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

[2015] HCATrans 211

[2015] HCATrans 211

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 TUESDAY, 1 SEPTEMBER 2015, AT 10.14 AM

Copyright in the High Court of Australia

MR M.K. MOSHINSKY, QC:   If the Court pleases, I appear with my learned friends, MS K.E. FOLEY and MR C.J. TRAN, for the plaintiffs.  (instructed by Ashurst Australia)

MR M.P. GRANT, QC, Solicitor‑General for the Northern Territory:   May it please the Court, I appear with MS S.L. BROWNHILL for the defendant in the matter, your Honours.  (instructed by Solicitor for the Northern Territory)

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear for the Attorney‑General for the Commonwealth with MR J.S. STELLIOS intervening.  (instructed by Australian Government Solicitor)

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

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MR J.D. BERSON, for the Attorney‑General of Western Australia, intervening.  (instructed by State Solicitor (WA))

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear for the Attorney‑General for Queensland, intervening.  (instructed by Crown Solicitor (QLD))

MR M.G. EVANS, QC:   May it please the Court, I appear with MR D.F. O’LEARY, for the Attorney‑General for South Australia, intervening.  (instructed by Crown Solicitor (SA))

MS H. YOUNAN:   May it please the Court, for the Attorney‑General of the Australian Capital Territory.  (instructed by ACT Government Solicitor)

MS S.E. PRITCHARD, SC:   May it please the Court, with MS J.E. DAVIDSON, for the Australian Human Rights Commission seeking leave to intervene, or in the alternate to be heard as amicus curiae.  (instructed by Australian Human Rights Commission)

FRENCH CJ:   Ms Pritchard, you will have leave to intervene as amicus curiae but be confined to your written submissions and you are free to leave if you wish.

MS PRITCHARD:   May it please the Court.

FRENCH CJ:   Thank you.  Yes, Mr Moshinsky.

MR MOSHINSKY:   If the Court pleases, this proceeding was commenced in the original jurisdiction of this Court and comes before the Full Court by way of a special case which commences at page 40 of the special case book.  The first plaintiff, known as NAAJA, provides legal services to Aboriginal and Torres Strait Islander people in the Northern Territory as set out in paragraphs 1 to 3 of the special case. 

The second plaintiff, Miranda Bowden, was arrested and detained in police custody at the Katherine police station from 19 March until 20 March this year under the impugned provisions as set out in paragraphs 4 to 7 of the special case. By this proceeding the plaintiffs challenge the validity of Division 4AA of Part VII of the Police Administration Act (NT). The special case sets out the relevant provisions, provides some facts about the extent of the use of the impugned provisions and then sets out three questions for the consideration of this Court at special case book page 46.

Could I start by taking the Court to the legislation, namely the Police Administration Act, and could I start by outlining the provisions of Divisions 3, 4 and 6 which existed before the introduction of Division 4AA. At page 82, Division 3 commences with section 121. Division 3 deals generally with the topic of arrest and, in particular, section 123 deals with arrest without warrant by members of the police force. This predated the December 2014 introduction of the impugned provisions. It was thus always available to members of the police force in relation to the offences which are now defined as infringement notice offences.

Division 4, which commences at page 88, deals with apprehension without arrest, and this division deals with the apprehension of persons who are believed to be intoxicated in public places in certain circumstances, for example, where the person:

may cause harm to himself or herself or someone else –

It contains a series of detailed provisions which apply to and regulate the apprehension of a person on this basis under this division, including protective provisions.  Next, we turn to Division 6 which is at page 101.  Section 137 provides as follows - subsection (1) which is subject to subsections (2) and (3) provides that:

a person taken into lawful custody under this or any other Act shall . . . be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody, unless he or she is sooner granted bail under the Bail Act or is released from custody.

Subsection (2) provides that “subject to subsection (3)” a person can be held for a reasonable period to enable the person to be questioned or for investigations to be carried out.  The qualification on subsection (2) is contained in subsection (3) and is as follows.  Where the questioning or investigation is about the offence for which the person was taken into custody, the person can only be held for a reasonable period if the maximum penalty is a period of imprisonment.  Where the questioning or investigation is about another offence, the person can only be held for a reasonable period if the maximum penalty for the offence “is imprisonment for 5 years or more”.

Subsections (2) and (3) represent a qualification in the common law position which, as discussed by this Court in Williams v the Queen (1986) 161 CLR 278, which I do not need to go to, did not permit a person to be arrested and detained for questioning.

FRENCH CJ:   Can I just understand the interaction of Divisions 3 and 4AA?  As I understand it, in the application of 133AB, we are dealing with a person who has been arrested without warrant under section 123, but a subset of that class of persons, namely, those suspected, et cetera, of having committed an offence, that is, an infringement notice offence.

MR MOSHINSKY:   Yes, yes.  Could I come back to that in more detail shortly, your Honour?

FRENCH CJ:   Yes.

MR MOSHINSKY: At the moment, I just want to outline what it looked like before Division 4AA was inserted and, importantly ‑ ‑ ‑

FRENCH CJ:   Well, the starting point, even on that, is section 123, is it not?

MR MOSHINSKY:   Yes, exactly right.  So, it is noteworthy that the incursion on the common law position, as outlined in Williams, is regulated by the precise terms of subsections (2) and (3) which limit the detention to a period which is reasonable, as described in more detail in section 138, and only where imprisonment is within the penalty for the offence. 

Could I now then go to Division 4AA at page 96? Section 133AA defines the expression “infringement notice offence”. The relevant offences are those prescribed by regulation. The relevant regulation is regulation 19A of the Police Administration Regulations. That regulation prescribes certain offences under the Summary Offences Regulations, the Liquor Regulations and the Misuse of Drugs Act.

Many of the offences defined as infringement notice offences do not include any term of imprisonment in the penalty for the offence.  This is true not only if they are dealt with by way of issue of an infringement notice but also if they are charged and dealt with by the Court.  If I could take the Court at this point to Attachment D to the special case, which is in the special case book at page 161 to 163.  This lists those infringement notice offences which do not have any “term of imprisonment in the penalty for the offence”.

So, for example, on page 161 at line 20, section 78 of the Summary Offences Act which is an offence concerned with “Keeping clean yards” et cetera, the “Max penalty if not dealt with by way of issue of infringement notice” is $200.  The “Penalty if dealt with by issue of infringement notice” is $144.  In fact, the majority of offences which are defined as “infringement notice offences” do not carry any term of imprisonment.  This is apparent by comparing the list in Attachment D with the full list of infringement notice offences which is in Attachment E commencing at special case book 164. 

If I could then go back to the legislation, section 133AB provides in summary that the section applies if “a member of the Police Force has arrested a person . . . under section 123” in relation to an infringement notice offence.  Subsection (2) provides that:

The member may take the person into custody and:

(a)      hold the person for a period up to 4 hours; or

(b)if the person is intoxicated – hold the person for a period longer than 4 hours until the member believes on reasonable grounds that the person is no longer intoxicated.

Section 133AB(3) provides that:

The member, or any other member, on the expiry of the period mentioned in subsection (2), may –

do one of four things –

(a)release the person unconditionally; or

(b)release the person and issue the person with an infringement notice . . . 

