North Australian Aboriginal Justice Agency Limited & Anor v Northern Territory of Australia

[2015] HCATrans 213

[2015] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M45 of 2015

B e t w e e n -

NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY LIMITED (ACN 118 017 842)

First Plaintiff

MIRANDA MARIA BOWDEN

Second Plaintiff

and

NORTHERN TERRITORY OF AUSTRALIA

Defendant

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 SEPTEMBER 2015, AT 10.16 AM

(Continued from 1/9/15)

Copyright in the High Court of Australia

FRENCH CJ:   Yes, Mr Solicitor.

MR GLEESON:   Good morning, your Honours.  The order I propose this morning is to return really to the outline and first of all deal separately with the two strands in the plaintiffs’ jurisdictional argument.  The first strand may be the easier and the quicker to dispose of.  The second strand comes closer to the matters Justice Gageler raised yesterday.  But I would like to treat them in that order if possible so the Court has the benefit of our submissions on each of them.

The first strand in the argument is that, although you do not see it in words in section 122, you in effect read in that laws for the governance of the Territory must observe a separation of powers equivalent to that which is found between Chapters I, II and III. That is where the plaintiff seeks to go.

Now, the reason it may be different to the second strand is that on the first strand the plaintiff is not wedded to all judicial power in the Territories being judicial power of the Commonwealth.  You could create a parallel stream of Territory legislative power, Territory administrative power and Territory judicial power, but the critical thing is, whether you do it that way or whether you do it as part of the judicial power of the Commonwealth, you must have the Boilermakers separation of powers, and that of course would have profound implications for the various Territories which currently exist, did exist and may come within the Commonwealth, and the smallest and most immature Territory would have to have a strict separation of judicial from legislative and executive power, as indeed would a Territory close to reaching full Statehood - as there is public discussion concerning the Northern Territory - even though States are not bound by that under the Constitution.

Now, it would be a profound and far‑reaching change for this Court to make in the law for the first time in 115 years and the Court would be slow to embark upon that without the most persuasive argument in principle, plus the most critical examination of whether the authorities allow it.

Now, as to principle, you really find that in the plaintiffs’ submissions, if I could ask you to go to it at paragraphs 23 to 25, and these were the six points that were read out yesterday and they have the commendable merit of brevity but they lack the substance which would urge the Court towards such a radical change to the constitutional structure, and if I could just deal with them in bullet point form:

The Constitution must be read as a whole.

We agree, but at that point the plane is still at the gate on the tarmac.  Then the second point is, read section 111.  So, if we do that we find that if a State surrenders part of a State to the Commonwealth it becomes:

subject to the exclusive jurisdiction of the Commonwealth ‑

Now, that does not tell you that the jurisdiction must be exercised through the establishment of a separation of powers.  The third point is to say the judicial power is provided in Chapter III which has a heading, which it does, “The Judicature”.  That has not taken the plane any closer to the take‑off ramp and it then says there is:

no indication –

so this is a negative point, there is no indication in Chapter III that it is ‑

limited to the Commonwealth’s legislative powers in s 51.

So, that is really almost as good as the argument gets. Because Chapter III has not in terms said that it is only limited to legislative power in section 51, you read it as applying to section 122, hardly a secure basis for this implication.

The fourth point, which is paragraph 24 ‑ and your Honour Justice Bell raised a question about this which is an attempt to embrace the Diceyan view of the rule of law and the separation of powers and say, well, therefore, it should apply in the Territories because that would be good for people subject to Territory power. Now, of course, the short answer is ‑ and Justice Keane raised questions about this as well ‑ there is no challenge by the plaintiff to the proposition that separation of powers is not constitutionally guaranteed for the States, an exercise of State governmental power, and no reason why it would be extended to the Territories and not the States and, in short, the Diceyan notions, valuable as they are, are not notions that the Constitution requires to be implemented through a separation of powers in the Territories but not the States. That is really the end of the argument because the fifth and sixth points are not positive points, they are attempts to negative arguments. So, the fifth point says our result is not too radical because we are not overturning the result in Bernasconi. 

We will leave intact, if one looks at section 80, the proposition that an offence against the law of the Commonwealth, there referred to, does not include an offence against a law enacted under section 122. They leave that intact and that is good as far as it goes but it has not positively advanced the argument for the separation of powers. And the sixth point is the same, we do not seek to overturn the proposition that Territory courts are not federal courts. So, in the end, your Honours, I would respectfully suggest you can almost draw a line through paragraph 25 as not advancing the argument and you have paragraphs 23 and 24 left as the principle reason to make this radical late change in the constitutional structure. We urge you not to do it.

That is the argument from principle.  What then is the position in the authorities?  Could I ask the Court to go to Kruger 190 CLR 1, because that seemed to be the high point of the plaintiffs’ argument? A couple of observations about the plaintiffs’ argument. This case, of course, contains three considered judgments by Chief Justice Brennan, Justice Dawson and Justice McHugh agreeing, which analyse in some detail why this argument is wrong.

Now, the plaintiff has, as it were, almost urged you to pass over reading them on the ground that it is some sort of headcount going on that three did not like the proposition and three did like it to limited degrees and therefore you treat this as virgin territory where you could start again.  But we would suggest that if the Court pays the attention, which it certainly will, to what Chief Justice Brennan said in analysing these issues, particularly between pages 41 to 44, you will find that reasoning remains compelling; compelling as to the reasons why the Territories power is not constrained by a strict separation of powers.  In particular on about page 42 at about point 6 his Honour analysed that:

There were in fact no internal Commonwealth territories when the Commonwealth was established. Section 122 conferred on the Commonwealth an additional, non‑federal function: the government of territories external to the Commonwealth and, by cession from the States, of other territories within the boundaries of the Commonwealth. This function was non‑federal in the sense that the governmental powers . . . were not shared in any way with the States.

There is then a reference to the Territories in contemplation at the time.  They were also:

powers available for exercise . . . in and for the internal territories . . . Section 122 is found in Ch VI of the Constitution — “New States”. It stands outside Chs I‑V which govern the relationship between the Commonwealth and the States. It stands in a Chapter that confers on the Parliament of the Commonwealth the powers required to vary the constituent polities of the federal compact and to govern the territories of the Commonwealth that are not, or not yet, a constituent polity of that compact. The scope of s 122 is not confined by limitations or restrictions derived from provisions of the Constitution that are designed merely to distribute powers as between the Commonwealth and the States.

His Honour then goes on and every word of this we would urge to analyse what Chief Justice Barwick said in Spratt v Hermes, to analyse at the foot of page 43 what the Privy Council said in Boilermakers itself and, of course, one of the great ironies of the plaintiffs’ first contention is that the very case which confirmed and established the separation of powers in Chapter III, the Boilermakers’ Case, both in this Court and in the Privy Council looked at the Territories and observed that something quite different was going on there and, nevertheless, was prepared to confirm the separation of powers in the defined field of Chapter III.

Now, in effect ‑ and the plaintiff does not face up to this ‑ but, in effect, the considered reasoning of this Court and the Privy Council in Boilermakers must be overthrown in order to impose this separation of powers on the section 122 power. And then on page 44 his Honour follows Justice Kitto in Spratt v Hermes and I have indicated yesterday we submit that what Justice Kitto said in Spratt v Hermes is of great value in understanding the concepts involved here, including the limits of the judicial power of the Commonwealth.  So, that is the first set of reasons that the plaintiff would really need to grapple with which it has not sought to do.  Justice Dawson, between pages 61 and 62 and we draw particular attention to the last 10 lines on page 62 and Justice McHugh agreeing. 

Now, those are three of the critical judgments on the topic.  Can I come then to Justice Gummow which is what you will see the plaintiff is trying to leverage off; you can see that from the footnotes, 29 and 30 in the submissions.  Now, the plaintiff does not really grapple with the limitations which Justice Gummow recognised in his own judgment and can I just say a little about that?  If one commences in Justice Gummow at page 162 at about point 7 a couple of things are clear.  Firstly, this was a matter he considered it unnecessary to decide.  Secondly, he was acutely conscious that what he regarded as a preferable view was not one open in the sense that the matter was not res integra.  It would need the reconsideration of existing authority before the conclusion could be reached and applied.  So, everything thereafter said was despite the attractions of this view I recognise it has a further hurdle, would it be appropriate to disrupt the settled course of authority in this event, some 30 or 40 years after it had been clearly settled, today some 50 years after it had been settled, in the light of all the considerations involved in such a reopening.

