Re Grinter; Ex parte Hall
[2004] WASCA 79
•22 APRIL 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: RE GRINTER; EX PARTE HALL [2004] WASCA 79
CORAM: MALCOLM CJ
STEYTLER J
MCKECHNIE J
HEARD: 20 AUGUST 2003
DELIVERED : 22 APRIL 2004
FILE NO/S: CIV 1900 of 2003
MATTER :Application for a Writ of Certiorari against TREVOR CEDRIC GRINTER
and
Application for a Writ of Prohibition against the JUSTICES comprising the COURT OF PETTY SESSIONS at Perth
EX PARTE
MATTHEW JAMES HALL
Applicant
FILE NO/S :CIV 1901 of 2003
MATTER :Application for a Writ of Certiorari against TREVOR CEDRIC GRINTER
and
Application for a Writ of Prohibition against the JUSTICES comprising the COURT OF PETTY SESSIONS at Perth
EX PARTE
BARRYMORE CHARLES DAVIS
Applicant
FILE NO/S :CIV 1902 of 2003
MATTER :Application for a Writ of Certiorari against TREVOR CEDRIC GRINTER
and
Application for a Writ of Prohibition against the Justices comprising the COURT OF PETTY SESSIONS at Perth
EX PARTE
SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD (ACN 000 553 284)
Applicant
FILE NO/S :CIV 1903 of 2003
BETWEEN :SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD (ACN 000 553 284)
Plaintiff
AND
TREVOR CEDRIC GRINTER
First DefendantRICHARD MONTGOMERY ANDERSON
Second Defendant
Catchwords:
Prerogative writs - Certiorari - Order nisi directed to officer of Court of Petty Sessions and Justices comprising Court of Petty Sessions to show cause why decision to issue summonses to examine witnesses should not be quashed and why writ of prohibition should not be issued against Justices from proceeding further with respect to examining witnesses
Constitutional law - Separation of powers - Whether s 102 of the Justices Act 1902 (WA) is a valid law of the Parliament of Western Australia - Whether powers that s 102 of the Justices Act 1902 (WA) confers upon the Court of Petty Sessions are judicial powers or powers incidental to judicial power - Exercise of power does not involve carrying out of a judicial function - Exercise of power not incidental to the carrying out of a judicial function - Whether Justices can validly issue a summons under s 74 of the Justices Act 1902 (WA) if complaint is for an indictable offence not triable summarily - Whether s 102 of the Justices Act 1902 is invalid
Constitutional law - Jurisdiction - Whether s 102 of the Justices Act 1902 is picked up by the Judiciary Act 1903 (Cth)
Constitutional law - Crossvesting - Whether the Judiciary Act 1903 (Cth) is incapable of picking up s 102 of the Justices Act 1902 (WA) - Section 102 of the Justices Act 1902 (WA) is not picked up by the Judiciary Act 1903 (Cth)
Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Constitution (Cth), s 75, s 76(ii), s 77
Crimes Act 1914 (Cth)
Criminal Law Consolidation Act 1935 (SA)
Judiciary Act 1903 (Cth), s 68, s 78B, s 79, s 80
Justices Act 1902 (WA), s 1, s 2, s 4, s 5(1), s 20(2), s 66, s 73(1), s 74, s 102, s 103, s 104(2)(3)
Proceeds of Crimes Act 1987 (Cth), s 83(1), s 84
Rules of the Supreme Court 1971 (WA), O 56 r 5
Result:
Summons for compulsory examination quashed
Court of Petty Sessions prohibited from seeking to exercise powers under s 102 of the Justices Act 1902 (WA)
Orders nisi made absolute in part
Applicants entitled to the declarations and injunctions sought in the writ to the extent necessary to reflect the invalidity of the issuing of the various witness summonses
Category: A
Representation:
CIV 1900 of 2003
Counsel:
Applicant: Mr M E Dean SC & Mr S Donaghue
Interested Party : Mr W S Martin QC & Mr L R M Fletcher
Solicitors:
Applicant: Dwyer Durack
Interested Party : Commonwealth Director of Public Prosecutions
CIV 1901 of 2003
Counsel:
Applicant: Mr A R Beech
Interested Party : Mr W S Martin QC & Mr L R M Fletcher
Solicitors:
Applicant: Tottle Partners
Interested Party : Commonwealth Director of Public Prosecutions
CIV 1902 of 2003
Counsel:
Applicant: Mr B W Walker QC & Mr M B J Lee
Interested Party : Mr W S Martin QC & Mr L R M Fletcher
Solicitors:
Applicant: Corrs Chambers Westgarth
Interested Party : Commonwealth Director of Public Prosecutions
CIV 1903 of 2003
Counsel:
Plaintiff: Mr B W Walker QC & Mr M B J Lee
First Defendant : No appearance
Second Defendant : No appearance
Interested Party : Mr W S Martin QC & Mr L R M Fletcher
Solicitors:
Plaintiff: Corrs Chambers Westgarth
First Defendant : No appearance
Second Defendant : No appearance
Interested Party : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Adams v Cleeve (1935) 53 CLR 185
Ah Yick v Lehmert (1905) 2 CLR 593
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Barton v The Queen (1980) 147 CLR 75
Bass v Permanent Trustee Co (1999) 198 CLR 334
Blurton v Commonwealth Minister for Aboriginal Affairs (1991) 29 FCR 442
Breavington v Godleman (1988) 169 CLR 41
British Medical Association in Australia v Commonwealth (Pharmaceutical Benefits case (No 2)) (1949) 79 CLR 201
Brown v The Queen (1986) 160 CLR 171
Cheatle v The Queen (1993) 177 CLR 541
Commonwealth of Australia v Mewett (1997) 191 CLR 471
Commonwealth v District Court of the Metropolitan District Holden at Sydney (1954) 90 CLR 13
Director of Public Prosecutions (Cth) v Bayly (No 1) (1994) 63 SASR 97
Ex parte Christianos v Director of Public Prosecutions (1992) 9 WAR 345
Felton v Mulligan (1971) 124 CLR 367
Fencott v Muller (1983) 152 CLR 570
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Gould v Brown (1998) 193 CLR 346
Grassby v The Queen (1989) 168 CLR 1
Grollo v Palmer (1995) 184 CLR 348
Hilton v Wells (1985) 157 CLR 57
John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65
Kable v Director of Public Prosecutions of New South Wales (1996) 189 CLR 51
Kesavarajah v The Queen (1994) 181 CLR 230
Kruger v The Commonwealth of Australia (1997) 190 CLR 1
Leeth v Commonwealth of Australia (1992) 174 CLR 455
Mellifont v Attorney‑General (Qld) (1991) 173 CLR 289
Mistretta v United States (1989) 488 US 361
Mitchell v The Queen (1996) 184 CLR 333
Northern Territory v GPAO (1999) 196 CLR 553
Pedersen v Young (1964) 110 CLR 162
Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460
Polyukhovich v Commonwealth (1991) 172 CLR 501
Price v Ferris (1994) 74 A Crim R 127
Putland v The Queen (2004) 204 ALR 455
Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144
R v Craig and Rodgers (1989) 5 WAR 107
R v Gee (2003) 212 CLR 230
R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254
R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338
R v Murphy (1985) 158 CLR 596
R v Sender (1982) 71 FLR 62
R v Ward (1978) 140 CLR 584
R v Williams; R v Somme (1934) 34 SR (NSW) 143
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Seaegg v The King (1932) 48 CLR 251
Solomons v District Court of New South Wales (2002) 211 CLR 119
Williams v The King [No 2] (1934) 50 CLR 551
Case(s) also cited:
Austral Pacific Group Ltd (In Liq) v Airservices Australia (2000) 203 CLR 136
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182
Craig v State of South Australia (1995) 184 CLR 163
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Federated Sawmill Timber Yard and General Woodworkers Employees Association v Alexander (1912) 15 CLR 308
Hammond v Commonwealth of Australia (1982) 152 CLR 188
Lamb v Moss (1983) 76 FLR 296
Le Mesurier v Connor (1929) 42 CLR 481
Ly v Jenkins (2001) 114 FCR 237
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333
Re Colina; Ex parte Torney (1999) 200 CLR 386
MALCOLM CJ:
The Proceedings before the Court