(c)release the person on bail; or

(d)under section 137, bring the person before a justice or court for the infringement notice offence or another offence allegedly committed by the person.

(4)For deciding how to deal with the person under subsection (3), the member, or another member, may question the person about the infringement notice offence, or any other offence –

Section 133AC provides for the practical steps that may occur when a person is held in custody.  These include photographing the person, taking their fingerprints, searching the person, removing money, other valuables and any item that is likely to or could cause harm and recording these in a register.

Now, before turning to the construction issue that has been raised, can I identify four features of Division 4AA which are apparent from its text? First, the division permits detention for up to four hours, even if the infringement notice offence could never result in a period of imprisonment, because imprisonment is not an available penalty for the offence.

Second, the text does not condition detention on the need to decide which of the four options will be utilised.  Third, the text does not require that the time in detention be utilised in questioning the person.  Fourth, the division permits detention even if the only choices being considered by police are to release the person unconditionally or to release the person with an infringement notice.

BELL J:   Unconditional release would occur in a circumstance in which a person has been arrested by reason of a reasonable suspicion and that reasonable suspicion has been resolved in favour of the person.

MR MOSHINSKY:   Yes.

BELL J: In the event a person is arrested under 123 and detained under Division 4AA, at the moment the police officer realises there is no foundation for the suspicion, do you contend that the proper exercise of the power would admit of continued detention?

MR MOSHINSKY:   Can I come back to that momentarily, your Honour, because I do want to take the Court to some of the legislative materials which may bear upon that.  I will return to that.

BELL J:   All right.

GAGELER J:   Mr Moshinsky, will you take us to the provisions that deal with the mechanics of the issue and consequences of an infringement notice?  What are the consequences of issuing an infringement notice?

MR MOSHINSKY:   Yes.  Your Honour, could I answer it broadly in this way?  In each of the three sources of the infringement notice provisions that are referred to in regulation 19A, there are provisions substantively to the effect that if a person is issued with an infringement notice and they pay the amount on the infringement notice that expiates the offence.  They do not have to do that.  They could challenge it.  But if they do pay the amount in the infringement notice, it expiates the offence.  I am not sure if that answers your Honour’s question, but that is the general tenor of the infringement notice offences.

GAGELER J:   If they do not, what happens?

MR MOSHINSKY:   If they do not pay?

GAGELER J:   Yes.

MR MOSHINSKY:   I will have to check that, your Honour.

FRENCH CJ:   I think they are subject to – they can elect to go to court in the ordinary way but if they do not elect and do not pay, then there can be enforcement action on the infringement notice, I think.

MR MOSHINSKY:   I believe that is correct, your Honour.

FRENCH CJ:   I think Fines and Penalties Act?

MR MOSHINSKY:   Yes.

GAGELER J:   Where do we find the provisions?

MR MOSHINSKY:   Yes, and I am assisted that the Fines and Penalties (Recovery) Act, which is annexure A to the Northern Territory submission, has the relevant provisions which indicate that.  Could I now address the construction argument that is put forward by the Northern Territory?  The Northern Territory submits that the detention of a person under section 133AB is subject to the provisions of section 137 with the effect that section 137 applies throughout that period of detention and the terms of 137 control the amount of time that a person can be held under 133AB. 

In our submission, the Northern Territory’s construction should be rejected, in particular, for the following three reasons.  First, the two provisions, that is 133AB, on the one hand, and section 137 on the other hand, have different and inconsistent time periods specified.  Section 137 provides that the person be brought before a justice or court as soon as practicable unless earlier bailed or released but also allows the person to be held in custody for a reasonable period of time in certain circumstances.  On the other hand, section 133AB permits the person to be held in custody for up to four hours. 

The second reason is section 133AB specifies four alternative events which are to occur at the end of the period of custody. One of these four events is bringing the person before a justice or a court under section 137. It is inconsistent with this scheme to hold that the entire period of custody under section 133AB is under section 137. Thirdly, the Northern Territory’s construction would mean that Division 4AA achieves nothing. If a person held in custody under section 133AB must be brought before a justice or a court as soon as practicable unless earlier bailed or released then what does 133AB add to what existed already?

NETTLE J:   Might it not be an outside time limit in the case of these sorts of offences?

MR MOSHINSKY:   On that, could I say two things, your Honour?  One would be that would invert the hierarchy contrary to the Northern Territory’s submission, but the other point is the legislative materials, which I will come to momentarily, would suggest it is not the purpose of these provisions.

FRENCH CJ:   Is there any option for unconditional release for a person arrested under section 123 for other than an infringement notice offence?

MR MOSHINSKY:   Yes.  I am not sure if there is expressly.  It may be ‑ ‑ ‑

FRENCH CJ:   Without going through section 137?

BELL J:   It could not be suggested that there would not be a power to unconditionally release at the moment a police officer realised that the basis of the arrest, namely, the reasonable suspicion was not properly found.

MR MOSHINSKY:   We totally accept that, your Honour.

NETTLE J:   It is in 137(1), is it not?  You either have got to bring him before the magistrate or bail him or release him.

MR MOSHINSKY: Yes, exactly. Thank you, your Honour. Just going back to the third point against the construction put forward by the Northern Territory. In our submission, one would approach the task of construction by assuming that the legislature intended by inserting Division 4AA to achieve something and this is consistent with the legislative materials which I will come to in a moment.

In relation to the construction issue, we refer also to our reply submissions at paragraphs 3 to 8 and, for these reasons, we submit that section 133AB is not subject to section 137.  Rather, detention in custody under 133AB is an alternative to detention in custody under section 137.

BELL J:   That raises the matter that I first took up with you.

MR MOSHINSKY:   Yes.

BELL J:   That is a construction that holds that a police officer who has detained on reasonable suspicion might within minutes of taking the person into custody realise there was no foundation for the suspicion yet, nonetheless, in the proper exercise of the power continued to detain the person for four hours.

MR MOSHINSKY:   Your Honour, we would accept the proposition implicit in your Honour’s question that the proper exercise of the discretion in the scenario your Honour has outlined would have to be release of the person.

BELL J:   When that is accepted, why would one not see the purpose of the provision to set an outer limit to that which is reasonably practicable in the context of offences of a minor character?

MR MOSHINSKY:   Well, perhaps, could I take the Court now to the legislative materials which suggests perhaps a different purpose in mind and that may assist in responding to that.

FRENCH CJ:   Just before you do ‑ I am sorry, I just want to stick with the text for a minute.

MR MOSHINSKY:   Yes.

FRENCH CJ:   Coming back to the question I put to you, the “or is released from custody” at the end of 137(1), does that reflect released from custody according to a common law notion that you will not keep anybody in custody once you have decided that they have not committed, and are not reasonably suspected of committing, an offence, or is it actually a source of an obligation to release from custody?

MR MOSHINSKY:   We would read that last two lines of 137(1) as, really, an exception to the obligation to bring the person before the court as soon as practicable.  The exception then is unless they have been bailed or released from custody.

FRENCH CJ:   Well, how does that intersect with the release from custody unconditionally under 123 – I am sorry, under 133AB?

