Nguyen, Ex parte- Re East

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M53 of 1997

In the matter of -
An application for declarations and writs of Certiorari and Habeas Corpus against ROSEMARY EAST
First Respondent
MAGISTRATES’ COURT OF VICTORIA AT SUNSHINE
Second Respondent
COUNTY COURT OF VICTORIA AT MELBOURNE
Third Respondent
GOVERNOR OF FULHAM PRISON
Fourth Respondent

Ex parte -
QUOC PHU NGUYEN
Prosecutor/Applicant

GLEESON CJ
GAUDRON J

McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 AUGUST 1998, AT 11.19 AM

(Continued from 10/12/97)

______________________

MR P.N. VICKERY, QC: May it please the Court, I appear with MR D.A. PERKINS, for the prosecutor, Mr Nguyen. (instructed by Kuek & Associates)

MR J.D. McARDLE: If the Court pleases, I appear with MR T.P. BURKE for the first respondent. (instructed by the Office of Public Prosecutions (Victoria))

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MR N.D. HOPKINS, for the Attorney‑General for the State of Victoria, intervening in support of the first respondent. (instructed by the Victorian Government Solicitor)

MR H.C. BURMESTER, Acting Solicitor-General for the Commonwealth: If it please the Court, I appear with MS A.K. LUKEMAN, for the Attorney‑General for the Commonwealth intervening in support of the first respondent. (instructed by the Australian Government Solicitor)

GLEESON CJ: Counsel will have noticed that the Court is differently constituted from the constitution on the occasion when the matter was first before the Court. We assume that, if it should become necessary to do so, there is no objection to us, that is those members of the Court who were not here on the earlier occasion, referring to the submissions that were addressed on the previous occasion, and deciding the matter, if necessary, upon the basis of earlier arguments apprehended in that way.

MR BURMESTER: Yes, if the Court pleases.

GLEESON CJ: Yes, Mr Vickery.

MR VICKERY: What I propose to do is to address upon a form of supplementary submission, which is in writing and which has been handed to the Court. The reason for taking this course is that, applying the time‑honoured principle of the cab rank, I have only recently been engaged in this matter and commenced preparation in the course of last weekend. I also, today, am suffering under a particular personal difficulty, and it would be of assistance if I would be permitted to address upon the written submissions in the course of delivering our argument to do justice to the case.

I note that there are two members of the Bench present who were not present last time. What I seek to do, as well, is to address very briefly on what we describe as core facts to familiarise the Court with the facts and the particular material upon which we rely. To assist in that process, we have produced, last night, a single-page document entitled “Core Facts”, which lists the relevant essential facts for the purposes of this jurisdictional argument, together with references to the central material in the appeal book. If I might hand that to the Court.

GLEESON CJ: Thank you.

MR VICKERY: Taking the Court firstly to the question which is described as the jurisdiction question in the written supplementary submission.

KIRBY J: Can I just ask on these core facts, which I am looking at for the first time, it says that at the time he had no English language skill.

MR VICKERY: Yes.

KIRBY J: That is an assertion, but in fact he appeared at proceedings below and appeared to display some English language skill. I accept that there is a difference between the skill of going to the corner shop and buying some butter and the skill of handling yourself in a court, but do we have any other material that indicates, if it be admissible, that he says he did not understand what was going on and that he did not appreciate the risks and problems that he was facing, and it was not explained to him that he ask for an interpreter, or material of that kind?

MR VICKERY: Certainly material of that kind I will address from the material in the Court book. With regard to your Honour’s observation that at the time he had no English language skill, in paragraph 1 of the core facts, that relates to the time when he came to Australia. He could not speak English when he arrived on the shores of this country.

GLEESON CJ: It is paragraph 6 that covers the matter at the relevant time.

MR VICKERY: Yes, it does.

GLEESON CJ: Is it one of the core facts that he was represented by a lawyer who made no complaint about the proceeding without an interpreter?

MR VICKERY: For the purposes of the jurisdiction argument, no, your Honour.

GLEESON CJ: Thank you.

MR VICKERY: I might say this, that in terms of the facts, what we have distilled are facts from the material which we say are central to the jurisdictional point. It is anticipated that if the matter does go on beyond this point, it will be referred to a fact‑finding court. At that point, further supplementary material will be supplied, it is anticipated. In terms of the jurisdiction question before the Court, we have set this out in paragraph 1.1 of the supplementary submission. This is an adaptation, with minor amendments, to the question that was posed by your Honour Justice Gaudron at the hearing on 10 December last year. I will take your Honours to the question and indicate the slight variation.

The question is whether an application for certiorari to quash a decision of the Magistrates Court of Victoria to commit the prosecutor to the County Court of Victoria pursuant to section 47(2) of the Sentencing Act 1991 Victoria, and also to quash the finding of breach of a community‑based order and the sentence subsequently imposed by the County Court on the ground that the procedures of those courts were contrary to section 9 of the Racial Discrimination Act Commonwealth and the International Convention on the Elimination of all Forms of Racial Discrimination, is within the original jurisdiction of the High Court. The two variations to the question posed by your Honour Justice Gaudron last year, are these: that we seek not to confine the section relied upon of the Racial Discrimination Act to section 9(1A). What we seek to do is make out a ground of breach or contravention of the section, that is section 9, in both its elements which I will take the Court to shortly, that is, subsection (1) as expanded by subsection (1A), which is a deeming provision which expands it slightly. That is the first difference.

The second difference is that we have not included reference to the civil and political covenant of 1966. The reason for that is that the Racial Discrimination Act is founded entirely upon the International Convention on the Elimination of all Forms of Racial Discrimination. It is not founded upon and does not seek to implement the civil and political covenant, so we have restricted the case in that way.

I wish now to take the Court to the core facts which we rely upon in this application and take the Court briefly to the evidence in support. If the Court is satisfied of one point or other in the factual basis of the case, I would appreciate some indication of that rather than labouring points which perhaps are unnecessary. The first relates to the circumstances of Mr Nguyen at the time of coming to this country and his background. He is Vietnamese by birth, nationality and ethnic origin. He arrived in Australia in 1991. At that time he had no English language skill. In fact the evidence is he could not speak English at all. This disability, we say, was derived directly from his descent or national or ethnic origin.

In that respect we take the Court to the central affidavit in the application book which is the affidavit of Mr Kuek commencing at page 1, but essentially on these issues it is page 3, that the background to the prosecutor is set out, commencing with paragraph 6.

KIRBY J: The relief you seek is relief in the nature of certiorari?

MR VICKERY: It is, your Honour, yes.

KIRBY J: At some stage I would be helped if you would refer to the way in which you are seeking to go beyond the record and in particular the record as it has been expressed in this Court in Craig’s Case.

MR VICKERY: Yes, I understand that, your Honour. Our position on that point - and I will briefly deal with it - is to say that certiorari in this case can be dealt with by material beyond the record if it involves, as we say in this case it does, a contravention or breach or unlawfulness in the nature of a breach of natural justice or procedural fairness. We say it is not directly a breach of natural justice or procedural fairness but it is akin to that and we say therefore that there is jurisdictional error.

GUMMOW J: Why could not all these matters be dealt with in an appellate hierarchy?

MR VICKERY: The reason for that, your Honour, is this. The particular matter we seek to ventilate ‑ ‑ ‑

GUMMOW J: If you are seeking certiorari, is not that one of the first questions one asks?

MR VICKERY: Yes, your Honour, but we say that if the Court in this case has original jurisdiction we are entitled, as a matter of right, to bring the matter before the Court.

GUMMOW J: You might bring it here. It does not say you get any relief though.

MR VICKERY: We do not start with that assumption in any court but, nevertheless, we are here and we seek to agitate our case and establish that this Court has original jurisdiction.

GUMMOW J: Unless you can satisfy me that you could not have raised these matters elsewhere, I do not see why you should not be sent away.

MR VICKERY: Your Honour, the matter has ‑ ‑ ‑

GUMMOW J: The Court has many litigants who come here on a rather firmer footing.

MR VICKERY: Yes. The matter has been ventilated at various courts not directly on the issue of the Racial Discrimination Act and the covenant it seeks to implement.

GUMMOW J: It had been fragmented. I want to know why it has been fragmented.

MR VICKERY: I am not in a position to advise the Court of that.

KIRBY J: Where does the Court get its certiorari jurisdiction? There have been cases on this issue and it has, as I understood it, been said to be adjunct to the constitutional writs. .....make good the constitutional writs as distinct from some prerogative power that is in the inherent jurisdiction of the High Court as a court.

MR VICKERY: Yes. Could I take the Court to ‑ ‑ ‑

KIRBY J: I do not want to take you - if it is more convenient for your argument to go through the facts, well we can deal with these, but these are the preliminary thresholds you have got to get over to get into this jurisdiction.

MR VICKERY: Yes, we understand that and at page 12 of our submissions at 5.12 we deal with this. Perhaps it is convenient to deal with that now.

KIRBY J: I think it may be more convenient to go through your core facts and we will come back to it.

MR VICKERY: Yes. I understand my instructing solicitor is photocopying cases on this very point and that we will have those, hopefully, by lunchtime.

GUMMOW J: On what point?

MR VICKERY: On the point of whether or not this Court has power to issue certiorari.

GLEESON CJ: Well, we have all had an opportunity now to read these core facts so there is no need for you to read them to us.

MR VICKERY: Very well, your Honour.

GLEESON CJ: Can I ask you a question about paragraph 4?

MR VICKERY: Yes.

GLEESON CJ: You say that your client was found guilty of breaching the community based order and then resentenced on the original charge of armed robbery.

MR VICKERY: Yes, your Honour.

GLEESON CJ: Were the breaches of the community based order denied or were they in issue?

MR VICKERY: They were not denied.

GLEESON CJ: So he acknowledged guilt of breaches of the community based order.

MR VICKERY: Put it this way. The plea that was made on his behalf by his counsel proceeded on the assumption that the facts were admitted.

GLEESON CJ: Thank you.

GLEESON CJ: Thank you. Well, then, I presume the evidence he gave was evidence by way of mitigation.

MR VICKERY: The evidence he gave before the sentencing court, that is the County Court, on 18 March 1997 was directed to mitigation.

GLEESON CJ: Thank you.

KIRBY J: Does he now say that had only he had an interpreter - is there evidence that had only he had an interpreter he would have understood that he was not in breach or is it accepted, even to this day, that he was in breach?