Now, the plaintiff it seems in part acknowledges it might have to try and reopen, but you really have not heard – you have not heard an address which has gone through the factors which this Court has identified as being essential with a reopening.  You have not heard a detailed argument to show that the result now is disjoined from other accepted principle.  There has been no attempt to address the disruption that would be caused in the Northern Territory and the ACT.  You know from the Northern Territory’s submissions the detailed structures there in place for administrative bodies to exercise judicial powers.  All that would be invalid on this approach.

You know from our submissions, supported by the ACT, the very considerable exercise of judicial power by administrative bodies such as ACAT, all of that invalid on the plaintiffs’ approach, and all of those arrangements put in place by the Commonwealth, the Northern Territory and the ACT on the faith of the correctness of these decisions.  That is what Justice Gummow was recognising on page 162 would have to be a matter addressed by people attempting this late in the day to overturn this settled authority, and we would submit that the plaintiffs have not even really attempted to recognise the burden they face or to take it on.

Now, having said that about Justice Gummow, there is another critical feature which the plaintiffs overlook.  Justice Gummow’s preferred solution were the matter res integra, is not the plaintiffs’ solution.  What his Honour would have preferred if it were open were to go the full distance and declare that Territory courts were federal courts.  Now, can I just show you where that is apparent from his Honour’s reasons?  It is from two places; firstly, at the top of page 168 where he said:

An answer both simple and close to the text would have been given by a decision that, conformably with s 61 as to the executive power of the Commonwealth, provision was made by s 71 as to the judicial power of the Commonwealth in relation to the Territories.

Then there is a reference from the wistful passage in Boilermakers in the High Court, and then:

In my view, there is much to be said for the proposition that the text of the Constitution, which must be controlling, places the territorial courts within the scheme and structure of Ch III –

but then there are at least two decisions in the way of that.  His Honour then analyses not only Boilermakers, but Spratt v Hermes and Capital TV v Falconer.  And then coming to page 170 at about point 7 in the paragraph commencing “As it presently appears to me”, his Honour’s preferred view would be:

This operation would follow from the “simple” reading of Ch III such that the courts and laws in force in a Territory were federal courts and laws made by the Parliament or made pursuant to such laws.

So, just to emphasise that, his Honour was considering the complete passage to saying Territory courts are federal courts.  Now, the plaintiff stopped short of that.  However, what the plaintiff tries to do is to fill it ‑ and I put that respectfully ‑ fill it with parts of Justice Gummow’s reasoning which were put in advance of the more comprehensive position and embrace them in support of the less comprehensive provisions.  So, if the Court reads on, for instance on 171 we see some reference to the heading “Judicature” and we see certain other arguments which bear a similarity to the plaintiffs’ six points.

Now, we would submit that, therefore, it is not Justice Gummow’s reasoning that is being urged to you.  It is not being urged to you with the restraint that Justice Gummow showed in these passages.  And, finally, to come to your Honour Justice Gageler’s question about what Kruger stands for as a matter of ratio, if one looks at page 176, in the first full paragraph, his Honour has really come to two conclusions.  The first is, whatever attractions there may have been to him, if the matter were res integra:

in the present state of the authorities, the plaintiffs cannot make good their submission that all laws of the Commonwealth, including those supported by s 122, must comply with the doctrine of the separation of powers –

That is his first conclusion:  the plaintiff has failed on that submission because the plaintiff there, and the plaintiff here, cannot get over the reopening considerations and then, secondly, in any event, it would not produce invalidity.  Then his Honour, we can see from the conclusion, agreed in the answer to question 1 which was favoured by Chief Justice Brennan, Justice McHugh and Justice Dawson.

Now, true it is that when one looks at question 1 and when it is answered, no, that answer, no, could have one or two or both strands behind it.  The first strand being, there is not a separation of powers so you do not leave the tarmac.  The second strand being, in any event, it is not a breach of the separation of powers.

For the three judges I have mentioned, the first was the centrepiece of their reasoning. For Justice Gummow, it appears both were centrepieces of his reasoning. So, in that sense, I think we would submit that it would be correct to read the answer to question 1 as indicating four Justices accepted that on the law, as it stood, irrespective of the attractions which one Justice saw to a view that, if the matter were res integra, there is no separation of powers governing section 122.

So, your Honours, for those reasons we would submit the plaintiffs first and, in a sense, larger contention should be rejected, and could I then come to the second contention and this is found in paragraph 29 of the plaintiffs’ submissions and it starts with the charming modesty that:

the better is that territory courts always and only exercise federal jurisdiction –

But, if the first contention is dismissed, this becomes the case and so the case is, a Territory court always and only exercises federal jurisdiction.  And when one looks at the footnotes ‑ this is Justice Gaudron in paragraph 40 of Eastman and there are a couple of other references there referred to and in our written submissions we have indicated the limitations of what can be drawn from each of those references but it will be Justice Gaudron that I will focus on shortly as the key plank for this proposition.

Now, just before I come to Justice Gaudron, if your Honours could consider our outline at paragraph 3. The argument has at least these difficulties and, perhaps, more. Firstly, the argument seems to have the import that under section 122 there is a power directly or indirectly to create Territory courts, that is, they will be courts of the Territory, to appoint judges to those courts and, thus, ordinarily at least, to provide for a Territory jurisdiction, but then to see Chapter III, particularly section 71, as entirely displacing the power under section 122 to confer jurisdiction and power to resolve disputes under section 122 laws.

Secondly, and this raises the matter Justice Bell raised yesterday from Chief Justice Gleeson in Eastman.  In that passage of his Honour that your Honour referred to, his Honour clearly was referring to the well‑established principles and authorities recognising the existence of Territory jurisdiction and the flexibility permitted in the design of systems of government and if one were to say all Territory jurisdiction must be federal jurisdiction, one has cut across that flexibility and, we would submit, would be running inconsistent with that which Chief Justice Gleeson adequately referred to. 

Thirdly, on this part of the argument, the plaintiff does acknowledge that it needs to reopen at least one or other of Spratt or Falconer.  Certainly Falconer, because Falconer was an ACT ordinance, a local law arising and having effect just in the Territory, which would be a classic instance of Territory jurisdiction, and the very result in the case included the proposition that it was not federal jurisdiction.  So, those decisions which have stood for close to 50 years have to be overturned and that brings up the matters I have mentioned earlier about the reliance that the Commonwealth, the Territories have placed on these decisions.

FRENCH CJ:   The Territory Court exercising jurisdiction with respect to matters, what we call the Australian common law, do so pursuant to the authority conferred upon them by the Territory statute.  There seems to be a suggestion that somehow or other the common law was federalised.

MR GLEESON:   No, we do not embrace that.

FRENCH CJ:   Of course not.

MR GLEESON: In a simpler sense, that is what one has. When one is looking at jurisdiction one is looking at both the subject matter on the one hand and the source, the source of the authority and the vesting, and much of the problem in the plaintiffs’ second argument and, with respect, a problem with Justice Gaudron’s view is insufficient attention to the vesting side of the process. Which is the polity which is doing the vesting? So, if the ACT self‑governing assembly vests an authority in the Court or in ACAT to decide a contract claim, we would say at beginning and end one is looking at Territory jurisdiction, one is not looking at the judicial power of the Commonwealth. Just to take that very simple example, if one returns to the language of section 71, in that type of case it strains credulity to understand where the plaintiff is putting that within section 71.

First of all for 71 we have got “judicial power of the Commonwealth”, whereas in the example the Chief Justice has raised this would be judicial power of the Territory, so we are outside the limit there.  But, in any event, it is not the High Court, it is not a federal court – that is accepted – and finally:

and in such other courts as it –

that is, the Commonwealth Parliament –

invests with federal jurisdiction.

So in this example we have got no investiture going on at all by the Commonwealth Parliament and by definition we have got no investiture of something which matches the description of federal jurisdiction. So, just in that very simple example, it is almost impossible to square with a section 71 concept that the federal jurisdiction has to be appropriately invested to say that the ACT court or the ACT administrative tribunal is exercising the judicial power of the Commonwealth.

GAGELER J:   Mr Solicitor, really to return to the question I attempted to ask you at the close of argument yesterday, the plaintiffs’ argument and your response both seem to equate federal jurisdiction with the judicial power of the Commonwealth. Justice Gaudron, whose judgment you will come to in a moment, was not looking at section 71, she was looking at section 73, and as I understand the way in which she was looking at section 73, she was saying – or perhaps she was saying that a court can be exercising federal jurisdiction because the court is dealing with a matter of a description in section 75 or section 76 irrespective of the authority of the court to decide that matter.

