position is that the prosecution service is regarded an authority to which the human rights system applies.
MR SILBERT: Yes, it is, your Honour. The only other point I want to say in relation to that in response to your Honour Justice Gummow is that the Crown Prosecutor is effectively established by an Order in Council rather than a statutory provision and the submission is that that would be sufficient to take him out of section 38 of the Act.
GUMMOW J: But an Order in Council in exercise of statutory power, not an Order in Council in exercise of prerogative power. There are Orders in Council and there are Orders in Council.
MR SILBERT: Yes. I thought that was necessary at least to bring that to the attention of the Court in view of the Court’s questions, because as I say, the situation is sui generis in relation to Victoria and it is the position of the Crown Prosecutor who signed the indictment in the name of the Crown appearing at page 1 of the appeal book.
FRENCH CJ: Well, in the name of the DPP actually, is it not, and on behalf of the DPP.
MR SILBERT: Yes, and if your Honour goes to the back sheet at page 3, it is entitled “The Queen against”.
FRENCH CJ: But the presentment is made in the name of the Director of Public Prosecutions and the statute so provides.
MR SILBERT: It does.
FRENCH CJ: Proceedings are conducted on behalf of the Director of Public Prosecutions, are they not?
MR SILBERT: Who brings the proceedings in the name of the Crown.
FRENCH CJ: Yes, but when the Crown Prosecutor acts, the Crown Prosecutor is acting on behalf of the DPP.
MR SILBERT: Yes, your Honour, in the name of the Crown.
FRENCH CJ: Yes, and just on the last point that I think Justice Gummow discussed with you, the appointment of the Crown Prosecutor is made pursuant to section 31(1) of the Public Prosecutions Act.
MR SILBERT: Yes, your Honour.
FRENCH CJ: By the Governor in Council.
MR SILBERT: Yes, your Honour. Now if I can move from there to the question of ground 3, the inconsistency ground, the appellant asserts that what we have is direct inconsistency and does so for obvious reasons, namely because the effect of 300.4 of the Code would have a disastrous effect on any indirect inconsistency because the intention of the Commonwealth Parliament is made perfectly plain by section 300.4, namely that it is to be supplanted onto an existing system of law.
GUMMOW J: I do not know why the States rush to embrace Mr Solicitors of the Commonwealth’s imperial reach. The statement of intention may be good news for you on this occasion.
MR SILBERT: I am hoping that it is, your Honour.
GUMMOW J: Next time it may be bad news but the States seem to be embracing it, I wonder with adequate thought.
MR SILBERT: I am certainly praying it in aid as far as the legislative scheme goes and as far as this Court said in Dickson the question of the subject scope and evident purpose of the Commonwealth Act which needs to be analysed to see whether there is a direct collision, leaving for one side the question of indirect inconsistency and noting Sir Anthony Mason’s statement in the GMAC Case in 1977 that the direct consistency comes about as a result of section 109 rather than any statement of intention. The submission here is that – and I have probably generalised a little too much. There is a relevance that this comes about in the course of the Commonwealth embracing a treaty and giving effect to a treaty. I probably generalised by saying the Commonwealth does not use its legislation in Chapter 9 in relation to possession and trafficking.
I am told by the Commonwealth this morning that they have used it on occasions. It is rarely used but it is used and it has been used. Even where the Commonwealth prosecutes a major importation, the normal process, as I understand it, is that the any trafficking that is consequent upon the importation is prosecuted under the State laws pertaining to that trafficking. There was a well established system of drug legislation in force at the time Chapter 9 was inserted into the Code.
KIEFEL J: What happens in the case where you have both importation and consequential trafficking charges in the one ‑ ‑ ‑
MR SILBERT: My understanding, your Honour, is that the trafficking charges are normally under the State legislation.
KIEFEL J: What, they are split so the Commonwealth deals with the importation?
MR SILBERT: No, they are on the one presentment. They are on the one indictment, whether it be a Commonwealth indictment or a State indictment.
KIEFEL J: So the State deals with the importation as well?
MR SILBERT: No, the Commonwealth deals with the importation and generally has account on the presentment, as I understand it, for the trafficking under State law.
KIEFEL J: I see.
FRENCH CJ: You can prosecute the Commonwealth offence under the arrangements?
MR SILBERT: By arrangements, certain senior Crown Prosecutors in Victoria are persona designata in relation to authority and they can sign a Commonwealth indictment but a major importation is always prosecuted by the Commonwealth and the subsequent trafficking, if it is included on the same indictment, is a State count. The imposition of Chapter 9 is onto a very firmly established entrenched system of State drug laws which have applied for many years and the imposition of Chapter 9 to give effect to the treaty – was in one sense unnecessary because large portions of the treaty were already given effect to within the Commonwealth in relation to each individual State.
GUMMOW J: They have been given – that is right. In terms of international obligation, it had been discharged, I would have thought.
MR SILBERT: Precisely. The Commonwealth could have got away without large slabs of Chapter 9 which are otiosed to one extent but nonetheless enacted pursuant to the treaty and pursuant to international obligations.
KIEFEL J: In relation to the inconsistency argument, whilst the focus is of course on the operation of the Commonwealth provisions, it is necessary to understand how the Victorian provisions work. So if one identifies, for argument’s sake, the freedom that the Commonwealth provision might be securing as the burden of proof to be carried by the prosecution, which is dealt with, which is affected by section 5 of the Victorian Act, what do you say about the proposition that section 5 may have no work to do with respect to the trafficking offence in the Victorian Act, that is, it applies to the offence of possession simpliciter, but given the requirement, the burden of proof the prosecution must carry with respect to intention that it actually does not work with and has no application to the trafficking charge?
MR SILBERT: Well, if there is an inconsistency with the Commonwealth ‑ ‑ ‑
KIEFEL J: No, I am talking just as a construction of the Victorian legislation and then we will deal with the inconsistency.
MR SILBERT: Well, the orthodox interpretation since Clarke and Johnstone has been that once one established possession, then one could proceed from there to the question of trafficking. So the traditional view ‑ ‑ ‑
KIEFEL J: Forgive me for interrupting - is not the requirement of proof on the prosecution in trafficking, does it not overtake any presumption about possession, that is, is not what the prosecution is required to do encompass the whole lot?
MR SILBERT: The orthodox view, your Honour, is that possession has taken the prosecution part of the way to the trafficking but there has still then been an onus of proof to discharge beyond reasonable doubt ‑ ‑ ‑
KIEFEL J: You have to prove knowledge, what operation can the presumption have?
MR SILBERT: Well, up until now and conventionally it has been held that knowledge was established by section 5. Looking at Tragear and what Justice Callaway said there, if having established knowledge and having proved possession one then has to start all over again in order to prove trafficking, then the answer is it can have no effect because one cannot then piggyback off the question of knowledge established by section 5 in order to establish trafficking.
KIEFEL J: But work back the other way. If you start with the trafficking provision, you have to show an intention to sell. That requires knowledge of what is in your possession otherwise you cannot have an intention to sell. Given that, what part does section 5 have to play – deal with it ‑ ‑ ‑
MR SILBERT: Well, it cannot have any part to play logically on that basis, your Honour.
GUMMOW J: What is wrong with that analysis?
MR SILBERT: Nothing, your Honour, except it has not been adopted for 25 years.
GUMMOW J: Maybe so, but if we are applying section 109 of the Constitution we have to construe the State Act and we cannot be bound in applying the Constitution to construe the State Act in a way that does not command our assent, otherwise we are not discharging our duty.
MR SILBERT: Your Honour, I cannot say there is anything wrong with that analysis at all. I just come here with a large number of cases that have not been run on that basis.
GUMMOW J: I know you do.
MR SILBERT: Analytically, it is a very respectable analysis, with respect, and I cannot criticise it.
KIEFEL J: Does that analysis implicitly, consciously or unconsciously, underlie the concession made from the Court of Appeal about there being no requirement really for anything more than evidentiary presumption or is that a different question?
MR SILBERT: That is a different question.
KIEFEL J: That is to get the accused into the witness box, really that is what the ‑ ‑ ‑
MR SILBERT: There was also discussion in the Court of Appeal about the question of evidence under the Charter and how one went about establishing evidence under the Charter.
KIEFEL J: Yes. I understand, thank you.
CRENNAN J: That was really in the context of not pressing a section 7 argument?
MR SILBERT: Yes. As far as direct inconsistency goes and not in any way disclaiming the analysis that your Honour Justice Kiefel and Justice Gummow give to the question of trafficking under the State Act, it is submitted that there is no direct inconsistency on the basis of the analysis of Chief Justice Gibbs in the University of Wollongong v Metwally where he ‑ ‑ ‑
GUMMOW J: What about what his Honour said in Winneke we were looking at yesterday at 152 CLR 218? It seems to pay particular significance to the different penalties and I think perhaps implicit in what the Chief Justice is saying is the idea that as a matter of implication the Commonwealth law is saying if you do this wrongful act there is an offence and there is this penalty. There are not two penalties.
MR SILBERT: Yes, your Honour.
GUMMOW J: Then, I think the Solicitor‑General would say, well, what if the Commonwealth says there is no such implication. We are expressly saying that both offences can be extant. Both laws can operate.
MR SILBERT: Your Honour, Chief Justice Gibbs ‑ ‑ ‑
GUMMOW J: So make explicit into the negative what seems to be the implicit in 218. That is what is worrying me.
MR SILBERT: Your Honour, he went on in Metwally which was two years’ later to reclassify the direct inconsistency as one statute forbids what the other commands. We are clearly not in that situation. The other classification of direct inconsistency, one takes away a right which the other confers, now, nor are we there. It is submitted that looking at Metwally 158 CLR 447 where his Honour enters upon this analysis at 455 to 466 that if one says that that is an exclusive definition of direct inconsistency then the concurrent operation of two sets of drug laws proscribing the same conduct does not create a direct inconsistency and, indeed, as Justice Bell I think said yesterday, what we are involved in about are different modes of proof as far as the two sets of law are concerned but not inconsistent laws. There is no collision between the two sets of laws.
GUMMOW J: What then is the relevance at all of the inconsistent methods of proof or the varied methods of proof?
MR SILBERT: It is submitted that they do not reach the threshold of establishing a direct collision between the legislation. They are adjectival in one sense in that they both bring about drug offences operating concurrently but use different methods of proof in order to get there. Now, thus far it has not been said that that constitutes direct inconsistency under section 109.
GUMMOW J: I guess what I am putting to you is the notion of different penalties has been seen as important. By some parity of reasoning are not different methods of proof important?
MR SILBERT: In my submission, not. Different penalties can be important but they are not necessarily determinative. It comes back to Justice Isaacs question about different modes of trial, unanimous trial under section 80 of the Constitution under the Commonwealth law and a majority jury verdict under a State law. It is a factor and depending on how many factors are inconsistent, then one might give rise to inconsistency, but on its own it is submitted that a mode of proof does not give rise to a direct collision between the two statutes because it is possible to comply with both statutes simultaneously. The submission by my friends, the appellants, that there is a field of liberty left by the Commonwealth statute by virtue of non‑utilisation of a reverse onus, in my submission, does not take them anywhere.
GUMMOW J: If one were to take the view that Justice Kiefel and I were putting to you about section 5 of the State Act and then put that to one side and one simply concentrated on the trafficking provision, would there be different methods of proof?
MR SILBERT: No, there would not. Well, there would be section 73(2) which has a quantity‑based prima facie provision, but that would not facilitate a different method of proof. On its own it is used in combination. At the end of the day the jury would be told the Crown has to establish the elements beyond reasonable doubt, so there would be no different methods of proof.
BELL J: Well, there would be because the Commonwealth has the advantage from a prosecutor’s point of view of the legal burden being imposed on the accused in relation to trafficking once the person is established to be in possession of the trafficable quantity under section 302.5 of the Code.
MR SILBERT: Yes.
CRENNAN J: I think the way Mr Croucher put it, and I would be interested in your answer, is that the State Act, by reason of its provisions in relation to method of proof, does not secure the right to the presumption of innocence in respect of an element of trafficking. I think that is how he put it.
MR SILBERT: I would take issue with that, your Honour. Leaving section 5 to one side ‑ ‑ ‑
CRENNAN J: He was addressing on the basis of what you have described as a reading of section 5’s role in relation to trafficking that is different from what has been put to you by Justices Gummow and Kiefel.
MR SILBERT: If one takes the orthodox view that has existed for 25 years and says that the reverse onus in section 5 enables one to utilise that in the proof of trafficking, then there clearly is a reverse onus of proof in trafficking because one gets to the possession situation on a reverse onus, and then still has to establish beyond reasonable doubt the onus in relation to trafficking. One has to go the extra distance on the normal method of proof, but one gets a start-off, if you like, by section 5, if one is permitted to use section 5 in order to establish possession.
In that situation, they are not coterminous. There is a difference, and the methods of proof, in my submission – I cannot say they are not different. If section 5 is permitted to have that function, then it is obviously creating an advantage for the prosecution authority. There is no doubt about that.
GUMMOW J: I think there are a number of balls in the air ‑ ‑ ‑
MR SILBERT: Yes, there are.
GUMMOW J: ‑ ‑ ‑ but what is your response to 302.5, which Justice Bell – as to the absence of any, 302.5 in the State system, disregarding section 5 of the State Act.
KIEFEL J: You have to prove more under the State Act.
MR SILBERT: You do, your Honour, and in fact, if you go through Chapter 9, I counted nine provisions where there were reverse onuses under the Commonwealth Code, so one looks at 302.5, but you then go on to 305.6 ‑ ‑ ‑
GUMMOW J: Section 305.6?
MR SILBERT: Yes, your Honour - 306.5, 306.6, 306.7.
FRENCH CJ: Are these all supported by Article 3, paragraph 3, of the Convention?
MR SILBERT: They appear to be, your Honour, yes.
FRENCH CJ: It is taking the notion of inference from objective factual circumstances a fair way, is it not?
MR SILBERT: Yes, your Honour. That is not the end of them, though - 306.8, 307.14, 308 ‑ ‑ ‑
FRENCH CJ: Once we are in the area of import and export, you are not necessarily relying upon the Convention right.
MR SILBERT: No.
GUMMOW J: Then in 308? The provisions in 308?
MR SILBERT: In 308.2, 308.4. If one is talking about draconian legislation and one is doing a comparison between the Commonwealth and the State, I think the Commonwealth might win hands down.
BELL J: To the extent that the Commonwealth, in introducing Part 9, legislated for the provision of offences criminalising the same conduct as those the subject of State legislation, there are a number of reverse onus provisions in the Commonwealth legislation that are not comparable to any State provision.
MR SILBERT: Yes.
BELL J: Turning, just for the moment, to the prohibition now under the Criminal Code (Cth) of the offence of being in possession of a controlled substance, that is one instance where the Commonwealth has chosen not to enact a reverse onus.
MR SILBERT: Yes, it is.
BELL J: The maximum for that offence is two years imprisonment.
MR SILBERT: Yes, your Honour.
BELL J: That offence under the Victorian legislation is under section 73, I think, subject to a maximum period of five years imprisonment. It has the reverse onus provision. To the extent that there is identity between the substances that answer the description of being a drug of dependence under the State legislation and a controlled substance under the Commonwealth Code, the same conduct is the subject of Commonwealth and State prescription with radically different consequences in terms of penalty and the mode of proof.
MR SILBERT: Yes.
BELL J: Because the offence, as I think the Court of Appeal discussed, under section 73 of being in possession of a drug of dependence, when regard is had to section 5, effectively – I withdraw that, but the power of the reverse onus is notable.
MR SILBERT: Absolutely. One cannot get away from that. That is the high point of any inconsistency such that there is.
GUMMOW J: There is no doubt that section 5 is engaged with section 73.
MR SILBERT: Yes, your Honour, no doubt at all.
BELL J: With the consequence that a person may be convicted for the section 73 offence notwithstanding a reasonable doubt as to the fact of possession.
MR SILBERT: By virtue of section 5, yes, your Honour.
FRENCH CJ: It seems to me that the proof segues into, in a substantive sense, the elements of the offence. Innocent occupation of a house in which a prohibited drug is found comes close to being an offence itself.
MR SILBERT: Absent some evidence to the contrary, yes.
FRENCH CJ: Yes, that is right.
MR SILBERT: Yes, it does, and it probably segues into ground 1, which relates to the elements of the offence dealt with by the Court of Appeal. I do not know that it is necessary for me to go through either Clarke and Johnstone or Tragear. There is a long line of authority that, as Justice Gummow correctly says, may well all be wrong, and the Court of Appeal in its judgment peremptorily ‑ ‑ ‑
GUMMOW J: Not so much wrong, but one simply does not know what arguments are put in those cases as to construction.
MR SILBERT: Yes. The Court of Appeal rather peremptorily dismissed the ground of appeal that related to the elements of the offence as far as the – under paragraph 158 of the Momcilovic decision, “Conviction Appeal (Grounds 2-5), Directions on possession and trafficking”. It recites there ground 2, which I need not read out, but at paragraph 168 of the decision, the Court of Appeal said:
In our view, these grounds of appeal ought not to have been advanced. When regard is had to the way in which the trial was conducted, to defence counsel’s very clear definition of the (single) issue, and to the very clear line of recent authority in this Court, these grounds had no reasonable prospect of success.