This is the return of orders nisi for writs of certiorari by the applicants, Matthew James Hall, Barrymore Charles Davis and Salmat Document Management Solutions Pty Ltd ("Salmat") requiring the first respondent, Trevor Cedric Grinter, an officer of the Court of Petty Sessions at Perth and the second respondents, the Justices Comprising the Court of Petty Sessions at Perth, to show cause why the decision by Mr Grinter to issue summonses to examine witnesses should not be quashed; why a writ of prohibition should not be issued against the Justices from proceeding further with respect to any examination of any witness summonsed pursuant to s 102 of the Justices Act 1902; and why a writ of prohibition should not be issued against them from proceeding further with respect to committing or purporting to commit the applicants to a court of competent jurisdiction for trial pursuant to s 104(3) of the Justices Act.
In addition, orders are sought for a stay of proceedings pursuant to O 56 r 5 of the Rules of the Supreme Court 1971 until the determination of the application on:
(a)any summons issued pursuant to s 102 of the Justices Act to any witness to testify what such witness knows with respect to the complaint made in the proceedings; and
(b)committing or purporting to commit the applicant to a court of competent jurisdiction for trial pursuant to s 104(3) of the Act.
An order also was made that the applicant serve notices forthwith on the Attorneys‑General of the Commonwealth and State pursuant to s 78B of the Judiciary Act 1903 (Cth). A timetable was laid down for the filing and service of affidavits to enable the hearing of this application to be expedited and listed before this court on 20 August 2003. The grounds were amended by order of McKechnie J on 29 July 2003 by adding to ground 1 the assertion that s 102 of the Act is not a valid law of the Parliament of Western Australia.
By a notice dated 5 August 2003 filed by the State Crown Solicitor, the respondents indicated they did not intend to be heard by counsel and would abide the decision of this Court. In these circumstances, it was the Commonwealth Director of Public Prosecutions who was the contradictor in the proceedings.
By a notice dated 4 August 2003, the applicant Hall gave notice to the Attorneys‑General of the Commonwealth, the States and Territories the substantial effect of which was to give notice of the following matters arising under the Commonwealth Constitution or involved in its interpretation as follows:
(a)whether s 102 of the Justices Act is an invalid law of the Parliament of Western Australia because the power or function it purports to confer on the Court of Petty Sessions of Western Australia is inconsistent with or repugnant to the capacity of the Court of Petty Sessions to be vested with the judicial power of the Commonwealth pursuant to Chapter III of the Constitution (see Kable v Director of Public Prosecutions of New South Wales (1996) 189 CLR 51; Grollo v Palmer (1995) 184 CLR 348);
(b)whether the Judiciary Act is incapable of picking up s 102 of the Justices Act because:
(i)the Commonwealth Parliament cannot confer non‑judicial functions on a State Court unless those functions are incidental to a judicial function; and
(ii)the powers or functions conferred by s 102 of the Justices Act upon the Court of Petty Sessions of Western Australia are neither judicial powers nor powers that are incidental to judicial power (British Medical Association in Australia v Commonwealth (Pharmaceutical Benefits case (No 2)) (supra); Kable v Director of Public Prosecutions (NSW) (supra);
(c)Whether the Judiciary Act is incapable of picking up s 102 of the Justices Act in relation to criminal proceedings in Federal jurisdiction because:
(i)the exercise of the functions or powers conferred by s 102 of the Justices Act after criminal charges have been laid would be a contempt of a court exercising Federal jurisdiction; and
(ii)a Commonwealth law that purported to authorise conduct that would be a contempt of a court exercising Federal jurisdiction is invalid because it conflicts with Chapter III of the Commonwealth Constitution (see Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460).