MR GLEESON: That is a proposition about section 73.

GAGELER J:   Correct.

MR GLEESON:   We say it is wrong as far as it goes.  Even if it were correct, it would not take this plaintiff anywhere ‑ ‑ ‑

GAGELER J:   Of course, I understand that.

MR GLEESON: ‑ ‑ ‑ because, to get the separation of powers, the plaintiff is trying to argue a section 71 proposition that, in the example I will stay with for the moment, there has been an investiture by the Commonwealth Parliament of federal jurisdiction in the ACT Supreme Court or ACAT when, almost self‑evidently, there is not. But let me then deal just with Justice Gaudron’s proposition and make clear from the Commonwealth’s perspective that the exercise of federal jurisdiction referred to in section 73(ii) involves a valid vesting of that jurisdiction under sections 71 and 75 to section 77. We do equate those two matters. So, “exercise” within 73(ii) assumes a valid vesting.

Now, let me take an example.  We have given the Court this morning, in the light of this point, two authorities.  One is LNC and the other is the Court’s decision in MZXOT v Minister 233 CLR 601, particularly in the passages which lead up to the conclusion in paragraph 180 in the judgment of Justices Heydon, Crennan and Kiefel. MZXOT was dealing with, in particular if I am focusing on 180 and the paragraphs before it, what was the position of the State Supreme Courts immediately prior to the Judiciary Act and, in particular, did they have authority as State jurisdiction to hear and resolve disputes about matters which might fall within the 75 and section 76 categories?

The conclusion of the Court was that in general they could have such State jurisdiction but subject to potentially exceptions with any of the heads in 75 and 76 which were necessarily and exclusively federal. But to take a simple example, if you look at section 76(iii), a matter “of Admiralty and maritime jurisdiction”, although that is a head of federal jurisdiction, a State Supreme Court prior to the Judiciary Act could have exercised State jurisdiction in a matter of admiralty and maritime jurisdiction.

As the Court here analyses, the Judiciary Act then involved a relevant vesting and what the Judiciary Act did, first of all in section 38, was to prima facie render the High Court’s jurisdiction exclusive of that of the States in certain areas and then secondly, invested a federal jurisdiction in the States.

So, by that process, what was State jurisdiction in certain areas was displaced by a federal jurisdiction which now consumed the State jurisdiction and all that is well established.  The reason I go to all that is to show that there is a critical distinction between the heads of federal jurisdiction, the subject matters, the matters which are capable of vesting as federal jurisdiction and the second point, which is what the Chief Justice raised with me, which is the vesting, the exercise of sovereign power to give the authority to decide such disputes in a particular court.

One of the problems with Justice Gaudron’s view, returning to section 73(ii), is that if she is to be read as to saying a court exercises federal jurisdiction whenever it is dealing with a dispute covered by 75 or 76 without a vesting under section 71, that not only brings the Territory courts into the section 73 framework, it also has disjoining effects for the lower courts of the States because it would mean that the District Court of Queensland or New South Wales, prior to the Judiciary Act, if it was exercising jurisdiction in a matter, for instance, involving residents of different States, it is exercising federal jurisdiction and, therefore, 73 was giving a constitutionally guaranteed appeal right from the District Court to the High Court whereas, on a more natural reading, exercising federal jurisdiction is referring to those cases where there has been a valid vesting and the reason that the Supreme Court is added in 73(ii) is for a different reason, which is to say, because of the status of that court within a State, all matters should be able to come from that court to us, whether they be an exercise of federal jurisdiction or non‑federal jurisdiction.

So, the deliberate decision to put the Supreme Court of the State in there is a recognition, I would submit, that exercise federal jurisdiction should not be given the extended meaning. In a sense, there would be a tension or a contradiction almost between them and one of the critical features, of course, of section 73, compared to its US antecedent, is that it has chosen to identify courts by various characteristics which will be the linchpin by which the appellate jurisdiction will be defined, as opposed to the United States approach of doing it through cases and controversies where the subject matter of the case or controversy defines what can come to the Supreme Court and by that means deals with some of the very same difficulties.

But we did not take that approach. We took the approach of identifying courts: Federal Court is easy; Supreme Court of the State is easy. There is quite a deliberate decision not to adopt the District Court of Queensland or New South Wales or wherever, and then court exercising federal jurisdiction, we would submit, naturally follows on as what section 71 was referring to.

GAGELER J:   So we read the reference in section 73(ii) to a court exercising federal jurisdiction as a reference to a court exercising the federal jurisdiction invested in it by a law made under section 77(iii).

MR GLEESON: Yes, and then it is comprehensive as a scheme as far as it goes and it provides a symmetry because if, as I put yesterday, following Justice Kitto, the judicial power of the Commonwealth is the power of the central polity within the federation exercised as such which sits next to other forms of judicial powers, State judicial power and potentially Territory judicial power, then one is always coming back to the source and the vesting. Is there something either in the Constitution, section 75, or is there something in a valid law of Parliament, 76 and 77, which has vested the jurisdiction, qua federal jurisdiction?

GAGELER J:   Of course, the gaping hole that is more apparent after Kirk is that there is then no provision at all in Chapter III for an appeal from a Territory court.

MR GLEESON:   No provision in Chapter III for an appeal from a Territory court.

GAGELER J:   It is entirely dependent on the law made under section 122.

MR GLEESON: Entirely dependent on laws made under section 122 in the same way that in a case – in an inferior State court Kirk provides the ability for guaranteed judicial review to the Supreme Court but does not provide for a guaranteed right of appeal on non‑jurisdictional errors of law and does not provide for a guaranteed right to take mixed matters of fact and law to the Supreme Court of that State. 

So, on any view under section 73, because it has chosen courts as the lynch pin, there will be some cases that constitutionally will not get to the High Court. Now, pragmatically and practically, of course, the Commonwealth has by statute filled that gap in relation to appeals from the Supreme Court of the Territory, that is section 35AA of the Judiciary Act.  So, as matters have stood and stand, there is no practical problem. 

But we would not shy away from saying one of the difficulties with Justice Gaudron’s approach is while the world would be neater if certain things were true, sometimes they are not true and if section 73 always had limitations in it, in a sense it is understandable, partly by its deliberate choice to identify some courts and not others, partly by the fact that section 122 is a power of a different character and one should not, as it were, strain a construction of section 73 – strain to retrofit a construction in order to solve a problem which may or may not be a problem.

When I agreed with your Honour that there is no guaranteed appeal right from Territory courts I was, of course, agreeing as the general proposition where the Territory court is exercising federal jurisdiction, it comes within our schema.  So, that is where it has been vested with federal jurisdiction and that is the significance of Bradley that it is open now to the Commonwealth Parliament to act under section 71 plus, in particular, 122 and invest a federal jurisdiction in a Territory court in a matter of an appropriate character. So, in those cases, there will be the guaranteed right of appeal.

So the area we are talking about as the gap is the case where it is the Territory Supreme Court and there has not been, in fact, a vesting of judicial power of the Commonwealth.  That is a gap, the same as my example of the district court in a case of non‑jurisdictional error of law or a case of mixed law in fact.

GAGELER J:   All right. So, I asked you a question before about how you read section 73(ii), and so you do not read it as narrowly as referring to a court exercising federal jurisdiction invested in it under section 77(iii). You read it as exercising federal jurisdiction under a law made by the Commonwealth, is that it?

MR GLEESON:   Yes, yes.  That is right.  That is in addition to what I said and that because of Bradley section 122 can be used to invest federal jurisdiction in an appropriate case in the court. So that also comes within exercise. So exercise equals valid vest by the Commonwealth Parliament in either of its capacities.

Your Honours, to show where in Justice Gaudron’s judgment we take issue, can I go to Eastman 200 CLR 322 – the critical issue in Eastman, of course, being the Spratt v Hermes, Falconer issue whether the ACT Supreme Court was a federal court within section 71. The answer to that was no by five justices. Of those five justices, only Justice Gaudron was dealing with this, as it were, extended question of what is the nature of the jurisdiction of the Territory court. None of the other majority justices agreed with her reasoning. Could I pick it up at paragraph 29 and just show where the divergence occurs from what we would commend? In paragraph 29, her Honour says:

Section 71 is exhaustive as to the courts that may exercise the judicial power of the Commonwealth –

reference, Boilermakers, we agree:

It also impliedly confers power on the Parliament to create courts (88), but only “federal courts”.

