Ravenor Overseas Inc & Ors v Readhead

[1998] HCATrans 62

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P52 of 1997

B e t w e e n -

RAVENOR OVERSEAS INC

First Plaintiff

FERNANDO GABRIEL MIRANDA

Second Plaintiff

JAKUP ANDREAS ANDREASSEN

Third Plaintiff

and

PHILIP MARTIN READHEAD

First Defendant

THE AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Second Defendant

THE COMMONWEALTH OF AUSTRALIA

Third Defendant

For directions

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 11 MARCH 1998, AT 12.01 PM

Copyright in the High Court of Australia

____________________________

MR M.J. McCUSKER, QC:   May it please your Honour, I appear together with my learned friend, MR P.W. JOHNSTON, for the plaintiff. (instructed by Jackson McDonald)

MR H.C. BURMESTER, Acting Solicitor-General for the Commonwealth:   If it please your Honour, I appear for the defendants.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Burmester, or Mr Acting Solicitor, I understand it is.  Is that so?

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   Yes, Mr McCusker.

MR McCUSKER:   May it please your Honour, this is an application, pursuant to section 18 of the Judiciary Act, seeking an order that a case be stated and questions reserved for the consideration of the Full High Court.  The terms of the case stated appear annexed to the summons, and the questions sought to be reserved for consideration of the Full Court appear there.  Do I take it your Honour has read those questions, or should I take your Honour to them?

HIS HONOUR:   Yes, I have.

MR McCUSKER:   Thank you, your Honour. 

HIS HONOUR:   Am I right in thinking that the questions you want reserved are questions which are designed to canvass the correctness of the judgment of this Court in Li Chia Hsing v Rankin?

MR McCUSKER:   Precisely so, your Honour.  In that regard, could I refer immediately to Li Chia Hsing? In that case, the precise issue was sought to be raised and, in fact, was the subject of a section 78B notice, the terms of which appear at page 186 of 141 CLR 186. There was, in fact, no argument addressed to this very important issue in that case, as observed by Justice Murphy at 141 CLR, at page 203.

HIS HONOUR:   It may have been thought that it was not arguable.

MR McCUSKER:   No, your Honour.  I have the advantage of having Mr Johnston as my junior, and he tells me that the background to it was that, although the point was intended to be argued, there was a last minute change of counsel, and counsel was not in a position to argue the issue, so it was not argued at all.  Justice Murphy says, at page 203:

Another point raised by the applicant (although not raised on the application to remove) was that the naval vessel commander who arrested the applicant’s boat was acting illegally and that his evidence was therefore inadmissible or should have been excluded as having been illegally obtained.  The contention was that his action was an abuse of the defence power in that the naval defence forces could not be employed on such a task.  Literally no argument was advanced to support this contention and for that reason I would reject it.  There may be serious questions as to how far the defence forces may properly be involved in civil affairs but this is not the occasion to consider such questions.

So, your Honour, the point, though raised, was literally not argued and that, we say, is one compelling reason in support of the application to reopen this issue.  Furthermore, the matter which was referred to, of course, and by all members of the High Court in that case - albeit, there was no argument addressed to it - has not been since canvassed comprehensively, or otherwise, before the High Court.  It is an important issue.

HIS HONOUR:   What is the argument in support of the proposition?

MR McCUSKER:   Your Honour, it really is based on an implied limitation of the use of the defence forces for the purpose of what would be regarded normally as civil operations.  In this case - we are, of course, not at war - as set out in the facts put forth in the case stated, the defence forces, in this case armed members of the Australian Defence Force, comprising two boarding parties - this appears at paragraph 5 of page 2 of the case stated - the vessel was boarded by other members of the defence force:

At 09.15 hours the first of two boarding parties left the HMAS Anzac by Sea Hawk helicopter.  Video tape of the vessel and the boarding operation was taken from the helicopter -

and a description of the boarding party:

All members of the first boarding party were armed and boarded the vessel by fast rope insertion from the helicopter.

It was, in all respects, your Honour, a military operation, and the question is whether such a military operation, carrying with it, as it did, the kind of discretion coercive force that is customarily used by the civil forces - that is, the police force - is appropriate to be used, and can lawfully be used, in circumstances of this nature.  Clearly there is a line that must be drawn, but the question where should it be drawn.  We have, in our outline of submissions - - -

HIS HONOUR:   Why should there be a constitutional line drawn?  That is what I am looking for.

MR McCUSKER: Your Honour, the implication, we say, and a very strong one, emerges from three provisions of the Constitution. Section 51(vi) of the Constitution provides that:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(vi)  The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:

but section 68 provides that:

the command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.