MR VICKERY: If I could take your Honours to the high point of his evidence of understanding before the court. That is found in his affidavit which is found in the appeal book - his affidavit of 3 May 1997, application book, page 113. It is in the second volume. I take the Court to that.

CALLINAN J: Mr Vickery, I am just looking at page 19 of the record. I am sorry, I do not want to take you out of order but that sets out some of the plea which was made by counsel on behalf of your client and it goes into some considerable detail of explicit instructions which seem to have come from your client - not from his parents but from your client. You see, if you look at line 14:

When he said to me that he was too busy, the situation appears to be best summarised in this way -

and then there is quite a detailed summary. That is only one example, I think, of the recounting by counsel of quite detailed instructions.

MR VICKERY: Clearly there is a conflict of the evidence. Clearly, this will, if jurisdiction is found, be ventilated.

CALLINAN J: How can there be a conflict in the evidence when his own counsel acknowledges or states facts which make it clear that he had an understanding and was able to give very explicit instructions?

MR VICKERY: It is a question, your Honour, of a finding as to the standard of his English at the relevant time which we set out in paragraph 6 of the core facts and that is that at the time of the hearings before the relevant courts he had impaired English skills, his English skills were not equal to those of persons having English as a first language. We say that that is the standard for the purpose of the Racial Discrimination Act, section 9, and the treaty that is implemented by the Act.

If one takes that as the standard for the purpose of the Racial Discrimination Act, it might well be that he does have, as the evidence would appear to indicate at first glance, an understanding of the proceedings and was in the position to give at least some instructions to his counsel in the hour before the case, but that does not necessarily indicate that, in fact, his language skills at the relevant time were equal to those of persons not having his disability in English.

GLEESON CJ: What is the act or omission on the part of any of the respondents of which your client complains? What is it that any of the respondents did or failed to do of which your client complains?

MR VICKERY: This is set out in some detail. I will take the Court to that, if I might, in the course of delivery, but I will certainly address that point and say precisely how it is that we say the breach or the contravention occurred giving rise to the unlawfulness. In terms of the question your Honour Justice Kirby raised with me as to his understanding, I was taking the Court to his own affidavit, which is the affidavit found in application book page 113, very briefly. This is an affidavit sworn by Mr Nguyen of 3 May 1997. If I could start at paragraph 4:

I first received the Charge for allegedly breaching the Community Based Order a few days before 11 March 1997. Rosemary West said to me that I had breached the Community Based Order in that I had not followed it. She told me I had to go to Sunshine Magistrates’ Court. She said to go to Court. From what she said, I did not think there was anything to worry about. I thought that when I went to the Sunshine Court I would get a final warning. I did not know that if I was found to have breached the Community Based Order, I would be resentenced for armed robbery and would be sent to gaol.
5. No one else explained the Charge and Summons to me. I did not tell my family about the Charge.
6. I have had the Schedule to the Charge and Summons interpreted to me today. I do not agree with the allegations made against me. On a number of occasions when I attended at the Office of Corrections to see Rosemary, she was not there. When I asked for her, I was told to go home and to come back another day. On all of those occasions, I attended because Rosemary told me to attend verbally or by letter.
7. When I attended at the Sunshine Magistrates’ Court, I was directed by Rosemary West to see a duty solicitor from Legal Aid. The duty solicitor gave me a piece of paper which had the date for me to appear before the County Court and she sent me to see Richard Revill at the Sunshine Legal Aid office. She told me to go straight away. She did not explain why. She did not explain the Charge to me. She did not ask me if I wanted to plead guilty or not guilty.
8. After I was given the paper by the duty solicitor, I went to the Sunshine Legal Aid office. Mr Revill saw me for about half an hour to forty‑five minutes. He had a look at the Charge and said it was a very difficult case. He asked me some questions.

GLEESON CJ: May I interrupt you to say should we interpret that statement “Mr Revill saw me” to mean “Mr Revill conversed with me”?

MR VICKERY: There is obviously evidence of a conversation there, so one would naturally interpret it that way.

GLEESON CJ: In what language?

MR VICKERY: It is silent on that issue. I have not had the opportunity to talk to my client.

He asked me about the armed robbery. I told him that I and a few friends went to the amusement centre and we tried to rob a man. He asked me why I did it. I said because I felt a bit high. He asked me how much I took. I told him I had taken two rohypnol. He told me that for my age, I was stupid to be committing offences.

Then an exhibit is referred to, which is a copy of the breach report prepared by Rosemary West.

I have listened carefully to the interpretation of that report by my interpreter for this affidavit. I now understand the allegations made against me by the Office of Corrections. Prior to today, I did not understand the contents of the breach report. Richard did not go through or explain the whole of the Breach Order to me. I remember he asked me why I had breached the Order and remember saying I was late for the bus and was busy at home. Richard referred to one or two dates but did not take me through all of the dates on which I was alleged to have breach the Order.

KIRBY J: Is Richard Mr Revill?

MR VICKERY: Yes, it is, your Honour.

I reject the allegation that I had failed without reasonable excuse to comply with the conditions of the community Based Order. Although I attended the Induction programme and signed some documents when told to do so, there was no Vietnamese interpreter present to help me understand all that had occurred or to help me understand the documents I signed.
I reject the allegation that I showed minimal commitment towards supervision. When I or my sister -

Mrs Nguyen:

tried to provide an explanation for the occasions that I was absent or late Ms Rosemary West was not interested.
I did not see my barrister until the morning of 17 March 1997 ‑ ‑ ‑

GUMMOW J: Why are we wasting time reading all this aloud? There are rather more serious questions, I would have thought.

MR VICKERY: Yes, there are. I have one or two paragraphs to go.

GUMMOW J: Legal questions.

MR VICKERY: One or two paragraphs:

I did not see my barrister until the morning of 17 March 1997. I was not told of any appointment before that date. When I saw my barrister, I was by myself at first. Later, my father came. Although my father speaks better English than me, he was not asked to interpret for me. My barrister did not take me through the breach report. My barrister told me that I would get fined.

During the hearing on 17 March 1997 -

That is the County Court proceeding -

I did not understand all of what was happening. My barrister spoke for me. I understood just a little bit of what he said but I did not understand a lot. The prosecutor also spoke but I had difficulty understanding what she said. I was scared and confused. I was not permitted ‑ ‑ ‑

CALLINAN J: Mr Vickery, that just cannot be right if you read the record, I am sorry. If you read pages 24 to 28, his evidence, I think there might be one or two occasions when he asked for an explanation, but what it shows clearly is that he had no difficulty at all in understanding the questions and in dealing with them. What you are saying really, with respect, it seems to me, is in the teeth of what is clear from the record.

MR VICKERY: Your Honour, this is a matter of conflict of evidence ‑ ‑ ‑

CALLINAN J: But you cannot create an artificial conflict, Mr Vickery, this is the record here. The record discloses something at the moment, it seems to me, which is completely at odds with what you are putting.

MR VICKERY: What I am putting to the Court is the evidence the other way, the evidence ‑ ‑ ‑

McHUGH J: But how is it relevant? How do you get it in?

MR VICKERY: We get it in, your Honour, through, ultimately, being in the position to go beyond the record, assuming we are applying for certiorari, and I will take you to cases which deal with that point. We are not, in this sort of case ‑ ‑ ‑

McHUGH J: What about Craig?

MR VICKERY: Our contention is, in this sort of case, we are not confined to the record. We can go behind it as if what we are dealing with is a breach of natural justice or procedural fairness allegation, which is really what it is, it is in that category. We say, in order to deal with that issue, we have an entitlement to go beyond the record and produce affidavit material in support of the sort of contention we are advancing.

KIRBY J: I think one of the points made last time, as I remember, it is now coming back to me - I have not reread the transcript - was that if you analysed that transcript that Justice Callinan has referred to on 24 and following, the answers are all staccato and very brief, “Yes”, “full time student”, “Yes”, “Yes”, “Yes”, “Yes”, “Yeah”, “Yes”, “Yes”, “Yes”, and then even in cross-examination, “Yes”, “Yes”, “I do not remember”, “No”.

CALLINAN J: At page 24 he is asked a question, line 23:

What do you want to say to the court about why you haven’t done everything -

and so on, and he says:

Because of my family, because my family finances and I got to help my parents to sew.

There is nothing staccato about that.

MR VICKERY: What we seek to put is this, that there is an issue on the facts. That issue needs to be determined if the Court has jurisdiction. There may well be conflict in the evidence and clearly, on the face of it, there is, but we have not yet seen the full evidence that we would be ‑ ‑ ‑

CALLINAN J: But you seem to be, with respect, creating conflict by trying to import evidence or a document which is not part of the record. You want to bring forward an affidavit to contradict what is part of the record. I mean, is that what you are trying to do? It seems to me you are.

MR VICKERY: We say - I will take the Court to the relevant cases shortly in the course of my submission - but we say in this sort of case, as if, for example, one is applying for a breach of natural justice based on bias, one can go beyond the record to produce evidence of actual or perceived bias. Indeed, one has to do that in order to make out the case in most cases. Very rarely will the record specify circumstances which give rise to such an allegation and yet certiorari will clearly run in that event. We say that this case falls into that category of procedural fairness, natural justice, although it is not put on that basis, and nor does it rely on the principles.

CALLINAN J: I do not want to interrupt you. I know you are coming to the authorities. I really just wanted to be clear that you say that you are entitled to look outside the record, and you will make a basis for that later.

MR VICKERY: Yes, I will seek to do that. The other point in the evidence which is of significance, which we seek to rely upon ultimately, is the affidavit of the linguistic expert. I will take the Court to the conclusion of the linguistic expert, Ms Jensen, which is her affidavit of 30 May 1997 at application book page 130, before I leave this point. This is a conclusion of a very detailed analysis in the form of a report. It is an exhibit to her affidavit where she analyses the transcript of the court, being the County Court. She draws conclusions from a number of matters arising from her analysis of that evidence, and concludes at page 130 the following, commencing at line 5:

At the beginning of my report I documented examples of the ways in which Mr Nguyen fails to respond appropriately to more complex language. There is clear evidence in the transcript of the proceedings in court that he similarly failed to respond appropriately to such language. It is worth adding that in the court proceedings, unlike during the police interview, your client did not feel free to ask for repetition or clarification in any way at all. This was due no doubt to the formal atmosphere of the court, but also to the overwhelming length and difficulty of the language of the questions asked, as has just been documented.
He also requires repetition and some slowing down and/or translation for communication to take place. There is little or no evidence to show that any accommodation was made to the low proficiency in English of Quoc Phu Nguyen. I am forced to the conclusion your client did not understand critical questions put to him during cross‑examination.