Background
On 11 March 2003, Matthew James Hall ("the applicant") was charged on complaint with an offence against the Proceeds of Crime Act 1987 (Cth) and the Crimes Act1914 (Cth). On the same date, Salmat Document Management Solutions Pty Ltd ("Salmat") was charged with one count of organised fraud on the Commonwealth contrary to s 83(1) of the Proceeds of Crime Act. Again on the same date, Patrick Joseph Ward and Nicholas John Aldridge were also charged with the same offence as the applicant Hall.
By a letter dated 30 June 2003, the Commonwealth Director of Public Prosecutions ("the DPP") requested that the proceedings in the Court of Petty Sessions on the relevant charges in Anderson v Salmat & Ors be listed for a deposition hearing under s 73(1) of the Justices Act for one day on Thursday, 31 July 2003.
On 9 July 2003, Barrymore Charles Davis, Kenneth John Pitt and Barry Leonard McDonald ("the witnesses") each received a summons purporting to have been issued pursuant to s 74 of the Justices Act requiring them to attend before the Court of Petty Sessions at Perth on 31 July 2003 to be examined by the prosecution regarding what they knew concerning the matter of the complaint against the applicant and others. The examination of the witnesses was to take place pursuant to s 102 of the Justices Act, which provision became operational on 27 September 2002 following the passage of the Justices Act Amendment Act 2002 by the Parliament of Western Australia.
The Applicants' Submissions
It was against this background that the various applicants sought and obtained orders nisi in the Supreme Court in respect of the various summonses.
It was submitted on behalf of the applicants that:
(a)a Justice cannot validly issue a summons pursuant to ss 74 and 102 of the Justices Act where the defendant is charged with an indictable offence which cannot be tried summarily;
(b)alternatively, s 102 of the Justices Act is invalid because the power or function it purports to confer on the Courts of Petty Session in Western Australia is inconsistent with or repugnant to the capacity of the Court of Petty Sessions to be vested with the judicial power of the Commonwealth pursuant to Chapter III of the Commonwealth Constitution;
(c)alternatively, s 102 is not applicable to proceedings in Federal jurisdiction because:
(i)as a law of the Parliament of Western Australia, s 102 of the Justices Act does not and cannot apply of its own force to proceedings in relation to a Federal offence; and
(ii)s 102 is not "picked up" and applied in Federal jurisdiction by virtue of the Judiciary Act.
In the case of the applicant Davis, he also submitted that he had a right of review of Mr Grinter's decision pursuant to s 5 of the Administrative Decision (Judicial Review Act) 1977.
Compatibility of Div 2 of the Justices Act and Federal Jurisdiction
The primary issue to be determined in these proceedings is whether the relevant provisions in Div 2 of the Justices Act are incompatible with the grant or exercise of Federal jurisdiction provided for in s 68 of the Judiciary Act so that the relevant provisions are not "picked up" as a matter of surrogate Commonwealth law. As is the case in this Court, the Court of Petty Sessions was not exercising State jurisdiction, but Commonwealth jurisdiction. The State Court exercises jurisdiction under s 68 in respect of a "matter".
In such a case as this, the Court of Petty Sessions is exercising Federal jurisdiction in respect of a "matter arising under any laws made by the Parliament" in s 76(2) of the Commonwealth Constitution. In Fencott v Muller (1983) 152 CLR 570 at 603, Mason, Murphy, Brennan and Deane JJ said that:
"Though the concept of 'matter' may be narrower than that of 'legal proceeding', it is a term of wide import. 'The word "matters" ', Griffith CJ said in South Australia v Victoria (1911) 12 CLR 667 (at 675) 'was in 1900 in common use as the widest term to denote controversies which might become before a Court of justice.' The concept of 'matter' as a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy, was accepted by a majority of the court in Philip Morris [Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 482]:
'It is settled doctrine in Australia that when a Court which can exercise Federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to resolution of the whole matter.'"