We agree.  The next sentence is more problematic:

It emerges clearly from Ch III of the Constitution that federal jurisdiction is co‑extensive with the matters specified in ss 75 and 76 of the Constitution –

and the footnote is section 75 and 76. That proposition is capable of being misunderstood if it does not grapple with the vesting issue. It is co‑extensive in that within the federal compact, jurisdiction cannot be conferred as federal jurisdiction if it goes beyond the section 75, 76 matters. That would be trespassing into State matters, but there needs to be a vesting of it under the provisions we have been discussing as federal jurisdiction in order to create that co‑extensivity.

So that is the critical line in the judgment where we submit that great care is needed between the subject matter and the source or the vesting.  So her Honour then goes on at paragraph 30 – makes a point which I took up in my opening proposition, which is a principled explanation for why Spratt v Hermes and Capital v Falconer should not be overruled, namely, that because it is a power to create federal courts in section 71, federal courts are those which are dedicated to a jurisdiction which will cover one or more of the heads in sections 75 and 76 and will be a jurisdiction to be exercised throughout the Commonwealth.

So from that her Honour sees that there is some difference once one thinks of a Territory court because ordinarily it would be established in the first instance to deal with Territory disputes, not to be a federal court with a jurisdiction across the Commonwealth in various heads in 75 and 76.  So that is part of why her Honour, despite perhaps earlier views, did not go the distance Justice Gummow might have gone and said, “Well, here is a principled reason for concluding that Territory courts are not federal courts”.

Then going over the page at 339, at paragraph 32 her Honour goes the next step. She is now considering a law which operates Australia‑wide as well as in a Territory, what might be called a dual character law. It might be supported by section 51 and by section 122 and she says:

a law of that kind properly answers the description of “[a law] made by the Parliament” for the purpose of s 76(ii) ‑

and that much may be accepted.  Then she says –

A matter arising under such a law is a matter within federal jurisdiction and one that invokes the judicial power of the Commonwealth which, by s 71, can only be exercised by the courts specified in that section, namely, federal courts and courts invested with federal jurisdiction.

At that point her Honour has correctly looked at both aspects of the jurisdictional matter, namely, the subject matter; it must be within one of 75 and 76, and the vesting one must, coming back to section 71, have an appropriate vesting. She then goes on to say there is:

no reason why a court created pursuant to s 122 cannot be invested with federal jurisdiction and thus exercise jurisdiction in matters arising under –

laws.  That is not too controversial.  Then the reasoning continues down to about paragraph 36 where her Honour, still with some hesitation, has come to the landing point, agreeing with the majority that Territory courts are not federal courts.  At that point she has come to her, as it were, close to final conclusion.  It is then 37 to 40 where her Honour discusses this other matter and says here is a further consideration, so it is a further consideration as to why you do not need to regard Territory courts as federal courts.  And over on page 341 in paragraph 38 where the real issues arises her Honour refers to GPAO and says:

jurisdiction may be conferred on a federal court in a matter arising under a law enacted pursuant to s 122 –

that is correct ‑

It follows from that decision that a matter of that kind is a matter arising under a law made by the Parliament for the purposes of s 76(ii) –

that is correct, but then the next bit ‑

and, thus, a matter within federal jurisdiction.

The problem is with, respectfully I put, with the “thus”.  Because it is within 76(ii) it may be a matter within federal jurisdiction provided there is an appropriate vesting of that jurisdiction by the Commonwealth as opposed to saying because it is within 76(ii) it is without more within federal jurisdiction.  That, then, explains the issue with the next sentence:

The same must be true when the same jurisdiction is conferred on a court created by or the existence of which is sustained by s 122. The consequence of that is that, in matters arising under a law enacted pursuant to s 122, s 73 of the Constitution allows for an appeal –

So, in those three sentences, one has gone from GPAO accepted, gone from there being a subject matter attracting section 75 or 76 through to saying in those cases you have federal jurisdiction and what is being left out is the necessary step, has there been a vesting by the Constitution or by the Commonwealth Parliament?

FRENCH CJ:   The universality of the vesting requirement would extend to this case, absent statutory vesting a State court could not entertain a prosecution of a person who had committed an offence against State law while in the State but had subsequently become a resident of another State, it is the Momcilovic question.

MR GLEESON: Yes. It gets difficult in application in those cases but that is the attention that is needed to whether there is the vesting and without the vesting it is not there as federal jurisdiction. It is then paragraph 40 which the plaintiff relies upon and her Honour says that the existence of the ACT Supreme Court is ultimately sustained by section 122 law and the rights and duties in issue must ultimately depend for enforcement on a law by which the court is sustained, therefore, 76(ii), therefore, section 73. Now, at that point, there is a separate strand to her Honour’s reasoning which we would also depart from and I am not sure whether your Honour Justice Gageler was putting this strand to me yesterday.

GAGELER J:   Yes I was.

MR GLEESON:   You were.  What her Honour has done here is taken the LNC approach which is one looks, as it were, behind what appears to be the matter to see if there is a Commonwealth source behind it to find whether you are in section 76(ii), and her Honour has at this step said because you could not have a Supreme Court of the ACT without a section 122 law of some sort in the background, which is true, therefore, every time that court decides a dispute it is dealing with a matter under section 76(ii). Now, if that is the proposition, we would submit that that is pushing section 76(ii) too far. The mere fact that the ACT Supreme Court needs a Commonwealth statute immediately or in the background does not mean that every matter in the ACT Supreme Court is a matter within section 76(ii).

FRENCH CJ:   It could give interesting effect to sections 106 and 107, I suppose.

MR GLEESON:   I think it could create forms of almost infinite regress of what can then be conferred on other courts within the Federation because that has now become federal jurisdiction.  So that, to be clear, we submit, goes beyond Barrett and goes beyond LNC because even in the expanded view taken by those cases, one is looking to, is there ultimately a Commonwealth law which is generating the rights and liabilities in dispute.

None of those cases went the further step to say, is there ultimately a Commonwealth law which lies behind the court which in turn is deciding the rights and liabilities in dispute. Now, that is a step the Court might consider taking. It is an exceptionally large step in respect of section 76(ii). We would urge a lot of caution before that step is taken and that is the matter that we – I will just give the reference – that is what we addressed in the written submissions between paragraphs 38 to 42, to urge that the Court not recognise that form of expanded jurisdiction of section 76(ii).

So, LNC can stand, Barrett can stand, but they do not generate that conclusion. The other matter which I think arose out of your Honour’s question we deal with in paragraph 45 in the alternative submission, which is, and this is where we fall back or forward with Mr Grant, whatever be the position at the Commonwealth level, once one has self‑government and once one has the Northern Territory Assembly passing laws creating rights and duties, it is too big a stretch to say that matters concerning those rights and duties are arising under the Commonwealth law being Self‑Government Act. What they arise under is the Northern Territory laws made pursuant to the Self‑Government Act. So, when I make those last two submissions, they are about the reach of section 76(ii) and we are urging the Court not to take either of those two, I would call them extensions, that I have identified ‑ ‑ ‑

GAGELER J:   Why?

MR GLEESON: Because they stretch the words way too far and it is an attempt to push into 75 and 76 matters which naturally fall within the simple working out of section 122.

GAGELER J:   Professor Zines in the 3rd edition of Cowen and Zines’ Federal Jurisdiction in Australia, as you know, has an extensive discussion of this ‑ ‑ ‑

MR GLEESON:   Yes.

GAGELER J:   ‑ ‑ ‑ and takes a different view.

MR GLEESON:   Yes, yes, but what I am seeking ‑ ‑ ‑

GAGELER J:   ‑ ‑ ‑ took a different view.

MR GLEESON: What I am seeking to be clear on are what are the issues the Court needs to decide in the case and what are the different levels upon which they need to be decided. I have put our submission that section 76(ii) should not be taken these two further steps, but that in a sense is independent of the point I am seeking to make about vesting, that even if one took a more expanded view of section 76(ii), that does not produce the result that its judicial power the Commonwealth, under section 71, it does not produce that result and for the separate reasons I have put, does not produce the section 73 consequence.

So, in terms of what the Court, we would submit, needs to decide, our submission about the character of section 71 disposes of the plaintiff’s case. If the Court finds it necessary to decide the reach of section 73, it should do so consistently with our argument on section 71. If it does not, it does not alter the argument on section 71 and, while critically important, the issues as to the reach of section 76(ii) are really issues that fall behind the first two issues in the set of logical priority, in terms of working out whether the Court goes where the plaintiff wants to go and where they want to go through this excursus is, they want the Boilermakers limits fed through section 76(ii) back into section 73, somehow into section 71, that last step is never quite clearly identified, and query, therefore, into section 122. So that is the passage we are urging the Court not to take.