That supplements her initial findings, which are found at page 120 of the application book, that in terms of his proficiency in the English language, his capacity was at the lowest level, that of survival proficiency, both in terms of listening and speaking or communicating. That was her finding. So what we are able to glean from that is this proposition: that at the relevant time of the two court hearings, Mr Nguyen’s proficiency in the English language was not equal to the proficiency of persons having English as their first language.

GLEESON CJ: Any persons, all persons, an average person?

MR VICKERY: This is difficult question.

GLEESON CJ: Well there are some persons who have English as their only language, who cannot understand complex questions and who get overawed in court proceeding.

MR VICKERY: Yes, clearly. But what we have here is a disability over and above that. It is a lesser proficiency in English derived from his national or ethnic origin. It is of a character that puts him in a separate position to people who are able to speak English generally, as a first language. We say that under the Racial Discrimination Act, all we have to do is to establish that there was a lack of equality before the law.

McHUGH J: Well you have to do a lot more than that, and I do not think your submission has even come to grips with one of the essential questions. You have to show, to begin with to even get this case off and running, that it was unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race.

MR VICKERY: Yes.

McHUGH J: Now where is the slightest bit of evidence in this case that anybody did any act based on race?

MR VICKERY: Let me take the Court to my submissions in that respect and develop them through an analysis of the provision ‑ ‑ ‑

McHUGH J: Well I have read them and they do not deal with this point at all, do they?

MR VICKERY: Might I seek to argue that point? The provision that we rely upon, of course, is 75(i) of the Constitution. In dealing with the matter that is, we say, a matter arising under the treaty, we say that in this case we have a particular right or privilege that is implemented by section 9(1) of the Racial Discrimination Act which, through that means, imports the right which is found in Article 5 of the convention relating to equality before the law. I will take the Court ‑ ‑ ‑

McHUGH J: Your argument means that contrary to what everybody has ever thought about this particular Act that it is enforceable in the courts, at least enforceable in this Court.

MR VICKERY: Through the means of certiorari, yes. I do not know if that has been argued but I defer to what you may say, your Honour. Might I take the Court directly to the Racial Discrimination Act and section 9 of it. The key to the Act in terms of its enforcement, we say, is the unlawfulness that it creates.

GLEESON CJ: It is unlawful for a person to do something.

MR VICKERY: Yes.

GLEESON CJ: Who is the relevant person?

MR VICKERY: In both cases we have the magistrate who committed and then we have the County Court judge who found the breach and sentenced.

GLEESON CJ: Well then, what is the prosecutor, Miss East, doing here?

MR VICKERY: We do not seek any relief against her?

GLEESON CJ: And what about the Governor of Fulham Prison?

MR VICKERY: That was included because of a proposal to issue a writ of habeas corpus. We will make application for that.

GLEESON CJ: In terms of identifying an unlawful act, we concentrate our attention upon the magistrate and upon the chief judge.

MR VICKERY: Yes, entirely, yes.

GUMMOW J: Why are they not identified as respondents?

MR VICKERY: They are not identified as respondents because, it is submitted, the description “Magistrates’ Court of Victoria at Sunshine” in the context of this case means the relevant magistrate.

McHUGH J: No, it does not. It is the court’s order. It is not the magistrate’s.

KIRBY J: I thought this Court had said in prohibition proceedings directed to the old Arbitration Commission or the Industrial Relations Commission that the commission could be named and not the judge.

MR VICKERY: Yes. That is often the case and, indeed ‑ ‑ ‑

KIRBY J: Is that the practice you were following?

MR VICKERY: That is the practice.

KIRBY J: Right or wrong, that is what you were trying to do?

MR VICKERY: Yes, it is, that is correct, although for the purpose of the breach ‑ ‑ ‑

GAUDRON J: It is the nature of certiorari. It is to quash a decision of an inferior tribunal. Naturally, if you are seeking certiorari, it is directed to the tribunal.

MR VICKERY: Yes. What we say here is that the trigger for certiorari, being the unlawfulness, is the unlawfulness of the person who constituted the tribunal.

GAUDRON J: Well, the trigger of the certiorari is usually error on the face of the record.

MR VICKERY: Yes. It can also be a jurisdictional error.

GAUDRON J: Yes, well, it may be, but if we are looking at error on the face of the record, the sort of error I would have thought you would be looking for here, if you wanted one, was an error in failing to accord a fair trial ‑ ‑ ‑

MR VICKERY: That is the kind of ‑ ‑ ‑

GAUDRON J: But that would not get you into 75(i).

MR VICKERY: That is the type of error that we seek to make out.

GLEESON CJ: That is the type of error you sought, unsuccessfully, to make out in the Supreme Court of Victoria.

MR VICKERY: But we do it here on an entirely different basis. We do it here through the operation of section 9 of the Racial Discrimination Act. That has never been put before.

GLEESON CJ: Well, then, what did the magistrate do that constituted a contravention of section 9?

MR VICKERY: I will take the Court directly to that but firstly what I will do is take the Court, if I might, to the provision in section 9 and then go to that very issue. Section 9 makes:

It unlawful for a person -

which we say, in this case, are the two judicial officers, namely the magistrate and the County Court judge:

to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

9(1) is expanded by a deeming provision in (1A) which is as follows:

Where:
(a) here a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

Critically, subsection (2) contains the following reference:

A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

I wish now to take the Court directly to that article which is found at page 49 of the reprint, annexed to the Act as a schedule. Article 5(a) is in the following form, commencing with the preamble:

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before the tribunals and all other organs administering justice;

That, we say, is the right which is imported into section 9 and rendered unlawful by the operation of section 9, but that is the source, we say, of the right - Article 5(a).

GUMMOW J: Assume you are correct about that, you had, you would say,
remedy is under Part III, would you not - Division 3A?

MR VICKERY: Not in respect of this right.

GUMMOW J: Why not?

MR VICKERY: I will take the Court to that issue. It is something we have set out in our submissions, and it might be convenient to go to it.

GUMMOW J: And, alternatively, were they not the only rights given you by the legislation?

MR VICKERY: We say not.

GUMMOW J: The only justiciable rights leading to a curial remedy are those given by this Act.

MR VICKERY: We say not, and I will develop that argument perhaps now. I will take the Court to this issue, which is at page 8 of our written submissions, if I might, where we deal with the issue of the justiciable controversy under the Act. As is plain from the terms of section 9, the effect of section 9 is to make the defined conduct unlawful. The defined conduct includes “any act involving a distinction”, et cetera, which has the effect of impairing the:

enjoyment or exercise, on an equal footing, of any human right or fundamental freedom -

including:

any right of a kind referred to in Article 5 of the Convention.

Article 5, as I have taken the Court to, includes a reference to the guarantee of the right of everyone without the relevant distinctions, notably in the enjoyment of the following rights, (a) equality before all courts, in effect. Section 9, of course, in its own terms ‑ ‑ ‑

GUMMOW J: But the officers of the courts, themselves, have certain immunities that are given by the common law, recently explained again in this Court in O’Neill. Now, you construe this Act as taking them away.

MR VICKERY: No, not at all. I will take you to this issue, if I might, through developing the argument that I am about to deliver.

GUMMOW J: Every way you turn in this case there seems to be a trapdoor to me, in front of ‑ ‑ ‑

MR VICKERY: We would regard them as water jumps which can be coped with.

GLEESON CJ: Beaches brook might be your definition of the right on the top of page 3 of your written submissions. You say:

The right to equality before the law in his enjoyment of equal treatment.....by the provision of the assistance of an interpreter.

MR VICKERY: Yes.

GLEESON CJ: Well, he did not ask for one.

MR VICKERY: No.

GLEESON CJ: And the magistrate had no way of knowing that he needed one.

MR VICKERY: And the real difficulty with that as an issue is recognised, but the way in which it can be dealt with is in this way: for the purposes of section 9 of the Racial Discrimination Act one does not look at what subjectively was in the mind of either the relevant judge at the time or at, indeed, what might have been the particular behaviour of the subject, in this case the prosecutor, in determining his own rights at the relevant time. One has to look objectively, it is submitted, at the conduct and analyse, it is submitted, that conduct in the light of the provision which is 9(1) and 9(1A) of the Racial Discrimination Act. That looks at objective conduct and that looks at ‑ ‑ ‑

McHUGH J: But all the objective conduct is dead against you. I mean, you cannot get off the ground:

which is not reasonable having regard to the circumstances of the case.

What was unreasonable about the magistrate or a judge proceeding in this particular case?

MR VICKERY: It is a question of how unreasonableness is analysed. Perhaps I could come back to this and I certainly will deal with it because it is a matter which we consider important. I was at the point of looking at this issue and that is the justiciability of the Racial Discrimination Act, that is section 9, assuming there is a breach. Of course, section 9 in its own right, in its own terms, creates no civil cause of action and, indeed, no criminal offence. It provides in its own terms no redress. The procedure in the Act for the granting of redress is a reasonably elaborate one.

GUMMOW J: Exactly, and that being so, ordinary principles of statutory interpretation would suggest that one construes the Act in that way, but that is that. That is the measure that is given.

MR VICKERY: There is a trap, with respect, with regard to the particular right that is sought to be invoked in this case, that is equality before the law, because if one analyses the Act in terms of the redress ‑ ‑ ‑

GUMMOW J: We are not talking about rights. We are talking about the concomitant obligation and the imposition of the concomitant obligation by a law. Where is it? You say it comes out of here by implication and the answer to that is that one does not readily make that implication when one has these specific provisions. This is a very sensitive area covered by this Act and one would imagine that the Parliament did what it did very, very concerned to provide just what it provided and nothing more.

MR VICKERY: Yes. Let me develop the argument, because we say there is a clear implication, with respect, the other way, which does, in fact, arise in relation to the exercise or the guarantee of the right to equality before the court, which puts it in a different category to other rights that are protected by the Act. The scheme of the Act, in terms of its protection of the rights that are ‑ ‑ ‑

GUMMOW J: This right you say exists, is it a right to damages? Is it an action on the case for damages? What is it?