There is further, section 119:

The Commonwealth shall protect every State against invasion -

but this is not such a circumstance.

HIS HONOUR:   Section 61 vests the executive - - -

MR McCUSKER:   And domestic violence.

HIS HONOUR:   Section 61 vests the executive power of the Commonwealth in the Governor-General; 69 makes him the Commander of the Defence Forces.  He acts upon civil advice of his Ministers.  Where is the possible implication arising?

MR McCUSKER:   It is really grounded in the historical distinction to be drawn between a standing army, and the history of that, your Honour, was referred to with considerable force in Re Tracey, a case which is referred to.  The question is whether the armed forces can be used as a standing army for civil purposes for the enforcement of civil acts or, in this case, for the arrest of a vessel which is not a vessel owned by or operated by an enemy of Australia at a time when there is no war or declaration of war.  It really is important to consider the question of whether a standing army can be used without any civil supervision. 

In this case, we say the line that should be drawn occurred where the defence forces, armed as they were and in all respects conducting a military operation, conducted that military operation, the first boarding party was unsupervised by any civilian authority, although later on an officer, Readhead, did come aboard, but that was at the time when the vessel was secured, arrests had been made and the seizure was complete.  So there was no civil supervision; the Army itself, the armed force, was acting in an untrammelled way, and that, historically, is something which is a cause for great concern.

HIS HONOUR:   Are there proceedings pending in the Magistrates Court in Western Australia?

MR McCUSKER:   There are, your Honour, but at this stage the proceedings which are pending are simply a preliminary hearing and, as yet, there is no decision as to whether the matter will go to trial.  And the preliminary hearing - - -

HIS HONOUR:   What is pending there?

MR McCUSKER:   There is a complaint, your Honour, which appears annexed to the case stated in schedule C.  Those complaints, as I said, your Honour, are presently before the Magistrates Court although there has been no hearing as yet.  The time has been fixed for a preliminary hearing, which I think is July of this year.  The advantages in terms of the interests of justice in having these issues raised by the case stated determined by the High Court in the first instance were set out at paragraph 11 and following in our outline of submissions.

HIS HONOUR:   Mr McCusker, let me put this to you.  This is a matter which arises which is brought here because there are proceedings pending before justices in Western Australia arising out of the seizure of this ship.  The question that is sought to be raised has already been decided by this Court, either with or without argument, and the courts will ordinarily apply the law as laid down by this Court.  Why should the matter not proceed in its ordinary way in accordance with this authority of this Court as decided in the case of Li Chia Hsing?

MR McCUSKER:   The reason, your Honour, is this, that it is clear that the courts, the lower courts, will consider themselves bound by Li Chia Hsing.

HIS HONOUR:   Quite.

MR McCUSKER:   So that it will be futile to argue or attempt to reargue the decision before those lower courts.  Inevitably, therefore, the matter will come forward by way of an application for special leave to the High Court.

HIS HONOUR:   Depending upon the results in the courts below.

MR McCUSKER:   That is so, but if the matter is sought to be raised as a basis for staying on the ground of abuse of process, the matter will simply be dealt with by the courts below at each level on the basis of Li Chia Hsing.

HIS HONOUR:   And so it should be.

MR McCUSKER:   Certainly, your Honour, I accept that, but the problem with that is that there is a considerable waste of judicial time if, at the end of the day, this issue comes before this Court and is determined in favour of the applicant.  Li Chia Hsing certainly binds the lower courts, but it is quite clearly, as the observations of Justice Murphy show, a decision which was made literally without any argument.  There was no argument at all addressed to this very important issue.  We say that is the first reason in terms of utility and the interests of justice and the avoidance of the waste of judicial time.  The second reason we advance, your Honour, is that this is a very important issue, as ‑ ‑ ‑

HIS HONOUR:   Just before you go on.  When you speak about the waste of judicial time, what if this proceeding never reaches this Court?

MR McCUSKER:   Well, that is a hypothesis that could arise, but only if the applicant were to abandon the argument.

HIS HONOUR:   You mean otherwise there will be a plea of guilty?

MR McCUSKER:   No, your Honour.

HIS HONOUR:   Then how can you make that submission?

MR McCUSKER:   What your Honour is envisaging there is the possibility of the matter proceeding to trial and a result being obtained which is in favour of the result of acquittal.

HIS HONOUR:   Yes.

MR McCUSKER:   That is one possibility, but another one, your Honour, is that if the magistrate were to refuse to stay the proceedings, the matter would then go forward to the Court of Criminal Appeal in Western Australia seeking a stay by way of a review of the magistrate’s decision and that if that stay were ‑ ‑ ‑

HIS HONOUR:   What possible ground is there for a stay?