Your Honours, in terms of the other matters that the Commonwealth wishes to put – I am up to paragraph 7 ‑ in terms of the Kable point, could I just draw attention to the question which was settled through your Honour Justice Nettle which is at page 46 of the book for this reason?  We have some difficulties with whether the primary and, perhaps, the only argument Mr Moshinsky is putting is, in fact, the argument within the question.  The question, in fact, is closer to the matter Justice Gageler raised in argument.

Mr Moshinsky said to you yesterday his Kable point is an alternative point in the sense that if the law if not penal or punitive and judicial in character he then starts to run his Kable point.  But the question he asked to have considered by the Court, question (b), has the same premise as question (a), which is that the law must properly be construed as being “penal or punitive in character”.  The question he really wanted the Court to resolve was if he wins on punishment but he loses on separation of powers, can he fall back to a Kable point in the sense that, although there is no separation of powers in the Territories, is this the sort of power where if you

take it from the Court where it belongs and give it to the Executive, you have sufficiently undermined the institutional integrity of the Court.

So, we would see within the questions as framed that matter can be put but it depends upon the plaintiff establishing that the characterisation of law is penal law or punitive.  That is the argument that was dealt with briefly, at best, by the plaintiffs.  The other argument they sought to put which they call their primary Kable argument is really a different one which is do not focus on punishment, focus on the fact that so it is said under this scheme the Court is so denuded of its ability to exercise effective judicial review over the detention that it thereby has been undermined.

Although that is not the question that is put, if the plaintiff is permitted to entertain that question, the Court has our submissions in response that the mere fact the period is short does not deprive the Court of its essential functions.  The Court can certainly, after the event, provide declaratory relief or false imprisonment relief and even within the four hours, the right it there – whether it can be effectively exercised, a particular case does not destroy the right.  So, this is a very far distance from a privative clause which has removed the Court’s judicial oversight of detention.

Your Honours, the final matters in our submissions were 10 through to 14.  It would be apparent from our written submissions that we did not wish to descend, or ascend, into the issues of construction other than to emphasise that the exercise the Court is engaged in is one of determining, as a matter of statutory construction, the purpose of the detention provisions.  We have addressed, in our written submissions, the question the Commonwealth always addresses which is the true character of the limb matter.  Is it an exception to a constitutional immunity or is it an exercise in identifying the purpose of the law?  The Commonwealth, as before, puts the latter.

It may not be necessary for the Court in this case to descend into that important principle because the manner in which the argument is essentially put by the plaintiffs and answered by the other parties is on the purposive approach which is one that the Commonwealth submits is the correct approach, and the issues of principle may be ones important in cases that will come up before the Court later this year.  Our response to the Human Rights Commission’s submissions is that that we have put in writing and summarised in paragraph 14.  If it please the Court, they are our submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  Ms Younan, you are proceeding next?

MS YOUNAN:   Thank you, your Honours.  As we have indicated in our written submissions, our intervention is limited to the question of whether the separation of powers constrains the legislative authority of a self‑governing Territory.  While we respectfully adopt the submissions of the Northern Territory in that regard, we seek to draw further implications from the second step of the plaintiffs’ argument.

Putting aside the question of characterisation of Division 4AA of the Police Administration Act, the question of validity of that division comes down to this:  are the powers of the Northern Territory Legislative Assembly under the Northern Territory (Self‑Government) Act subject to the same limits as the Commonwealth Parliament by virtue of the separation of powers?

We say no, by virtue of two considerations. The first is that the exercise of legislative power by the Legislative Assembly is not an exercise of Parliament’s legislative power. As much has been accepted by this Court and does not appear to be in contest; that is, the plaintiff does not appear to take issue with this point although admittedly appears to eschew the term “delegation”. The second consideration is that the implication of the separation of powers arises from the structure of the Constitution which reflects the federal compact from which the Commonwealth emerged, of which, importantly, the Territories do not form part. Once again, that proposition does not appear to be in issue.

We say that the same conclusion follows for the same reasons in respect of the power of the Legislative Assembly of the Australian Capital Territory under section 22 of the Australian Capital Territory (Self‑Government) Act.  Now, the plaintiffs take issue with this conclusion and argue that the Territory courts always and only exercise federal jurisdiction seemingly on the basis that Territory legislative power and Territory courts derive ultimately from the Commonwealth Parliament.

We say that the invariable exercise of federal jurisdiction is difficult to reconcile with the very terms of section 71 of the Constitution. The reference to “such other courts as it” ‑ “it” being the Commonwealth Parliament – “invests with federal jurisdiction” speaks in the present tense and we say speaks to an occasional exercise of federal jurisdiction, not to a permanent investiture of that jurisdiction. On the plaintiffs’ construction of those terms, the distinction with “other federal courts as the Parliament creates” rapidly ebbs.

We say that the proposition that the Commonwealth and Territory are not subject to the same limit holds notwithstanding that Territory legislative power ultimately derives from a law of the Commonwealth made under section 122 of the Constitution. We say the nature of a power is not to be confused with the source of authority to establish it.

We also say that the proposition that the same limits do not apply holds whether or not certain provisions of Chapter III have application to the Territories. Ultimately, we say, that is a matter of construction of the particular provision of Chapter III upon a consideration of the text and the purpose of the Constitution as a whole.

FRENCH CJ:   Is there any point of difference between your submissions and those we have just heard from the Commonwealth?

MS YOUNAN:   No, your Honour, no point of difference save to say that our submission is that the Court need not decide the matter; that is, whether or not the Court determines that a particular provision of Chapter III, be it 73 or otherwise, applies or has application to the Territories does not determine the ultimate question of whether or not the implication of the separation of powers somehow filters down to constrain the legislative authority of the Legislative Assembly. In our submission, it is not a matter that this Court needs to decide in order to determine the ultimate issue. Section 122 is not subject to limitations derived by implication from the federal structure of the Constitution. A fortiori, we say, the implication has nothing to say about the legislative power of the Territories.

Now, the plaintiffs’ submission that the Commonwealth cannot grant a power greater than it possesses seems to be its central thesis. Admittedly, it is intuitively attractive. However, in our submission, it misses the mark. It misses the mark because the question is not one of power given by the Commonwealth; the power is given by the Constitution. The question is one of the limitation placed on that power by the implication of a separation of powers, as the plaintiffs in fact concede.

KIEFEL J:   You mean the statement is usually used in other contexts?  The statement “it can rise no higher than its source” is usually used in other constitutional contexts, not as appropriate to what we are concerned with here?

MS YOUNAN:   Indeed, your Honour, it is used in other contexts, but it is also inapt in the present case, because the question is not one of power filtering down to the legislative authority of a Legislative Assembly, a self‑governing Legislative Assembly.  It is a question of whether an implication that constrains a power arises in a context which governs the relationship between the Commonwealth and the Territories.  We say it is that implication that is misplaced in that context.  It does not arise in that context.

We say that the plaintiffs advance nothing in the context, purpose or structure of the Constitution to demonstrate that this is so. Moreover, the plaintiffs’ thesis fails to address the disparate nature of Territories, which is dealt with compendiously in section 122, and the consequent reality is of administration in government with which the Constitution must deal.

The anomaly of the plaintiffs’ constitutional theory regarding the stream not rising above its source is also manifest, we say, when one considers that the Commonwealth may admit a Territory to Statehood under section 121.  In doing so, that new State is not limited by the separation of powers.  As such, the Commonwealth grants a power greater than it possesses.  On the plaintiffs’ theory, the Commonwealth would not be competent to exercise that power of admitting new States to the Commonwealth on the basis that, arguably, it grants a power greater than it possesses.  Your Honours, if there are no further questions, those are the submissions that the Territory wishes to make.

FRENCH CJ:   Thank you, Ms Younan.  Solicitor for New South Wales.

MR SEXTON:   If the Court pleases.  As in the case of our written submissions, we only make submissions now on the Kable question.  There is not a great deal that we wish to add to what has been already said by the Northern Territory and by the Commonwealth whose submissions we are happy to adopt.  But we would note that the three applications of Kable in this Court were instances where a particular function was conferred on a court in two cases on the Supreme Court of New South Wales IFTC and Wainohu ‑ I do not want to take your Honours to these cases ‑ and in the other case on the South Australian Magistrates Court in Totani. 