MR MOSHINSKY:   Well, the way we see these provisions as working as alternative bases for detention, so that 133AB would provide one scheme for detention for that period of time and section 137 would provide another scheme.

Your Honours, annexure B to our written submission is a paginated version of the second reading speech and then parliamentary debates.  In the second reading speech the Attorney‑General and Minister for Justice for the Northern Territory, Mr Elferink, said the following in the second paragraph on page 1 of annexure B:

The purpose of this bill is to amend the Police Administration Act to provide for two specific amendments.  The first amendment is to provide members of the Northern Territory Police Force with an alternative post‑arrest option, where a person who has committed certain prescribed offences may be held by police for up to four hours and can then be released with an infringement notice, as opposed to requiring that the person be charged and have those charges be heard by a court.  I will refer to the concept as ‘paperless arrest’.

Then in the fifth paragraph on that page, he said:

Arrest for these public order offences will remain the same; however, where a person has been arrested for an infringement notice offence, that person can, if police consider it appropriate, be dealt with more expeditiously following arrest, and with much less paperwork, by the issuing of an infringement notice.

Then in the tenth paragraph on that page he said:

This alternative post‑arrest option will provide further flexibility and efficiency in policing work.  The option will enable police officers to return to their patrol in a more timely fashion, as opposed to being detained for long periods preparing necessary paperwork for a court to consider the charges.  An additional benefit to the community is intended by the use of such an option to de‑escalate social disorder situations or potential situations of public disorder before they escalate into major incidents.

Those passages indicate two things, in our submission.  First, that it was anticipated that in many cases, notwithstanding that the person was held in police custody for four hours, the disposition would be the issue of an infringement notice and, secondly, that the object was to avoid taking the matter to court.  That was why the scheme was referred to as paperless arrests.  It was designed to avoid the paperwork involved in taking the matter to court.  There are three further statements by Mr Elferink that we would refer the Court to without reading.  The first is at page 12 ‑ ‑ ‑

KIEFEL J:   Well, just before you do, the additional benefit to the community to de‑escalate social disorder situations or potential situations of public disorder, is that to be read as meaning to take people off the streets if there is some form of trouble?

MR MOSHINSKY:   Yes.

KIEFEL J:   Is that what it means?

MR MOSHINSKY:   I think that is what is intended.

KIEFEL J:   But in respect of which there are already public order powers.

MR MOSHINSKY:   Yes.  At page 12, in the middle of the page, if I could refer the Court to – it is the fifth new paragraph on the page which begins:

This system simply restores a simple idea –

Now, in that paragraph, Mr Elferink describes the anticipated process when a person is arrested under the division and it indicates that the decision can often readily be made whether or not to issue an infringement notice.

BELL J:   I am sorry, whereabouts is this?

MR MOSHINSKY:   I am sorry, if your Honour has annexure B?

BELL J:   Yes.

MR MOSHINSKY:   Page 12, the pagination at the bottom.

BELL J:   I am sorry.

MR MOSHINSKY:   In the middle of that page, the paragraph, “This system simply restores”.

BELL J:   Yes, I have it.

MR MOSHINSKY:   Then further down that page the paragraph which is the ninth new paragraph on the page - it begins:

That is what this legislation is.  If you like, to a degree it is back to the future.

That statement comes in the context of the description on the earlier part of that page that there is a concern that police have become what is described as “arrest averse”.  Then at the top of the next page, the second paragraph on the page which commences:

That is basically what this power will be –

We draw attention to the second and third lines:

It is a form of catch and release. 

So what these passages show, in our submission, is that provisions are not designed to bring the person before the court but rather a form of catch and release.  One of the points we make about the operation and effect of the law is that the nature of the offences which constitute infringement notice offences is such that it may be inferred that in many cases a decision whether or not to issue an infringement notice is likely to be one that can readily be made and unlikely to require four hours detention.

KIEFEL J:   Is there anything to suggest how the period of four hours was chosen?

MR MOSHINSKY:   I have not seen anything, your Honour.  The point that we would make that a decision might in many cases readily be made is this going to be something for the issue of an infringement notice is supported by that paragraph in the middle of page 12 and the process that is anticipated in that paragraph.  It is also – sorry, your Honour, can I just finish the sentence?

BELL J:   Yes, do, please, sorry, yes.

MR MOSHINSKY:   It is also supported by the facts in the special case for Ms Bowden where the infringement notice is issued on 19 March, the date she was arrested.  She is then held until 20 March.  Sorry, your Honour.

BELL J:   The suggestion with Ms Bowden is that she was intoxicated.  Is that right?

MR MOSHINSKY:   Yes, that is the suggestion.

BELL J:   Just putting to one side statements made in the Legislative Assembly and looking at the statutory scheme, do you submit that in the event a person were arrested on the basis of reasonable suspicion and the arresting officer was pointedly satisfied of the person’s identity and address and that it was appropriate to proceed by way of infringement notice, that a proper exercise of the power would be to keep the person in detention for another three and three quarter hours, the officer having come to that conclusion within the first 15 minutes?

MR MOSHINSKY:   If one looks at it in terms of proper exercise of discretion, I fully accept the force of what your Honour is putting to me.  The difficulty here is - and it is a difficulty with the text of the legislation - how it is likely to be interpreted in practice and really how it was intended to be interpreted in practice based on the paragraph in the middle of page 12 and that seems to be – sorry, I withdraw that. 

This raises an issue of should the legislation be construed as requiring immediate release, should a police member, maybe not the one arrested, maybe the person has been taken to the watch house, a different police member formed the view after 15 minutes that the person should be given an infringement notice.  The real problem in practice with this legislation is that – and it is legislation to be applied by a large number of frontline police officers - it looks like you can detain the person for four hours.  That is the real practical concern here. 

We would refer in that regard to the passage in the judgment of the Chief Justice in International Finance (2009) 240 CLR 319 at 349, paragraph 42, where your Honour discussed the caveat in terms of construing legislation and also towards the latter part of paragraph 42 referred to the real risk that:

notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning.

That is, I think, the practical concern that arises with that. 

BELL J: Can I just ask you one further question about the scheme? Before the enactment of Division 4AA, was there provision under Division 4A for a person to issue a notice to appear as distinct from arresting the person under 123?

MR MOSHINSKY:   I think the answer is yes, your Honour, that that was an alternative course available.

BELL J:   Was there anything – any provision in the Police Administration Act or in other legislation which enjoined the police officer to choose the “notice to appear” route as distinct from arrest in any case involving an offence of a minor character or the like?

MR MOSHINSKY:   I think that that was a matter of policy, but not necessarily a matter of legislation.

BELL J: But not the legislation, so that before the introduction of Division 4AA it was open to a police officer who suspected that a person had committed an offence that did not carry a period of imprisonment as a penalty to arrest the person rather than to issue the person with a notice to appear?

MR MOSHINSKY:   It would have been possible, yes.

FRENCH CJ:   In the case of an intoxicated person, that seems to be the category of persons covered in the passage you took us to on page 12, at least the first paragraph of page 12 of the Minister’s second reading speech where he talks about, if you like, the social realities of Mitchell Street, there was a power of apprehension without arrest, I think, under Division 4 ‑ ‑ ‑

MR MOSHINSKY:   Yes, your Honour.