That presumes that the question of knowledge and mens rea in relation to the trafficking was not put by the trial judge to the jury and, in my submission, when one looks at the charge that appears in the appeal book between pages 186 and 198, his Honour appears to have put two elements ‑ ‑ ‑
GUMMOW J: I am sorry, Mr Silbert, you took us to paragraph 168.
MR SILBERT: Yes, your Honour.
GUMMOW J: What is the significance of 167:
There was no issue about her intention with respect to the drugs if she failed to disprove possession.
MR SILBERT: The significance of that is it seems to suggest that the reverse onus imported by section 5 can be used to establish trafficking and there is no further mens rea required.
FRENCH CJ: Counsel was accepting the orthodoxy, as you would call it.
MR SILBERT: Yes. So the significance of that is the Court of Appeal said “This is not the law in Victoria. What was said in Tragear is of no consequence”. Once knowledge is established by virtue of the reverse onus, then it does not have to be revisited for the purposes of trafficking. If the Court of Appeal got that completely wrong, it may be that the trial judge did not because the trial judge in the course of charging the jury, at page 186 of the appeal book, says:
The first element that the prosecution must prove is that the accused intentionally committed an act of trafficking. The second element the prosecution must prove is that the accused intentionally trafficked in a drug of dependence.
Conventionally and orthodoxly, the first element would probably have been sufficient as far as the Court of Appeal was concerned, but his Honour tackled it from two ways. He spent a number of pages on the first element relating to what the accused did and he commences that at page 186 of the appeal book at line 14:
She must have intentionally committed an act of trafficking.
Then going down that page he spends a number of pages of the charge in relation to what he calls the first element. At line 21:
The prosecution only needs to prove that the accused intentionally committed at least one of the acts specified by law. In this case the relevant act of trafficking is possessing a drug of dependence for sale . . .
Now this requires the prosecution to prove two things beyond reasonable doubt: First, that Vera Momcilovic possessed a drug of dependence, in this case methylamphetamine. I will explain the meaning of possession in a moment. Second, the prosecution must prove that Vera Momcilovic intended to sell that drug. I will explain what this means after I have told you of the meaning of possession.
He then proceeds to deal with section 5. At line 4:
According to the law, a person is said to be in possession of any drug that is on land or premises that they occupy . . .
Now, here it was common ground between the Crown and the defence that Vera Momcilovic was in occupation of the unit because she owned it and resided in it . . .
It is for you to determine, based on all the evidence, whether Vera Momcilovic was in occupation of the unit. If you decide beyond reasonable doubt that Vera Momcilovic was in occupation of that property and that the methylamphetamine was present there, then she will have been in possession of that drug, subject to one exception.
The exception he details at line 28 of appeal book 187:
The exception is that a person does not possess a drug that is on the property they occupy if they do not know of the drug’s presence.
He deals at length with that at 188 of the appeal book, second line:
the defence must prove on the balance of probabilities, more likely than not . . .
If they cannot prove it beyond reasonable doubt, then she will not have been in possession of the methylamphetamine and so she will not be guilty of the trafficking by possessing a drug for sale.
However, if the prosecution satisfies you beyond reasonable doubt that she occupied the property where the drug was found, you must then consider the accused’s submission and her evidence that she did not possess the drug, because she did not know of the drug’s presence in the unit. That is a matter which the defence must prove on the balance of probabilities.
So it is a recitation of the conventional view of Clarke and Johnstone of section 5:
If the defence can prove that Vera Momcilovic did not have such knowledge, then she will not have been in possession of that drug even though she occupied the property where the drug was found. She will therefore be not guilty of the trafficking by possessing a drug for sale. Not guilty of trafficking by possessing a drug for sale.
On to 189 of the appeal book at line 7:
You will then need to consider whether she possessed that drug for sale, which I will explain to you shortly . . .
She says she did not know the drugs were there, and she must prove that to you on the balance of probabilities.
He then details the evidence called in the case at line 24:
The defence submitted . . . that Vera Momcilovic lacked the necessary knowledge, because on her evidence she was not aware of the items –
His Honour then goes on at pages 189 and 190 detailing the evidence in support of the defence case and the last line of appeal book 190:
Counsel submitted you should accept her evidence that, in fact, she did not know of the drugs and the other material –
He then relates the rest of the evidence called in the defence case in support or in an attempt to discharge the onus imposed by section 5 of the Act and his Honour details the evidence in detail at appeal book 191, 192 and 193.
On the orthodox view, and it may well be on the view of the Court of Appeal, by the time his Honour got to line 24 of page 193 of the appeal book on the orthodox view he seems to have dealt with the question of possession and the reverse onus conventionally, as far as the Court of Appeal was concerned, as much as needed to, but he does not stop there. At line 25 on page 193:
If you accept, on the balance of probabilities, that the accused did not know of the methylamphetamine in the apartment, then that is the end of the case. You must bring in a verdict of not guilty.
Just stopping there, the Court of Appeal, as I understand it, says that was enough to comply with the law, but his Honour continued from there:
If you do not accept the defence case, that she did not know of the drugs then you must consider the second element of the charge of trafficking.
His Honour then continues to deal with what he calls the second element, which he commences to deal with at the top of page 194 of the appeal book, line 4:
If you do not accept, on the balance of probabilities, that she was not aware, then you must consider the second element of the charge of trafficking. The second element that the prosecution must prove beyond reasonable doubt, is that the accused intentionally trafficked, in a drug of dependence.
BELL J: Is not the difficulty with the charge on what you characterise as the conventional view this: after inviting the jury to consider the competing submissions concerning the reverse onus, true it is that his Honour directed the jury as to the necessity for the Crown to establish trafficking beyond reasonable doubt, but that he went on to explain to the jury – and this is on 195 at about line 16 – that:
the prosecution submitted that . . . the accused intended to traffic . . . from the activity in the unit –
The point that was being made about proof of intention to traffic seemed to be common ground. No one was disputing that a person in possession of this quantity of drugs and the other paraphernalia would be considered to be intending to be engaged in trafficking. What this charge never made clear to the jury, even on the conventional view, was that if the jury thought it likely that she knew but was not satisfied beyond reasonable doubt that she knew the drugs were in the property, it was their duty to acquit.
MR SILBERT: If the charge did not make that plain to the jury it is clearly defective. My submission, your Honour, is that it did make it plain to the jury because his Honour did say on a number of occasions that the onus in relation to the trafficking rested on the prosecution and they had to prove it beyond reasonable doubt.
BELL J: The obligation of the trial judge is surely, by reference to the evidence and the law, to identify with clarity the issues.
MR SILBERT: Yes.
BELL J: Is it your contention that recitation of the mantra “proof beyond reasonable doubt” gets you there, Mr Silbert?
MR SILBERT: No, it is not, your Honour. Dealing solely with what the judge termed the “second element” from appeal book 194, line 8:
must prove beyond reasonable doubt, is that the accused intentionally trafficked, in a drug of dependence . . . The prosecution must prove that the substance, allegedly trafficked by the accused, was a drug of dependence and also prove that the accused intended to traffic in a drug of dependence.
He says, in the next five or six lines:
The law says that methylamphetamine is a drug of dependence. The first part of this element will be satisfied if the prosecution has proved beyond reasonable doubt that she possessed for sale, any quantity of methylamphetamine. In this case, the defence admitted that the substance recovered was methylamphetamine. The scientific evidence was not contested and is admitted by consent but there is no dispute that there was methylamphetamine there, as I said before.
The second element is the intention to traffic in a drug of dependence. For the second element to be satisfied, the prosecution must also prove beyond reasonable doubt that the accused intended to [traffic] in a drug of [dependence].
I am not conceding that is simply a mantra, I am saying it is an attempt - whether it is satisfactory or not is another matter but I am saying his Honour is attempting to explain to the jury that there has to be an intention on her part to traffic that point.
BELL J: In the context of a case in which it was not in issue that a person in possession of this quantity of drugs and paraphernalia would be presumed to have the intention.
MR SILBERT: Section 73(2) gives the prima facie proof but the Crown still has to establish by virtue of the scales, the large amount of cash, all of the other evidence that his Honour recites in the charge, that the onus is discharged by that.
FRENCH CJ: Does the prima facie presumption do anything more than say to the jury “It is open to you to infer from the deemed possession of a trafficable quantity that she had the relevant intention but you still have to be satisfied beyond reasonable doubt”?
MR SILBERT: No, it does not, your Honour. His Honour said that and, indeed, that was the vice in the case that Mr Croucher referred to of Medici yesterday where the charge there actually talked about deeming by virtue of section 73(2).
FRENCH CJ: It does not deem.
MR SILBERT: No, it does not deem and Medici’s Case does not assist my friend, in my submission, because there was clearly a misdirection in Medici’s Case and the direction was wrong. But here, addressing Justice Bell’s question in relation to intention, my submission is that when his Honour deals with what he is terming the second element, he is saying that the Crown has to prove that the accused intended to traffic in a drug of dependence, that is, the accused deliberately - and I am looking at 194, line 28 “deliberately possessed for sale a prohibited drug”.
FRENCH CJ: He makes it clear at the top of 197, does he not, in relation to trafficable quantity:
That is not to say that you must convict the accused in such circumstances.
MR SILBERT: Yes, he does, but even getting up to that point at 195 and 196 - at 195, line 3:
In determining whether or not the accused intended to traffic in a drug of dependence, you will need to decide if you can draw an inference from all the evidence, in this case, that she had this intention.
That takes up the point your Honour the Chief Justice raised as to the surrounding facts and as to the other evidence:
You will remember what I told about inferences. It is for you to determine whether to infer, from all the facts -
Well, that just really goes on to whether it is an inference reasonably open. So that probably is a mantra in relation to a standard of proof and I will concede that that sounds like a mantra at 195, lines 12, 13 and 14. It is a conventional charge.
HEYDON J: In what sense are you using the word “mantra”?
MR SILBERT: In the sense that one sees it in a charge. The Crown bears the onus of proof, must prove it beyond reasonable doubt. I have only taken it up from her Honour Justice Bell because I am trying to establish ‑ ‑ ‑
HEYDON J: I will ask her later what she means by it.
MR SILBERT: I am trying to establish that there is some content to what his Honour means when he uses these words which he is trying to communicate to the jury in relation to mens rea.
HEYDON J: Did the accused ever propound either to the trial judge or the Court of Appeal some supposedly satisfactory direction that was said to be superior to what we find on pages 190 onwards?
MR SILBERT: No, your Honour, certainly not at trial. There was no exception taken at trial. My friend might have had something to say in the Court of Appeal which no doubt he will say in response, but there was certainly never any exception taken to the charge at trial.
BELL J: At 195, line 27, the judge tells the jury that the defence case on trafficking:
was the same as on the question of possession. The accused just did not know of the drugs and, therefore, could not have possessed them for the purpose of sale.
MR SILBERT: Yes.
BELL J: Then he goes on to point out:
It is important to remember that it is the prosecution who must prove beyond reasonable doubt, that [she] had the relevant intention.
MR SILBERT: Yes.
BELL J: His Honour then says:
If are you not satisfied that the accused knew that it was a drug she was trafficking and there was no other basis from which you can infer that the accused intended [to] trafficking a drug of dependence –
and so forth.
MR SILBERT: Yes.
BELL J: In the context of it being her case that she did not know of the drugs, and it being incumbent on the prosecution to establish beyond reasonable doubt that she did in the context of the issues as they were presented at trial, that does not seem to take up the critical issue from the defence point of view, does it? It seems to be that his Honour is inviting them to consider some question as to whether or not she knew it was a drug that she was trafficking in, on the question of intention.
MR SILBERT: Yes, it does. His Honour returns to it at 197. I think the Chief Justice has referred to it there:
That is not to say that you must convict the accused in such circumstances.
He relates the rest of the evidence there, impressing upon the jury that the onus remains on the Crown to prove, “she intentionally had in her possession for sale, a prohibited drug.”. Also, at 197, line 20:
that is not to say you must convict the accused in such circumstances, although you may use the uncontradicted evidence that the accused possessed that quantity of drugs to convict her, you may only do so if that evidence, either by itself or together with the other evidence, satisfies you that the accused is guilty of trafficking, beyond reasonable doubt.
He finishes his direction on 198. At the top, he said:
That is a circumstantial case that the Crown is using against the accused on this second element of the offence.
He summarises again the two elements. That is as far as he goes, but he certainly goes further than the Court of Appeal said he should have gone. He went on the conventional view, further than Clarke and Johnstone, in my submission, compelled him to go. So there is more there than, in my submission, was necessary. Whether there is enough there is another question.
Now, that probably completes my submissions in relation to the elements of the offence. I do not know whether there is anything the Court wants to ask me in relation to either of those grounds. There is just one further matter before I resume my seat. The concession that was made in the Court of Appeal in relation to evidential burdens and legal burdens, I am told the Attorney would be happier if I was to make some modification to that concession. Clearly, the question of empirical evidence which the Court of Appeal called for under the Charter, in my submission, is an absolute nonsense.
We have secrecy provisions under the Juries Act. How anyone would ever know at the end of a jury trial whether an evidential burden or a legal burden was the determining factor in a conviction or an acquittal, I do not know. There would have to be an amendment, one imagines, to the Juries Act in order to poll jurors over a substantial period of time in order to get empirical evidence. I do not know how the Court of Appeal envisaged that this was a case where evidence under the Charter was called for and I do not know how one could ever marshal such evidence.
What I suppose I can say in relation to that concession is that the effect of section 5 as it has operated, the practical effect, is to force accuseds to give evidence, generally speaking, and that has been the practical effect of the reverse onus. So whether that affects the outcome of trials or not, one would expect that courts could use judicial notice and their own experience of the way drug trials are conducted in order to reach a conclusion. How they can expect to receive evidence on the subject, as I say, I do not know, but certainly as far as the concession goes, I concede that the effect of section 5 is that it has had the effect of accuseds entering the witness box and giving evidence in order to discharge the onus, and that has been the practical effect that it has had over a period of time.
FRENCH CJ: Is it open to a prosecutor to disclaim reliance on section 5?
MR SILBERT: Yes, it is, your Honour.
FRENCH CJ: Do you mean that as a matter of practice or as a matter of law?
MR SILBERT: Both as a matter of practice and as a matter of law depending on what occurs here.
FRENCH CJ: Let us assume it is hooked into 73.
MR SILBERT: Yes, it can be disclaimed and a prosecutor can use common law possession in order to establish the physical and mental elements of possession.
FRENCH CJ: Present the case in that way.
MR SILBERT: Yes, and it certainly can be disclaimed and it has been disclaimed on occasion, but it is rarely disclaimed because it is far easier to use it, for obvious reasons. Now, unless the Court has any further questions, those are our submissions.
FRENCH CJ: Yes, thank you, Mr Silbert. Mr McLeish.
MR McLEISH: If the Court pleases, I propose principally to address the section 109 argument and also the Charter arguments in the context of the proper construction of section 5. If I can commence with section 109 inconsistency. Our learned friends, the appellants, rely on the observations of Chief Justice Gibbs in Metwally (1984) 158 CLR at pages 455 to 456 to support the notion that a Commonwealth intention not to cover a field is irrelevant in the case of direct inconsistency.
His Honour’s observations in that case related to two kinds of direct inconsistency. The first is the case where Commonwealth and State laws are impossible of simultaneous obedience. In our submission, it is axiomatic that that is a direct inconsistency and nothing a Commonwealth law says can alter the direct clash. The second type of example is a case where a right or liberty is conferred by a Commonwealth law and taken away by a State law.
Again, if the Commonwealth law is only capable of one interpretation that would give rise to a direct inconsistency. The difficulty in the present case is whether or not the Commonwealth law is capable of more than one interpretation. In our submission, in order to conclude that the Commonwealth law confers a right or a liberty it is necessary to look at the intention of the Commonwealth Parliament in enacting the relevant provisions of the Criminal Code.
We say that in reliance on a number of authorities. The first one I wanted to take the Court to was the Wardley Case – Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237, which we mention in footnote 23 of our written submissions. This was a case in which a State Equal Opportunity Act had a provision prohibiting employers from discriminating on the ground of sex. The airline pilots agreement certified under the Conciliation and Arbitration Act (Cth) provided for the terms on which a pilot could have their services terminated.
The question was whether it was lawful under the agreement pursuant to the Commonwealth Act to terminate a pilot’s services on the grounds of sex. The Court divided in the application of the principles but, in our submission, the way in which they were articulated by the members of the Court was consistent. If I could take your Honours to Chief Justice Barwick’s judgment at page 243, his Honour canvasses the principles by which a question of inconsistency is to be decided. As his Honour says at the top of the page:
The paramountcy given to federal law over inconsistent State laws is universal and without exception. Federal law, whether made in pursuance of an exclusive or concurrent constitutional power, prevails over any State law which is inconsistent with it no matter what the subject matter of the State law.