FRENCH CJ:   On Wainohu it was a function conferred on a judge acting persona designata.

MR SEXTON:   Quite right, your Honour, that is so, a judge of the court but acting as persona designata – but the court, in a sense, considered that ‑ ‑ ‑

FRENCH CJ:   Well, there is a question of compatibility between the role and status of the ‑ ‑ ‑

MR SEXTON:   Yes, so this is a case where the plaintiffs complain, in a sense, that the law here does not confer a function on a court in circumstances where the function is something that should be performed by a court.

KEANE J:   Which is really just another way of putting the separation of powers argument.

MR SEXTON:   In one sense, that is right, your Honour.  In another sense, it is a policy question on which opinions might differ, but what we say is that it does not engage the Kable doctrine.  We have quoted from the majority in Kuczborski (2014) 314 ALR 528 at page 579, paragraph [231] where it was put shortly that the Kable doctrine depends on the effect of the law upon the functioning of the courts. 

In this context, Justice Gageler raised in argument yesterday the fact that the courts here may be involved in this process by deciding a penalty if someone who is originally arrested is eventually charged and comes before a court, which is one of the possible options under the Northern Territory statute.  In those circumstances, there would be a question wherein a penalty had already been imposed ‑ assuming that it is a penalty just for the purposes of this argument ‑ that a penalty had already been imposed by the Executive.  But, as I think Mr Grant responded, in those circumstances, it would be open to the Court to not impose any further penalty or to adjust the penalty in accordance with that which had already been imposed, assuming just again for the moment that the period of detention can be characterised as a penalty and not in some other way which I will come to shortly.

There is a variant, perhaps, in terms of Kirk in the plaintiffs’ Kable argument, but as Mr Gleeson has just pointed out to your Honours, judicial review is available within the detention period.  There may be, of course, very often practical difficulties about that but the right is not removed and, in a sense, judicial review is still available although within a statutory framework, perhaps in the same way – in a similar way as in Duncan v ICAC last month in this Court where we made the submission that judicial review may have been affected by the statutory amendments but still otherwise existed.

FRENCH CJ:   Nothing turns on your argument in relation to Kable and Kirk on how one characterises the tension, whether it is punitive or protective or administrative or ‑ ‑ ‑

MR SEXTON:   I think that is right, your Honour. 

FRENCH CJ:   So that consistently with that view there would be nothing in Kable or Kirk to prevent the State making a law authorising a police officer to prosecute and punish an offence provided the officer is subject ultimately to choate or supervisory jurisdiction.

MR SEXTON:   In the absence of separation of powers, that is right, your Honour.  If I just come to that question of penalty briefly, that depending on the question of the construction of the legislation and the

separation of powers question there may be a separate issue raised here as to whether there is, in a sense, a usurping of judicial power because of the detention imposed for a period without the order of a court, the question in the sense that was in issue in Lim. It was accepted there, of course, that even under Commonwealth legislation detention could be imposed by the Executive in certain circumstances, Justices Brennan, Deane and Dawson at 27 to 28, the report is (1992) 176 CLR 1. But we would say here that this is not a case of punitive detention apart from the fact that it is for a relatively limited period of up to four hours.

But, in circumstances where a police officer reasonably suspects the person in question of having committed, committing or being about to commit an offence, but to allow time for the causes of action that are available under the statute to be taken.  In some circumstances, the cause of action might – should be taken, might have to be taken quite quickly.  Your Honour the Chief Justice gave an example yesterday of someone where the arrest was because they might be about to commit an offence and, of course, the offence having not been committed then the period might be extremely short.  But, in the case of intoxication, of course, there is obviously a protective element involved.

It is true that in Fardon (2004) 223 CLR 575, Justice Gummow at 611 to 613, paragraphs 77 to 84, drew attention to some of the difficulties in the dichotomy between punitive and protective detention. Justice Hayne made a similar point at paragraph 196, although Justices Callinan and Heydon at 214 to 216 seemed to accept that dichotomy. But even on the test suggested by Justice Gummow, that putting aside exceptional cases, involuntary detention was permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts.

Even on that test, we would say that the detention here would fall within that formulation, because again it is to allow the exercise of the discretion under the statute to adopt one of a number of particular courses which might lead to the adjudication of criminal guilt or, in some cases, to no adjudication at all.  Unless there is anything else, your Honours, those are our submissions.

FRENCH CJ:   Yes, thank you, Mr Solicitor.  Solicitor‑General for Western Australia.

MR DONALDSON:   If your Honours please.  Your Honours, in our written submissions we took some time to deal with a proper construction of these provisions because, of course, one does not get to any of the issues of invalidity or purported invalidity until the proper operation of the legislation is understood.

Without repeating anything that my learned friend, Mr Grant, said yesterday, your Honours could I just emphasise one or two aspects of this legislative scheme which is essential to understanding its practical operation to then determine its validity?  The scheme started, your Honours, of course, with sections 137(2) and (3) and they operate in relation to non‑infringement notice offences as well as infringement notice offences and they provide a power to detain a person for a reasonable period, having regard ‑ and this is 137(2) ‑ having regard to the circumstances in section 138, and that reasonable period ‑ and we deal with this in our written submissions ‑ can, and there are cases in the Territory where that has been longer than four hours.

If a person is not detained for one of those purposes under section 137(3)(a) or (b) and that is to question a person in relation to the offence for which they were arrested, if imprisonment is a penalty for that, or to question the person in relation to another offence which carries a period of imprisonment for five years.  If it is not one of those purposes, then 137 requires that the person, as soon as practicable, after being taken into custody, be taken before a justice or a court or, of course, before that, that is before as soon as practicable, either released or bailed.

Now, Division 4A operates as a qualification to that, but a very limited qualification.  Division 4A, your Honours, really operates in three circumstances.  We have set them out commencing at point 3 of our outline.  The first of them is where a person is arrested for an infringement notice offence but that infringement notice ‑ ‑ ‑

FRENCH CJ:   You are talking 4AA, are you?

MR DONALDSON:   Division 4AA.  I am sorry, did I say 4A?

FRENCH CJ:   Yes.

MR DONALDSON:   No, I am sorry, 4AA.

GAGELER J:   Mr Solicitor, just so I know where are you going, are you saying anything different about the construction from what the Solicitor‑General for the Northern Territory said?

MR DONALDSON:   We were simply going, your Honours, to add this to what the learned Solicitor said.  If your Honours were able to look at what we contend to be the third operation of this provision ‑ this is our point 5 ‑ Division 4AA only operates – and I do not think that this was sufficiently clarified yesterday – only operates in a circumstance where a person is not detained for a purpose under 137(3)(a) or (b).  So this is where it is an infringement notice offence that does not carry a term of imprisonment and where the person is not sought to be detained for questioning in relation to another offence which carries a penalty of five years.

So Division 4AA only really operates in that circumstance, and in that circumstance, your Honours, the way in which it operates – and this deals with Justice Nettle’s question yesterday – if one looks to 133AB ‑ and this, if I may say with the greatest respect, is I think the misconception of the plaintiffs’ submissions.  This regime is not a regime that gives a period of four hours and then things happen after the four hours, and that really emerges from 133AB.  The period is up to four hours.  So it is up to four hours, not four hours.  So in the period of up to four hours, one of the decisions under 133AB(3)(a), (b), (c) or (d) is to be made.

In relation to (d), because (d) introduces 137, in the scenario of a person not being detained for a purpose of investigation for an infringement notice offence that carries a penalty of imprisonment or for a five year – questioning about a five‑year penalty, so it is a pure infringement notice offence, if you like, what 133AB(3)(d) does is really require that the person in a period of up to four hours either be released, issued with the infringement notice, bailed or, under 137(1), brought before a justice as soon as practicable.

GAGELER J:   How do you reconcile that submission with the opening words of subsection (3), “on the expiry of the period mentioned in subsection (2)”?

MR DONALDSON:   Well, because (3) has to be read with (2).  It is up to four hours.  On the expiry of the period the person may – and really that, in our submission, has to be read as, if you have made one of these decisions prior to that you cannot just leave somebody in there for ‑ using Justice Bell’s example yesterday, if the decision is made after 15 minutes, a person cannot be left in there for three and three‑quarter hours, and your Honours have not heard a submission from anybody suggesting that.  The plaintiff does not contend that submission and the Solicitor for the Northern Territory accepted that that was not the operation of the provision.