FRENCH CJ:   ‑ ‑ ‑ and retaining the person in custody until they are fit to be released, as it were.

MR MOSHINSKY:   Yes.

FRENCH CJ:   A person in that circumstance cannot be charged with an offence, I notice.

MR MOSHINSKY:   Yes.

FRENCH CJ:   Does that extend to precluding the issuing of an infringement notice?

MR MOSHINSKY:   I think that the legislation as we read it draws a distinction between issuing an infringement notice and charging, so I ‑ ‑ ‑

FRENCH CJ:   So you could get much the same result so far as intoxicated people are concerned in respect of whom you thought they might have committed an offence by using the apprehension powers?

MR MOSHINSKY:   Yes, your Honour.

KIEFEL J:   Reference is made on page 12 to a form of arbitrary – it is called arbitrary arrest under section 128, where people can be taken out of circulation for up to six hours.  Do you know where the six hours comes from?

MR MOSHINSKY:   I think it is inaccurate, what was said there.  It is not arrest.  It is apprehension under Division 4, because that is where that section comes – and I think the reference to the six hours is perhaps a link with the provision which requires a health practitioner to be made available.  In section 132(2) there is reference to if that custody continues for six hours, then certain things have to happen, and that includes ‑ ‑ ‑

FRENCH CJ:   If they are still intoxicated.

MR MOSHINSKY:   That is the intoxication scenario ‑ ‑ ‑

KIEFEL J:   Yes, thank you.

MR MOSHINSKY: ‑ ‑ ‑ and that includes, in paragraph (2)(f), providing a health practitioner. Now, of course, those protections do not exist under Division 4AA. Could I then outline the structure of our submissions? The plaintiffs challenge the validity of Division 4AA on two alternative bases. The first is based on the separation of powers in Chapter III of the Constitution; the second is based on the principle in Kable v Director of Public Prosecutions (NSW) 1996 189 CLR 51.

The separation of powers argument has three steps to it. The first is that the separation of powers in Chapter III applies to, and thus limits, the power of the Commonwealth Parliament in section 122 of the Constitution; the second is that the same limitation applies to the self‑governing legislature established by the Commonwealth Parliament under section 122; and the third is that Division 4AA infringes the separation of powers principles in Chapter III and is therefore invalid. Starting with the first step, the early jurisprudence of this Court held that Chapter ‑ ‑ ‑

FRENCH CJ:   Can I just first of all understand how wide ranging this is?

MR MOSHINSKY:   Yes.

FRENCH CJ: So is this a general limitation on the power conferred upon the Commonwealth Parliament by section 122 in respect of all Territories?

MR MOSHINSKY:   It is general in the sense that it applies generally to section 122. The limit would be the strict separation of powers in Chapter III.

FRENCH CJ:   So it would apply to the exercise of judicial and non‑judicial powers in any Territory of the Commonwealth?

MR MOSHINSKY:   Yes, your Honour.  The early jurisprudence of this Court held that Chapter III had no application to the Territories.

GAGELER J:   Mr Moshinsky, can I just ask a textual question?

MR MOSHINSKY:   Yes.

GAGELER J:   Relating your ultimate argument to section 71 of the Constitution, what do you say?

MR MOSHINSKY:   How do I relate it to?

GAGELER J:   Yes.

MR MOSHINSKY:   Yes.  Where we wish to get to in the argument is that Chapter III, the judicature is a broad enough term to apply to judicial power in relation to Territories.

GAGELER J:   Do you say there is no such thing as the judicial power of a Territory?

MR MOSHINSKY:   We see it as all federal jurisdiction, your Honour.

GAGELER J:   Well, do you see it as all judicial power of the Commonwealth?

MR MOSHINSKY:   Yes, we do. So then, turning to section 71, the judicial power of the Commonwealth would encapsulate judicial power in relation to territories, in our submission, and that judicial power of the Commonwealth shall be vested in this Court:

such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.

It is that third category of other courts as it invests with federal jurisdiction that would encapsulate Territory courts. So I should make clear that we do not wish to tackle the accepted position that Territory courts are not federal courts. We do not challenge that. We consistently with a number of authorities submit that Territory courts fall within the third category referred to in section 71:

such other courts as it invests with federal jurisdiction.

GAGELER J:   As do State courts.

MR MOSHINSKY:   Yes, your Honour.

BELL J:   But those Territory courts may not exercise any jurisdiction conferred on them by their legislature that is not federal jurisdiction.

MR MOSHINSKY:   Yes, that is ‑ ‑ ‑

BELL J:   That is the essence of your contention.

MR MOSHINSKY:   It is, your Honour, and I will come back to that in some detail, if I may, but that is the ultimate point we do submit.

KEANE J:   So that the power that is being vested by the Northern Territory Assembly in its courts is always the judicial power of the Commonwealth?

MR MOSHINSKY:   We submit that that is the better view and we will come to that.  We do not say that that is an essential part of our argument, but we submit that it is the better view for reasons that we will come to.  It largely picks up on the judgment of Justice Gaudron in Eastman’s Case.

KEANE J:   That occurs even though the investing in the Supreme Court of the Territory as another court, even though that vesting occurs not by the Commonwealth Parliament but by the Assembly of the Territory?

MR MOSHINSKY:   Yes.  That is our argument.

KEANE J:   Why would that not fall foul of the negative implication that controls – or that is the accepted Boilermakers’ view of section 71, that what 71 says you can do implies that you cannot do otherwise? Section 71 allows for the Parliament to invest federal jurisdiction in other courts. Why does that not necessarily imply that no one else can?

MR MOSHINSKY: One answer to that may be that the Commonwealth Parliament by creating the self‑governing legislature has indirectly done that. But the argument is a textual and structural one that links in very much so with section 76(ii) and the expression there, which would seem, on the judgments we have referred to in our submissions, to capture everything that Territory courts do. So really one has to look at the argument in the context also of section 76(ii) and section 73, which I will come to if I may, your Honour, in due course.

FRENCH CJ:   The separation of powers emerges at the Commonwealth level out of the text and structure of the constitution and, as I think was plainly said in Boilermakers, from the distinction between Chapter I, Chapter II and Chapter III, all having to do with the branches of Commonwealth governmental power – legislative, executive and judicial.  That has to do with the things that the Commonwealth Parliament can do. 

Why should that structure be, as it were, inevitably transmitted with the accompanying implications into the legal structure that the Commonwealth may decide to set up in relation to a Territory, be it self‑governing or otherwise?  The Commonwealth is given powers to enable it to set up a self‑governing Territory with a legislature, and so forth, or it may be something less than that.  Take Christmas Island and Cocos Island, for example.  There the Commonwealth has passed laws which vest relevant jurisdiction in the Supreme Court of Western Australia. 

MR MOSHINSKY:   Your Honour, the answer – there are a number of answers and it is really – my submission will develop a number of answers to that question. Can I just say at this point that while the structure of Chapter I, Chapter II, Chapter III is part of the equation, clearly, when one is construing the relationship between section 122 and the rest of the Constitution, there is a question of does one see territories as somehow outside the federal sphere or part of it and the trend has been to integrate.