Now that perhaps elides the question of what significance is given to the subject matter of the State law but I will come back to that:
The federal and State law need not be about the same subject matter. The only question is whether the one, i.e. the State law, is inconsistent with the other, the federal law.
That, of course, is the question that section 109 itself poses. His Honour goes on:
Having determined validity, if it arises, the next step is to determine the scope of the federal law. Sometimes the delineation of the “field” in which it operates may serve to determine its scope.
It is significant, in our submission, his Honour is not confining that observation to a case where indirect consistency is argued and, indeed, his Honour is eschewing a rigid distinction between direct and indirect inconsistency in what follows. To go on, his Honour says:
Sometimes the purpose of the federal law, gathered from its terms, will indicate that the parliamentary intention was that the federal law would be the law in relation to the matter with which it deals.
But, however approached, in general, the meaning and scope of the federal law must first be determined. By meaning and scope, I mean, of course, the meaning and scope of that part of the federal law with which it is claimed that a State law is inconsistent -
and he refers to the judgment of Justice Aickin. Continuing the next paragraph:
Having determined the scope of the federal law, the inconsistency, if any, of the State laws ought readily to emerge. Sometimes the scope of the federal law will be such as to leave no room at all for the State law. Other times, marginal questions may arise where the scope of the federal law does leave room for what might be called supplementary State law.
That is the distinction which the Court was required to examine in McWaters v Day.
FRENCH CJ: Importantly, what this line of reasoning does is to take you to an examination of the statute, the interpretative exercise, the ascertainment of scope and derive from that a conclusion as to intention rather than an anterior conjuring, as it were, of intention which then somehow informs the rules.
MR McLEISH: Yes, that is our submission, your Honour. We understand the examples Chief Justice Gibbs gave in which there is a comparison between the subject matter of the Commonwealth law and the subject matter of a State law to be an alternative way of identifying the scope of the federal law and then comparing it with the State law, in a sense, using that common subject matter to draw an implication but in a case where there is an express provision, dealing with the subject in the federal law, the task is one the court – that answers the question, we submit. In this case we say section 300.4 answers the question. We say it is the converse of what his Honour says.
GUMMOW J: I am not sure that is right. I am not sure Sir Garfield was adopting that.
MR McLEISH: No, Sir Garfield was talking about the converse position so his Honour says “at times textual opposition”.
GUMMOW J: He talks about the delineation of the field.
MR McLEISH: Yes, your Honour. He is talking about determining the scope by delineating the field. That could either be by saying the field is the whole of the law, or the field is being left open, your Honour.
FRENCH CJ: Then the question that arises is, if you undertake the exercise of delineating the field, as it were, looking to the scope and the subject matter of the law, what is added to that exercise by a provision of the kind found in 300.4, or the converse provision that this is intended to cover the field?
MR McLEISH: Where those provisions are absent, then one needs to look elsewhere to identify the scope and purpose, but where provisions of that sort are present the task is that much simpler, we submit.
FRENCH CJ: Well, query is it. What do they tell you about the scope of the statute?
MR McLEISH: In the present case, your Honour, section 300.4 says that the statute is intended to operate concurrently ‑ ‑ ‑
FRENCH CJ: But does it tell you anything about the scope of the statute taken from an examination of its provisions, apart from that?
GUMMOW J: The trouble, I think, if I can just add before you answer that, is this use of the word “intention” in that circumstance. The question is whether they have done it, or whether they intended to do it. In other words, Sir Garfield had a great resistance in another field to reciting yourself into validity, and this is analogous in a way. These statements of intention may be reciting yourself in or out of the operation of 109.
MR McLEISH: Of course, that cannot be done where there is, for example, the impossibility of simultaneous obedience. That is the General Motors example.
GUMMOW J: But what I am putting to you is I think the notion of intention is being used there differently to intention as we now understand it when we talk about parliamentary intention, which we discover by using the methods the Chief Justice has been putting to you.
FRENCH CJ: Intention being, as it were, an after‑the‑event declaration that we have ascertained this by the process of construction, applying all the usual rules, which everybody understands.
MR McLEISH: Your Honour, I would accept that a section such as 300.4 has to be read in the context of the rest of the statute. It cannot be seen as foreclosing a result that otherwise emerges, but it is a powerful factor, in our submission, in construing just how far the Commonwealth Act is intended to operate. Your Honour, in the end, the question is one which was asked in McWaters v Day, which is whether the Commonwealth provisions are intended to be supplementary to other law and concurrent to them, cumulative upon them, or whether they are to be exclusive, and we say that probably characterises a question of intention, and it can run both ways in that context, just as a “covering the field” provision has been construed as manifest in intention not to operate cumulatively. In our submission, it is permissible for the Commonwealth to indicate that it is not covering the field.
Your Honour, the other reference is in Ansett Transport that we wanted to take the Court to were in Justice Aickin’s judgment at 259 to 260.
HEYDON J: That is Mr Justice Mason.
MR McLEISH: I am sorry, your Honour. It certainly is. Mr Justice Mason’s judgment in which, at the bottom of page 259, he says:
the major thrust of Ansett’s case is to establish the existence of what has been called “direct inconsistency”, that is, the disconformity which is created by the presence of an absolute right to dismiss for any reason whatsoever, which Ansett finds in the Agreement, and the presence in the State Act of a prohibition against dismissal for the prescribed reasons.
His Honour refers to the kinds of cases which have attracted the description “direct inconsistency” and possibility of obedience are also:
cases in which the Commonwealth law grants a permission or a right and the State law prohibits that which is permitted or prohibits . . . been related to the “cover the field” test ‑ ‑ ‑
GUMMOW J: The difficulty with the passage at 260, the central paragraph there, is that it is dealing with Commonwealth legislation granting rights. It is not dealing with the criminal law.
MR McLEISH: No, we accept that, your Honour.
GUMMOW J: I am not saying it is a criticism of the author, but that was the particular context and to take that out and put it into the criminal law structure is a bit difficult I think.
MR McLEISH: Your Honour, we accept that the analogy is inexact but, nonetheless, it is the kind of analysis which was undertaken appropriately, we submit, in McWaters v Day (1989) 168 CLR 289. Perhaps I should take your Honours straight to that case.
GUMMOW J: Is this the Defence case?
MR McLEISH: This is the Defence case, your Honour. Your Honours have been told of the facts of this case and ‑ ‑ ‑
GUMMOW J: Just before we plunge into McWaters v Day, if you go back to Ansett and you look at Sir Garfield’s judgment at 243 which you took us to and one goes to the fourth paragraph where he says “Having determined”, et cetera, then the third sentence:
Sometimes the purpose of the federal law, gathered from its terms, will indicate that the parliamentary intention was that the federal law would be the law in relation to the matter with which it deals.
McWaters may be a case where it indicated that it was not to be the exhaustive law because it was to do with Defence matters.
MR McLEISH: Yes. We say that McWaters is on the other side of the line and so ‑ ‑ ‑
GUMMOW J: I am sorry, I took you off McWaters.
MR McLEISH: No, not at all, your Honour. Commencing at the bottom of page 295, this was, of course, a law that was possible of simultaneous compliance. The question was whether a drink driving offence at a State level and a military law prohibiting driving under the influence to such an extent as to be incapable of having proper control were consistent. At the bottom of page 295 the Court says:
As evidence of the inconsistency contended for, the respondent points to the different penalties which the respective laws stipulate and to the fact that the Commonwealth offence differs in substance by containing a requirement that the person charged be incapable of having proper control of the vehicle concerned. It is true that a difference in penalties prescribed for conduct prohibited by Commonwealth and State laws has been held to give rise to inconsistency between those laws for the purposes of s. 109 . . . Equally, a difference between the rules of conduct prescribed by Commonwealth and State laws might give rise to such inconsistency.
Then critically their Honours go on to say:
But the mere fact that such differences exist is insufficient to establish an inconsistency in the relevant sense. It is necessary to inquire whether the Commonwealth statute, in prescribing the rule to be observed, evinces an intention to cover the subject‑matter to the exclusion of any other law –
and their Honours set out, from the judgment of Justice Dixon in Ex parte McLean:
“The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience -
which we say we have in the present case –
It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed.”
Our submission is that section 300.4 negates a finding of that critical intention. It is instructive to go to Ex parte McLean (1930) 43 CLR at page 462.
HEYDON J: It is 472, actually, I think it is.
MR McLEISH: I am sorry, your Honour is quite right; it is page 472. The relevant facts most conveniently emerge from pages 481 and 482 where the provisions are set out in Justice Dixon’s judgment. This is another sheep case. It says:
During the course of shearing the respondent complained that the applicant was shearing the sheep improperly, and was injuring them . . . The applicant ceased shearing, and the respondent laid an information against him under sec. 4 of the New South Wales Masters and Servants Act 1902 –
the substance of which is set out at the bottom of page 481. Critically, at the bottom of that page, any servant having entered into service or commenced work:
who absents himself therefrom, without reasonable cause . . . is liable to a penalty not exceeding 10 pounds.
That was the State law.
The applicant appealed against his conviction –
under that law –
upon grounds which were intended to raise the question whether this provision had any valid operation in the case of the applicant inasmuch as his neglect to fulfil his contract would amount to a breach of the Federal award punishable under the Commonwealth Conciliation and Arbitration Act 1904‑1928.
His Honour goes on to say:
The question raised is whether a State law is inconsistent with a Commonwealth law and therefore invalid by reason of sec. 109 –
There is a distraction perhaps which, for present purposes, the Court does not need to concern itself with, insofar as the provision subsequently inserted into the Conciliation and Arbitration Act creating the obligation to act pursuant to awards was not here, so there was a preliminary issue about whether the award itself was a law of the Commonwealth, but we can leave that matter to one side. What his Honour said on page 483 – this is the passage from which the Court quoted in McWaters v Day:
When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and sec. 109 applies. That this is so is settled, at least when the sanctions they impose are diverse . . . But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. 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. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed.
In our submission, it is clear from section 300.4 that federal law was intended, to use his Honour’s words, “to be supplementary to or cumulative upon State law”, such that no inconsistency would be exhibited. There was no such provision in Ex parte McLean.
FRENCH CJ: In the context of page 483, in the passage you just read, the proposition:
If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law –
the appearance must derive from that process of construction and examination of scope and subject matter, must it not, that we talked about earlier?
MR McLEISH: Yes, your Honour, but that question itself requires resort to the whole of the Commonwealth law, and so at the same time, the section that gives that appearance most explicitly has to inform the whole inquiry as to the scope, subject matter or intention of the Commonwealth law.
FRENCH CJ: What logical purchase does it have on scope or subject matter?
MR McLEISH: Possibly none, your Honour. It is the intention that it directs to, the intention on this, as to this critical question.
GUMMOW J: Are you taking us to 485?
MR McLEISH: I was going to go first to 484, your Honour. Perhaps I will get to 485, but having said that the award was not a law of the Commonwealth, his Honour went on, in the middle of 484, to say:
If the Act means not only to give the determinations of the arbitrator binding force between the disputants but to enable him to prescribe completely or exhaustively what upon any subject in dispute shall be their industrial relations, then sec. 109 would operate to give paramountcy . . . and they in turn would give the award an exclusive operation –
So that they are without the aid of any express statement of intention. The question whether the Act intends to enable complete or exhaustive prescription on the subject matter has to be inferred from other provisions of the Act. As far as 485 is concerned, his Honour says in the complete paragraph, the paragraph starting on that page:
The distinction between this doctrine and one which gives to sec. 109 a direct application to Federal awards is probably not confined to the mode of reasoning by which the conclusion is reached. It may well be that the distinction extends to the results produced. If a Federal statute forbids a particular act or omission and means to state what shall be the law upon that specific matter ‑ ‑ ‑
GUMMOW J: Just stopping there for a minute, that is by process of construction of the nature the Chief Justice was putting to you, I think.
MR McLEISH: Yes, that is correct, your Honour. In an ordinary case, if I can call it that, without the benefit of a general provision to assist in that process:
any State law which dealt with the same act or omission would become inoperative, and it would probably be of no importance whether each Legislature was directing its attention to the same general topic or had dealt with the same act or omission in the process of legislating upon two entirely different subjects.
His Honour is alluding to the – perhaps to a distinction there which Chief Justice Gibbs gave greater emphasis to in the later cases.
GUMMOW J: I think so.
MR McLEISH: The conclusion, then, is at page 486 ‑ ‑ ‑
GUMMOW J: Before you get there, though, at the bottom of 485, there is a considerable awareness of the limitations of the federal arbitration power, is there not?
MR McLEISH: Yes.
GUMMOW J: About six lines from the bottom:
the laws of a State which do not regulate industry at all are not inconsistent with the exclusive authority which the Commonwealth statute gives to the award merely because they deal with specific conduct -
Then he deals with the sheep that was taken up later. He could be:
prosecuted under the State criminal law for unlawfully and maliciously wounding an animal.
MR McLEISH: That, your Honour, is because the Commonwealth law does not presume to say anything about that subject and it is, therefore, inferred that it is ‑ ‑ ‑
GUMMOW J: Then he says at 486 about line 15:
But, in this case, the State law . . . deals directly with the relation of employer and employed, and in virtue of that industrial relation makes penal the very default which the Federal law punishes . . .
The case, therefore, is not one in which conduct made punishable by State law on grounds which do not affect industrial relations -
et cetera.
MR McLEISH: Yes, your Honour.
GUMMOW J: But that sort of reasoning would not apply to these two sets of laws, both of which are concerned with drug dealing.
MR McLEISH: That sort of reasoning, your Honour, we submit is what is necessary in the case where there is no indication from the statute as to the extent of its operation, so that analysis of that sort may be necessary in other cases and may have been in this case if it were not for section 300.4.
FRENCH CJ: I wonder whether provisions like section 300.4 do anything more than to provide…..in this territory, in other fields, an interpretive rule in relation to the limitation of the scope, subject matter and otherwise the construction of the Commonwealth law.
MR McLEISH: We would not disagree with that, with respect, your Honour.
FRENCH CJ: I mean, it may be that you have, for example, a couple of views open about its scope and subject matter based on ordinary construction approaches and this tells you to take that approach which does not generate, as it were, an inconsistency with the State laws.
MR McLEISH: Yes, we would adopt that, with respect, your Honour.
FRENCH CJ: Although the problem is, I suppose, it depends on the accident of what the State laws might be.
MR McLEISH: It is not going to help if there is a State law compelling ‑ ‑ ‑
FRENCH CJ: Yes, exactly right.
MR McLEISH: ‑ ‑ ‑ something to be done which is prohibited by the Commonwealth law.
GUMMOW J: Do these provisions, like section 304, come in at the time of the Trade Practices Act? Section 75 of the Trade Practices Act is such a provision which was considered in the General Motors Case 137 CLR 545. Are there earlier instances, do you know?
MR McLEISH: The Trade Practices Act is the earliest one I know of, your Honour, but, of course, the State Fair Trading Act is in almost identical terms, of course, to the Trade Practices Act, as it used to be called.
FRENCH CJ: I think we have an increasing number of overlapping laws, have we not? It feels like equal opportunity, anti‑discrimination and so forth.
MR McLEISH: Well, yes, your Honour, and with ‑ ‑ ‑
GUMMOW J: We saw one last week the Solicitor took us to. Section 21 of the International Arbitration Act is in the opposite direction. It says:
If the [federal law] applies to an arbitration, the law of a State or Territory relating to arbitration does not apply ‑ ‑ ‑
MR McLEISH: So, yes, covering the field provision. They are useful provisions, in our submission, your Honours, given the very point about the overlapping regulation of same conduct by State and federal laws. Your Honours, we have made the point in our written submissions at paragraph 21 that no case thus far has held that the fact that methods of trial may be different for Commonwealth and State offences for the same conduct is such as to lead to inconsistency. We say we do not need to – ultimately we do not need to go beyond section 300.4 because the modes of trial, modes of proof for the offences if they are intended to exist concurrently there is no inconsistency. The Commonwealth Act is saying nothing as to the mode of trial, for example, of State laws, charges against State laws or mode of proof.
GUMMOW J: Can I just interrupt you for a minute, Mr McLeish. This is all very difficult, but is not what the Chief Justice was putting to you two or three minutes ago as to the effect of these intention clauses consistent with what Chief Justice Barwick said in GMAC 137 CLR 545 at 552, the second paragraph in his Honour’s reasons. Do you have GMAC there?
MR McLEISH: We are just obtaining that, your Honour.
GUMMOW J: The paragraph beginning:
Whilst quite clearly the Parliament cannot determine ‑ ‑ ‑
MR McLEISH: Yes, your Honour, that comes back to the example I gave before, that section 300.4 would not be effective to prevent the operation of section 109 in relation to a State Act that compelled or authorised conduct that was prohibited by the Commonwealth by the drugs code.
GUMMOW J: But I think what Sir Garfield is saying there is contrary to what is being urged on us in some of the other submissions in this case.
MR McLEISH: We do not apprehend that it is contrary to what is put by us, your Honour, but it depends of course on the nature of the asserted consistency or inconsistency, and the kind that is asserted in the present case, we submit, is susceptible of the operation of those kinds of provisions.