MR VICKERY: The right is to have an unlawful act ‑ ‑ ‑

GUMMOW J: Are you saying there was an abuse of public office by these unfortunate respondents?

MR VICKERY: The right is to have an unlawful act rendered unlawful by section 9 redressed by a writ such as certiorari.

GLEESON CJ: But underlying that you seem to say there is a right to have an interpreter even though you do not ask for one.

MR VICKERY: That is an incident of the breach of the right in this case. I will come to how it is that we analyse the breach of the particular right or a contravention of the right, shortly. I wish to develop this point, being the justiciability point, in this way, that the Act ‑ ‑ ‑

GLEESON CJ: It is not just a question of justiciability. The question is, what is the action?

MR VICKERY: Yes, I understand your question, your Honour, and thank you. The Act has an elaborate system for redress within its own terms. That starts with an inquiry under section 24(2). It then, by the commissioner who is engaged, proceeds through the steps that are set out on page 10, 5.6 of my submission, a referral to the commission of the commissioner’s report, a commission inquiry, a further attempt at conciliation at the hands of the commission, a determination then by the commission of the relief that is contemplated by section 25Z. I will take the Court to that section, 25Z(1).

KIRBY J: Why would one not infer from that complex scheme to this rather important and delicate task of providing redress for the convention in Australia by its domestic laws? Why would one not infer that that was to be the whole of it, that that is what the Federal Parliament proposed as its scheme for incorporating this convention in Australian law?

MR VICKERY: For this reason, and that is that the redress that is offered by the Act is not directed to, indeed, is wholly inappropriate to be applied to a judicial officer in respect of the important right that we say is breached here, that is, the right to equality before the law. If one looks, for example - this is the point of taking you to section 25Z - at the orders, or I should say the determinations as defined by (1)(b) that may be made by the commission, they consist of a series of declarations of a variety of kinds. None of those declarations are apposite to providing any relief in a situation where you have proceedings before a court. None of the determinations seek to, for example, go as far as determining that particular conduct of a judicial officer is unlawful, or providing redress by way of effectively setting aside any order or sentence made by court.

KIRBY J: That may be so, but then one of two inferences arises. Either that the Federal Parliament meant there to be no redress in such cases or, as you assert, that notwithstanding the failure specifically to provide for it, and notwithstanding the fact that it was specifically provided for in a complex web of legislation in the cases where Parliament thought remedies should be provided, that in this way the court can invent, add to, supplement, in a very delicate area of operations, new rights which Parliament, apparently, deliberately held back from affording.

MR VICKERY: Yes, the answer to the question, in our submission, is derived from a short analysis of the convention itself which imposes obligations on State parties including Australia, in this case, to give effect in practical terms to each of the fundamental rights that I have specified.

HAYNE J: Does the argument amount, then, to saying that unless certiorari goes there is no practical redress?

MR VICKERY: That is our submission.

HAYNE J: What about the ordinary right of appeal? Why does that not provide sufficient redress where the complaint is that the man has not received a fair or proper hearing for want of understanding.

MR VICKERY: Because what we have here, your Honour, is a separate and independent right to certiorari based upon a breach of section 9. We say that is independent from the normal rights of appeal one has to appeal a judgment on the grounds of manifest unfairness or some such ground.

McHUGH J: Where do you get this right of certiorari from? Where does it come from?

MR VICKERY: It is triggered by the characterisation in section 9 of the relevant conduct as being unlawful.

McHUGH J: To have a matter, somebody has to have a right and somebody has to have a duty which is broken.

MR VICKERY: Yes.

McHUGH J: Let it be assumed in your favour that there has been a breach of section 9. Where do you get the right to bring certiorari for breach of that duty on the part of the person to whom section 9 is addressed?

MR VICKERY: We say that the right stems from the principle which establishes the right to certiorari in any case. It is the time honoured principle in the Electricity Commissioner’s Case, the classic formulation that wherever any body of persons having legal authority to determine questions effecting the rights of subjects and having authority to act judicially acts in excess of their legal authority, that can found certiorari.

GUMMOW J: That is jurisdiction. That is talking about jurisdiction.

MR VICKERY: If this Court, as we say it does, has jurisdiction to issue certiorari in support of matters before it in its original jurisdiction, assuming the Court has original jurisdiction, which is the primary issue as we see it in this case, then if the prerequisites for the grant of the issue of certiorari are made out, we say there is jurisdiction.

McHUGH J: Section 9 says nothing about anybody’s jurisdiction. County Court’s jurisdiction depends upon the County Court Act. Magistrates jurisdiction depends on the Magistrates Courts Act. The Racial Discrimination Act has got nothing whatever to do with jurisdiction. If you have got a right, it seems to me it must be a right of damages of some sort unless you want us to do, as the United States Supreme Court did in Bivens against six unnamed agents and invent a cause of action for damages for breach of the Constitution or some similar provision.

MR VICKERY: The enforcement of the right stems from the characterisation of the illegal conduct as being unlawful.

McHUGH J: But how does that affect jurisdiction?

MR VICKERY: It creates the foundation, it is submitted, in the context of a court which is bound to act judicially, affecting the rights of people and what have you. It creates the foundation for saying that the conduct of the court was in excess of its jurisdiction because it acted unlawfully.

KIRBY J: I have a puzzle that is even before this. I am sorry to add to them, but it is this: the Supreme Courts of the States get their power, subject to any particular statute that supervene it, to issue certiorari out of the royal prerogative and the history and their being Crown courts. This Court is established by the Constitution. Where in the Constitution or the Judiciary Act or some other statute or elsewhere does this Court get a power to issue certiorari at all - question one - or to issue it to a State court as well - question two? It is not in the Constitution as far as I can see. I may be wrong, but my understanding is that certiorari is only ever given in aid of, and to make effective, the constitutional writs. There has been some dicta in the Court, I think, that has questioned whether the Court has the power, but it is given in aid of the constitutional writs. Where do we get the power to issue certiorari at all and to issue it to a State court?

MR VICKERY: Might I deal with this after lunch? I am very much aware of the issue but ‑ ‑ ‑

KIRBY J: But it is at the threshold because that is the relief you are seeking here. You are seeking certiorari. Now, I want to know what we are talking about if we have no power to issue it. I may be wrong, but I do not think certiorari is mentioned in the Judiciary Act.

MR VICKERY: No, it is not. I do seek this indulgence in answering your Honour’s question to deal with it after lunch. We have in our submissions dealt with it to some extent. I wish to, over lunch, develop the argument that is there and do justice to that part of our case, if I might be permitted that indulgence.

GLEESON CJ: Yes.

MR VICKERY: Where I was was analysing the issue as to why it is, based upon the terms of the Racial Discrimination Act itself and the relief that is set out in its own terms, that unlawfulness within section 9, as it relates to the right concerning equality before the courts, does give rise to relief of the kind in the nature of certiorari. We make the submission that the particular redresses that are provided by the Act itself are not designed, nor could they be effective in respect of providing remedy for a breach by a judicial officer which arises from the right stemming from equality before the court. We say there is no such redress provided by the Act itself.

But that is in conflict, we say, with the terms of the convention itself which specifically contemplate that practical measures be adopted by State parties to the convention to achieve the guarantee of the exercise of the defined rights, including the right to equality before the courts in Article 5. One can look at, if I can take the Court to that, a number of signposts pointing in that direction. Firstly, Article 2 at page 48 of the reprint by paragraph 1(d) requires a State to undertake the following acts - paragraph 1 starts as follows:

States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

.....
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

Then one goes to Article 5 itself, which provides as follows:

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction.....to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before ‑

courts effectively. Now, we say this, that given the exhortation, in fact, the obligation imposed on State members to provide practical measures for the protection of the fundamental freedoms set out in the convention, including the right to equality before the law, it must be taken that in section 9, given that there is no other form of redress in the Act itself, if it is to be given any effect at all in a practical sense to provide relief by way of redress to somebody who may be the victim of the unlawful act, if that is to work at all, the only way it can be achieved, we say, is by prerogative writ, as in this case, otherwise we have ‑ ‑ ‑

GUMMOW J: That is not right. That is what Justice Hayne was putting to you. The Parliament may have taken the view that this country already made such provision in its general legal structure and its general appellate structure.

McHUGH J: And the alternative view is that if it has not, then the Commonwealth is in breach of its obligations under the treaty because it has failed to give any remedy under the Act suitable to your case.

MR VICKERY: But we say this, that if there is no remedy specifically provided under the Act and yet there is an obligation on State parties to provide practical redress and practical guarantees of the relevant freedoms, we say that in order to give effect to section 9 and the unlawfulness that it pronounces, unless that is to stop in limbo, the only way in which it can be achieved, we say, is through a writ such as certiorari otherwise we have this situation where we have ‑ ‑ ‑

McHUGH J: Well, it is not a question of whether that is the only way to give it, the question is whether Parliament intended to give your client a right or a remedy for a breach of section 9 in circumstances such as are claimed to exist in this case.

MR VICKERY: We say, your Honour, that the intention can be gleaned from the following, that unless there is some remedy that is triggered by the unlawfulness created by the section, what we have is a public declaration of unlawfulness which goes no further, or could go no further in respect of the exercise of the right or the breach of the right, I should say. In other words, if conduct of a glaring kind is effected by a judicial officer, a magistrate, clearly and unquestionably in breach of section 9 in a manifest way, it may be that that conduct is not amenable to treatment through the ordinary course of litigation or appeal in the courts.

It may be that the conduct of the relevant magistrate, although manifestly unlawful and in breach of the Act, is immune from any further redress through the mechanism of the Act and that, we say, is an unpalatable result.

McHUGH J: Well, may be unpalatable. That is a course that Parliament is chosen. It says you have got to go along with the inquiry and then if the declaration is made then you enforce it in the Federal Court. That is how you deal with breaches of this Act.

MR VICKERY: Yes ‑ ‑ ‑

McHUGH J: But if your argument is right I do not know what you are doing up here. You could go to any other court in the State. You could go to the Supreme Court of Victoria and run these arguments.

GLEESON CJ: Well, you have already been there and lost.

HAYNE J: Twice.

GLEESON CJ: You have already been there, run these arguments and lost.

MR VICKERY: On different grounds.

HAYNE J: And lost, twice.

MR VICKERY: On different grounds, yes. On different grounds.