FRENCH CJ:   The integrationist disparate argument is perhaps a little different.  I mean, if one looks at Wurridjal and you can see that as an integrationist decision, that has to do with the general application to the Territory of a guarantee in relation to the exercise of Commonwealth power directly affecting the Territory.  It is in a slightly different box, is it not?

MR MOSHINSKY:   We would see the separation of powers in Chapter III as a fundamental limitation on Commonwealth power and of equal applicability whether it is section 51 power or section 122 power. The fundamental purpose of the limit, be it – and I will come to this in more detail, but the fundamental purposes are equally applicable, we would submit, whether the legislative power is section 51 or 122. I have not given your Honour a complete answer to the question but I wish to develop that, if I may? The initial early position in the R v Bernasconi (1915) 19 CLR 629 which I do not need to go to was Chapter III had no application to the territories. Some 40 years later in R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 which I may go to, at page 290 in the judgment of Chief Justice Dixon, Justices McTiernan, Fullagar and Kitto at point 6 on the page their Honours said:

It would have been simple enough to follow the words of s. 122 and of ss. 71, 73 and 76(ii) and to hold that the courts and laws of a Territory were federal courts and laws made by the Parliament ‑

then skipping a sentence ‑

But an entirely different interpretation has been adopted, one which brings its own difficulties –

Subsequently, in Spratt v Hermes (1965) 114 CLR 226, a number of justices said that Chapter III may have some application to section 122 and, effectively, confined Bernasconi to a decision on section 80 of the Constitution and, in particular, at page 243 at point 4 on the page in the judgment of Chief Justice Barwick after referring to the fact that:

Some would support [the result in Bernasconi] upon the fundamental view that Chap. III as a whole is inapplicable to or in respect of territories.  The consequences of such a view are, in my opinion, so far‑reaching and my respect for those who have entertained and do entertain it so great, that I feel bound to indicate the reasons for my inability to accept it. 

Then at page 275, Justice Windeyer, after referring to Bernasconi, at point 4 on the page said:

Recognition of the decision does not necessarily involve acceptance of the statement that Chap. III as a whole has no application to the territories.

The decision which contains the most detailed discussion of the issue of whether the separation of powers doctrine applies to, and thus limits, section 122 is Kruger v Commonwealth (1997) 190 CLR 1. Although it was ultimately unnecessary to decide the point, three Justices indicated their preference for the view that the separation of powers does apply to section 122.

In the judgment of Justice Toohey, the issue is discussed from page 79 through to page 85 ‑ if I could just highlight a few key passages within that section.  At page 81, at point 5 on the page, immediately after the quotation, his Honour indicates that while decisions of this Court have established that Territory courts are not federal courts:

Whether the doctrine of separation of powers nevertheless applies . . . is another question ‑

Then at page 83, at point 6, I will not read it out but in that paragraph his Honour summarised the plaintiffs’ argument regarding the separation of powers, and then at page 84, line 7, his Honour expressed his preference where he said:

The argument in support of the proposition that Ch III of the Constitution does extend to the Territories is very persuasive.

Then in the judgment of Justice Gaudron, the issue is discussed at pages 107 to 112.  At page 108, her Honour discussed Bernasconi and Spratt v Hermes.  Her Honour’s view is expressed at the foot of page 108 and on to 109; having referred to difficulties with Sprattv Hermes, her Honour said:

There are, however, even greater difficulties with the view that Ch III does not extend to the Territories. In my view, there is no convincing reason for treating the words “[t]he judicial power of the Commonwealth” in s 71 of the Constitution as not extending to the determination of justiciable conflicts by application of laws enacted by the Parliament of the Commonwealth pursuant to s 122.

Now, her Honour then left open the position regarding self‑governing Territories but, as I will indicate shortly, her Honour effectively resolved that issue in Eastman in a way that I will return to.

In the judgment of Justice Gummow, the issue is discussed from pages 162 through to 176. At page 162 at point 8 his Honour summarised his view, both as regards section 116 of the Constitution and Chapter III. At page 167 at point 5 through to point 8, his Honour reiterated how Chapter III operates to achieve the independence of the judiciary. Then at page 168 at point 5, his Honour indicated his view based on the text.

At page 169 at point 5, his Honour sets out an important passage from the judgment of Justice Dixon in Federal Capital Commission v Laristan Building & Investment Co Pty Ltd (1929) 42 CLR 582. His Honour then discussed two decisions which his Honour considered stood in the way of acceptance of the proposition which he favoured, and we will come back to those two cases. Then at page 170 at point 5 he indicated that it seemed to him that:

it would be necessary at least to reopen these decisions if Ch III were to be given that operation in relation to the Territories described in Boilermakers –

in that joint judgment passage that I went to.  His Honour then over the subsequent pages sets out a number of arguments in favour of the proposition that Chapter III applies to the Territories and then his Honour’s conclusion is at page 176, line 3, where his Honour said:

The plaintiffs submitted that “in the light of contemporary understanding of the federal structure” it is difficult to see any basis for excluding the application of the requirements of Ch III from the exercise of legislative power under s 122. It will be apparent that I see the force in that submission.

GAGELER J:   Mr Moshinsky, while you are on page 176, what are we to make of the formal answer to question 1?

MR MOSHINSKY:   Sorry, I missed one part of what your Honour said.

GAGELER J:   Question 1 is set out.

MR MOSHINSKY:   Yes.

GAGELER J:   The answer is given “no”.  Question 1 is:

Is the legislative power conferred by s 122 of the Constitution or the power to enact the Ordinances and regulations . . . restricted by . . . guarantees, immunities, freedoms . . . referred to in par 29 of the amended statement of claim –

If you go back to page 38, paragraph 29 of the statement of claim is relevantly set out and I think it is B(1) and (2) which is encompassed within that answer.

MR MOSHINSKY:   Yes.

GAGELER J:   Now, Justice Gummow would not have given that answer.

MR MOSHINSKY:   No.

GAGELER J:   He makes that clear.  But that is the answer given by the Court.  Now, where does that leave us?

MR MOSHINSKY:   Yes.  I was about to mention that the three other Justices took a different view.  In a sense, on this issue, one can see it as three Judges in favour of one view and three Judges in favour of the other view.  I have to check whether because Chief Justice Brennan was part of the three who took the other view that is why the question was answered that way.

BELL J: But, was it not also answered that way because Justice Gummow expressed a view about how the Constitution in contemporary analysis might better be construed but recognised that to do that it would be necessary to overturn a line of authority and his Honour did not go that far.

MR MOSHINSKY:   Yes.  What is clear in the three passages I have taken the Court to is that it was unnecessary to decide because, in any event, assuming separation of powers did apply, in the case of the legislation under consideration it would not have infringed.

BELL J:   Yes.

MR MOSHINSKY:   Hence, his Honour did not need to go to the step of deciding should those two authorities be overruled.  Your Honour, I might just reflect on your Honour Justice Gageler’s question but it may be because the Chief Justice was part of the other three that that resolved the question.

KEANE J:   I do not think it was, Mr Moshinsky because at page 176, Justice Gummow says:

However, 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 found in Ch III of the Constitution.

So that, in effect, four Justices supported the answer given to question one at page 176.

MR MOSHINSKY:   Yes.  Thank you, your Honour.  That does seem to be the answer. 