FRENCH CJ: There is really a similar statement, I think, in the judgment of Justice Mason at 562:
Where the Commonwealth Parliament’s intention to cover the field is in question, the question is to be resolved as a matter of statutory construction . . . it is material to consider ‑ ‑ ‑
MR McLEISH: Yes, and at that same page, your Honours – the opposite page, page 563, is the passage that is relied on against us in Justice Mason’s judgment, where his Honour says:
The judgments to which I have referred make the point that although a provision in a Commonwealth statute which attempts to deny operational validity to a State law cannot of its own force achieve that object, it may nevertheless validly evince an intention on the part of the statute to make exhaustive or exclusive provision on the subject with which it deals, thereby bringing s. 109 into play. Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field ‑ ‑ ‑
FRENCH CJ: The question is, once you have that statement of intention, what do you do with it, which was answered in a way by Sir Garfield Barwick, I think.
MR McLEISH: Yes, your Honour. I should say the passage that is put against us is the following paragraph, but that paragraph, in our submission, is no more than making the point I sought to make earlier that direct inconsistency or collision of the kind which arises, for example, when Commonwealth and State laws make contradictory provision upon the same topic making it impossible for both laws to be obeyed ‑ ‑ ‑
GUMMOW J: I think what Sir Garfield was saying in GMAC was a rejection of Mr Byers’s submission, an ambitious submission, at 550 to 551:
it is open for the Commonwealth Parliament to decide whether or not to create inconsistency. . . . Thus Commonwealth law may be framed so as to coexist ‑ ‑ ‑
et cetera.
MR McLEISH: Yes. We would not adopt the submission that is attributed to Sir Maurice there that it is open for the Commonwealth Parliament to decide whether or not to create inconsistency. It is open to the Commonwealth Parliament to indicate an intention whether or not there be inconsistency. We submit that this approach – that is, the emphasis on statutory intention in identifying whether or not there is direct inconsistency where a right or liberty is said to be conferred by Commonwealth law, is consistent with your Honour’s recent judgment in Dickson v The Queen (2010) 270 ALR 1, in particular paragraph [22]. The judgment articulates what the direct inconsistency in that case was:
The direct inconsistency in the present case is presented by the circumstance that s 321 of the Victorian Crimes Act renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Commonwealth Criminal Code.
In other words, the conclusion that the conduct was deliberately excluded by the Commonwealth was, in our submission, the necessary anterior conclusion before identifying that a right or liberty, as it was put, was designedly left – paragraph [25]. Once there was an area of liberty designedly left it should not be closed up by State law. In our submission, it is not open to conclude in this case that any area of liberty was designedly left or that the possibility of proceedings under State laws according to methods of proof and trial determined by State laws was excluded. There was no possibility of concluding that that prospect was designedly or deliberately excluded or designedly so.
GUMMOW J: There was an article by Dr Rumble recently published in (2010) 38 Federal Law Review 445 at pages 457 and following. Have you had a chance to look at that?
MR McLEISH: No, your Honour. We will try and do that over the luncheon adjournment.
GUMMOW J: He refers to Dickson amongst other things.
MR McLEISH: Yes, we will certainly look at that, your Honour. Can I then turn to the construction of section 5 of the Drugs Act and this brings us to the Charter Act. Our submission is that section 32 along with other common law and statutory principles has to be applied in determining the meaning of section 5. By way of overview - our submission is the same as that of Dr Donaghue to the extent that he argued yesterday that section 7(2) is the provision one looks to in determining the notion of compatibility for the purposes of section 32.
GUMMOW J: Courts may be called upon - and we had an example in Hinch, I think - to apply Part 2 without getting into Part 3. In other words, section 7 may have work to do without there being any process under Division 3 of Part 3 to get a declaration from the Supreme Court.
CRENNAN J: Especially if you accept that Dr Donaghue’s point that the Charter amounted to an implied amendment of all Victorian legislation which is inconsistent with the Charter - if you look at section 6(2), does that in practice mean that a trial judge must approach section 5 on the basis that the Charter, in terms of practicalities anyway, creates a rebut of all presumption in favour of construing section 5 consistently with the right in relation to the presumption of innocence, 25.
MR McLEISH: We will say no, your Honour, that our submission will be that the Charter does not imply the repeal of any Victorian legislation.
CRENNAN J: No, it was more an implied amendment so that there is a – well as I put it – a rebuttable presumption in favour of construing section 5 consistently with section 25. Is that not how it works?
MR McLEISH: We would not characterise it as an amendment, your Honour. We would characterise it still as a process of interpretation that is required under section 32. It may or may not give rise to a different result, but we do not get there through section 6(2), your Honour.
CRENNAN J: Why would not the interpretation exercise fall upon a trial judge under section 6(2), as Justice Gummow put to you, without a declaration of inconsistency having been made?
MR McLEISH: Sorry, we might be at cross‑purposes, your Honour. Section 6(2) would require a judge interpreting section 5 to apply section 32. We accept that. It would not, though, we submit, operate to require a judge to give effect to any provision of Part 2 in opposition as if it were amending any previous provision.
CRENNAN J: I suppose the trial judge might go through the same process as the Court of Appeal did, that is to say, in applying section 32 it is not possible to interpret section 5 consistently with section 25 of the Charter.
MR McLEISH: Yes, that is our submission, that the trial judge would go through that process and would reach that conclusion.
CRENNAN J: What would the obligation be on the trial judge if nobody raises the point?
MR McLEISH: Your Honour, ultimately the question is whether the trial judge has correctly interpreted section 5, so if as, in our submission ‑ ‑ ‑
GUMMOW J: The problem is that 6(2)(b) seems to impose some form of obligation on courts and tribunals in the exercise of their functions.
CRENNAN J: To give effect to the Charter.
GUMMOW J: Yes.
MR McLEISH: It is a difficult provision and it does impose, we would submit, some obligations, but not one which would undercut section 32.
FRENCH CJ: The textual question is – one can understand that they function under Division 3 of Part 3 - is the application of section 32. What functions do courts have under Part 2? One answer to that might be they have functions defined by reference to those rights which relate to proceedings in courts.
MR McLEISH: Yes, in broad terms. Yes, we would not necessarily disagree with that, your Honour, but perhaps section 24 is a good example. That is the fair hearing right.
GUMMOW J: And 25 itself.
MR McLEISH: Section 25 itself is more complex, we would submit. In particular it is more complex in the context of a suggestion that there is an implied repeal or amendment because it requires the person to be tried according to law and we would submit that that would include according to the law as interpreted under section 32 so that it does not presume to alter what the underlying law is. In any case, we submit, any effective change, if I can use a neutral term, to the meaning of laws as a result of a charter must operate by section 32.
FRENCH CJ: If that is so, according to law, it incorporates reverse onus provisions.
MR McLEISH: It may do, yes.
FRENCH CJ: Therefore, qualifies the right without resort to section 7.
MR McLEISH: It may do.
FRENCH CJ: Section 7 has nothing to do.
MR McLEISH: That may be so and it may be that section 6(2)(b) ultimately does not attach at this point because that may be directed to the interpretive exercise in section 32.
FRENCH CJ: On this submission the exercise in the Court of Appeal was a waste of time because the presumption of innocence, as defined in 25(1), is qualified by the words “according to law”, which incorporate reverse onus provisions.
MR McLEISH: Yes, your Honour, except that section 32 would itself be able to ‑ ‑ ‑
FRENCH CJ: It only applies the rights. The premise is what is the right? The premise you have just offered us is that the right is qualified in its terms.
MR McLEISH: According to law, but the law itself is to be interpreted in accordance with the right as well.
FRENCH CJ: It sounds like pulling a rug out from under your own feet.
MR McLEISH: What I am really attempting to address, your Honour, is the suggestion that somehow section 25, of its own force with section 6(2)(b), excludes the operation of section 5. We would also say that that result would be inconsistent with the structure of the Charter, which your Honours have heard about from Dr Donaghue. Without using the term dialogue the structure is, as your Honours have seen, to leave the validity of laws and Acts done under valid laws, intact but to provide for a mechanism by which incompatibility with human rights is drawn to the attention of the Parliament for it to respond to as it sees fit.
KIEFEL J: Does the construction of section 5, which is reached via the Charter, have any relevance with the section 109 question?
MR McLEISH: It may, your Honour, insofar as the appellants submitted that even on an evidentiary burden there was an inconsistency between section 5 and the Code.
KIEFEL J: But what I suppose I am really asking is do you have to construe section 5 for the purposes of applying and considering the application of section 109, in accordance with section 5 in accordance with the Charter?
GUMMOW J: In other words, what is the relevant law of the State for the purposes of 109?
MR McLEISH: Yes, your Honour, only if our argument on section 300.4 is not accepted because the question of which of the two meanings that have been offered of section 5 arises would not arise if we were correct about section 300.4.
KIEFEL J: We might have three now.
MR McLEISH: Yes, one of three. Your Honour is alluding to the trafficking provision?
KIEFEL J: Possession simpliciter trafficking and then the overlay of the Charter construction.
MR McLEISH: Yes, I might come to that third one separately, your Honour.
GUMMOW J: That is why the exercise Justice Crennan was taking up with you as to amendment or deemed amendment may be important as laying out the ground upon which section 109 then operates to identify the law of the State.
MR McLEISH: Yes, I accept that, your Honour.
GUMMOW J: It seems to be the law, you take the statute and then you operate upon the statute under the State system in some way through the Charter and it is the product of that process which is the law of the State for 109.
MR McLEISH: It is your Honour.
GUMMOW J: That is what puzzles one.
MR McLEISH: As I have indicated, we agree with Dr Donaghue about the role of section 7(2) in section 32. I will come back to section 6. We depart from the submissions made by ‑ ‑ ‑
GUMMOW J: If I can just add to that, the relevant law of the State will itself be ambulatory but given the particular operation of the Charter limited by section 6. There may be an area outside the operation of section 6 where a State law is untouched by the Charter, do you see what I mean?
MR McLEISH: If section 6 were to achieve an amendment of its own force, yes, your Honour, but our submission will be that section 6 does not achieve any amendment, that the only provision that effects a change, if any, in the meaning of Victorian legislation is section 32 and this is where we depart from the Commission. Our submission is that section 32 applies a rule to be applied within the ‑ ‑ ‑
GUMMOW J: Section 32 is only directed to bodies identified in section 6. Is that not right? When it says “must be interpreted”, it does not say by whom and the answer to “by whom”, I think, directs you back to section 6(2), does it not?
MR McLEISH: It does appear to, your Honour, but it would be a person not under section 6(2) seeking the meaning of the law would be well advised to seek the meaning a court would give the meaning of the law.
GUMMOW J: The proper law of a subcontract might be the law of Victoria and there might be dispute in the Supreme Court of South Australia. We know that section 6(4) is a little imperial, but I do not think that would bind the Supreme Court of South Australia to perform any task. There is always a choice of law dimension to these State statutes which is not always thought out.
MR McLEISH: Your Honour, we submit that it is a rule which would be applied by the Supreme Court of South Australia like any other rule of interpretation provided for by State legislation. That supports our argument, we submit, as to why this is not a so‑called special rule and section 32 still requires an interpretive task.
GUMMOW J: Could the Supreme Court of South Australia make a declaration? I doubt it.
MR McLEISH: No, your Honour.
KIEFEL J: Do I take it that your answer to the prospect that the Charter effects an implied repeal or amendment is based solely upon the fact that there is a process of construction to be undertaken?
MR McLEISH: Our submission is that it would be inconsistent with the scheme of the Charter which mandates the process of interpretation followed by a drawing of attention of the court’s conclusion to the legislature for it to act on or not as it sees fit would be inconsistent with an operation of the Charter that effected any other ‑ ‑ ‑
KIEFEL J: An automatic implied repeal or amendment.
MR McLEISH: Exactly, your Honour.
KIEFEL J: But is there a difficulty here, because the process of construction that is to be undertaken operates upon a clear inconsistency.
MR McLEISH: We would also rely, your Honour, on what Justice Gaudron said in Saraswati 172 CLR 1 at 17 to 18, which Justice Gummow referred to yesterday, and her Honour drew particular attention to the need for strong grounds to support an implication of any repeal or alteration to an earlier law and her Honour particularly said that:
an intention to affect the earlier provision will not be implied if the later is of general application . . . and the earlier deals with some matter affecting the individual –
That may not be apt in this case.
KIEFEL J: No, because here you have a specific versus general question, have you not? That puts another dimension to it. May I just add, before you further answer, here too it is not a question of interpreting an inconsistency within a statute. As you have just pointed out by that answer, it is as between two statutes.
MR McLEISH: We would submit the Charter is the more general of the statutes, and that the Drugs Act, section 5, is particular about one particular element of ‑ ‑ ‑
KIEFEL J: But unless you give particular status to a general statute, would not the more specific statute usually prevail?
MR McLEISH: Yes, your Honour.
KIEFEL J: So you are attributing particular status to ‑ ‑ ‑
MR McLEISH: To section 5.
KIEFEL J: To the Charter.
MR McLEISH: No, your Honour, we are attributing particular status to section 5, and saying the very general provision is section 6(2)(b), which simply says courts have functions, and that, we submit, is inadequate to infer any implied amendment or repeal of section 5. It would also be inconsistent, we would submit, with the notion that a declaration does not invalidate legislation.
Your Honour the Chief Justice drew attention yesterday to the fact that section 36(5) really only addresses the negative consequences of the making of a declaration, but nonetheless, if a finding of incompatibility in the application of section 6 amended legislation, it would be exactly the same as a finding of incompatibility in the application of section 32, but having a radically different effect, and that goes to support the argument that the general statute being the Charter was not intended to effect the earlier statute.
Moreover, section 32 itself, indicates, we submit, how the relationship between the Charter and section 5 of the Drugs Act was intended to be understood. In other words, it was in the Charter and the rights in it were intended to go to the question of interpretation consistently with the purpose of section 5, and to that extent, there may be an effect on the meaning of section 5, but otherwise section 32 would not have that effect. It would be anomalous, we would submit, that via perhaps a backdoor method, section 6(2) to achieve the result that section 32 does not achieve.
KIEFEL J: You have so far concentrated on section 6(2) in response to the inquiry about implied repeal or amendment. What do you say of the prospect that section 7(2) affects an implied amendment?
MR McLEISH: We would make the same general submissions about the way section 32 works. Our submission is that section 7(2) informs the operation of section 32 and does not have a further operation.
KIEFEL J: You are saying it cannot operate in a freestanding way upon the right?
MR McLEISH: It cannot operate to change the law in a freestanding way. It can operate to impose obligations on public authorities via section 38. I have taken the Court to section 24, the fair hearing provision.
KIEFEL J: Is that because of the words “may be subject under law” so it requires the application of the law before it has an effect, an application of the law by a court?
MR McLEISH: In section 25, yes. What is meant by the law and according to law is described in section 32. Section 32 itself informs what is supposed to be done to determine what ‑ ‑ ‑
KIEFEL J: I am sorry, I was reading from section 7(2) which also says “may be subject under law”, which might support your argument that it requires to be applied by a court and does not have an effect itself.
MR McLEISH: Yes.
CRENNAN J: How does it work in practice? If section 32 and section 7 are utilised together for the purposes of interpreting a legislative provision, does section 7 operate so that a possible result is that a legislative provision is inconsistent with the Charter but is nevertheless justified, or would section 7 operate to achieve the result that by reason of an incursion on a Charter right being justified the legislative provision is not inconsistent with the Charter?
MR McLEISH: It is the latter, your Honour. We refer to what Dr Donaghue said and what we say in our written submissions about the notion of compatibility running through the Charter and giving coherence to it. The question asked by section 32 is one of compatibility which we submit requires going through the justification analysis. We say the Court of Appeal erred in separating off the justification analysis.
FRENCH CJ: Section 7 helps. It defines in an ambulatory way the scope of a human right by reference to a particular limitation and that then feeds into the interpretative and compatibility judgment.
MR McLEISH: Yes, that is our submission, yes, your Honour.
FRENCH CJ: Just to follow the question I think I asked yesterday, the demonstrable justification, is that by evidence, or how is that done?
MR McLEISH: Normally not, we would submit. We have referred to this in the written submissions. The Court of Appeal considered that evidence would normally be required – this is in paragraph 48 of our written submissions, your Honour. In short, our submission is that questions of this sort would normally be able to be dealt with by what is sometimes called legislative fact evidence, so that may require reference to parliamentary materials or ‑ ‑ ‑
HEYDON J: That is not evidence. That is legislative fact analysis, but not based on evidence.
MR McLEISH: Correct, your Honour. I am using the term perhaps loosely. That is the sort of material that would inform a justification analysis, perhaps reports preceding the making of the relevant legislation and so on. There may be special cases where something more is required, and as Mr Silbert said this morning, in many cases, it just may not be a matter that admits of evidence. The Court of Appeal was concerned that this was a reason for leaving the justification analysis outside the interpretation task. Our submission is that that ignores the central importance of the concept of compatibility in the legislation, but ‑ ‑ ‑
CRENNAN J: They may have been responding to the fact that justification was not the sort to be raised by Mr Silbert. That is part of the background to the concession.