FRENCH CJ: There is always a question, Mr Solicitor, when we hear from an intervener who comes before us because the matter involves something arising under the Constitution about how far it is relevant to the intervener’s interest to get into the construction of a particular statute which is not your statute. Now, I know there are – you have referred to some analogous statutes in other jurisdictions including, I think, Western Australia, but are these constructional questions really Western Australia’s concern?

MR DONALDSON:   Your Honour, the only reason – and I have said pretty much overall what I was proposing to say in relation to that – but simply to try and emphasise the narrow operation of the Division 4AA provisions in relation detention for what you might call a pure infringement notice offence.  Understood in that way, your Honours, in our respectful submission, there is nothing particularly unspectacular about this statutory scheme of detention for the purposes outlined in 133AB(3)(a) through to (d).  On that understanding, your Honours, we simply contend that the issues do not really – the most interesting issues that have been raised do not really arise.  If we can deal with those most interesting issues then, your Honours.  I am not going to repeat the submissions that have been made in relation to Chu by the Solicitor for the Northern Territory and the Commonwealth.  We deal with that in our written submissions. 

In relation to the Kable point – again, your Honours, the point has been made that there is, in fact, no functioning imposed on the Northern Territory Court here.  In relation to Justice Gageler’s Kable point from yesterday – this is point 14 of our submissions ‑ ‑ ‑

GAGELER J:   I see it has become my point, but go ahead. 

MR DONALDSON:   Although it was adopted by Mr Moshinsky, your Honour, I do not think he is claiming paternity of it yet.  I should hesitate to say to your Honour Justice Gageler, we take it as your Honour’s point as clarified by the Chief Justice later in the day.  That is, the Kable contention may be that the Court is, as it were, sidelined from a characteristically judicial function and thereby has its status lowered, was, I think, the terminology that the Chief Justice used.

In our submission, your Honour, such a contention if it is put should be rejected and rejected really on the basis that for reasons that had been dealt with in our written submissions at paragraph 55 and by others who have appeared, the Court would play a role in the event of an unlawful detention – that is, a detention other than strictly in accordance with the terms of this legislation.  Could I then deal finally with a point that Justice Kiefel raised yesterday – Justice Kiefel’s question yesterday in relation to the genesis of the four‑hour period.

KIEFEL J:   Yes.

MR DONALDSON:   Your Honours, of course there is a degree of speculation involved in this.  But, your Honours, all of the legislation – and we have given your Honours a third piece – or a second piece of paper which sets out legislation in Australian jurisdictions since the rather famous Australian Law Reform Commission report on criminal investigation in 1975.  In that report – and at point 15 of our oral outline, your Honours, we

have set out what the Law Reform Commission there recommended.  Its first recommendation was that there be the introduction of arrest and detention regimes providing for a person to be charged or released:

“as soon as reasonably practicable, and in no event longer than four hours” –

and at page 40 to 41 there was an explanation in the Law Reform Commission as to why four hours was the period of time.  All of this sort of legislation, your Honours, has pretty much proceeded that Law Reform Commission report.  We cannot say to your Honours that that is the reason why four hours has been adopted, but it seems like a pretty logical starting point.

Your Honours, in the additional hand up which we provided to your Honours, we have outlined the regimes in other jurisdictions and highlighted to your Honours that in four of the Australian jurisdictions, four hours is the relevant period also.  I hope that that assists your Honour.  There is nothing further, your Honours.

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

MR DUNNING:   Thank you, your Honours.  Your Honours, we wish only to deal with the Kable point.  I have endeavoured to set out in paragraph 2, at least as best I have understood it, the three potential bases upon which it is said Kable might be engaged in this matter.  I will not read out what I have said to your Honours there, but I have endeavoured to identify the three alternatives that appear to be the subject of argument.

Can I then move please to paragraph 5?  It is accepted by Queensland that for present purposes the principle in Kable might well extend to the invalidity of legislation which does not confer a jurisdiction on a court.  But critical here is that Division 4AA neither removes any characteristic of a court, nor excludes any court from performing a function central or indeed frankly at all to its role, so we would say it has no effect on the functioning of courts.

I do not take the submission as far as to say there might never be circumstances in which the Kable principle might be offended in respect of a law that neither confers an offensive jurisdiction on a court, nor operates as a privative clause against the operation of jurisdiction of a court.  But this case does not, in our respectful submission, raise the point, and that question is best left to if it ever be raised because it is not immediately apparent the circumstances in which a piece of legislation would offend the Kable principle if it neither imposed an offensive obligation upon a court, nor prevented access to the court.  I understand I have got to deal with the suggestion that the practical outcome might be that case here, and I will come to deal with that in due course.

In that regard, may we take your Honours please to the reasoning of this Court in Kuczborski v Queensland (2014) 314 ALR 528. May I ask your Honours please to go to paragraph [231] on that page; this is in the reasoning of Justices Crennan, Kiefel, Gageler and Keane. Can I particularly direct your Honours’ attention to the second sentence:

Whether a law is invalid by reason of the Kable principle depends on the effect of the law upon the functioning of the courts.

In my respectful submission, an acceptance of the plaintiffs’ posited position, or indeed any of the alternatives that are presently before the Court, would require a modification of the principle that is so neatly stated in that passage, because it would involve extending invalidity by reason of Kable, not only to a law that affected the functioning of a court, but to a law that had no impact on the functioning of a court.  Your Honours, that then turns to the question ‑ ‑ ‑

FRENCH CJ:   You would agree with the Solicitor‑General for New South Wales that a State law conferring investigative and prosecutorial functions and punitive functions upon a police officer would not offend Kable because Kable does not deal with that kind of ‑ ‑ ‑

MR DUNNING:   Yes, we would, your Honour.  We have some submissions to make that in this case questions of it being punitive do not arise but, yes, the proposition is one which I would respectfully agree.  Can I then turn to the suggestion that Kable is offended here because it is said that detention cannot meaningfully be challenged by reason of the regime created by 4AA.  Our response to that is really what is set out in paragraph 8, and first and critically, there is no constitutional requirement, in my respectful submission, that legislation afford a person affected by an exercise of executive power a power to obtain a review more meaningful than the prerogative remedies. 

In that regard, may we take your Honours please to the reasoning of this Court in Kirk (2010) 239 CLR 531 at 580, paragraph 100? I appreciate your Honours will be well familiar with the terms of paragraph 100. The submission is as short as this. What was made clear by the Court in that passage is that the minimum requirement is recourse to the State Supreme Courts on account of jurisdictional error. That is not to say that jurisdictional error might not be the subject of modification but it might not be removed completely, but that beyond jurisdictional error there was no impediment at all.

Now, in my respectful submission, to accede to the challenge on the Kable ‑ on any of the bases that are before your Honour would involve a modification of what was reasoned in the passage in Kirk that I have just taken your Honours to because it would mean that it would offend this sort of hybrid Kable/Kirk concept that we are dealing with here, not only that the supervisory jurisdiction is not taken away but that some particular non‑jurisdictional supervisory power was not conferred on a court and, in our submission, that would be a big step. 

Secondly, the lack of practical utility or, perhaps more accurately, the practical obstacles that stand in the way of the grant of prerogative relief, is not a legitimate basis for saying that it does not offer a remedy; much less, in our respectful submission, a legitimate basis for saying that there should be superimposed on a matter otherwise within the legislative competence of a Parliament an obligation that if it passes a law such as this, it must pass with it some particular functions on a court.  The supervisory jurisdiction of a court to make sure that the Executive operates within power is a sufficient and only requirement, if we can put it in those terms. 

Finally, administrative decisions in inferior tribunals might have significant effects on the citizen.  I do not for a moment suggest that it is a small thing to take a person into custody with the consequences in a practical sense that are set out in the Act here even for a period of four hours.  I am not suggesting that that is a small thing or a light thing.

Nonetheless, it is an illustration of just one of the many ways in which decision‑making by the Executive impacts, and impacts adversely, on the citizen.  But the protection for that at a minimum lies in testing for jurisdictional error.  But that is not the only relief that would be available here.  There would be proceedings for false imprisonment and there would be proceedings for malicious prosecution if the power was misused.

If the power is not misused then, in our respectful submission, there cannot be any serious objection.  That is, if the person is taken into custody for one of the nominated purposes, a decision is bona fide made and then acted upon, then there cannot be any serious complaint.  If that is not the case, then action lies, at least in those two torts ‑ as my learned friend the Solicitor for the Commonwealth pointed out, there would also be the vindication of a declaration were that to be necessary.