GAGELER J:   So you need to open re‑open Kruger. 

MR MOSHINSKY:   Can I just reflect on that, but it may be, your Honour.  The point I make next is that the other three Justices in Kruger took a different view. If I could just give the passage references – it is in Chief Justice Brennan’s judgment at pages 41 to 44, Justice Dawson’s judgment at page 62 and Justice McHugh agreed with Justice Dawson at pages 141 to 142.

Now, since that decision, there have been two significant developments which support the adoption of the preferred view of Justices Toohey, Gaudron and Gummow and call for reconsideration of the views expressed by Chief Justice Brennan and Justices Dawson and McHugh. The first of these is the general approach that this Court has taken to the relationship between section 122 and other parts of the Constitution, as seen in Wurridjal v Commonwealth (2009) 237 CLR 309; the second is the acceptance by this Court in a number of cases that Territory courts can and do exercise federal jurisdiction and thus the judicial power of the Commonwealth.

KEANE J:   But to say that they can and do is a long way from saying they do not do anything else.

MR MOSHINSKY:   I accept that distinction, your Honour, but underpinning particularly Justice Dawson’s judgment, with whom Justice McHugh agreed, was the view the Territories’ courts do not exercise the judicial power of the Commonwealth. There has been a change in the jurisprudence on that issue. The judgment of Chief Justice Brennan is informed by that earlier view of the relationship generally between section 122 and the rest of the Constitution which, in our view, has been reconsidered by this Court in Wurridjal. 

Taking those two points in turn, if I could take the Court to Wurridjal v The Commonwealth 237 CLR 309, in this case this Court held that the just terms requirement of section 51(xxxi) of the Constitution applied to laws of the Commonwealth Parliament providing for the acquisition of property in the Northern Territory. This conclusion followed from a more general reappraisal of the relationship between section 122 and other parts of the Constitution. In this regard we would highlight the following passages: in the judgment of your Honour the Chief Justice from pages 344 to 348, paragraphs 47 to 53, and the Chief Justice’s holding in relation to the 51(xxxi) issue is at paragraph 86.

We also refer to paragraphs 183 to 189 in the judgment of Justices Gummow and Hayne and paragraphs 283 to 286 in the judgment of Justice Kirby.  The second significant development, as I have indicated, is the acceptance by this Court that Territory courts can receive federal jurisdiction and thus the principle in Kable applies, and we refer here in particular to the decision of this Court in North Australian Aboriginal Legal Aid Services v Bradley (2004) 218 CLR 146 which I do not need to go to at this point.

So as we have said, these developments, in our submission, call for a reconsideration of the reasoning of the three in Kruger who held that Chapter III does not have – that the separation of powers in Chapter III does not have application to section 122 and supports the reasoning in the other three Justices’ judgments that I have taken the Court to.

If I could try to encapsulate the argument that we put as to why the separation of powers doctrine should apply to and limit section 122, we have set it out in our written submissions at paragraphs 23 to 25 but if I could highlight these six points. The first is that the Constitution must be read as a whole. The second is that section 111 of the Constitution provides that a Territory surrendered to the Commonwealth:

shall become subject to the exclusive jurisdiction of the Commonwealth ‑

which phrase is apt to include the Commonwealth’s legislative, executive and judicial power.  The third is that the judicial power of the Commonwealth is provided for in Chapter III which bears the heading “The Judicature” and which contains no indication, we submit, that its operation should be limited to the Commonwealth’s legislative powers in section 51.  Fourthly ‑ ‑ ‑

GAGELER J:   Sorry, does that lead to the proposition the Territory court is a court created by the Parliament within the meaning of section 72, your last proposition?

MR MOSHINSKY:   We do not seek to advance that proposition, your Honour, given the ‑ ‑ ‑

GAGELER J:   You are immediately drawing back from the breadth of the proposition that you have just advanced. 

MR MOSHINSKY:   I am not sure whether I would accept that, your Honour.

GAGELER J:   It does not matter, go on.

MR MOSHINSKY:   I was really saying that it is not – looking at Chapter III there is no reason why it should be limited to the legislative power in section 51 and not also include the legislative power in section 122.

GAGELER J:   Yes, Chapter III, there is a lot of sections in Chapter III. A separation of powers argument of the kind that you are seeking to advance, I think, needs to focus on section 71 and unless you get to the proposition that the judicial power of a Territory is necessarily the judicial power of the Commonwealth I am not sure you have the starting point for the argument.

MR MOSHINSKY:   We have said that that is the better view, and we think that that is the better view, and I will come to that in a bit of detail in a moment.  We do advance that proposition, your Honour; whether it is essential for us to do so, it is not clear to me.  It was not seen as essential in the judgments of the three in Kruger who favoured this view but some may see it as part and parcel of the argument and we are content with that.

The fourth point is that the underlying purposes for which the judicial power is separated from the political branches of government have significance for the Territories.  The separation of powers represents more than the bulwark of federalism, it also works to maintain the rule of law and protect the liberty of the individual.  These purposes have as much relevance to people in the Territories as to other people throughout the Commonwealth.

BELL J:   Well, looking at other people throughout the Commonwealth, if it is accepted that the separation of powers does not apply in the States, what is the basis for the argument to the extent that you call in aid that the separation of powers on Justice Gummow’s analysis in Kruger not only serves a function essential within the federal compact but provides, if you like, a measure of substantive rights to individuals but that measure of substantive rights does not inhere for the benefit of residents of States.

MR MOSHINSKY:   That is certainly true, your Honour, but one then looks at the purpose of these provisions in the Constitution and does that purpose have application to people in the Territory? We would submit, yes.

KEANE J:   You say it has greater effect in the Territories than it has in the States.  How does this happen?  Why are residents of the Territories in a different position in this regard than residents of the States?

MR MOSHINSKY: One could look at it the other way in terms of as a limit on Commonwealth power and at this point in the argument we are looking at it as a limit on Commonwealth power in section 122 and therefore we would say, well, why should the limit that exists in Chapter III not have application also to section 122 as it does to Commonwealth power in section 51?

KEANE J: Well, the answer to that might be that section 71 speaks of what the Parliament may or may not do with the judicial power of the Commonwealth.

MR MOSHINSKY: I understand the point your Honour is making, but the way we would look at it is as a limit on Commonwealth power rather than looking at it as comparing Territories to States, and Territories are not States. They are still within the purview of the Commonwealth. The Constitution contains constraints for powerful reasons on how the judicial power of the Commonwealth can be exercised.

FRENCH CJ:   Is it an implication of the general proposition underlying what you are saying that they did not need a just terms guarantee provision in the Northern Territory (Self‑Government) Act because the guarantee would apply also to limit the powers of the Northern Territory legislature?

MR MOSHINSKY: It could be, your Honour. We think that the question of whether limits in parts of the Constitution apply to section 122 and also apply to self‑governing Territories has to be worked out on a case‑by‑case basis, so that it may well be – and parity of reasoning with our argument, the answer would be yes.