MR McCUSKER:   On the ground of abuse of process based on the proposition, which we advance, that this was an unlawful use of the defence forces.

HIS HONOUR:   That would be, surely, a most erroneous decision for any lower court to take, when they are bound by the judgment of this Court.

MR McCUSKER:   Precisely, your Honour, and it would be an erroneous decision ‑ ‑ ‑

HIS HONOUR:   So, the application ought never to be made.

MR McCUSKER:   Well, your Honour, the difficulty is that we would seek to contend, before each of the lower level courts, that the decision in Li Chia Hsing, should be reviewed and the only court that can review that decision, of course, is the High Court.

HIS HONOUR:   The question can be reserved before each of those courts.  But to suggest that the Court should stay the action, because of an abuse of process when they are bound by the authority of this Court, strikes me as an extraordinary proposition.

MR McCUSKER:   Your Honour, there are two ways that this matter could be ultimately ventilated before this Court, and a very important matter at that.  One is by the route of proceeding before the magistrate, seeking a stay - that being necessarily rejected on the basis of the authority of Li Chia Hsing - seeking to have that decision reviewed by the Court of Criminal Appeal.  That, in turn, being rejected by the Court of Criminal Appeal, and then seeking a review by this Court.  That is a very long route.  Another possible route would be to simply go through the entire proceedings, reserving this issue for consideration by the High Court.

But, that again, if ultimately this Court were to reconsider the decision in Li Chia Hsing favourably to this applicant, there would be considerable waste of both court time, in the intervening proceedings, as well as, of course, cost and expense to the applicant.  That is the reason why we say that there is great utility, as set out in paragraphs 11 and following of our outline, in this matter being dealt with on a case stated by this Court.  If the Court resolved the matter favourably to the applicant, then that would be a great time saving and cost saving, and of great utility to all parties concerned.

There is, as I was going to say, your Honour, a second aspect to it and that is that this is a very important issue.  The Commonwealth has clearly continued to act in this case and, no doubt, other cases on the authority of Li Chia Hsing.  It is an authority which, with great respect, is based on no argument whatsoever being advanced by the applicant and, indeed, that is why Justice Murphy, one of the members of that Court, said that although the issue was important, because of the lack of argument, it was not the occasion to consider it.

Could I mention to your Honour, that there is no, as we see it, real issue as to the essential facts involved in this case.  So it is not a case where the Court would be faced with any controversial issues of fact.  We set out in part C of our outline the essential outline of the constitutional argument which, we submit with respect, show that there is clearly a serious and arguable case.  Unless I can assist your Honour further on this matter, they are our submissions.

HIS HONOUR:   Do you wish to say anything about the question of the remitter of the civil proceeding that is pending in this Court to the Federal Court?

MR McCUSKER:   Your Honour, the difficulty there is that it raises the same problem in terms of the ultimate futility.  If we are to seek to argue Li Chia Hsing before the Federal Court, undoubtedly that court would, quite properly, consider itself bound by Li Chia Hsing. 

HIS HONOUR:   Yes, thank you.

MR McCUSKER:   May it please your Honour.

HIS HONOUR:   What is the attitude of the defendants, or the respondent in this matter, Mr Acting Solicitor?

MR BURMESTER:   Your Honour, we say that despite the arguments made by my friend that it would be appropriate to remit the whole of this matter to the Federal Court.  The proposed case stated, of course, only raises one of the grounds relied upon by the plaintiffs.  In their case, there is reference to an argument based on the acquisitions power and also an argument based on the invalidity of the exercise of powers on the high seas.  Those issues could still remain for resolution whatever decision might be made in relation to the one issue that they seek to have a case stated in respect of.

In relation to the Li Case itself, your Honour, we say that it does stand as authority for the proposition put within it, that while there may not have been full argument on the point, all the members of the Court endorsed the conclusion that there was no implied limitation on the use of the defence power in the assistance of other arms of government, including, in particular, in relation to fisheries offences such as in this particular case.  The plaintiffs, in our view, have not adequately established any ground on which this Court itself would be justified in reopening the decision in Li Chia Hsing.  It appears only reference - - -

HIS HONOUR:   I do not need to hear you further on that, I think, Mr Acting Solicitor.

MR BURMESTER:   Yes, your Honour.  If the Court was not minded to remit the whole matter, then there would, of course, be matters I would wish to submit in relation to the facts in the proposed question.  But, in our submission, the issue is not simply the use of defence force power but certain actions were taken by fisheries officers.  The first direction was given by a fisheries officer.  In our contention, the direction to detain the vessel, the decision that there was sufficient evidence to move the vessel to Fremantle were all the consequence of actions by fisheries officers.  So, in our submission, to try and determine the ability to use the defence force as if it was the defence force acting alone and on its own initiative would be to

misconstrue the facts and would not necessarily lead to the same conclusion and certainly would not be desirable to deal with it in that isolated way.  If the Court pleases.