McHUGH J: There is nothing special about this Court. If your argument is right then these remedies that you have got could be enforced by certiorari in any State Supreme Court, is that right?

MR VICKERY: That is potential open, yes, but we seek to do it here because this Court, we say, has original jurisdiction and can deal with the issue, in terms of the convention and we are here and we seek the relief that has been claimed.

GUMMOW J: You will be coming to the section 75(i) point, the constitutional point?

MR VICKERY: Yes. That is how we put our case on the justiciable issue.

GLEESON CJ: Well, you have not yet told us what it was that the magistrate did or failed to do that contravened section 9. As I understand it, the proceedings before the magistrate were extremely brief. Indeed one of your complaints is that he did not investigate the question of whether there was a breach of the community based order. Your client was represented by counsel. Nobody even hinted to the magistrate that there was a requirement for an interpreter and he sent the case up to the County Court.

MR VICKERY: Yes. Might I take the Court to page 3 of our submissions and deal directly with the issue of how we say the right was infringed both at the level of the Magistrates’ Court and the County Court. At 2.4 we say the right was infringed in the following manner. Firstly, the prosecutor suffered from limited linguistic skills and as we say it derived from the facts, this was derived directly from his descent, national or ethnic origin.

Secondly, we say the acts of both the magistrate and the County Court judge in proceeding with the matters before them without ensuring that the prosecutor had the free assistance of an interpreter were (a), acts involving a distinction based on descent or national or ethnic origin which (b), had the effect of impairing the prosecutor’s enjoyment or exercise on an equal footing of equality before the law, notably equal treatment before those courts.

GLEESON CJ: That assumes that where a client is legally represented, the magistrate has an independent obligation even though the question is not raised by the legal representative to “ensure” that there is no need for an interpreter.

MR VICKERY: That is correct. That is what would naturally, as a matter of practicality, follow from the submission.

GAUDRON J: And in this case the County Court judge did just that, did he not? He asked was there any need for an interpreter.

MR VICKERY: Yes.

GAUDRON J: And was told by counsel that there was not.

MR VICKERY: Yes, that is true but that does not remove the conduct potentially from unlawfulness.

GAUDRON J: It may in this regard: we are talking about courts; we are talking about courts which have to act in an impartial, dispassionate, even‑handed manner. How can courts go behind what is said by counsel consistent with their obligations to act in the manner indicated?

MR VICKERY: The position ‑ ‑ ‑

GAUDRON J: There may be cases where it is apparent, for example, that a plea of guilty should not stand because it is inconsistent with something that has been said notwithstanding that it has been entered by counsel but in a situation like this the courts really cannot do what you say when inquiry has been made and answer has been given.

MR VICKERY: Yes. The judge did make an inquiry. He appreciated, no doubt at the time, that there was no need for an interpreter. Otherwise he would have proceeded to, presumably, have one engaged. But that does not remove the conduct, potentially, from a breach of the Act. It may be that the judge misapprehended the situation, not knowingly, but by virtue of the fact that he was not appraised of the sort of material that is open to be presented in this case, and that is that this particular prosecutor had survival English.

McHUGH J: Yes, but you cannot bring yourself within section 9(1). You have to bring yourself within the deeming provision. So you translate section 9(1A) to this case:

Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case -

Now, you say that the requirement in this case was permitting the proceedings to continue. So, translating it, it reads, “Where the judge or magistrate permitted the proceedings to continue, and it was not reasonable having regard to the circumstances of the case”. How could you say it was not reasonable, having regard to the circumstances of this case? Counsel said the judge asked was an interpreter there, and counsel said no and the matter carried on, surely.

KIRBY J: You have to say that is a catch‑22 situation, having regard to the evidence of the expert, that the problem was that nobody was looking for it and, because of your client’s disabilities, he could not express it. I mean, that has to be your answer to ‑ ‑ ‑

MR VICKERY: It is, and we say as much at 2.5.2 of our submission, that what is reasonable, having regard to the circumstances of the case, will depend ultimately, we say, on the evidence to be presented and the facts found. However, evidence may be led and findings of fact made to the effect that there was a lack of the requisite reasonableness, given the language deficiency of the prosecutor, which may not have been appreciated at the time. In other words, if one has a situation where the court, even though it is told by counsel that an interpreter is not required, it may well be still objectively unreasonable, given knowledge of other facts, to have proceeded without having an interpreter there. If that is the case, if the sort of evidence that the expert linguist in this case presents is accepted, we say there is a basis for objective unreasonableness even though the judge at the relevant time could not be criticised, given the knowledge that he had because there was an underlying substratum of fact which he was not appraised of, being the manifest deficiency of the prosecutor in English to the extent - all we have to do to prove a fairly low threshold that he could not be treated equally with other people who have English as their first language.

GLEESON CJ: It might be thought that, if you can commit a contravention of section 9 in such a manner, it is not surprising that the only remedy provided by the Act is that in Part III.

MR VICKERY: We say this, your Honour, that if the case is made out, assuming, put at its highest, the evidence of the linguist is accepted, and that is that objectively in the absence of an interpreter, knowing what we know now about the man’s incapacity for speaking English proficiently to the level of ordinary Australians, if you like, knowing what we know now and not being in a position, therefore, to present what he says were salient matters which might well have had a material, if not a major, effect on the disposition of his case, he may not be in gaol now or may not be in gaol for the ‑ ‑ ‑

KIRBY J: He is not in gaol now. He is on bail.

MR VICKERY: No, he is still in gaol.

KIRBY J: He is in gaol?

MR VICKERY: Yes, he is.

KIRBY J: I thought I read that he was on bail, bail was granted to him.

MR VICKERY: No. No, he is still in gaol. He has 40 days to go before his minimum term elapses. But that would be the result and, if that is so, looking at all of those facts objectively, regardless of how perfectly the judge behaved at the relevant time, there is still ground for unreasonableness within (1A). Looking at the totality of the evidence, it was not, for one reason or another, presented to the judge. We have a person serving a sentence and we say that given the outcome, the standard is a critical one in terms of analysing the conduct at a later point because, if the conduct can be made out as unlawful within the meaning of section 9, it may well have a dramatic effect on the disposition of the matter and the liberty of this particular subject.

KIRBY J: I have listed for myself 11 problems you have in this case. Even if you get through them all, the remedy would not just be granted to you without consideration of whether it was appropriate in the particular case. The remedy would - even if it is not strictly a discretionary remedy certiorari, it is still one which is in the gift of the court in a proper case. I mean, one must test this proposition. A third of Australians come from overseas and a very large number of them from countries whose first language is not English. It would mean that every person who comes before a court in this country who does not raise an issue of the right or the need for an interpreter, or indicate or flag in any way that they need it, can go through the process and then come to this Court and seek some sort of discretionary relief in the nature of certiorari. But that is a rather worrying proposition.

HAYNE J: And can do so, may I add, having exhausted their ordinary appellate rights.

MR VICKERY: We say that if that is the law, that is the law. Just as in Dietrich’s Case and other cases that have had a dramatic effect in terms of award of costs, for example, throughout ‑ ‑ ‑

KIRBY J: But Mr Dietrich got up and down and banged the table and insisted - of course, he was an English speaker but, I mean, some minimal threshold of assertion or claim of right is not unusual to expect in a court of law.

MR VICKERY: No.

KIRBY J: You really have to go back to your catch‑22 argument and say, “Well, the problem in this case is he couldn’t really express himself or understand what was happening and express his need for an interpreter”, and it is nobody’s particular fault, but that is the net result, or at least it is the fact that you want to be able to prove.

MR VICKERY: Yes, and if it is that his language proficiency was such that he did not appreciate the need for an interpreter, he may well have conveyed that to his counsel.

GUMMOW J: Mr Dietrich’s case came here through the appellate structure.

GLEESON CJ: And as Justice Gaudron pointed out to you, parties are bound by the conduct of their counsel and the Court cannot, as it were, go behind the representation the parties have. Indeed, it may have been as a result of Mr Dietrich’s conduct that your client had his representation.

MR VICKERY: I will be repeating myself to advance the case any further on this point, but what we say is that there is imported into 9(1A) a concept of reasonableness in subparagraph (a). That concept of reasonableness may be met in our case by establishing that objectively, looking at all of the facts, including the potential for the prosecutor not to have been in the position to understand or comprehend his own need for an interpreter and given the consequences of the case for him personally, regardless of the position taken by the judge, which may have been unassailable in a Court of Appeal through the traditional appellate structure in the sense that the judge did not act unfairly, regardless of that, we have an overriding provision in section 9 rendering the conduct potentially unlawful, providing that the facts are made out, and that is what we seek to do.

We say that the consequence of requiring the prosecutor to proceed with his case in the absence of an interpreter meant that, pursuant to the deeming provision in section 9(1A), and indeed, pursuant to section 9(1) itself, without having to rely on the deeming provision, that an unlawful distinction arose, with the consequence that there was a breach of the article of the treaty imported into the Act.

McHUGH J: Well, how do you get that? Even on the most extreme view of the evidence, how could you say that under 9(1) that what the magistrate or a judge did was based on race?

MR VICKERY: The way we put the argument is this, that the prosecutor suffered from linguistic difficulty, to the extent that he was not proficient in English to the level of first-speaking English persons in this country, so there was a distinction between him and other persons. His limited linguistic skills stemmed directly from his national or ethnic origin.

McHUGH J: Yes, but it is the person who must do an act based on race.

MR VICKERY: Yes, but the person in this case being, for example, the judge, did enact, not willingly, not knowingly, but did enact objectively based on race by ‑ ‑ ‑

GAUDRON J: I am not sure that there was any requirement; I am not sure that you can say that the trial judge required your client to do anything, particularly when he inquired. He may have acquiesced in the situation, but that is not necessarily the same as required.

MR VICKERY: Yes. The way we put the requirement for the purposes of 9(1A) is set out in our revised formulation, which is ‑ ‑ ‑

GAUDRON J: So it includes acquiescing in a situation?

MR VICKERY: Yes, 2.5.1 specifies the requirement and we say ‑ ‑ ‑

GAUDRON J: So it was by permitting?

MR VICKERY: Yes. We say it in this way. The magistrate and the County Court judge permitted the proceedings before them to continue in the absence of an interpreter to assist in the proceedings, thereby requiring the prosecutor to comprehend and communicate in the English language during the proceedings as if he was on an equal footing with other persons not suffering the disability when to do so was not reasonable having regard to the circumstances of the case. That is how we formulate the requirement for the purposes of 9(1A).