In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 at [2], per Gleeson CJ, Gaudron and Gummow JJ said:
"It is convenient to begin with the word 'jurisdiction'. This is a 'generic term' (Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 108 at 1142) generally signifying authority to adjudicate. It is used in various senses. The jurisdiction of a court to hear and determine a personal action and to grant relief may depend upon no more than effective service of that court's process upon the defendant within the territorial bounds of its competence or pursuant to the exercise of a 'long-arm' jurisdiction; or it may depend also upon the proceeding being with respect to a particular subject matter (Flaherty v Grgis (1987) 162 CLR 574 at 598; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 517 at [13] ‑ [14])."
I accept, as was submitted on behalf of the applicants, that the justiciable controversy between the parties to a committal proceeding is comprised of a substratum of facts representing or amounting to a dispute or controversy between them. The resolution of the controversy involves the exercise of Federal jurisdiction. It does not involve any exercise of concurrent jurisdiction: Felton v Mulligan (1971) 124 CLR 367 at 412 – 413 per Walsh J. As was the case with the Court of Petty Sessions and is the case in this Court, the Court is exercising Federal jurisdiction and applying Federal statute law, together with any necessarily "picked up" relevant State law.
It may be accepted that the Commonwealth lacks the constitutional power to enact the substantive law required to resolve all disputes arising in the Federal jurisdiction. It is not constitutionally possible for the States and Territories to provide that their respective laws be applied in matters of Federal jurisdiction in Federal courts: John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 87, per Gibbs J; and at 93 per Mason J. In many cases, ss 79 and 80 of the Judiciary Act direct the courts regarding the law to apply when exercising Federal jurisdiction. Both of these provisions are expressed to "pick up" and apply State and Territory laws "in all cases to which they are applicable". So, in turn, the Commonwealth has the constitutional power to determine the circumstances in which a State or Territory law will be picked up and applied as Federal law by courts exercising Federal jurisdiction. This is done by the Commonwealth enacting legislation which is inconsistent with State or Territory law that is otherwise capable of application as "surrogate" Federal law, or conferring specific Federal jurisdiction: Northern Territory v GPAO (1999) 196 CLR 553 at [70] – [85] per Gleeson CJ and Gummow J; and at [134] – [135] per Gaudron J.
In the present case, this has been achieved by s 68 of the Judiciary Act which provides that:
"(1)The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a)their summary conviction; and
(b)their examination and commitment for trial on indictment; and
(c)their trial and conviction on indictment; and
(d)the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
(2)The several Courts of a State or Territory exercising jurisdiction with respect to:
(a)the summary conviction; or
(b)the examination and commitment for trial on indictment; or
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
(3)Provided that such jurisdiction shall not be judicially exercised with respect to the summary conviction or examination and commitment for trial of any person except by a Judge, a Stipendiary or Police or Special Magistrate, or some Magistrate of the State or Territory who is specially authorized by the Governor‑General to exercise such jurisdiction.
(4)The several Courts of a State or Territory exercising the jurisdiction conferred upon them by this section shall, upon application being made in that behalf, have power to order, upon such terms as they think fit, that any information laid before them in respect of an offence against the laws of the Commonwealth shall be amended so as to remove any defect either in form or substance contained in that information.
(5)Subject to subsection (5A):
(a)the jurisdiction conferred on a court of a State or Territory by subsection (2) in relation to the summary conviction of persons charged with offences against the laws of the Commonwealth; and
(b)the jurisdiction conferred on a court of a State or Territory by virtue of subsection (7) in relation to the conviction and sentencing of persons charged with offences against the laws of the Commonwealth in accordance with a provision of the law of that State or Territory of the kind referred to in subsection (7);
is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State or Territory.