Can I give your Honour another example? Section 116 of the Constitution, there seems to be consensus in the discussion in the authorities that that is a limit that applies to the Commonwealth under 122. The same question might arise, well, when the Commonwealth sets up a self‑governing legislature, could it pass a law that is not limited by 116? So our argument is analogous to that. But I will come specifically to the question of self‑governing legislatures in a second step of my argument in a few moments. I was going to ‑ ‑ ‑

BELL J:   Just before you move on from this, if you go to paragraph 24 of your submissions, you there raise the argument that you were just developing which did not seem to me to be an argument concerned with limitations on Commonwealth power, but rather on the separation of powers working to maintain the rule of law and to protect the rights of the individual, and you go on to refer to Dicey. 

It is in that context, that strand of your argument which I, for one, have difficulty understanding.  It is one thing to say that there is a constraint on power and that that flows through to the Territories, but it is another to say as a separate basis for your argument that one would have regard to the purpose of the separation of powers quite independently of federal considerations as rooted in rule of law and Diceyan laws.

MR MOSHINSKY:   I suppose all I can say, your Honour, is to say that those purposes inform the separation of powers at the Commonwealth level and the logic of that purpose is also applicable to people in the Territories or where the Commonwealth is exercising power in relation to the Territories, not yet getting to the step in my argument about self‑governing legislature.

The fifth point, in terms of our argument, is that to conclude that the separation of powers limits legislative power under section 122 does not call into question a result as opposed to the reasoning in Bernasconi. That decision concerned the specific relationship between section 80 and section 122 and can stand for what it decided on that point.

Sixthly, the submission does not require the Court to revisit the question of whether Territory courts are federal courts within the meaning of Chapter III. Territory courts, as I have indicated, fit within the structure of section 71 – not as federal courts constituted in accordance with section 72 but as one of those other courts which Parliament invests with federal jurisdiction.

Can I then turn to the second step in our argument that the limit applies also to self‑governing legislatures of a territory? One way of putting our argument is through the maxim that the stream cannot rise higher than its source. But, fundamentally, our proposition flows from the text and structure of the Constitution. Where there are express or implied limitations on the power in section 122, such as this limitation, it would be illogical and defeat their purpose if the Commonwealth were able to set up a self‑governing legislature which was not subject to the same limits.

Then I have given the example of section 116 so that if that was a limit on 122 – it seems to be accepted that it is – it would be very odd if a self‑governing legislature could be set up by the Commonwealth and then enact laws to establish a religion.

FRENCH CJ:   The proposition is that if the Commonwealth could not legislatively clothe a Commonwealth policeman with the powers of the kind that are conferred under section 133AB, nor can the Northern Territory legislature so clothe a Northern Territory policeman.

MR MOSHINSKY:   Yes, exactly.  That is what we would say.  As a matter of logic we would submit it does have some force to it that it would be odd if the Commonwealth can, by setting up a self‑governing legislature, empower it to do something that the Commonwealth itself cannot. 

BELL J:   But the self‑governing legislature can legislate with respect to a range of matters that the Commonwealth could not. 

MR MOSHINSKY:   I think the Commonwealth would be able to, under the territories power because of the breadth of subject matter, cover the same broad subject matter as the self‑governing legislature.

GAGELER J:   Do you accept that the self‑governing legislature can create a court constituted in a way that the Commonwealth Parliament cannot create a court?

MR MOSHINSKY: No, I am not sure we would have said that. We accept that Territory courts do not need to comply with the requirements of section 72. The rationale for that has been explained in a number of cases which we do not – and we do not challenge that. So, in the same way that the Commonwealth, if it was setting up directly a Territory court is not subject to the section 72 constraints, equally the self‑governing legislature is not subject to those constraints. But I think the question that your Honour put to me was a different one and if there were limits on what the Commonwealth could do, we would say the same limits would apply to the Territory legislature.

GAGELER J:   Well, I mean, it is a sweeping proposition. So you would say, presumably, that section 81 of the Constitution requires Territory revenues to go into a single consolidated revenue fund, do you? It is just very difficult to apply such a ‑ ‑ ‑

MR MOSHINSKY:   Well, I think – I do not want to be too sweeping. I think I did say that the interactions between limits elsewhere and section 122 would need to be worked out on a case‑by‑case basis. So our argument is limited to the doctrine of separation of powers. Assuming, as our first step, that it does limit section 122, then the question is assuming the Commonwealth is subject to that limit, it cannot enact this legislation itself, can it create a self‑governing legislature which is free of that limit? As a matter of logical metaphysics it would be odd if the self‑governing legislature could do that, we would submit.

BELL J:   Can you explain – you have said that Bernasconi can be accommodated on its facts, that is, it can be accepted that section 80 does not apply in relation to the trial on indictment of offences against a law of the Territory.

MR MOSHINSKY:   Yes.

BELL J:   So that the Territory legislature is free to enact legislation providing that on the trial on indictment a verdict may be returned by a majority.

MR MOSHINSKY:   Yes.

BELL J:   But that would not be possible in relation to the trial of an offence on indictment against a law of the Commonwealth. 

MR MOSHINSKY:   Yes.

BELL J:   How does that fit with your analysis?  That constraint on the argument that you have advanced would seem to apply as much to the capacity of the legislature of the Northern Territory to provide for majority verdicts, surely.

MR MOSHINSKY:   I think all the discussion of this Territory, of the relationship between Chapter III and section 122 acknowledges that really whichever view one takes there are difficulties.

BELL J:   Yes.

MR MOSHINSKY:   The question is at this point in time, given the very significant developments that have occurred since Kruger, is really the better way of rationalising the relationship between Chapter III and section 122 the one which we contend for? I accept that I think whichever approach one takes it is not going to be totally consistent. I think everyone on both sides of this debate would accept that, your Honour.

So far as the other Kable argument is concerned, we simply say that this legislation properly construed has a non‑punitive purpose.  So, no Kable issue can arise of the sort potentially identified by your Honour Justice Gageler.

GAGELER J:   If you are wrong on that?

MR GRANT:   Even if it was construed as having a punitive purpose, the punitive effect can be taken into account when imposing penalty under the criminal processes. 

GORDON J:   I do not quite understand that last proposition.  Is it your submission that when you say the punitive purpose could be taken into account they have already decided by keeping them in detention for a period of up to four hours?

MR GRANT:   The Kable complaint though, your Honour, would be that the court is implicated or drawn into a process whereby punishment has already been imposed by the Executive and the court is called upon to impose double punishment, if you like, or a second form of punishment.

GORDON J:   That is one it is put.  The other way it is put is the punishment has already been imposed by the Executive and that person is not available to the court to have that punishment considered.

MR GRANT:   Yes, that is the other way of putting it, your Honour, but what it would be open to the court to do at that point would be to simply impose no further penalty on the court if it was of the view that the punitive effect had been, if you like ‑ ‑ ‑

KEANE J:   There had been sufficient punishment.

MR GRANT:   Yes, sufficient punishment, precisely.

KEANE J:   The court did not impose that punishment.

MR GRANT:   It did not, and it is not obviously implicated by this particular scheme in the sense that there is no element of cloaking or conscription of the court.

KEANE J:   Nothing obliges the court to impose a further fine.