GLEESON CJ: Well, some interesting jurisdictional questions might have arisen if what had happened in the present case had been that the chief judge had refused an application for an adjournment on the basis that your client wanted an interpreter, but here ‑ ‑ ‑

KIRBY J: And that does happen. That has happened in cases.

GLEESON CJ: But here we do not even approach that situation, do we?

MR VICKERY: What we say is this, the judge, looking at ‑ ‑ ‑

GLEESON CJ: The judge says, “Do you want an interpreter?” and the barrister says no.

MR VICKERY: The judge’s conduct in the circumstances of the case was impeccable in this regard.

GLEESON CJ: Impeccable but unlawful.

MR VICKERY: Impeccable but unlawful, yes. In other words, it would not have given rise to any ground of appeal that could sensibly be maintained or sustained in a court, so there was no appellate right through the appellate system on his conduct by virtue of the very matters that your Honour the Chief Justice puts.

McHUGH J: Well, that seems to lead to strange consequences then. He has done nothing that could give rise to an appellate right, yet, according to your argument, what he did invalidates his jurisdiction.

MR VICKERY: That is what we put.

KIRBY J: All this without any specific provision in the federal statute in this regard or, on one view, within the convention itself.

MR VICKERY: We say the convention does this: it creates obligations on States to give practical measures to enforce all of the relevant rights that are set out in the convention, including the right to equality before the law. If it does that, and we have in section 9(1) a situation where there is unlawfulness on the fact of the material, a breach of section 9 of the face of the material giving rise to unlawfulness, if that is to be given any effect to, certiorari, we say, provided the Court has jurisdiction to grant and issue the writ, will lie.

GUMMOW J: Mr Vickery, there is one matter I should raise with you before lunch. It goes to section 75(i). In Victoria v The Commonwealth in the Industrial Relations Act case in 187 CLR 416 at 480, in footnote 214 there is a reference to a discussion by Professor Starke of some exceptions to the general proposition that:

under the common law, entry by the Executive into a treaty is insufficient -

et cetera, which is greatly relied upon by your opponents and by the interveners to found their argument that section 75(i) cannot apply here. It seems to me that, even allowing for those exceptions, you do not bring yourself within them, so I cannot, at the moment, see what answer you could have to their written submissions as to lack of jurisdiction here.

MR VICKERY: With regard to the section 71 point, we analysed this through ‑ ‑ ‑

GUMMOW J: If that is right, that is the end of it.

MR VICKERY: I will have to grapple with that issue. With regard to the section 75 point, we really put the case in three ways as to how it is that this matter arises out of a treaty and we put that in the ways that are set out starting at page 5 of our written submission. The first way in which we say the matter arises ‑ ‑ -

KIRBY J: The word is “under” is it not? It is not arises out of, arises in relation to, arises in connection with. It is “under”.

MR VICKERY: Yes.

GLEESON CJ: Well, Mr Vickery, it is a quarter to one. Is this a convenient time to adjourn?

MR VICKERY: Yes, it would be, thank you, your Honour.

GLEESON CJ: Very well, we will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.21 PM:

GLEESON CJ: Yes, Mr Vickery.

MR VICKERY: If the Court pleases. I wish to start with the matter relating to section 75(i) of the Constitution from the point raised by the question put to me before lunch by Justice Gummow concerning, and arising from, the Industrial Relations Case 187 CLR 416; in particular the passage which appears at 480 to which his Honour addressed his question to me.

At 480 the Court said this about the legislative power under section 51 of the Constitution:

As a general proposition, under the common law, entry by the Executive into a treaty is insufficient, without legislation to implement it, to modify the domestic or municipal legal order by creating or changing public and private legal rights and obligations.

Exceptions to that are noted in the footnote to be contained in the article written by J.G. Starke, which is there cited in the footnote at (214).

We say this, that we do not have to bring ourselves within any of the exceptions. That, in the present circumstances, we can happily upon the general proposition there cited as being correct and applicable to our situation. We say this because the legislation, which is the Racial Discrimination Act, by creating the unlawfulness it does in section 9, which is sourced from the right contained in the convention, implements the treaty right at a municipal level, and therefore the unlawfulness becomes part of the municipal law of this country and is applicable in a domestic situation.

KIRBY J: That cannot be right, can it, because it has been implemented in a municipal level but in a particular way and you cannot, as it were, say just because the Parliament makes a law which, in a particular way, implements a convention, that thereby the whole nation becomes fixed with the whole convention although part of the Parliament has declined to make it, as such, justiciable.

MR VICKERY: Yes. The extent of section 9 in terms of equality before the law stops at the point of declaring the defined conduct unlawful. Given that situation, we say, that having declared the unlawfulness of the conduct, that unlawfulness is there accepted as a declaration essentially in relation to the conduct throughout the country. Once that is the position, any conduct engaged in by any person within Australia which is unlawful as defined and declared effectively by section 9(1) ‑ ‑ ‑

GAUDRON J: I must say I had always approached section 9 really as definitional rather than prescriptive. The prescriptive provisions came thereafter in sections 10, 11, 12, et cetera.

MR VICKERY: Yes. I refer to two matters in that respect, your Honour. Firstly, section 9(4) ‑ ‑ ‑

GAUDRON J: Yes. No, you may be right.

MR VICKERY: Any of the succeeding sections are not to limit the generality of the first and the second is this, that assuming Article 5 is imported into the legislation to define the rights, equality before the law is the first of those rights and it does not receive any specific ‑ ‑ ‑

GAUDRON J: That relates to the effective legislation. It very much looks as thought the Parliament, for good reason, stayed well outside the area of what was to happen in courts because, after all, the courts have been asserting a right to equality before and under the law for a very long time.

MR VICKERY: If that is the approach taken with regard to unlawfulness as defined by section 9 then, in our submission, it leaves completely vacant the practical implementation of Article 5(a), equality before the law, in terms of this country.

GAUDRON J: No, it does not. It has been said on many occasions that equal treatment is a necessary aspect of the judicial process.

MR VICKERY: In terms of implementing the treaty and giving the guarantee that is referred to in Article 5, it is submitted that in order to give effect to what is called a guarantee, unlawfulness must be given some positive effect. Otherwise one simply has an exhortation, a statement of principle, but it stops short at that point.

HAYNE J: Section 10 goes on to try to amplify it.

MR VICKERY: Section 10, your Honour, is limited to legislation, which can be modified effectively by the Act. It does not direct itself to the conduct, which is in section 9, and it seems that the convention itself, in dealing with right to equality before the law, is not restricted to dealing with laws that may inhibit the exercise of that right, or impair it. It is more general. It is directed as widely as to conduct, and conduct is the matter caught, it is submitted, by section 9.

GLEESON CJ: Is it suggested there is a contravention of section 10 here?

MR VICKERY: No, it is not.

McHUGH J: Take a common case where an employer - well, it may not be a common case, but an employer dismisses a person on the ground of race.

MR VICKERY: Yes.

McHUGH J: Now, there is anterior contract of employment between the parties but the unlawfulness of that act is remediable only by following the route laid down in the Racial Discrimination Act. The unlawful act could not be the subject of any action in any civil court.

MR VICKERY: That is so because the Act sets out the regime that is to apply in terms of enforcement but in the absence of that ‑ ‑ ‑

McHUGH J: But it goes beyond that, does it not, Mr Vickery? Does it not also indicate that although section 9 makes such an act unlawful, it is really only unlawful for the purpose of this Act and it does not operate outside the context of the Racial Discrimination Act.

MR VICKERY: In my submission, that interpretation, although open, is not the preferable course because of the exhortation, in fact the obligation of Australia as a state party to the convention to give practical effect by implementing the guarantee and the preferable interpretation, therefore, would be to try to give some enforcement power to unlawfulness, and rather than stop it at the point where it is a rhetorical legislative Act which is ‑ ‑ ‑

McHUGH J: Yes, I appreciate it. You say the Court should itself provide the remedy.

MR VICKERY: Yes. And, indeed, that may be taken as the intention of the legislature, in other words, that there are remedies to deal with the supervision of courts of an administrative law nature, namely through the prerogative writs. That is the way this particular right may be enforced beyond the point of merely exhorting the statement that anything that detracts from equality from the law is unlawful.

GLEESON CJ: Presumably in the present case your client could have and could still make a complaint to the Humans Rights and Equal Opportunity Commission.

MR VICKERY: It could, but that is where it would probably stop because the determinations ultimately that can be made by the commission in respect of the conduct do not deal with, and cannot deal with, his sentence or the orders made by the court.

GLEESON CJ: In this particular case.

MR VICKERY: Yes.

GLEESON CJ: But leaving aside that aspect of this particular case, could you have a person who, at the one and the same time, pursues a legal remedy before a court and also pursues a complaint before the Human Rights and Equal Opportunity Commission?

MR VICKERY: In some cases, yes, but in a case where the conduct of the person impugned is conduct of a judge or a judicial officer, normally a person who has the normal common law and statutory immunities, it is submitted that the procedure is wholly inappropriate to deal with the conduct of such a person in purview of this Act, for example, conciliation.

GLEESON CJ: I was only wondering whether the Human Rights and Equal Opportunity Commission and a court might find themselves both dealing, and perhaps even dealing inconsistently, with the one allegation.

MR VICKERY: I am not sure of that circumstance but ‑ ‑ ‑

McHUGH J: Well, it can, and to my recollection it has happened more than once but in this context: somebody has asserted that they have not had a fair trial, for example, and at the same time made a complaint to the Human Rights Commissioner. We had a special leave case in Sydney two or three years ago where you had these concurrent type complaints on foot.

MR VICKERY: Yes, I suppose that is possible and could occur, but in terms of ultimately giving an effective remedy which amounts to a guarantee of the right in respect of the conduct of a judicial officer, it is submitted that the remedies provided by this Act stop well short of that. Conciliation was inappropriate. The determinations that could be made by the commission under 25Z do not touch on the point and that ultimately is the other determinations that may be enforced through the Federal Court but, firstly, there must be a determination made to trigger that enforcement by the Federal Court.