MR McLEISH: It was raised by the Solicitor‑General, not by way of evidence. It is perhaps difficult to pin down exactly what the concession was, but as Mr Silbert explained it this morning, it was a matter of not being able to point to evidence, and it is recorded in the Court of Appeal’s judgment as a concession that two onuses would not make very much difference, which is perhaps neutral as to whether they are useful or not. As Mr Silbert said this morning, the effect the evidentiary onus does have a use. We will come back to that question.
CRENNAN J: What was the Attorney‑General’s point in relation to section 7? Was the argument that a different result should have been achieved than the one that was actually a result in the Court of Appeal?
MR McLEISH: It was in the Court of Appeal, yes, your Honour, on the basis of section 32 being a so‑called special rule and we are contending that the Court of Appeal was correct in rejecting that argument. The court’s concern about evidence was one reason why it found it unlikely that section 7(2) had anything to do with interpretation but apart from not paying sufficient significance to the word, the term “compatibility”, we would also submit that that overstated the nature and difficulty of obtaining the relevant material to inform the proportionality or justification analysis. In the end, we would submit that the types of materials that regard would be had to in the course of that analysis would be broadly similar to those which are already had regard to as part of statutory interpretation by way of experiencing ‑ ‑ ‑
KIEFEL J: Other materials or evidence are not often required in a proportionality analysis of legislation where the consideration is the purpose on the one hand of the legislation to which section 32 already directs attention, so section 7 works with that. The purpose on the one hand and the extent of the limitation imposed upon the freedom, the question generally under a proportionality analysis is, does it go too far beyond what is reasonably necessary and more often than not the answer is dealt with by less - what may be less restrictive means which would be particularly pertinent to an interpretative approach under this Charter.
MR McLEISH: We agree with that with respect, your Honour. Often nothing may be required beyond looking at the legislation.
KIEFEL J: The less restrictive means analysis usually looks to alternative legislation here or alternative means such as evidentiary versus legal onus. In application of proportionality in constitutional cases in this Court it is probably only more clearly in section 92 cases where sometimes it might be thought the case cries out for some more illustration. There you are in the area of – you are delving into areas of competition and competition constructs which do not speak for themselves, or not logically dealt with anyway.
MR McLEISH: Quite, your Honour. Our submission is that there is no real ground for the Court of Appeal’s concern that incorporating 7(2) into the interpretive task would render the meaning of legislation impossible to ascertain. As your Honour Justice Kiefel has put to me, often there may be no need to look at any extrinsic materials. Where there is such a need it is no different, we would submit, to the processes that are already undertaken by people construing statutes.
KIEFEL J: What the combination of section 7(2) and section 32 throws up, which a court would not usually be involved in, is, having answered the question does this legislation go too far in impinging upon a freedom or a right, if the answer is yes, under this legislation the court is then encouraged to take another step and say we will then resolve it. That is the difference in what any court in Australia, I think, has been asked to apply in terms of proportionality before.
MR McLEISH: All the court is being asked, we would submit, is to apply that analysis. If it reaches the conclusion that the only way of construing the section consistently – the provision consistently with its purpose - involves incompatibility then, yes, the overriding obligation, we submit, is to give effect to the purpose of the provision. To that extent there is no difference to what a court is ordinarily required to do. The extra part – if I can put it that way – although it is called a declaration, we would submit that ultimately it is merely a mechanism by which a conclusion of incompatibility, an inability to construe the provision compatibly with a relevant human right is conveyed to Parliament for its consideration.
KIEFEL J: How would identify the purpose of section 5 in this regard?
MR McLEISH: We would say the purpose of section 5 looked at in its terms is to impose a legal onus on a person in the circumstances that it provides. In a sense, we say it is a comparatively easy case because there is only one way, we submit, of reading section 5. I will come back to that later on.
HEYDON J: Could I ask you a question about the doctrine of precedent? Assume that there is a Victorian statute of longstanding, that either this Court or the Court of Appeal has given a particular construction to, and many people who arrange their affairs on the strength of that construction, is a magistrate or a County Court judge or a single Supreme Court judge, if a submission is put to that officer, that the construction should be overturned, at liberty to say, “Yes, I will overturn it, because it is really an implied repeal or amendment”, or “I will overturn it because it is a matter of interpretation concerning human rights”, or is the correct approach to say, “I am bound by the High Court or the Court of Appeal. If you wish to have the interpretation changed, you will have to appeal.”
MR McLEISH: Your Honour, we have drawn an analogy with perhaps the introduction of the provisions expressly permitting resort to extrinsic materials. We are not aware of authorities on the point, but in my submission, the former precedent would cease to be binding because it was reached according to different principles of construction than those which are binding on the magistrate in that.
HEYDON J: So even though the Charter does not amend earlier legislation, a magistrate can decline to follow a decision of the Court of Appeal or the High Court?
MR McLEISH: It would be an exceptional case, I would submit, but strictly speaking, the case of the Court of Appeal with this Court in question would not have been one which applied the governing interpretative rules, so it would not be on all fours with the task that was before the magistrate but, as in this case, prior determination of the meaning of a provision, especially in accordance with its purpose, is likely to be a very weighty matter and it may have involved the application of the principle of legality among other things. As with provisions permitting resort to extrinsic materials, it is perhaps difficult to envisage the case where it might make a difference but it cannot be ruled out.
HEYDON J: How do the principles stated in John v Commissioner of Taxation as to when this Court and other courts will overrule their own earlier decisions factor into decisions under the Charter?
MR McLEISH: Your Honour, we would not characterise it as overruling, rather, we would simply say that the matter would need to be looked at afresh and ‑ ‑ ‑
HEYDON J: If it is not overruling, it must be because the Charter has amended the earlier statute.
MR McLEISH: In our submission, it is really neither because the question of the interpretation of the relevant provision, according to the prevailing rules of interpretation, simply has not arisen. A very similar question, we would submit, would have arisen, but not exactly the same question. So it might be splitting hairs and, as I say, the previous construction would no doubt be accorded great weight as being the one consistent with purpose and the meaning of the text, et cetera. So that is where we say that the previous authority would come to bear and in this case we have submitted that the appropriate starting point for the Court of Appeal was to look at the well‑settled meaning and to see whether that was compatible with human rights. If not, was there another meaning and we submit there was not.
GUMMOW J: If a question under the Charter arose in a Victorian court in the course of civil litigation between a resident of Victoria and a resident of New South Wales how would it work? The question would be whether it was picked up by section 79 of the Judiciary Act, would it not?
MR McLEISH: It would, yes, your Honour. We would submit section 32 would be picked up as a rule of interpretation.
GUMMOW J: The picking up has to be always subject to the Constitution.
MR McLEISH: Yes, your Honour, so there might be questions ‑ ‑ ‑
GUMMOW J: Which may give you some support in your argument about the non‑application of Ghaidan, I suppose.
MR McLEISH: Yes, we rely heavily on the constitutional context for the non‑application of Ghaidan, and that will be the bulk of our submissions as to how section 32 is different from section 3 of the Human Rights Act as interpreted in Ghaidan.
FRENCH CJ: If I can just come back for a moment to 7? Its practical application is likely to be, is it not, in determining whether the particular statute under examination said to infringe upon a human right sets a reasonable limit within the meaning of 7. In other words, the limit will be that defined by the statute under examination.
MR McLEISH: Yes.
FRENCH CJ: Then the question will be, well, does that set a reasonable limit? If not, is there some lesser application for which would set a reasonable limit, for example, legal to evidential burden? Really the section 7 question will not be a large ambulatory question, about what are the reasonable limits on the human right; it will be whether this limit is reasonable.
MR McLEISH: Yes.
CRENNAN J: Just one more question on section 7. If the Court made a declaration of incompatibility, or inconsistent interpretation, and part of the reason was that section 7 considerations did not save a specific legislative provision from that incompatibility so that it was not a justified incursion on a human right, under this scheme it is open I expect, although I would welcome your assistance, under the section 37 mechanism which makes provision for the relevant Minister to respond to a declaration of inconsistent interpretation, in preparing such a response I expect under this scheme the Minister could return to section 7 considerations as a response to the declaration of inconsistent interpretation?
MR McLEISH: Yes, the Minister could, your Honour, and if I can just detour briefly on that point? The Minister could take a different view to the Court on that question, and the issue has arisen as to the fact that the notification to the Parliament has not occurred in relation to this decision. It would be surprising and undesirable if section 36 were construed so as to envisage a Minister telling Parliament that a judicial decision was incorrect, at least while it was subject to appeal. Rightly or wrongly, the view has been taken that the time for notifying Parliament does not run until after any appeal has been finalised, just for the Court’s information.
FRENCH CJ: Mr McLeish, that might be a convenient time.
MR McLEISH: Yes, I note the time, your Honour.
FRENCH CJ: We will adjourn until 2.15.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
FRENCH CJ: Yes, Mr McLeish.
MR McLEISH: If the Court pleases, to seek to make good our propositions, firstly, that section 32 operates within and not outside the task of statutory interpretation and, secondly, that it is qualitatively different to section 3 of the United Kingdom Human Rights Act, could we start with the text of section 32.
GUMMOW J: It must be interpreted by whom?
MR McLEISH: Certainly by courts, your Honour, also by ‑ ‑ ‑
GUMMOW J: Federal Courts?
MR McLEISH: Yes, your Honour. We say it is picked up by section 79, as a rule, the interpretation of section 79 of the Judiciary Act.
FRENCH CJ: So a federal court might have a case involving State law attracting the application of this in the exercise of accrued jurisdiction?
MR McLEISH: Yes.
FRENCH CJ: And it might end up being faced with the question of whether it makes a declaration of inconsistency.
HEYDON J: It could not do it, could it?
MR McLEISH: No, the question of declaration of inconsistent interpretation would raise different considerations.
GUMMOW J: Parts of this structure are picked up, are they?
MR McLEISH: It would not alter the operation of section 32 if section 32 were picked up without section 36.
GUMMOW J: Yes.
FRENCH CJ: The declaration issue is confined to the Supreme Court, is it not?
MR McLEISH: The terms of section 36 are, yes, your Honour. The particular elements of the text that we will be emphasising are the opening words “So far as it is possible to do so consistently with their purpose”, the word “interpreted” and the word “compatible” although I will not seek to say anything further about the word “compatible”. In our submission, section 32 preserves the primacy of the purpose of the enacting legislature through the opening words and consistently with section 35(a) of the Acts Interpretation Act which is the provision requiring the Parliament to prefer a construction which gives effect to the purpose of the enacting Parliament over one that does not. Section 35(a) does not, unlike some similar provisions in other jurisdictions direct the selection of that construction which best promotes the purpose or object.
GUMMOW J: Sorry ‑ ‑ ‑
MR McLEISH: Section 35(a), your Honour, of the Interpretation of Legislation Act 1984. It mandates a choice between a construction that would and one that would not promote the purpose or object underlying the Act in question.
GUMMOW J: When you say it must be interpreted by courts ‑ ‑ ‑
MR McLEISH: Section 32, yes, your Honour.
GUMMOW J: I know. What happens to the solicitor sitting in the solicitor’s office or the counsel sitting in counsel chambers?
MR McLEISH: Their task, your Honour, is to seek to anticipate how a court would interpret the provision and in that sense is no different to any person outside a court seeking to understand the meaning of a statutory provision. So it is consistent with the notion that it is the courts that determine the meaning of statutes.
CRENNAN J: That is a reinforcement of 35(a), in a different statutory setting or does it add to it somehow?
MR McLEISH: It adds to it, but it confirms its primacy, that it is necessary to prefer a construction that gives effect to purpose and similarly, it is necessary within that context, so far as it is possible to do so, to prefer a construction that is compatible with human rights.
CRENNAN J: Was the Court of Appeal right to conclude that section 32 is a codification of the principle of legality?
MR McLEISH: Perhaps by way of shorthand, your Honour. We would perhaps not embrace the notion of codification, but we would certainly say it is closer to the principle of legality than the principles enunciated in Ghaidan. It is somewhat different because of the notion of compatibility, your Honour.
KIEFEL J: It has the complication, though, that I think was pointed out for the third respondent yesterday that if section 7(2) is the test of compatibility within section 32, then you have an additional element to notions of legality.
MR McLEISH: Yes, you do, your Honour. So it may well make it unnecessary to have resort to the principle of legality.
KIEFEL J: Or proportionality is probably a rule of law based rule, so we could add another question to the equation so we could discuss the interface between the rule of law and legality, which is what seems to be somehow thrown up by section 32 and section 7. A reasonable necessity test and a presumption of non‑interference with certain freedoms is the area we are in.
MR McLEISH: That is the area, your Honour, and it is a somewhat different area to the principle of legality.
FRENCH CJ: Can I just ask about the operation of subsection (3)(b)? Does that have any impact on the Court’s ability applying section 32 to read down a regulation‑making power, so as to invalidate a regulation which would infringe upon a human right?
MR McLEISH: We would say not, your Honour. The question raised in (3)(b) is whether the subordinate instrument is empowered to be made to – it requires that the subordinate instrument be one empowered by the Act, so that if the Act ‑ ‑ ‑
FRENCH CJ: So the premise is that it is within power?
MR McLEISH: Yes.
FRENCH CJ: You can still go to the Act and read down the power and then on that basis, invalidate the regulation, for example?
MR McLEISH: Yes, your Honour. We have set out a relevant passage from the explanatory memorandum in paragraph 30 of the written submissions, where we have said:
The reference to the statutory purpose is to ensure that in [interpreting legislation] courts do not strain the interpretation of legislation so as to displace Parliament’s intended purpose ‑ ‑ ‑
GUMMOW J: I am sorry, where are you reading from, Mr McLeish?
MR McLEISH: I am reading from paragraph 30 of our written submission, your Honour, where we have extracted the relevant part of the explanatory memorandum. It is page 9.
CRENNAN J: That is Parliament’s intended purpose in relation to the legislative provision under consideration, is it?
MR McLEISH: No, your Honour. That is the Parliament’s purpose in referring to purpose in the opening words of section 32, and all that does, we suggest, is to reinforce the primacy of the purpose of the Parliament in enacting the statutory provision in question. Something of the role of a court under a similar provision in the New Zealand Bill of Rights Act was considered by the Supreme Court of New Zealand in Hansen’s Case [2007] 3 NZLR 1.
GUMMOW J: Just before you leave section 32(3), what is the force of this word “validity”? I think we discovered yesterday that, absent some entrenchment provision, invalidity could not arise within the State system.
MR McLEISH: It is there on that analysis, we would submit, for the avoidance of any doubt, lest someone trying to apply section 32 and not versed in constitutional law were to think that a section was invalid for want of compatibility with a human right.
GUMMOW J: How does section 109 of the Constitution operate in this context, which involves identification of the relevant State law? The State law seems to be, as it were, incomplete in the sense that it is subjected to the potentiality of these curial processes.
MR McLEISH: We would not characterise it that way, your Honour. On the approach that we contend for, the State law is merely a weighting interpretation and not complete.
GUMMOW J: But if you are wrong about that, what I am putting to you, I suppose, is you perhaps have to be right in your construction as otherwise you would get into deep waters in the operation of section 109.
MR McLEISH: Your Honour, we would put it perhaps differently, that if we were prima facie wrong about that, section 32 should be read down to be valid so that we were right under section 6 of the Interpretation of Legislation Act. We have submitted in our written submissions – and I do not want to take time over it – that on either view of section 32 the provision is valid, but if there is an invalid construction and a valid one we would submit that is a reason for adopting the construction we wish to advance.
GUMMOW J: Just applying the Ghaidan thought processes in the United Kingdom it seems to be that the legislative process in the United Kingdom is not at an end because there is the potentiality always of this what Lord Millett would say was quasi‑legislative inactivity by the British courts.
MR McLEISH: Or reinterpretation or remedial interpretation.
GUMMOW J: Using that word, I know.
MR McLEISH: Your Honour, we are urging your Honours not to adopt that approach to section 32. Our submission is that there are textual and contextual differences that point firmly in the opposite direction in the case of section 32. If I could take your Honours to Hansen at pages 76 to 77, there, Justice McGrath at paragraph [237] at the bottom of page 76 emphasises the importance of the word “interpretation” in section 6 of the Bill of Rights. We make the same point about section 32 in the Victorian Act. His Honour says:
Both the heading to s 6 of the Bill of Rights and its language indicate that the Court is concerned with an exercise in interpretation of the statutory text being considered when it applies the section. This strongly suggests that meanings that can be given are confined to those which are available on the language of the text being interpreted. The section does not qualify the basic principle of interpretation that the text is the primary reference in ascertaining meaning and there is no authority to adopt meanings which go beyond those which the language being interpreted will bear.
We adopt that and say that it applies with equal force to section 32.
GUMMOW J: What do you say about paragraph [259] of Justice McGrath, perhaps [257] leading to [259]?
MR McLEISH: Well, we adopt [257] as well on the question as it applies.