At paragraph 9 we make the point and adopt – and I will not repeat what the Solicitor for New South Wales has said – that for those reasons and really for the reasons I have developed just previously, there is nothing penal about what is occurring here.  That is, if a person is regularly taken into custody and the decision is appropriately made, there will be nothing penal about that ‑ if in fact that was not the case and the remedies are identified – and in that respect it does not sit uncomfortably with the general scheme of our system.

If I may give what I accept is an extreme example to illustrate the point.  A person is charged with murder, the person is declined bail, as would often be the case, ultimately comes on for trial, the trial is heard, jury retires for 10 minutes and produces an acquittal.  Now, that person will not have been punished for the year or two spent in incarceration.  That will be a function of the regular detention of that person in accordance with a prescribed criteria and, we would submit, no different here.

To deal again with the issue of punishment, there was an exchange yesterday between Justice Keane and the Solicitor for the Northern Territory and Justice Gordon about the question of whether, if somebody was detained in this way, that would be a relevant consideration as to penalty in the event the person later came before the court on that issue.  May I make the point that when that is taken into account in dealing with such a person, that will not be taken into account on the basis that the person has been punished by the four or less hours’ detention.  It will simply be a relevant consideration in respect of the punishment of the person for that offence.

Again, if I can return to my homicide illustration; the person spends a year or two in remand.  He or she pleads guilty after the acquittal to a minor offence that might involve a month or two’s imprisonment.  The person does not get any imprisonment because it is a relevant consideration he or she had spent the year or two on remand.  That is not because they were punished for being charged with murder, it is because it is simply a relevant consideration and, we would respectfully submit, that is an illustration of why this is not punishment properly so‑called.

Can I then move finally to the topic I raise at paragraph 11 of our outline?  For the reasons that have been developed by ourselves and other parties, there is no lack of judicial oversight, at a minimum, by the Supreme Court of the Northern Territory.  It would have available to it prerogative relief, it would have available to it, in particular, declaratory relief, it would have available to a person minded to do so – and if they could make out the elements of the cause of action – either false imprisonment or malicious prosecution.  So, at least in respect of the Northern Territory Supreme Court, it is not right to say that there is no judicial oversight.  It might be contestable as to whether it is appropriate judicial oversight but that is, we would submit, a contestable policy issue.

But the point that I am sorry I am taking a little while to get to is this.  In those circumstances, this is not an appropriate case, in our respectful

submission, to decide whether it is a defining characteristic of a court that there be judicial oversight of detention by the Executive.  I am not wishing to be heard to make the submission that that is not the case, only that that is a big concept and the precise formulation of that concept is a significant issue and, in my respectful submission, it should await a case in which the question is squarely provoked and against a concrete and real set of circumstances.

Similarly, the hybrid – I am not quite sure, ultimately, whether it is a hybrid of Kirk and Kable or the product of Kirk and Kable that is, in effect, urged by the plaintiffs here – does not, ultimately, arise either on the proper construction of the legislation or those issued that I have canvassed.  Again, whether there be such a principle should, in my respectful submission, await a case where it is squarely provoked and can be properly canvassed.  Unless I can assist your Honours any further, they are the submissions for Queensland.

FRENCH CJ:   Thank you, Mr Solicitor.

MR DUNNING:   Thank you, your Honour.

FRENCH CJ:   Mr Evans.

MR EVANS:   May it please the Court, South Australia seeks to rely on its written submissions and does not seek to supplement.

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

MR MOSHINSKY:   If the Court pleases, we have five brief points by way of reply.  The first is the Northern Territory submitted that because the provisions provide for a person to be brought before a justice or a court, the supervision aspect is not a particular characteristic or power that the courts enjoy that has been removed by this scheme – that is at transcript page 79, line 3535.  But the pre‑existing regime always provided for ultimate court oversight of executive detention, and we would refer to the Bail Act, section 23 which refers to the power of the Supreme Court to grant bail and section 35 which is review by the Supreme Court of a decision of a magistrate or a justice. 

The next point is in relation to Kable.  The Northern Territory submitted even if it – that is Division 4AA – was construed as having a punitive purpose, the punitive effect can be taken into account when imposing penalty under the criminal processes – that is transcript 79, line 3560.  There are two difficulties with that submission.

The first difficulty concerns the scenario where the person comes before the Court, for example, because the person has been charged and comes before the Court or the person has been issued with an infringement notice and elects to have the matter dealt with by the Court.  The Northern Territory submission is that it would be open to the Court at that point simply to impose no further penalty.  But what if the punishment already meted out by the Executive exceeds that which the Court would impose?  For example, a person has been detained in custody for four hours and the Court would not have sentenced the person to any period of imprisonment.

The second difficulty ‑ and this was adverted to in a question yesterday from Justice Gordon ‑ the second difficulty concerns the scenario where the person does not come before the Court at all.  Here, the punishment has been meted out by the Executive and not by the Court.

KEANE J:   How does the person not come before the Court?

MR MOSHINSKY:   That is a scenario where the person, for example, has been detained for four hours, issued with an infringement notice and pays it.  It is that scenario.

KEANE J:   So, this is a case where someone simply accepts the notice.

MR MOSHINSKY:   Yes.  The difficulty there is ‑ ‑ ‑

KEANE J:   So, the Court is not involved at all.

MR MOSHINSKY:   In that scenario.

KEANE J:   On one view of it, the punishment was rightly imposed because it was not contested.

MR MOSHINSKY:   The infringement notice was not contested but if one takes the view ‑ and at this stage of the argument, one has taken the view that it is punitive, there has been a four‑hour period of detention in custody imposed which may well be more than would have been imposed had the matter gone before the Court and that has been imposed by the Executive.

KEANE J:   Four‑hour period leading to a decision to issue an infringement notice which is accepted as rightly issued.

MR MOSHINSKY:   In this scenario, the person pays the infringement notice, which expiates the offence. Your Honours, the next point by way of reply relates to the Commonwealth submissions. The Commonwealth submits that section 122 is not subject to the limitation of the separation of powers. In our submission, this fails to adequately take into account the substantial conceptual shift that has occurred in a series of cases in this Court, namely, Northern Territory v GPAO 196 CLR 553, Eastman 200 CLR 322 and Bradley 218 CLR 146. Prior to those cases, the traditional view was that an exercise of judicial power pursuant to a section 122 law was not an exercise of the judicial power of the Commonwealth.

One sees that view, for example, in Justice Dawson’s judgment in Kruger at page 62 and in the earlier decisions.  But that view was swept away particularly in GPAO, and I will just give the references. In Chief Justice Gleeson and Justice Gummow’s judgment at paragraph 91, Justice Gaudron’s judgment at paragraph 132, Justice Hayne’s judgment at paragraphs 254 to 258. Once it is accepted that an exercise of judicial power under a section 122 law is an exercise of the judicial power of the Commonwealth, then it is but a small step to say that section 71 of the Constitution requires the Commonwealth to only vest such judicial power, that is, judicial power created by a section 122 law, in the courts referred to in section 71. Hence, to take the example raised by the Chief Justice of a law made directly by the Commonwealth Parliament authorising police officers to detain people for four hours for an infringement notice offence, in our submission, such a law could not be made.

The next point by way of reply relates to another submission by the Commonwealth.  The Commonwealth submits that the approach of Justice Gaudron in Eastman should not be followed. One of the main planks of the Commonwealth’s argument was that Justice Gaudron’s analysis had not dealt adequately for the need for vesting of federal jurisdiction. But the terms of section 76(ii), which is the head of federal jurisdiction referred to by her Honour, that is, a matter arising under a law made by the Parliament, necessarily assume that there has been a Commonwealth law made and, hence, a vesting of federal jurisdiction has occurred.

The final point by way of reply relates to submissions made by New South Wales and adopted by Queensland.  In response to a question, the New South Wales Solicitor‑General made a submission that in the absence of the separation of powers it would be open to a State to confer criminal law enforcement, including punishment in the Executive.

A similar issue was touched on – raised by also an intervener as it happens in Totani and we would draw the Court’s attention to these passages.  In your Honour the Chief Justice’s judgment at paragraph 76, your Honour agreed with observations made by Justice Gummow and the observations of Justice Gummow are at paragraphs 146 to 148.  That is Totani 242 CLR 1. Unless there are any other questions, your Honour, those are our submissions in reply.

FRENCH CJ:   Yes, thank you, Mr Moshinsky.  The Court will reserve its decision.  The Court adjourns until 2.15 this afternoon.

AT 12.05 PM THE MATTER WAS ADJOURNED