MR GRANT:   That is so, your Honour.  The other thing is it is not a far cry from the operation of some of those criminal property forfeiture provisions in that you have forfeiture by legislative Act in respect of the commission of an offence and then subsequently the imposition of criminal penalty for that same offence and it is open to the courts to take into account the punitive effect of the forfeiture in fixing that penalty.

Now, I know there are obvious shades of difference in comparison to this sort of situation, but the mere fact that the legislature or the Executive has passed legislation with punitive effect in respect of particular conduct and that the courts are subsequently called upon to consider in the context of the criminal process that conduct and the imposition of penalty in respect of that conduct does not mean that there is a Kable problem.

GORDON J:   Is your answer the same in respect of that category of case where somebody is held in detention for up to four hours but only fined – issued an infringement notice and paid the fine?

MR GRANT:   Well, there is obviously no Kable issue there, your Honour, because the person is released with an infringement notice.  The offence is expiated by the payment of a fine and the court is not called upon to deal with the issue at all.

GORDON J:   If the provision is of a punitive nature then the person who is engaged and imposed with imprisonment is not the judiciary.

MR GRANT:   No, but the same goes with any infringement notice offence, your Honour.  The punishment is not imposed by the judiciary.  The fact that there has been a period of detention before the issue of the infringement notice and the fine taking effect does not change that position – does not give rise to a Kable problem, in our submission.  If it please your Honours, they are the submissions.

FRENCH CJ:   Thank you.

MR GLEESON:   Your Honours, the bulk of what the Commonwealth wishes to say concerns the jurisdiction issue and that is apparent from pages 1 and 2 of the outline and I do wish to take up the issue both at the anterior level and whether the Commonwealth could authorise this as well as the level at which Mr Grant has addressed it at.

It might be convenient just in the short time this afternoon, before I come to the specific response to the plaintiffs’ argument, which is in our outline, just to positively put our propositions on the jurisdictional question and there are about seven. The first is a proposition about the scope of section 122 of the Constitution, that it is a sufficiently broad and flexible power to enable the Commonwealth Parliament to establish institutions for the governance of the various Territories that may, but need not necessarily, conform to the separation of powers embodied in Chapter III; may but need not necessarily. That is part of the flexible choice available to the Commonwealth and so, for that reason, the Boilermakers’ limits are not implicitly adopted in section 122. Now, if that is correct, that disposes of the first way the plaintiff puts the argument.

The second proposition is about section 71 of the Constitution and it is a proposition about what is the judicial power of the Commonwealth and it is that the judicial power of the Commonwealth is that judicial power which attaches to the Commonwealth in virtue of its character as the central polity of the federation. In putting that way, we embrace what Justice Kitto said in Spratt v Hermes at page 251.

The third proposition, which is the corollary of that, is that section 71 is not addressed to other species of judicial power which may exist within the federation and thus does not speak in terms to the judicial power of the States - number one, to the judicial power which attaches to the Territories under self‑governing arrangements, which would be the present case, nor to the third situation where the judicial power attaches to the Commonwealth but by virtue of its direct responsibility for Territories.

So, in the anterior situation in the life of the Northern Territory where it was a direct Commonwealth law establishing the Northern Territory Supreme Court, it is correct to speak of that as something other than the judicial power of the Commonwealth within section 71. It is the Commonwealth acting pursuant to section 122 to establish a form of judicial power.

Your Honours, the fourth proposition concerns the relationship between the Northern Territory Supreme Court and section 71 of the Constitution. We agree with Mr Grant that the Northern Territory Supreme Court is not a federal court created by the Parliament. The plaintiff does not seem to challenge that, but it is important to establish that that proposition of law remains good and it is good for at least two reasons: one, that adverted to by Justice Keane that it is not created by the Parliament - that is enough to dispose of it – and it is not created in any sense by a delegate of the Parliament, but also for a second reason, and this perhaps covers slightly differently what Mr Grant has put.

It is not created, even by the Territory Assembly, as a Federal Court, that is, a court dedicated to the exercise of jurisdiction in one or more of the matters in sections 75 and 76. 

The next proposition is that within the third set of courts referred to in section 71, the Northern Territory Supreme Court is capable of being invested with federal jurisdiction, and that would occur by a relevant law of the Commonwealth Parliament and such a law would either supplement or potentially displace jurisdiction which it holds under the law of the self‑governing Assembly as Territory jurisdiction. So that is possible, but the critical thing is its jurisdiction is not always and necessarily federal. The second‑last proposition is that ‑ ‑ ‑

GAGELER J:   Mr Solicitor, can I – well, perhaps state your proposition, I want to come back to that.

MR GLEESON:   The second‑last proposition is closer to this case, that where one is looking at a grant of jurisdiction which is said to be judicial power – that is in dispute – and where the rights and liabilities arise under a Territory law, then it is Territory jurisdiction involved. There is no exercise of judicial power of the Commonwealth and for that reason the law would survive challenge in this case, even if it is penal and judicial, and the final proposition directly seeks to answer your Honour Justice French’s question. This could be done by a Commonwealth law under section 122 giving this power to the police in the Northern Territory even if it is penal and judicial. I am sorry, Justice Gageler.

GAGELER J:   No, not at all, I am sorry to interrupt you. It really relates to the last few propositions that you put. The expression “federal jurisdiction” is used in section 71, section 73 and section 76 – I am sorry,

77(iii). Now, presumably it is used consistently in each of those cases. In relation to section 77(iii) what amounts to federal jurisdiction has been given a very expansive interpretation in LNC Industries and other cases.  All you need, on one view, is to have a Commonwealth law which is a sine qua non of the right that is in issue between parties. 

Now, accepting what you say about section 71, that is to say it is concerned with the investing of the judicial power of the Commonwealth in courts, why cannot section 73 in its reference to courts exercising jurisdiction pick up by reference to that enlarged understanding of the exercising of federal jurisdiction, what you describe as Territory jurisdiction, why cannot Territory jurisdiction answer the description of federal jurisdiction albeit not federal jurisdiction that is invested by a Commonwealth law in the sense of section 71? Sorry to make that such a long question.

MR GLEESON: Well, as I understand your Honour’s question it would not mean under section 71 that the Northern Territory Supreme Court is always invested in federal jurisdiction even when it is doing purely local matters. But it might have some relevance to the scope of what can come to this Court under section 73.

GAGELER J:   Yes.  I think it is Justice Gaudron’s point – and I wonder if you really need to challenge Justice Gaudron’s point to make good your argument about separation of powers.

MR GLEESON:   We certainly say Justice Gaudron is wrong and has not been adopted by other Justices and should not be adopted by your Honours.  To give the simplest example, if a matter was in diversity jurisdiction under section 75(iv), that is an available head of federal jurisdiction so it is an available head but it is not necessary that it be done under the judicial power of the Commonwealth.  It could be done by the States under State jurisdiction, subject to the Judiciary Act displacing that with a federal jurisdiction. 

It is that sort of analysis that we would say applies in the Territory, a dispute between residents of different States which properly come to the fore at Territory court is capable of being done as Territory jurisdiction. If that means not every matter can constitutionally come to the court under section 73 that is the consequence of the limitations in section 73. Perhaps I should develop that tomorrow.

FRENCH CJ:   Yes.  We will adjourn now until 10.15 am tomorrow morning.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 2 SEPTEMBER 2015