GUMMOW J: Going to [259], what do you say about lines 15 and following:
it is to be expected that New Zealand Courts from time to time will be constitutionally bound, applying s 4 of the Bill of Rights, to give effect to legislation which they have concluded is not capable of being read consistently with the Bill of Rights. In such instances it is the constitutional responsibility of the Court to indicate -
et cetera?
MR McLEISH: We say there is no difference, your Honour, to the court being bound to give effect to a provision which unambiguously, for example, abrogates the privilege against self‑incrimination.
CRENNAN J: There are no complications here, I expect, about a declaration of inconsistency?
MR McLEISH: No. There is a difference in the declaration or the mechanism for conveying that conclusion and I should add that in New Zealand there is not an express declaration power. We also rely on what Justice McGrath says at paragraph 252. He says:
Section 6 accordingly adds to, but does not displace, the primacy of s 5 of the Interpretation Act, which directs the Courts to ascertain meaning from the text of an enactment in light of the purpose, and it does not justify the Court taking up a meaning that is in conflict with s 5. That would be contrary to s 4.
Section 4 I will take your Honours to in a moment, but he continues:
Rather s 6 makes New Zealand’s commitment to human rights part of the concept of purposive interpretation. To qualify as a meaning that can be given under s 6 what emerges must always be viable, in the sense of being a reasonably available meaning on that orthodox approach to interpretation. When a reasonably available meaning consistent with protected rights and freedoms emerges the Courts must prefer it to any inconsistent meaning.
We submit that is the way section 32 also operates. Section 4 that his Honour relies on in part for that conclusion is found on page 9 in the dissenting judgment of Chief Justice Elias and I only draw it to your Honours’ attention because it is a somewhat broader provision than section 32(3). I do not need to take the Court’s time further about that. We rely also on what is said in Justice Blanchard’s judgment at page 27 at the bottom of the page where it says:
Section 6 can only dictate the displacement of what appears to be the natural meaning of a provision in favour of another meaning that is genuinely open in light of both its text and its purpose.
All these, we submit, are the familiar criteria by which statutory interpretation proceeds and they are all brought into section 32, we submit, by the use of the word “interprets”. The other authority we draw on in this context is Wilkinson v Inland Revenues, the House of Lords decision [2005] 1 WLR 1718 and, in particular, what Lord Hoffmann says at page 1723. The Court has seen the way the Court of Appeal drew attention to the difference between this approach and that which prevails elsewhere in the House of Lords decisions such as Ghaidan, but we rely on what his Honour says at the bottom of page 1723 in paragraph 17:
The [European] Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, ie, the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute.
That formulation again ties the task back to the text and purpose of the statute in the familiar manner. Against that we would highlight several passages in the House of Lords judgment in Ghaidan v Godin-Mendoza [2004] 2 AC 557 which indicate a fundamentally different approach. I will be submitting that the difference is explicable by the different textual and contextual factors.
CRENNAN J: One big difference, I think, is that section 3 appears to oblige the court to search for a possible meaning so as to prevent the need for a declaration of incompatibility being an act of last resort, as I understand the structure of the Human Rights Act.
MR McLEISH: We agree with that, with respect, your Honour. The opening words of section 3, so far as it is possible to do so, we would characterise it as words of exaltation or to encourage the striving for a particular meaning. In contrast, section 32 has the words:
So far as it is possible to do so consistently with their purpose –
and those, in our submission, are words of qualification or restraint equivalent to saying so long as it is possible to do so consistently with its purpose. In other words, they have put a brake on the task to make sure that the purposive approach remains the predominant consideration and that is a significant distinction, we submit, between the two provisions.
In Ghaidan at page 571, for example, Lord Nicholls sets out in paragraph 31 and following the approach that section 3 requires. In many of these judgments there is still an emphasis on interpretation but, in my submission, it is a different beast to what interpretation as explained by reference to text and purpose in the judgments in Hansen, for example, that I have just taken the Court to. Lord Nicholls says in paragraph 31 on this first point to be considered:
the first point to be considered is how far, when enacting section 3, Parliament intended that the actual language of a statute, as distinct from the concept expressed in that language, should be determinative.
It is immediately a novel question, I submit –
Since section 3 relates to the “interpretation” of legislation, it is natural to focus attention initially on the language used in the legislative provision being considered. But once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear –
which we characterise as a task of reinterpretation –
it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration.
He characterises that as a “semantic lottery”. He continues in paragraph 32:
From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is “possible”, a court can modify the meaning, and hence the effect, of primary and secondary legislation.
I think your Honour Justice Crennan was drawing attention to the use of words like “modify” in this discourse. That, we say, although it might be labelled “interpretation”, is really something fundamentally different.
FRENCH CJ: I suppose if one looks at 3(1) of the UK Act, its logic is not there is a meaning out there compatible with Convention rights, find it and apply it so far as it is possible to do so. It allows the court to choose a meaning which is compatible. In other words, it does not posit a unique interpretation which suggests this quasi‑legislative activity, in other words. It is a functional direction rather than a direction to find an answer which complies uniquely with this.
MR McLEISH: Yes, it would characterise that way, your Honour. It is a functional direction and it goes well beyond finding the meaning in fact expressly in that passage. It requires the court to change the meaning.
FRENCH CJ: So the words “consistently with their purpose” in 32, do they mark off a sort of category difference from the words in 3(1)?
MR McLEISH: They do, your Honour. It is submitted against us that those words are intended to embrace the Ghaidan principle because to be a reference to the “go with the grain” type of ‑ ‑ ‑
FRENCH CJ: But you can depart from intention, according to the Ghaidan principle, can you not?
MR McLEISH: That is right, your Honour. We point later to other materials that suggest – mean that that is not what section 32 was intended to mean, but in ‑ ‑ ‑
CRENNAN J: Do you make something of the words “be read and given effect”?
MR McLEISH: We also come to that, your Honour, but principally the opening clause of section 32 ceases to be one of exaltation or striving to find a new meaning. They are words of limitation, we submit. The words “so far as” really have the meaning “so long as”. In other words, so long as it is possible to do so consistently with the purpose of the provision thereby placing a limitation on the court’s role.
FRENCH CJ: It is relevant, I guess, to what Justice Gummow was putting to you earlier. The question is whether the combination of 32 and whatever law we are looking at, in this case section 5 of the Drugs Act, identifies, subject to a process of discovery, a stable meaning. Section 5.
MR McLEISH: Yes, your Honour. There is no reason why section 32, as we construe it, would not provide a stable meaning. The question of compatibility with human rights is capable of being addressed. Indeed, once a court has addressed it, that meaning would be the meaning unless overturned by a later court. If I can then go to page 574 of Ghaidan. Lord Steyn, at paragraph 44, directs attention to the word “possible” and says:
It is necessary to state what section 3(1), and in particular the word “possible”, does not mean. First, section 3(1) applies even if there is no ambiguity in the language in the sense of it being capable of bearing two possible meanings. The word “possible” in section 3(1) is used in a different and much stronger sense. Secondly, section 3(1) imposes a stronger and more radical obligation than to adopt a purposive interpretation in the light of the ECHR.
GUMMOW J: Does his Lordship give an example of when it becomes impossible?
MR McLEISH: I am not sure that he does in this judgment.
GUMMOW J: Given the resources of the English language, it is always possible to read and give effect by rewriting it.
MR McLEISH: That is where those words are significant, your Honour. “read and give effect”, I will be submitting, are very different to interpret.
KIEFEL J: More of an intellectual obligation than a legal one that is confined to legal interpretation.
MR McLEISH: Yes. His Lordship adds:
Thirdly, the draftsman of the Act had before him the model of the New Zealand Bill of Rights Act which imposes a requirement that the interpretation to be adopted must be reasonable. Parliament specifically rejected the legislative model of requiring a reasonable interpretation.
Next, at page 584, I think your Honours have been taken to this passage. It is in Lord Millett’s dissenting judgment, paragraphs 60 to 61. Reading from the start of paragraph 60:
Secondly, the obligation arises (or at least has significance) only where the legislation in its natural and ordinary meaning, that is to say as construed in accordance with normal principles, is incompatible with the Convention. Ordinary principles of statutory construction include a presumption that Parliament does not intend to legislate in a way which would put the United Kingdom in breach of its international obligations. This presumption will often be sufficient to enable the court to interpret the statute in a way [which] will make it compatible with the Convention without recourse to section 3. It is only where this is not the case that section 3 comes into play. When it does, it obliges the court to give an abnormal construction to the statutory language and one which cannot be achieved by resort to standard principles and presumptions.
61 This is a difficult exercise, for it is one which the courts have not hitherto been accustomed to perform, and where they must accordingly establish their own ground rules for the first time. It is also dangerously seductive, for there is bound to be a temptation to apply the section beyond its proper scope and trespass upon the prerogative of Parliament in what will almost invariably be a good cause.
Your Honours will see the reference to “quasi‑legislative power” at the top of page 585. We think we were in error in our written submissions in paragraph 37 to attribute to Lord Millett the statement that section 3 involved a quasi‑legislative power. The passage is a little difficult to follow, but on further reflection we submit that Lord Millett was actually referring to the Caribbean constitutions, provisions of that sort in that context. Having said that, we would still submit that in light of the earlier passages I have taken your Honours to, he might equally have described the power in section 3 in similar terms.
HEYDON J: So what change should we make to paragraph 37?
MR McLEISH: Your Honours, perhaps simply by – it is where we have quoted at the bottom of page 10. We have said it has been said that the power in section 3 is quasi-legislative because the court is not constrained by the language of the statute in question. There is a footnote at the top of page 585. On further reflection we do not think that Lord Millett was actually saying that of section 3. However, as I have taken your Honours to their other remarks in the judgments, they ‑ ‑ ‑
GUMMOW J: They use “quasi-legislative” at paragraph 68 when they talk about Gibraltar. It is wrapped up in the discussion of section 3 though.
MR McLEISH: It is again perhaps a little ambiguous, your Honour. That could be read as referring to the role of the court in territories such as Gibraltar.
GUMMOW J: Then, paragraph 67 he talks about a result that is intellectually defensible.
MR McLEISH: That is why we say that although he may not have been describing the power ‑ ‑ ‑
GUMMOW J: Letter H.
MR McLEISH: ‑ ‑ ‑ as quasi-legislative – yes, your Honour. In effect, much of what he says would lead to a similar description.
GUMMOW J: Then in 68 he seems to be saying that it will be intellectually defensible if it is consistent or not “inconsistent with a fundamental feature of the legislative scheme” in question.
MR McLEISH: Yes, that is another version of the “go with the grain” type of constraint. At the bottom of page 585 his Lordship emphasises that at letter G:
even if, construed in accordance with ordinary principles of construction, the meaning of the legislation admits of no doubt, section 3 may require it to be given a different meaning.
It means only that the court must take the language of the statute as it finds it and give it a meaning which, however unnatural or unreasonable, is intellectually defensible. That is where he speaks of stretching the language almost but not quite to breaking point, striving to find a possible interpretation. Now, those things, we submit, are not authorised by section 32 in any way and that derives partly from the different terminology of “interpret” as distinct from “read and give effect” and partly from the opening words about purpose.
As was raised in argument yesterday, the fact that the court in the United Kingdom is a public authority also bears on the way in which we submit it has approached the task under section 3. This aspect was adverted to by Lord Rodger at paragraphs 106 and 107 on page 594 and 595 of Ghaidan.
CRENNAN J: I think it is referred to too in paragraph 28 of Lambert.
MR McLEISH: Yes, your Honour. Thank you for that reference. At paragraph 105 his Lordship notes the inclusion of a court as a public authority and, in paragraph 106, says:
Inevitably, when section 3 comes to be considered by a court, the focus is on the approach which section 3(1) requires the court to adopt when reading a statutory provision that, on a conventional interpretation, would be incompatible with a Convention right. Nevertheless, the section is not aimed exclusively, or indeed mainly, at the courts.
He then goes to refer to other bodies at which it is aimed. Then he goes on at paragraph 107 to look at the expression “read and given effect” and says in line 2:
The use of the two expressions, “read” and “given effect”, is not to be glossed over as an example of the kind of cautious tautologous drafting that used to be typical of much of the statute book. That would be to ignore the lean elegance which characterises the style of the draftsman of the 1998 Act. Rather, section 3(1) contains not one, but two, obligations: legislation is to be read in a way which is compatible with Convention rights, but it is also to be given effect in a way which is compatible with those rights. Although the obligations are complementary, they are distinct.
He goes on to give the example of a local authority failing to give effect to legislation and, at the end of that paragraph, says:
So, even though the heading of section 3 is “Interpretation of legislation”, the content of the section actually goes beyond interpretation to cover the way that legislation is given effect.
Again, those words were not adopted in section 32. A third textual difference, we submit, is that whereas the judgments in Ghaidan refer to a fundamental feature of the legislation or a cardinal principle of the legislation or an interpretation that goes with the grain of the legislation, section 32(1) directs attention to the purpose of the provision being construed in a familiar manner. It says:
So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted –
It has been put against us that the definition of “statutory provision” in section 3 of the Act means an Act or a provision of an Act. However, we say the reference has to be read distributively so that the statutory provision being interpreted is the one whose purpose guides the construction. So this is not an authorisation, we would submit, to construe a statutory provision by reference to the fundamental features, for example, of the legislation rather than the purpose of the provision.
CRENNAN J: What about the purpose of the Charter in that context?
MR McLEISH: Your Honour, the purpose of the Charter is to promote – the Court has been taken to a list of them in section 1(2) and the relevant purpose is 1(2)(b), to protect and promote human rights by:
ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights -
That omits the reference to “purpose” and we would submit that it cannot be used to read out the reference to “purpose”, which is in section 32.
CRENNAN J: On that construction, the Parliament’s intention when passing the statute which is under consideration has a sort of primacy that it does not have under the English scheme where it has been said that, so far as section 3 is concerned, one has to consider the intention of Parliament when the statute under consideration was passed as affected by the intention of Parliament when passing the Human Rights Act.
MR McLEISH: That is correct, your Honour. The construction we urge retains the intention of the originally enacting Parliament as primary.
CRENNAN J: As prime.
MR McLEISH: Your Honours will have seen the references to what was said in Parliament in the Court of Appeal’s judgment at pages 300 and following of the appeal book about section 32 itself and we adopt what the Court of Appeal said in that regard. In particular, the Court of Appeal, paragraph 81 on page 301 of the appeal book, drew attention to the second reading speech and the Attorney‑General’s observation that:
Clause 32 of the bill recognises the traditional role for the courts in interpreting legislation passed by Parliament. While this bill will not allow courts to invalidate or strike down legislation, it does provide for courts to interpret statutory provisions in a way which is compatible with the human rights contained in the Charter, so far as it is possible to do so consistently with their purpose and meaning.
As their Honours say, what is most striking about this passage is the absence of any suggestion that section 32(1) would establish a new paradigm of interpretation and what the Minister said was to precisely the opposite effect, and I will not take the Court’s time going over that further, but we adopt what the Court says in paragraphs 81 to 85 about the significance of the parliamentary debates in that regard.
It has also been put in some of the recent submissions that the concept of straining in statutory interpretations is nothing new and reliance is placed in that regard on Newcastle City Council v GIO General Limited (1997) 191 CLR 85. I do not think the Court is going to be assisted by the facts of this case, but the reference that reliance has been placed on is at page 113 in the judgment of Justice McHugh, where his Honour says:
Nevertheless, when the purpose of a legislative provision is clear, a court may be justified in giving the provision “a strained construction” to achieve that purpose provided that the construction is neither unreasonable nor unnatural.
We say there is nothing wrong with that and, indeed, that is guided by firstly the question of the purpose of the provision and, secondly, the need for the construction not to be unreasonable and natural. That, we submit, has really no relation to the sort of straining which their Lordships spoke about in Ghaidan.
GUMMOW J: Is that the view of the majority in that case – or the plurality, I should say?
MR McLEISH: I am sorry, your Honour, I missed that.
GUMMOW J: You quoted Justice McHugh as a plurality judgment. Does it say anything bearing on the point?
MR McLEISH: I do not believe so on the question of straining, your Honour. Justice McHugh has been cited against us to suggest that straining is something familiar, therefore, perhaps what the House of Lords says in Ghaidan ‑ ‑ ‑
GUMMOW J: He was greatly enamoured of Lord Diplock’s “purposive” interpretation, which the rest of us were not.
MR McLEISH: We do not apprehend that what his Honour says is unorthodox, but it is certainly not what the House of Lords speaks of in Ghaidan. We just note that one of the conditions that his Honour notes is applicable when adopting a strained construction, at the bottom of page 113, is that:
the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
Noting the time, I will not take your Honours to it, but certainly in Ghaidan a variety of formulations is identified and it is also said in that judgment that it is not necessary to put into words what the result of the application of section 3 is as long as the concept is conveyed.
We also rely on the different constitutional context of the Human Rights Act and the Charter Act. We refer to this in paragraph 39 of the written submissions. The Human Rights Act was enacted to enable domestic courts to deal with human rights issues previously solely dealt with by the European Court of Human Rights. It is characterised as bringing rights home.