McHUGH J: But you do have remedies. In the case of a judicial officer they may be very weak remedies but the Act does seem to provide machinery by which a breach of section 9, for example, could be dealt with. Now, there is much common law authority dating back nearly 200 years that if a statute imposes an obligation but provides no remedy, the common law will itself provide the remedy, but here, you have a remedy and this is a complaint to the commission.

MR VICKERY: In our submission there is no practical remedy provided in respect of the conduct of a judge, in this Act. The judge is probably immune from being subjected to jurisdiction by the commission to be brought before them on a compulsory conciliation to try to resolve the issue before the court. That is a wholly inappropriate way to deal with the judge. He ought not to conciliate his decisions. It is totally alien to any concept of a judicial determination and that is the first port of call in the procedure that is offered here. It is submitted that if that is not appropriate and not available, there is no remedy.

GLEESON CJ: Except an appeal.

MR VICKERY: At the local State court level, perhaps. But that does not detract from the position that we adopt in this Court and that is that we say the Court has jurisdiction through the treaty power, and once it has original jurisdiction it can deal with and issue the relevant prerogative writ.

So that what we say in opening on the 75(i) point is that we have an implementation of the treaty by creating the unlawfulness which is a general unlawfulness pertaining to all citizens, all persons within Australia. Once one has that position, rights do flow in the nature of power to issue certiorari, which I will deal with shortly.

Going to the more critical point as to whether or not the matter in this case arises under the treaty, which is the foundation of the argument that the Court has original jurisdiction, one starts with the proposition as to the matter. We say the matter in this case, which is, if you like, an amendment to or a modification of 2.2 of our submission - but I would ask the Court to entertain what I say rather than what we have written - what we say the matter in this case is is the right, the privilege or protection implemented by section 9(1) of the Act and whether or not the relevant conduct was unlawful, being in breach of that right.

McHUGH J: You have to go beyond that, do you not? A matter has to be more than a right, privilege or protection. There has to be some corresponding obligation on somebody else.

MR VICKERY: We say that if there is a right to equality before the law, that creates an obligation on other persons, including judges in this case, to give effect to that right. That is the corresponding obligation. We say that the right, privilege or protection concept arises out of the analysis of the Court in In re Judiciary and Navigation Acts, the 1921 case, a short case where the Court, in analysing what was meant by a matter in the context of sections 73, 74, 75, 76 and 77 of the Constitution, ultimately referred to it in the terms that we have set out in our submission. The principle is stated in our submission at page 2 where, having analysed “matter” in the context of those sections of Chapter III of the Constitution, the Court said in terms of the word “matter”:

and always, we think, with the same meaning.

This is at page 266.

All these opinions indicate that a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law.

We say applying that definition, we have here a right protected by law or given by law. We have a right in this case given by law.

GUMMOW J: What law?

MR VICKERY: By section 9(1), implementing the treaty.

GUMMOW J: I see.

MR VICKERY: We do not have to go as far as saying the matter here involves the question of the redress or the relief. We say the matter can stop at the point where the question is whether there is a right and whether the right has been breached. We say that, provided it arises under a treaty, is a relevant matter.

GAUDRON J: Is anybody denying that you have that right in any event?

MR VICKERY: I hope not.

GAUDRON J: Nobody is denying that you have a right to equal treatment before or under the law. The question is, forgetting the factual question, the question is whether that can be vindicated other than in the appellate processes; whether the Racial Discrimination Act or the treaty purports to give some independent and justiciable - permit of an independently justiciably controversy.

MR VICKERY: That is correct. We seek to make that out. The starting point is the definition of the “matter”, which I hope I have analysed sufficiently.

GLEESON CJ: Let me take a case, to get away from the factual problems about whether there has been a contravention here. Suppose a Sydney taxi driver orders a passenger out of his cab on the ground that he is a Vietnamese, can the passenger then come to this Court suing the taxi driver, and for what?

MR VICKERY: No, because there would be no remedy that this Court could offer. A mandamus or certiorari would not be appropriate not directed to a person who is imbued with judicial authority.

GLEESON CJ: He could not get a declaration?

MR VICKERY: The declaration would not lead anywhere and then probably therefore not be granted.

McHUGH J: Supposing the taxi driver said to him, “And if you ever try to get into my cab again I will do this or do that to you”, could you get an injunction relying on section 32 of the Judiciary Act?

MR VICKERY: Restraining the unlawful conduct in the future; in theory, yes.

McHUGH J: You have to say that.

MR VICKERY: Yes; in theory, yes. Although, there are remedies provided specifically for this sort of conduct in the Act itself, unlike the position with regard to section 9 in relation to equality before the law, “Access to places and facilities” for example - section 11; “Provision of goods and services” - section 13. That excites the operation of the Act and all the remedies that it provides, so unlike the position that we find ourselves in, with no, we say, statutory redress. That would achieve a statutory redress, but in a different category, we say, and would be probably a very good reason for refusing the declaratory or injunctive relief if ever it was sought before this Court, because there is a perfect remedy, or contemplated set of remedies that are there set out in the Act to deal with that very issue.

Having defined the “matter”, the critical question then becomes how does it arise under the treaty or under any treaty and we say that the matter arises or may arise under the treaty within the meaning of section 75(i) of the Constitution in three ways which cumulatively create the relevant and necessary nexus and we start with this analysis at page 5 of our submissions and we say that these nexus points are all cumulative in this case giving rise to the potential for the exercise of the treaty power. It is put the wrong way: giving rise to the original jurisdiction of the court.

The first way, we say, in which the matter may be said to arise is this way, that if the right or duty in question arises from an Act which implements a right or duty created under a treaty and the prosecutor wishes to enforce some right or duty imposed directly by this Act or wishes to pursue some course of action which is derived directly from the Act, the matter, that is the enforcement of the right or duty, may be said to arise under the treaty and we say that that is the case here because a principal purpose of the Act - and I do not think this is in any serious controversy - is to implement the treaty. We say that implementation of treaty provisions is enough to found the starting point for the nexus in this case.

The second cumulative nexus point is the treaty interpretation point and that is derived from something Justice McLelland said in Bluett v Fadden when looking at section 75 of the Constitution and we say he put the case in this respect in this way: where the enforcement of the right or duty claimed by the prosecutor depends upon the interpretation of a treaty the matter may be said to arise under the treaty. I will take the Court to Bluett’s Case. It is in our authorities.

GLEESON CJ: What is the question of interpretation if the treaty arises.

MR VICKERY: We say here that the question for interpretation which is inescapable is what is the content of the right?

GLEESON CJ: The right under section 9.

MR VICKERY: The right under section 9 which comes directly from the right created by Article 5(a).

GLEESON CJ: Well that is a question of interpretation of section 9 I understand.

MR VICKERY: Yes.

GLEESON CJ: Why is there a question of interpretation of the treaty?

MR VICKERY: Because of the way in which the convention is sought to be imported into the Act - I will put the matter this way. We say there is a vast difference between the Act attempting to define the relevant rights that are protected by listing them, effectively, so that we have within the text of the Act itself a statement to the effect, for example, that everybody has the right to equality before the law, everybody has the right to association, freedom of movement, et cetera, set out. If the Act did that, it would then involve interpreting the provision of the Act, and no doubt extrinsic material such as a treaty may be brought in aid of interpretation. But the primary juristic exercise is the interpretation of the Act itself.

On the other hand, this Act does something quite different. This Act does not seek to redefine or list out, or define in its own terms, the relevant rights. This Act does, by section 9(2) and a counterpart section in section 10(2), simply say this in 9(2):

A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

So one has to go then to the convention to look at the rights there set out. Effectively, the interpreter of the section is invited by the section to do that and there is no other mechanism but to go directly to the treaty and attempt to interpret the treaty. And in doing so, all sorts of nice questions may well arise as to how to interpret an international convention, whether or not the Vienna Convention on the Law of Treaties and the interpretative components of that treaty do apply, whether other international instruments apply, and so on and so on. But one is then entering into the question from the perspective of interpreting the treaty per se, not interpreting the Act with the aid of the treaty.

McHUGH J: But the treaty is only a point of reference, is it not? Your right arises under the Act. If, for example, I entered into a contract under which I was paid five cents for each person who entered the Melbourne Cricket Ground, my right arises under the contract. You would not say it arises under the entry into the cricket ground.

MR VICKERY: No, that is so but in this context, your Honour, what we say is this, that the exercise necessarily involves a characterisation of what it is you are interpreting.

KIRBY J: I think you have three arguments, as I understand it. One, that we are construing a Constitution here which would ordinarily be given a very broad construction. Two, that we are construing a Constitution which is in the business of conferring a jurisdiction on a court, and that is an added reason why it should be given a large construction. And three, that if it only arises under the Act, Australian legal theory having been that you have to have the Act, then there is no work under the treaty to do.

MR VICKERY: That is true.

KIRBY J: Therefore, it cannot be given a narrow construction. It has to be given the broad.

MR VICKERY: Yes.

GUMMOW J: But what do you say as to what is said in paragraph 10 of Victoria’s written submissions and 2.3 in the Commonwealth’s written submissions? Are they not an answer to all of this based on the text actually, namely the use in 76(i) of the expression “involving its interpretation”, which indicates that when the phrase “arising under” is used in 76(i), 76(ii) and 75(i) it means something less than involving interpretation?

MR VICKERY: Well, we say this, that looking at ‑ ‑ ‑

GUMMOW J: And that Bluett is just wrong.

MR VICKERY: Yes. Well, what we say about Bluett is that it is another step along the way to achieving the relevant nexus. In other words, we have the first point, which is the implementation point. The second point establishing the relevant nexus is the Bluett point that it does involve interpreting the treaty as a treaty rather than interpreting the Act as an Act.

GUMMOW J: The question is whether it arises under the treaty.

MR VICKERY: I am sorry, your Honour.

GUMMOW J: The question is, is there a matter arising under the treaty, not whether is there a matter involving the interpretation of the treaty.

MR VICKERY: Yes. We say that if there is a matter involving the interpretation of a treaty, that is a matter arising under the treaty as ‑ ‑ ‑

GUMMOW J: It just does not fit in with the text of section 75 and 76, in particular 76(ii) and 76(i) and 75(i) and the phrase in 76(i) “involving its interpretation”, which is being used to make the point which is reiterated by the Commonwealth and by Victoria.