HIS HONOUR:   Thank you, Mr Acting Solicitor.  Do you have anything in reply, Mr McCusker?

MR McCUSKER:   Your Honour, it is true that the question of the acquisitions power is also raised in the proceedings themselves but we do not seek to have that determined on a case stated.  If the issues sought to be determined by case stated are resolved in favour of the applicant, it is true that the acquisitions power issue would still proceed.  That is quite a discrete matter.  So far as the fisheries officers involvement is concerned, that is not a question which need trouble the Court on the case stated if an order is made, because it is the initial seizure of the vessel that is at issue here by the defence forces and the question of the appointment of officers of the defence forces pursuant to the Fisheries Act as fisheries officers.

The question of the appointment of officers of the defences forces pursuant to the Fisheries Act as fisheries officers.  So, they are the two issues that are raised, and neither of those issues involves any question of what part the fisheries officers - that is, in the true sense - not defence force officers play there after that.  That issue does not come before the Court on the case stated proposed.

HIS HONOUR:   Mr McCusker, am I right in thinking that the plaintiffs in the action that is pending here seek an injunction to restrain the proceedings before the Magistrates Court?

MR McCUSKER:   There is an injunction sought, yes, in the writ, your Honour.

HIS HONOUR:   Yes.  Thank you.

MR McCUSKER:   Thank you, your Honour.

HIS HONOUR:   This is a summons seeking the stating of a case and the reserving of questions for the opinion of the Full Court in a matter arising out of the arrest of a ship which was allegedly found in waters off Heard Island engaged in fishing activities contrary to the provisions of the Fisheries Management Act (1991) (Cth).

In substance, the question that the plaintiffs seek to raise is whether there is any constitutional impediment to Defence Force personnel assisting in the enforcement of the Fisheries Management Act.  This question was raised and decided in Li Chia Hsing v Rankin (1978) 141 CLR 182. The entire Court, with the possible exception of Justice Murphy, were of the opinion that there is no constitutional reason why members of the Defence Forces should not assist in carrying out the provisions of the fisheries legislation.

At present prosecutions are pending in the Magistrates Court of Western Australia and, as the plaintiffs acknowledge, that court and the State Court of Criminal Appeal, if the matter should reach that Court, are likely to take the view that they are bound by Li Chia Hsing.  And so they should.  Nothing is more important to the due administration of justice than that the Courts of Australia should faithfully follow the decisions of this Court.  This Court has the responsibility of determining the law applicable throughout the Commonwealth.  Nor should it be thought that, because some new argument can be devised contrary to a holding of this Court, that the authority of its decisions become problematic.  Although the decisions of this Court will, when this Court deems it necessary, be revisited, there should be no qualification about the duty of other Courts faithfully to apply the decisions of this Court as they stand.

Although in recent times rapidly changing social conditions and new insights into the Constitution have led to some notable instances where this Court has revisited earlier decisions, it would be erroneous to assume that the corpus of jurisprudence laid down by this Court over nearly a century does not have complete authority. The decisions of this Court determine the law to be applied by courts throughout the Commonwealth.

In the present case it would be destructive of the authority of this Court to entertain an application to revisit Li Chia Hsing for the purpose of deciding a question to be raised in a summary prosecution in which no evidence has been taken.  I decline to reserve a question for the consideration of the Full Court.

Further, there is the question of the remission to the Federal Court of the action commenced by the plaintiffs in this Court.  A statement of claim has been pleaded to by a defence, so there are issues joined between the parties which must be resolved by judicial determination.  The power of remitter contained in section 44 of the Judiciary Act (1903) (Cth) is designed to ensure that this Court is not diverted from its principal functions by the need to hear and determine matters in the original jurisdiction which could properly be brought in an Australian trial court.

In remitting this matter to the Federal Court of Australia, I would observe that parties who seek interlocutory relief, or relief which has to do with the conduct of proceedings in other courts, even if it be based on some constitutional point, ought to seek that relief from a court in which the trial of issues is ordinarily conducted, not from this Court.

Accordingly, I dismiss the summons and refuse to state a case or to reserve questions for the opinion of the Full Court.  I remit the matter to the Federal Court of Australia. 

Any other applications?

MR McCUSKER   No, thank you, your Honour.

BRENNAN CJ:   Very well.  Adjourn the Court to a date to be fixed.

AT 12.28 PM THE MATTER WAS CONCLUDED