We submit there that section 3 was modelled on language that had been used by the Court of Justice of the European Communities to describe obligations of domestic courts under European directives. That is explained in greater detail in Hansen [2007] 3 NZLR 1, paragraphs [244] and [246]. The different constitutional context was explained in the judgment of Justice McGrath, pages 78 and 79. Starting at paragraph [244] in describing the differences between the New Zealand provision and section 3 of the Human Rights Act he says:
“Possible” and “can” cannot be linguistically distinguished by the context or otherwise in the meaning they convey. The undoubted difference between the meaning given to the provisions by the Courts of the two jurisdictions rather arises from the different constitutional contexts in which the similar broad language is interpreted. Lord Steyn has said in Ghaidan that the drafter of the United Kingdom Act modelled s 3 on language taken from –
the Marleasing judgment. At paragraph [245] he says:
The language of the European Court (“interpret . . . as far as possible . . . in order to achieve the result”) was reflected in s 3(1) of the Human Rights Act to an extent which signals that the Courts should apply s 3 in the same way in relation to obligations under the European Convention on Human Rights as the Marleasing rule was to be applied –
So his Honour says:
it is unsurprising that the United Kingdom Courts are interpreting s 3 on a basis that differs from the way New Zealand Courts –
and we say the same difference would obtain in this country.
The Court was taken yesterday to decisions about section 15A of the Acts Interpretation Act. What we say about that is that different considerations apply where the question is one of validity. The basis on which such provisions operate is that the court is giving effect as far as possible within constitutional constraints to the intention of the legislature that enacted the law but it is not altering that intention or giving effect to the intention of a different legislature.
That was brought home in the Bank of NSW Case 76 CLR 1, which Dr Donaghue took the Court to. Your Honours will recall this was a case in which there was a provision - section 6 - which attempted to give, or did give, the courts the widest possible powers of preserving legislation in the face of partial invalidity. Whatever else can be said of such a power, Justice Dixon was at pains on page 372 to say that:
however much amputation and excision may be necessary, what is left of the Act shall be law, but it does not say that it shall be submitted to plastic surgery.
That, we submit, is a constraint which applies equally in relation to any legislative interpretation task. Rather similarly, at pages 290 to 291, Justices Rich and Williams declined to give provisions which they had held were contrary to section 92, an application only in intrastate trade, on the basis that that would be rewriting the legislation.
I have covered the question of what “compatible” means. It is submitted that the question of compatibility requires justification as part of and not after the application of section 32 and Dr Donaghue made submissions to the same effect yesterday. We submit further on our construction, the construction we advance of section 32 and its relationship with section 7(2), the connection between the making of any declaration of inconsistent interpretation and the proceedings – I am sorry, and the actual task of statutory interpretation is ensured.
In other words, what comes out of the task of statutory interpretation on our construction is that the identified meaning of the provision either is or is not compatible with human rights. If it is not compatible then section 36 enables the court to make what is called a declaration. It requires no further inquiry such as the Court of Appeal undertook in this case under section 7(2) to determine the question.
Your Honours will have seen in this case the court arrived at the construction of section 5 without undertaking the justification analysis but then saw it as necessary to undertake that justification analysis for the purpose of section 36. To the extent that that can be criticised as being something other than an exercise of judicial power we would submit that our construction is to be preferred for that reason also. The connection between sections 32 and 36 is also drawn out from a note to section 31(6) which speaks about the effect of an override declaration where Parliament declares that under 31(1) that:
that Act or a provision of that Act . . . has effect despite being incompatible with one or more of the human rights –
Section 31(6) provides that if such a –
declaration is made in respect of a statutory provision, then to the extent of the declaration this Charter has no application to that provision.
As the note makes clear, that means at least two things, that the Supreme Court cannot make a declaration and, secondly, the requirement under section 32 does not apply.
CRENNAN J: Does that override of the provision implicitly accept that Parliament is at liberty to have a legislative position which is incompatible with the Charter, for example, for political considerations, Parliament is at liberty to take the view that a policy of being tough on crime is to be privileged over compliance with the Charter, for argument’s sake.
MR McLEISH: Yes, your Honour.
CRENNAN J: That would carry with it, would it, that in relation to section 37, when making a response to a declaration of inconsistent interpretation, the relevant Minister would not necessarily have to go to section 7 and register a disagreement with the court, but would be able to say, as I said just now, that the reason for not following the court’s conclusion in relation to section 5 is that Parliament takes the view that a policy of being tough on crime in the context of drugs overrides the Charter.
MR McLEISH: Yes. The response under section 36(7) is not a requirement to make a statement of compatibility, so it is separate. The Minister is at large as to what response should be given.
FRENCH CJ: This requirement is not entrenched so that Parliament could pass a law simply excluding the operation of the Charter and incompatible with a right and it would not have to be justified by exceptional circumstances – see 31(4) – or require a statement to the Legislative Council, or perhaps it would before the amending law became law, but certainly the limitation in 31(4) would not seem to operate. This cannot constrain Parliament’s legislative powers in respect of subsequently enacted legislation.
MR McLEISH: No, and nor can section 31(4), for that matter. There is a corollary of our arguments which is the subject of the second ground of the notice of contention. It is simply this that because section 32 requires the adoption of an interpretation which achieves the purpose of the legislation, and because it involves applying section 7(2), it will not be the case that section 32 invariably leads to the application that requires the interpretation which least infringes human rights.
The Court of Appeal held that it was the effect of section 32 to require the interpretation which least infringes human rights, and at least in a case when more than one interpretation would not infringe human rights, our submission is that section 32 is silent, just as section 35(a) is silent as to which of two interpretations which are consistent with statutory purpose should be applied. We would also note, as we point out in paragraph 54 of our written submissions, that the existence of less restrictive means is only one factor which section 7(2) requires to be taken into account. It cannot be said, we would submit, that the least restrictive means must always be the chosen.
Finally, the available interpretation of section 5. In our submission, the word “satisfies” necessarily conveys a state of satisfaction, and an evidential onus, we would submit, does not require satisfaction as to anything to the contrary of the deemed possession, that the raising of evidence cannot be to be said to give the finder of facts a state of satisfaction.
Although there are various case on reverse onus which have been cited in the written submissions, most of them involve the word “proves” rather than “satisfies”, and it may well be, although we do not need to make submissions, that “prove” has more than one meaning, because it has a certain technical meaning, but a case which deals with the meaning of “satisfies” is the decision of the Hong Kong Court of Final Appeal in Lam Kwong Wai (2006) 9 HKCFAR at page 574. The relevant provision appears at page 593 of the judgment of Sir Anthony Mason on behalf of the Court, and section 20(3) provides in relation to a possession of a firearm offence, that:
A person does not commit an offence under sub‑s.(1) if he satisfies the magistrate –
of one of various matters. Sir Anthony identifies, at the bottom of page 595, the broad questions to be addressed, and says:
Our first task is to ascertain the meaning of s.20 according to accepted common law principles of interpretation as supplemented by any relevant statutory provisions. Our second task is to consider whether that interpretation derogates from the presumption of innocence and the right to a fair trial as protected by the Basic Law and the BOR. If that question is answered “Yes”, we have to consider whether the derogation can be justified and, if not, whether it could result in contravention of the Basic Law or the BOR and consequential invalidity.
FRENCH CJ: What his Honour is doing here is really applying the principle of legality approach.
MR McLEISH: Yes, your Honour, under the heading of “The common law interpretation of s.20”. His Honour does not have great difficulty at paragraph 33 and following in finding that the onus imposed was a persuasive onus or legal burden. He says:
The intention to transfer the onus in this way must be clearly and unambiguously expressed because the common law presumption is that mens rea is an essential ingredient of the offence, unless the legislature has exhibited a contrary intention either expressly or by necessary implication . . .
34. Here there is an express imposition of the onus on the defendant to “satisfy” the magistrate that the purpose of his possession does not fall within s.20(3)(c), that is, on the balance of probabilities.
He refers to the language and structure of the section, the second reading speech, and finds that the Court of Appeal’s conclusion on onus was plainly correct. Now, we take that reasoning and apply it to section 5, using section 32. I should add, his Honour goes on to deal with the issue of potential invalidity that arises from incompatibility in that case and as a separate task from interpretation in the way in which the Hong Kong statute operates. We take that together with the nature of a legal onus as against an evidential onus to submit that the only interpretation which is consistent with the purpose of the legislation is a legal onus.
We say that because of the ease with which an evidentiary burden may be satisfied without necessarily achieving anything. In that regard, we would refer to the case of Filippetti that your Honour Justice Bell referred to yesterday. In the circumstances of that case with the fact that there were several people with access to the common area in which the drugs were found would itself have satisfied an evidentiary burden. An evidentiary burden would achieve nothing in that kind of case. That is a case in which the evidentiary burden was discharged without the need for the accused to give evidence.
GUMMOW J: What is the citation?
HEYDON J: It is (1978) 13 ACR 335.
MR McLEISH: Thank you your Honour. On that basis, we submit an evidentiary burden would not achieve the evident purpose of the legislation which is to ‑ ‑ ‑
FRENCH CJ: You just say that it cannot come up to the text, do you not?
MR McLEISH: It also cannot come to the text. On either view, it is not required by section 32. Your Honour, we adopt the written submissions in so far as they refer to constitutional issues that may arise if our construction is incorrect for section 32 and also as to this Court’s power again if we are wrong on the construction of section 5 to set aside the declaration.
The question was raised this morning about the use of section 5 in the context of the definition of “trafficking”. It would be our submission that section 5 does apply. The Court has heard that there is a long line of authority or experience in Victoria to that effect. The definition of “traffick” is found in section 70 of the Drugs Act and relevantly includes to “have in possession for sale, a drug of dependence”.
GUMMOW J: You then want to apply the definition in section 5 to that definition in section 70.
MR McLEISH: Your Honour, we submit that section 5, although it is headed “Meaning of ‘possession’” is not a definition position. It is not as if a concept of possession for sale is defined in one place and a concept of possession is defined in another, or even that a concept of possession is defined. Section 5 is a deeming provision which applies in certain circumstances to deemed possession. Given that in section 70 the definition of “traffick” in a case of possession for sale will fall to be determined as a matter of fact, we say that the deeming provision in section 5 is available just on the ordinary reading of section 5 and the definition.
KIEFEL J: Should “possession for sale” in section 70, however, be read as a composite concept?
MR McLEISH: Your Honours, we say it does not matter because in either case possession as a matter of fact would need to be established. Section 5 is a deeming provision for the purposes of the Act.
GUMMOW J: I do not think so. That elides the question my colleague has put to you, actually. The question is: in possession for sale.
KIEFEL J: For sale connotes, conveys, intention. Intention for the purpose of sale requires knowledge of possession for that purpose, surely. So you have something ‑ ‑ ‑
MR McLEISH: I do not want to get into ground 2, if I can avoid it, your Honour, or the charge, but insofar as possession for sale involves possession, which I would submit it necessarily does, I would submit that section 5 is available. Now, what effect it has on the mental element of the trafficking charge where possession for sale is raised that is the matter which ground 2 raises and which I would adopt the submissions of the first respondent in relation to that. We did want to submit that section 5 still has a role to play in that definition.
Your Honour Justice Gummow referred before lunch to the article by Dr Rumble, which is in volume 38 of the Federal Law Review at page 445. All I would want to say about that, your Honour, is that we would embrace the underlying thesis of the article to the effect that intention underlies the search for inconsistency for the purposes of section 109, also noting the note of caution in Dickson which the learned author does refer to in the course of that article.
Your Honours, I have not said anything about the letter from the Court that came on Monday. There are a number of issues that we would wish to make submissions on but do not think we should really take time now on. They would include the operation of section 38, the point at which it is said that section 38 might attach, that is, whether it attaches at the time of making a presentment or a later stage in the trial, and the availability of any remedy if section 38 was not complied with by a relevant public authority.
So what we would seek would be orders from the Court that – and we have not discussed this with our learned friends, but we understand that the appellant has seven days to put in submissions on that point. We would propose that any other parties supporting the appellant have a further seven days and then parties in opposition to the appellant have a further seven days after that. We would be assisted by an articulation by the appellant of the way in which it is put.
FRENCH CJ: Yes, you can have those orders.
MR McLEISH: If your Honours would be assisted, I think your Honour Justice Crennan asked for a note from our learned friends, the appellants, on the question of damages under the Charter. If they see fit to provide a note to the Court, we would also seek to put in a response within seven days to any such note.
CRENNAN J: Well, I raised an issue about whether – or the effect of a declaration of inconsistency on any steps which might be taken by the appellant recognising that there is no statutory right to relief under the Charter. That was the question.
MR McLEISH: It may be that I have misunderstood and we have already responded, but I will leave them ‑ ‑ ‑
CRENNAN J: I think the response was it may be possible – because the section 37 process would have no impact in relation to the appellant necessarily – well no, not necessarily, would have no impact, that a possible course of action – this was just mentioned en passant I think to be fair, a possible course of action would be an application to the Executive.
MR McLEISH: Yes, that was mentioned. Thank you, your Honour, if the Court pleases.
FRENCH CJ: Thank you, Mr McLeish. Solicitor‑General for the Commonwealth.
MR GAGELER: Your Honours, I want to deal with three topics. The first is inconsistency, the second is the constitutional limits of interpretation and the third is the constitutional status in terms of section 73 of a declaration of inconsistent interpretation made under section 36(2) of the Victorian Charter.
In relation to inconsistency, there is much I wish to say. I want to take your Honours to the origin and the content of the “alter, detract from, or impair” formulation that was articulated in McLean, and applied in Dickson. In so doing, I should point out at the outset that I will say nothing to contradict what Sir Garfield Barwick said in the GMAC Case and although perhaps belied by the deliberately punchy propositions in our outline of oral submissions, I will put an argument that is just slightly more subtle than that put by Sir Maurice Byers in that case, and that approximates the argument that one sees attributed to Sir Daryl Dawson in the Commonwealth Law Report version of the GMAC Case.
Your Honours have a bundle of further authorities in a bound form. At page 93, using the numbering in the bottom centre of the pages, your Honours should have a copy of Victoria v The Commonwealth 58 CLR 618. At page 630 of that case, in the centre of the page one sees the familiar statement of Sir Owen Dixon that gets picked up in Telstra v Worthing and picked up again and applied in Dickson v The Queen. Two things to note about that statement. It is introduced by reference to his Honour’s earlier statement in Ex parte McLean and it is explained as his Honour’s conception of the relevant principle which he states in the singular. The historical and conceptual context for what his Honour said at page 630 is elucidated by going to page 634 in the judgment of Justice Evatt where, at the bottom of the page, six or seven lines up, his Honour says this:
For a long time it seemed that a principle to be adopted was whether simultaneous obedience to both sets of commands, the Commonwealth and the State, was possible. If it was not possible, then inconsistency arose. If it was possible, there was no case of inconsistency under sec. 109. But this view, though long accepted, was rejected as a decisive test, and the new idea of “covering the field” was introduced at about the same time as Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (The Engineers’ Case) called in aid a doctrine of Commonwealth “supremacy” expressly based upon sec. 109 of the Constitution.
His Honour then goes on to refer to Clyde Engineering and Ex parte McLean. If you actually go to the Engineers’ Case 28 CLR 128, which is in the same bundle at page 3, at page 154, the bottom of the page, you see the introduction of the notion to which Justice Evatt was referring. At the bottom of page 154, again six or seven lines up, after the reference in the sentence to section 107 and section 109, this is said:
However valid and binding on the people of the State where no relevant Commonwealth legislation exists, the moment it encounters repugnant Commonwealth legislation operating on the same field the State legislation must give way. This is the true foundation of the doctrine stated in D’Emden v. Pedder in the so-called rule quoted, which is after all only a paraphrase of sec. 109 of the Constitution.
Then there is a reference in the next sentence to supremacy thus being established by the express words of the Constitution, that is, the express words of section 109. The so-called rule quoted referred to at page 154 is the rule that is quoted at page 144 in the same joint judgment. At the middle of the page D’Emden v Pedder is mentioned and there follows a quotation from the judgment of Sir Samuel Griffith in that case. The rule referred to is in these terms:
When a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with, the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is to that extent invalid and inoperative.
I will not ask your Honours to go back to D’Emden v Pedder, but in D’Emden v Pedder that rule is stated by Sir Samuel Griffith as, in effect, a paraphrase of the language of Chief Justice Marshall in McCulloch v Maryland concerning the scope and the operation of the supremacy clause of the United States Constitution. We have, again in the same bundle, given your Honours a useful US Supreme Court case that draws together Chief Justice Marshall’s language and some later language. It is at page 129 of the bundle and it is Nash v Florida Industrial Commission 389 US 235
At the bottom of page 239 there is a reference to the supremacy clause and the unbroken rule that has come down through years and then the actual language of Chief Justice Marshall expounding the supremacy clause in McCulloch v Maryland in 1819 is quoted to the effect that:
the States devoid of power “to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government”.