MR VICKERY: Our case rests on the propositions that I have put, but there is a further string to the nexus which establishes that our case is one where we have a matter arising under the treaty. We not only have the implementation point and, secondly, the interpretation point, but, thirdly, we have the Donyadideh point and that arises out of a decision of Chief Justice Miles in the Supreme Court of the Australian Capital Territory 115 ACTR 1 at page 1. The case is cited by my learned friends.

Specifically the issue arose in that case for determination as to whether or not there was or were matters arising under a treaty and, if there were, there was original jurisdiction conferred on the High Court with the consequence that the relevant court of the Australian Capital Territory would be denied jurisdiction. So the question was whether or not the matter in question was within the original jurisdiction of the High Court. In that case Chief Justice Miles was critical of and did not adopt what Justice McLelland said in Bluett but preferred a different formulation as to what was necessary and he formulated the proposition at page 6 of the report, at the top of the page, about line 5:

It is not enough that recourse is to be had to the treaty in order to decide the matter in issue. What is necessary is that the right, duty or liability in question “owes its existence” to the treaty or depends upon the treaty for its enforcement, or has its source in the treaty.

And simply he said to call upon the treaty to interpret as a matter of interpretation as not enough to give rise to a matter arising under a treaty, there must be something more which he there defined. Now, we adopt that principle and say as the third limb to establishing the relevant nexus in this case what we have here, in fact, is a right which owes its existence to the treaty and has its source in the treaty. One, in fact, could not have a clearer example of that occurring through the operation of the section 9(2) of the Racial Discrimination Act which in its terms founds the right clearly and squarely on the source being the treaty.

We say, therefore, that in itself is enough to give rise to a matter arising under a treaty but when combined with the Bluett formulation, being the interpretative component, and when combined with the implementation element we say all three in this case provide a unique example where there is a matter arising under a treaty. One could not have a clearer example if one set about trying to create one. We say this that in the absence of this sort of case giving rise to original jurisdiction under 75(i), it is hard to imagine any other. In other words, if we are not right, what does 75(i) do? It becomes a ‑ ‑ ‑

GUMMOW J: .Some examples were given by Professor Starke which is why I referred you to that article but that does not help you here. Your rights arise, if anywhere, under the Act, assuming you have rights.

MR VICKERY: It may be that I have put the case a little highly but, nevertheless, we say that applying the three principles giving rise to the nexus we have here a clear case of a matter arising under a treaty, the matter being the existence of the right and the breach of the right and we say that once jurisdiction is founded on those two components, the existence of the right and the breach of the right, original jurisdiction is conferred. Then we come to the issue of the remedy and whether or not certiorari will run. Now, there is two points that I wish to broadly address in this regard. The first is this that although section 33 of the Judiciary Act, in its own terms, does not refer to certiorari as being available from that source, nevertheless, certiorari by the practice of this Court in numbers of cases where it has original jurisdiction has been granted.

KIRBY J: Can you find a case where it has been granted alone, as distinct from in aid of other relief?

MR VICKERY: The only cases that we have found are cases where certiorari has been granted in aid of the jurisdiction of the High Court in matters in which the Commonwealth is involved as a party. For example, there is a case where the Victorian Registrar of Titles was compelled by mandamus to do a certain thing, by the High Court, to give effect to a lease that was proposed to be granted to the Commonwealth. That is a party situation and certiorari was also granted in that case. Other examples commonly arise in the industrial sphere where under the ‑ ‑ ‑

KIRBY J: The remedy in certiorari is to bring up the record in order that the orders on the record be quashed.

MR VICKERY: Yes.

KIRBY J: And the history was that literally the role was taken up in England and the seal on it was crushed but how did the Victorian Registrar of Titles get involved in that?

MR VICKERY: I will have to get that.

KIRBY J: What is the name of that case? Perhaps we can just look it up for ourselves.

MR VICKERY: Yes. I will have my junior look at that.

KIRBY J: It must have been some additional order in addition to quashing the record of the court below.

MR VICKERY: Yes, we will have to look at that. I will have my junior search it out. The other group of cases are where there is usually an industrial field and an officer pursuant to Commonwealth legislation that has been rendered amenable to certiorari and we have listed a number of those cases in our submission.

KIRBY J: I suppose you can point to section 33(2) of the Judiciary Act that says:

This section shall not be taken to limit by implication the power.....to make any order.

And certiorari, though it is commonly granted, as we all know in the United States Supreme Court, is not mentioned in the third chapter of the Constitution of the United States, so presumably they found that they had the power out of their function as a court in the tradition of the common law.

MR VICKERY: Yes. We refer in this regard to the Judiciary Act. Although certiorari is not mentioned in section 33, we take the Court to section 80 of the Act. There are a number of sections which I will take the Court to. The first is section 80 which provides:

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

We then go to section 31 of the Judiciary Act which talks about the High Court in the exercise of its original jurisdiction and it is said that:

The High Court in the exercise of its original jurisdiction may make and pronounce all such judgments as are necessary for doing complete justice in any cause or matter ‑ ‑ ‑

GUMMOW J: Section 31 and section 32 are pretty common form Judicature Act provisions. There are a number of statutes.

MR VICKERY: Yes, we rely on 32 as well.

GUMMOW J: Section 32 does say “all such remedies”.

MR VICKERY: Yes, very broad provisions and perhaps mirrored in the Rules of this Court themselves.

GUMMOW J: That might be understandable, for example, in an action to which section 75(3) applied.

MR VICKERY: Can we say this, your Honour, that, once this Court has original jurisdiction, it then has the power if the remedy is called for. We say this is all underwritten by the provisions of the High Court Rules themselves which makes specific reference to certiorari. We refer to Order 55, particularly Rules 1, 10 and 17, which specifically deal with certiorari and provide a mechanism and rules for this Court to administer the writ and its disposition.

So we say that the Court, once it is seized with original jurisdiction, does have sufficient power to grant certiorari. The question, I think raised this morning by your Honour Justice Kirby, which I have taken a long time to get to, may be this: assuming that to be the case, how is it that this Court may direct certiorari to a judge of a State court? That is, we perceive, another matter which ought not to be glossed over. We say the answer to that is simply this, that once it is established that original jurisdiction is present in this Court pursuant to section 75(i) being a matter arising from a treaty, the Court, having power through sections 80 and 31 and 32 of the

Judiciary Act and administering its own rules to issue certiorari, given that there is unlawfulness created by the Commonwealth Act, it then renders amenable to that Act the conduct of any citizen within the limits of this country.

GLEESON CJ: That analysis illustrates the importance of the earlier question as to whether or not section 9 binds judges of State courts in the context of equal treatment before the law.

MR VICKERY: Yes. We say this, that section 9 is a section which applies throughout Australia to all persons within Australia and that is sufficient. Once unlawfulness of any person is established, then the writ may issue.

KIRBY J: I can see that if this be so, the jurisdiction of this Court is vastly increased. No one will pursue appeals. They will come straight here, no nasty little red lights and orange lights, straight to this Court, hundreds of them all around the country, battering on our doors.

MR VICKERY: And receive as fair a hearing as I have received this morning. Those are my submissions.

GLEESON CJ: Yes, thank you. Thank you, Mr Vickery. Mr McArdle, we take it that you rely on your written submissions.

MR McARDLE: Yes, we do.

GLEESON CJ: We do not need to hear you further, thank you.

MR McARDLE: I wonder if I might be allowed just one indulgence in relation to the factual matters that your Honour Justice Kirby raised in the course of the morning and it is this: in relation to the applicant, he is presently in custody. When this case came before the Court in December of last year he was on bail. That arose as a result of an order of the Court of Appeal made ‑ ‑ ‑

GLEESON CJ: It would be the outcome of the special leave application that produced the result that he is back in custody, I presume.

MR McARDLE: No, no. The two special leave applications related to, ultimately, prerogative writs sought by him, heard by different judges which in turn went to the Court of Appeal and he was unsuccessful all the way through and then he sought special leave here in relation to those and he was unsuccessful in that. At the same time this case was listed for hearing but never really got under way. Certain directions were given. However, at that

stage he was on bail and he was on bail as a result of an order made by the Court of Appeal in, I think, September of last year. However, as a result of an intimation given by this Court, the Court of Appeal felt that it could then determine his sentence appeal. That was done in March of this year and he was unsuccessful in that appeal which meant that he went back into custody. So he is now in custody. He was not in December of last year.

GLEESON CJ: Thank you.

KIRBY J: Can I just ask: in the event that this Court were to dismiss the summons, does the Crown seek costs in this matter, it being in the nature of a criminal matter, or not?

MR McARDLE: It does, because it is strictly not a criminal matter but I do not press the matter any more than making the application.

GLEESON CJ: Thank you. May we take it that the interveners are content to rely on their written submissions.

MR GRAHAM: We are, your Honour.

GLEESON CJ: What do you say about the question of costs, Mr Vickery?

MR VICKERY: Your Honour, this, although formerly being proceedings seeking relief in the nature of certiorari, which is traditionally a civil matter, this is classically a criminal case.

HAYNE J: Why, why? This man has gone through the criminal process right through to appeal to the Court of Appeal. He has had resort to the civil courts, twice in the Supreme Court and once in this Court. Why should this be treated otherwise than as a civil matter in which costs follow the event?

MR VICKERY: Because the relief ultimately sought goes directly to quashing an order of a criminal court. It has, if successful, the effect of releasing the prisoner from his present custody. Those are the circumstances I rely on to establish that this is a case which is tainted with sufficient quality of a criminal matter to justify no costs being awarded. There are other matters which are revealed in the material, being the manifest impecuniosity of the person concerned, being the prosecutor. Although I did not address on this it is plain it is submitted from the material that he is a person who is unemployed, he has been incarcerated now for something like eight months without earning any income at all.

KIRBY J: But is not there a distinction from the point of view of this Court as to whether or not the costs order, if made, can ever effectively be

enforced and the formality, perhaps the reality, of making the order that is ordinary to the circumstances.

MR VICKERY: I say no more than what I put, if the Court pleases.

GLEESON CJ: The order of the Court is that the application is dismissed with costs and we will give our reasons at a future date.

MR VICKERY: If the Court pleases, your Honour.

AT 3.12 PM THE MATTER WAS CONCLUDED

[1998] HCATrans 258

Key Legal Topics

Areas of Law

Administrative Law

Civil Procedure

Legal Concepts

Judicial Review

Standing

Procedural Fairness

Natural Justice

Jurisdiction