There is a useful reference to a later case in 1896 that your Honours can see expressing exactly the same notion, an exposition of the supremacy clause in very much the same language. You can see, your Honours, where the Ex parte McLean language derives from.
GUMMOW J: These cases have a flavour of immunities, do they not, of answering an ambience of immunity?
MR GAGELER: In D’Emden v Pedder, that is really what the Engineers’ Case was saying, your Honour, as articulated in D’Emden v Pedder. There was a very strong flavour of intergovernmental immunities as re-explained in the Engineers’ Case, which is the starting point for this line of authority. They get re-explained in terms of Commonwealth supremacy, expressed in section 109 of the Constitution. If you then in the chronology next go to the case at page 30 and following of that same bundle of authorities, Clyde Engineering v Cowburn, I wanted to take your Honours really just to the argument of Sir Owen Dixon, then Owen Dixon KC as counsel, at page 471, the third line:
The test of inconsistency under sec. 109 of the Constitution is not whether the Commonwealth law and the State law can each be obeyed without disobeying the other. Since the decision in Amalgamated Society of Engineers v Adelaide Steamship Co. the case of Australian Boot Trade Employees” Federation v. Whybrow & Co. cannot be relied on in support of that test –
and then he makes the point –
There is an inconsistency if there is a conflict between the wills of the two Legislatures.
Without wanting to remind your Honours of the well‑known passages in Clyde, if you look then at what is said by Justice Issacs at pages 489 to 490 in a passage far too long to read, it is very much a picking up of the argument of Mr Dixon’s argument specifically referred to at the middle of page 490.
If you then, your Honours, in that light go ‑ ‑ ‑
GUMMOW J: We are looking at 489 about two thirds of the way down. Justice Isaacs says:
But surely the vital question would be: Was the second Act on its true construction intended to cover the whole ground ‑ ‑ ‑
MR GAGELER: Yes, what is the will of the legislature? Then, your Honours, in the light of that ‑ ‑ ‑
GUMMOW J: I know Sir Owen Dixon said “will”. It is not what Sir Isaac Isaacs would say. He is talking about true construction.
MR GAGELER: I am not talking about anything else and nor was Sir Owen Dixon. The true construction is then understood as the will of the legislature. I am not talking in any more abstract terms than that. If your Honours then go to Ex parte McLean, in that light your Honours have been taken to these passages and your Honours have read them over and over again. If you then go, in the light of that background, to what his Honour said in 43 CLR 472 at page 483 you see an explanation of his Honour’s conception of the operation of section 109 which is exactly the same conception that he repeated in other words in Stock Motor Ploughs v Forsyth in Victoria v The Commonwealth that we have already looked at and in Wenn which your Honours referred to in Dickson and it is the same conception that got endorsed by the Privy Council in O’Sullivan v Noarlunga Meat Limited 95 CLR 177 at 182 and has come down through the ages.
Without reading it your Honours significantly, it is introduced as again the explanation of the operation of section 109 and, in particular, an explanation of the section as applied in Hume v Palmer. What he is doing is setting out what he says is the reason for the result in that case. He is making clear that the inconsistency does not lie in the mere co-existence of the laws susceptible of simultaneous obedience and he is saying in quite clear language, that the existence of inconsistency depends on the intention of the paramount legislature.
That explanation really is substantially to this effect: what his Honour is saying at page 483 and then what his Honour actually applies to achieve the result in the case at the bottom of page 486 ‑ ‑ ‑
GUMMOW J: He comes back to it at 485, though, does he not first?
MR GAGELER: Yes, but, again, what he says at 485 is to the same effect and then ‑ ‑ ‑
GUMMOW J: It is this expression “means to state what shall be the law upon that specific matter”.
MR GAGELER: Yes, “what shall be the law”. Yes, the definite article. And, applied at the bottom of page 486, the last four lines or so, he says:
But the substance of what the Federal award did in this case was to command performance –
et cetera. At the end of that paragraph, referring to complete efficacy and exclusive authority to the relevant regulation, his Honour was, in the result, applying very much the conception of inconsistency that he was articulating at page 483.
What that conception amounts to, your Honours, is this, that inconsistency, said his Honour, in every case lies in a State law in its legal or substantive operation altering, impairing or detracting from a Commonwealth law in its legal or substantive operation.
GUMMOW J: Does this assume some stable content to the State law so that you can make this comparison?
MR GAGELER: Yes. I mean, it is in the nature of a law that it has a stable content, yes, although there can be operational inconsistency, as his Honour was looking at in the Victoria v The Commonwealth Case, but, yes, your Honour, before you apply section 109 you need to find on each side something that answers the description of law. What his Honour says is that the application of that test necessarily turns on the extent, if at all – it is the intention of the Commonwealth Parliament, determined, of course, as a matter of construction, to make its enactment complete, exhaustive or exclusive of legal rights, liabilities or amenities.
The inconsistency simply does not lie in the existence of differences. You need to start with the intended scope and operation of the Commonwealth legislation and you finish with the intended scope and operation of the Commonwealth legislation. Your Honours, what I have just said is, in effect, the thesis presented by Dr Rumble in his article. We adopt very much what is said in that article, and we commend in particular what is said at pages 457 through to 459. There are some passages in the judgment of Justice Mason in Blacklock which are capable of a different interpretation ‑ ‑ ‑
GUMMOW J: That seemed to agitate the author of this article.
MR GAGELER: Yes. The way we deal with those is to take what was later said by the author of those statements in subsequent cases and in subsequent cases Sir Anthony Mason explained the actual decision in Blacklock in terms entirely consistent with McLean. He did that in McWaters v Day 168 CLR 289 at page 296, to which your Honours have already been taken, and he did it slightly earlier than McWaters v Day in Winneke 152 CLR 211. At page 224 ‑ ‑ ‑
CRENNAN J: Sorry, I did not catch the page.
MR GAGELER: Page 224, 152 CLR 211 where, explaining Blacklock in the second‑last full paragraph on that page, his Honour says of the law in Blacklock:
This law, formulating the relevant rule of conduct for the protection of Commonwealth property, was held to evince an intention to deal with that subject to the exclusion of any other law.
Reference was made in the course of other arguments to what was said by Chief Justice Gibbs at page 218. In our submission, what Chief Justice Gibbs was doing as an orthodox process of interpretation was looking for indications from which it might be concluded one way or the other whether or not the Commonwealth law intended to cover the relevant subject matter. He says very much just that just before the reference to Hume v Palmer and Blacklock in the middle of that page.
Now, your Honours, we want to make four points about the McLean test. The first is one that I have probably made already, but which I want to reinforce and that is that its foundation lies in the Engineers’ Case conception of section 109 as an expression of Commonwealth supremacy. His Honour Justice Dixon in an extra‑curial address in Jesting Pilate, which we have given your Honours as well in that bundle of authorities, at page 154 made just that point.
I should say your Honour Justice Gummow referred to this passage in APLA 224 CLR 322 at paragraph 192. At the bottom of page 177 in an address dealing with the impact of Chief Justice Marshall’s jurisprudence on the Australian Constitution, his Honour gets on to the topic of supremacy and section 109. The conclusion of that topic really appears at the bottom of page 178, where picking it up at about the last 10 lines of the paragraph, his Honour said:
It appeared possible that the specific Australian provision in section 109 instead of adding strength to the principle of supremacy might operate unexpectedly in a way which might actually weaken it.
For a moment it looked as if the word “inconsistent” might receive a pedantic construction.
GUMMOW J: What is the moment that he is hinting at?
MR GAGELER: It was about 20 years, I suppose, your Honour. Seventeen or so, anyway ‑ ‑ ‑
GUMMOW J: Before his argument.
MR GAGELER: ‑ ‑ ‑which is a moment in the life of a nation:
For a moment it looked as if the word “inconsistent” might receive a pedantic construction drawn rather from a verbal formalism than essential conceptions of federalism. In the end however the court did not forget that it was a constitution it was expanding. Thus the Court now asks in such a matter whether the paramount legislature in Australia has dealt with a topic falling within a field of its power in a manner showing that it has undertaken to determine what the condition of the law shall be on the subject. If so the High Court holds that State law can have no valid operation upon the same topic.
His Honour refers to the cases to which I have already drawn attention, in particular, to Hume v Palmer and to Ex parte McLean and to Victoria v The Commonwealth.
GUMMOW J: Well, the moment seems to be the early cases but at first if you could obey one law without breaking the other ‑ ‑ ‑
MR GAGELER: Yes, that is right, the very narrow notion of inconsistency. Really, that segueways into the second point that I wanted to make, that even that very narrow notion of inconsistency often labelled direct inconsistency is perfectly explained by his Honour’s test as articulated in Ex parte McLean and Victoria v Commonwealth. If you take a case where the Commonwealth law prohibits and the State law compels, then compliance with the State law prevents and therefore detracts from or interferes with compliance with the Commonwealth law. If you take the other side of the coin, if you take a Commonwealth law which positively permits and you take a State law which prohibits, then similarly compliance with the State law prevents or detracts from or interferes with the area of liberty, immunity or authority which is conferred by the Commonwealth. The one explanation fits even that narrowest case often labelled “direct inconsistency”.
FRENCH CJ: What are the kinds of criteria that one looks for in reaching, as a matter of construction, the conclusion that is the intention of the Commonwealth to Parliament to deal with a particular topic to the exclusion of all others, absent some expressed statement of intention, just put that to one side.
MR GAGELER: Absent an expressed statement of intention. You look at the kinds of indications that were considered in Hume v Palmer, in Blacklock and in Dickson. You look at the penalties – I am sorry, your Honour, there can be a range of circumstances, but confining myself to the circumstances where the Commonwealth law imposes a criminal prohibition and a State law imposes a criminal prohibition on the same topic ‑ ‑ ‑
FRENCH CJ: All right, let us take that simple case, yes.
MR GAGELER: ‑ ‑ ‑ the case law would suggest that absent some positive indication in the Commonwealth legislation, the inference would be drawn that the Commonwealth intended, by its prohibition, to state exhaustively what is to be the criminal code governing that particular conduct. That would be the principle one would draw from those cases. But it is only a matter of inference, your Honour, from the totality of the legislation and the inference can be counteracted by other considerations and, in particular, an express indication of ‑ ‑ ‑
FRENCH CJ: Sorry, does that last statement suggest that the mere existence of concurrent commands, both which it is possible to obey, absent a disclaimer of intention to cover the field, leads to a sort of presumption of Commonwealth intention to do that?
MR GAGELER: You begin and end with the Commonwealth law, absent some ‑ ‑ ‑
FRENCH CJ: Yes, I am just looking at the situation where the Commonwealth law creates a series of commands or prohibitions and the question of inconsistency arises in the context of a State law, which makes the same commands or prohibition.
MR GAGELER: Yes.
FRENCH CJ: What does one look for in the Commonwealth law which indicates an intention to cover the field, as it were? It cannot be just the fact that it has made commands on that topic, can it?
MR GAGELER: It would depend on what the topic is. It would depend, perhaps, as in Dickson, on the inferences as to choices made in the design of the Commonwealth legislation, perhaps areas of liberty designedly left ‑ ‑ ‑
FRENCH CJ: That is getting into the area of difference with the State law then, is it not? They had choices about the overt ‑ ‑ ‑
MR GAGELER: That particular statement, no. It was looking at the design of the Commonwealth. Your Honour, here we do not have to worry about that, in my submission, which is a point that I will come to in a moment in the light of the express provision in section 300.4. If I could just complete the last two points I wanted to make about the McLean test. The third of the points is this, that it is a test that in terms eschews any dichotomy between direct inconsistency and indirect inconsistency. That language just simply does not see in the judgments of Sir Owen Dixon, and at best on the approach in Ex parte McLean that distinction is one of degree, the question being to what extent is the Commonwealth law exhaustive, exclusive or complete.
GUMMOW J: Where does this word “indirect” enter the discourse? Do you know, Mr Solicitor?
MR GAGELER: Sorry, your Honour.
GUMMOW J: This term “indirect”, when does it enter the discourse?
MR GAGELER: Around the 1970s. I cannot tell you the exact time, but it was in the 1970s. A case from the late 1970s that is usefully considered in this context is Ansett v Wardley 142 CLR 237. The particular passage that I wanted to take your Honours to is at page 280 where Justice Aickin, in our submission, captured the correct understanding of the McLean conception of inconsistency. He said at the middle of page 280:
The two different aspects of inconsistency are no more than a reflection of different ways in which the Parliament may manifest its intention that the federal law, whether wide or narrow in its operation, should be the exclusive regulation of the relevant conduct. Whether it be right or not to say that there are two kinds of inconsistency, the central question is the intention of a particular federal law. The field of its operation may be regarded as wide or narrow and produce inconsistency because of the intention to cover a particular field exclusively or because of an intention to regulate specific conduct so that any other regulation of that conduct is inconsistent because the attempt to regulate the identical conduct in a different manner, or perhaps at all, necessarily impairs the operation of the federal regulation of that conduct.
To similar effect in emphasising the necessity for the construction of the Commonwealth law, your Honours might note what is said by Chief Justice Barwick at page 243. I should say, both of their Honours were dissenting in the result in that case but not, in our submission, in principle. The same point, your Honours, as to the lack of a dichotomy, any true dichotomy between direct inconsistency and indirect inconsistency is really illustrated by your Honours’ judgment in Dickson where at paragraph [25] your Honours explain the result of the construction of the relevant provisions of the Commonwealth Code in that case as giving rise to “areas of liberty designedly left [and which] should not be closed up”. That language your Honours adapted from Wenn v Attorney-General and on any application of the label, either direct inconsistency or indirect inconsistency, Wenn v Attorney-General was an indirect inconsistency case.
Finally, your Honours, the fourth point, which really leads into the application of section 300.4 here, is that because inconsistency depends on the intention of the Commonwealth law determined as a matter of construction, it is well open to the Commonwealth and, in our submission, highly desirable for the Commonwealth to spell out expressly in the terms of its legislation the extent to which its enactment is or is not intended to be complete, exhaustive or exclusive. There is any number of cases in which a positive intention expressed in Commonwealth legislation to be exhaustive has been given effect or a negative intention expressed in Commonwealth legislation not to be exhaustive has been given effect. They are all governed, in our submission, by the same principle. That point is recognised in the Native Title Act Case 183 CLR 373 at page 466 and, of course, the scheme of the Native Title Act considered in that case was to permit State law to operate if certain conditions were complied with.
FRENCH CJ: That expressly authorised, did it not, the enactment of complementary State laws?
MR GAGELER: That is right. At the top of page 466 it is said in the second sentence of the first paragraph:
The text may reveal the intention either by implication or by express declaration. And if it be within the legislative power of the Commonwealth to declare that the regime prescribed by the Commonwealth law shall be exclusive and exhaustive, it is equally within the legislative power of the Commonwealth to prescribe that an area be left for regulation by State law.
FRENCH CJ: Despite the punchy statement that section 300.4 is decisive, you are not putting the proposition that all the harried judge has to do is to go to the declaration of intention, stop there and say yes, it is either covering the field and intending to exclude or not. You still see a constructional obligation, do you not?
MR GAGELER: I do.
FRENCH CJ: Then the question is what is the function of such a declaration? Is it an interpretive guide or is it something more?
MR GAGELER: It is an interpretive guide. It is an interpretive guide in this particular instance to the question of whether the Commonwealth prohibition imposed by section 302.4 is intended, objectively, as an exhaustive statement of the law governing the conduct which is subjected to criminal sanction by the provision.
Your Honours, I see the time, but I just wanted to mention one other case, and that is Botany Municipal Council v Federal Airports Authority 175 CLR 453. You have that in the same bundle of further authorities. It begins at page 135 of that bundle. At page 465, there is in the first full paragraph a statement which we commend of the desirability of a Commonwealth law expressing its intention in clear terms and ‑ ‑ ‑
GUMMOW J: That was picked up subsequently in the joint reasons in Bayside (2004) 216 CLR 595 at 627 through to 629.
MR GAGELER: Yes, and following on from Bayside, your Honours, to actually complete what I wanted to say on this - your Honours, after Bayside, in John Holland v Victorian Workcover 239 CLR 518 at page 527 noted a limitation which we entirely accept on the extent to which an express statement of legislative intent can be operative ‑ ‑ ‑
GUMMOW J: Is this paragraph 21?
MR GAGELER: Paragraph 20, where your Honour said this, the third last sentence:
But such a statement is only a statement of intention which informs the construction of the Act as a whole. It must be an intention which the substantive provisions of the Act are capable of supporting.
To the extent that there is a qualification on the ability to give effect to a provision such as section 300.4, that is the qualification, that the intention expressed in such a provision must be one which the substantive provisions of the Act are capable of supporting, which is no more than an application of the principle that you find in Metwally, for example, that the intention of Parliament is the intention of the Parliament objectively determined as a matter of construction from the whole of the instrument and Parliament cannot deem its intention to be something other than what its objective provisions indicate. Your Honours please.
FRENCH CJ: Yes, thank you Mr Solicitor. The Court will adjourn until 10 o’clock tomorrow morning.
AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 10 FEBRUARY 2011
5
5
0