(5A)A court of a State on which jurisdiction in relation to the summary conviction of persons charged with offences against the laws of the Commonwealth is conferred by subsection (2) may, where it is satisfied that it is appropriate to do so, having regard to all the circumstances, including the public interest, decline to exercise that jurisdiction in relation to an offence against a law of the Commonwealth committed in another State.
(5B)In subsection (5A), State includes Territory.
(5C)The jurisdiction conferred on a court of a State or Territory by subsection (2) in relation to:
(a) the examination and commitment for trial on indictment; and
(b) the trial and conviction on indictment;
of persons charged with offences against the laws of the Commonwealth, being offences committed elsewhere than in a State or Territory (including offences in, over or under any area of the seas that is not part of a State or Territory), is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State or Territory.
(6)Where a person who has committed, or is suspected of having committed, an offence against a law of the Commonwealth, whether in a State or Territory or elsewhere, is found within an area of waters in respect of which sovereignty is vested in the Crown in right of the Commonwealth, he or she may be arrested in respect of the offence in accordance with the provisions of the law of any State or Territory that would be applicable to the arrest of the offender in that State or Territory in respect of such an offence committed in that State or Territory, and may be brought in custody into any State or Territory and there dealt with in like manner as if he or she had been arrested in that State or Territory.
(7)The procedure referred to in subsection (1) and the jurisdiction referred to in subsection (2) shall be deemed to include procedure and jurisdiction in accordance with provisions of a law of a State or Territory under which a person who, in proceedings before a court of summary jurisdiction, pleads guilty to a charge for which he or she could be prosecuted on indictment may be committed to a court having jurisdiction to try offences on indictment to be sentenced or otherwise dealt with without being tried in that court, and the reference in subsections (1) and (2) to any such trial or conviction shall be read as including any conviction or sentencing in accordance with any such provisions.
(8)Except as otherwise specifically provided by an Act passed after the commencement of this subsection, a person may be dealt with in accordance with provisions of the kind referred to in subsection (7) notwithstanding that, apart from this section, the offence would be required to be prosecuted on indictment, or would be required to be prosecuted either summarily or on indictment.
(9)Where a law of a State or Territory of the kind referred to in subsection (7) refers to indictable offences, that reference shall, for the purposes of the application of the provisions of the law in accordance with that subsection, be read as including a reference to an offence against a law of the Commonwealth that may be prosecuted on indictment.
(10)Where, in accordance with a procedure of the kind referred to in subsection (7), a person is to be sentenced by a court having jurisdiction to try offences on indictment, that person shall, for the purpose of ascertaining the sentence that may be imposed, be deemed to have been prosecuted and convicted on indictment in that court.
(11)Nothing in this section excludes or limits any power of arrest conferred by, or any jurisdiction vested or conferred by, any other law, including an Act passed before the commencement of this subsection."
In this context we are grateful to counsel for Salmat for drawing our attention to the decision of the High Court delivered on 12 February 2004 in Putland v The Queen [2004] HCA 8, concerning the provisions of the Judiciary Act that permit the "picking up" and application of State and Territory law in a State or Territory Court exercising Federal jurisdiction. In Putland the majority, with Kirby J dissenting, accepted the application, by virtue of s 68 of the Judiciary Act, of a provision dealing with aggregate sentences of imprisonment in the Sentencing Act of the Northern Territory.
It is clear from Putland that the expressions used in s 68 ( in that case "the trial and conviction on indictment") have to be read in the light of the primary meaning of the relevant words or expression (in that case "conviction, here "commitment for trial"). This "denotes" (to use the word adopted by Gummow and Heydon JJ) an identifiable function or process with normative content. In the present case the sui generic process of committal as identified by the High Court.
Section 102 of the Justices Act relevantly provides:
"(1)At any time before the committal mention a person may, without notice to the defendant, be summoned under ss 74 or 78 to attend before the justices for the purpose of being examined by or on behalf of the prosecution or producing a document or thing.
(2)The defendant:
(a)is not a party to an examination under subsection (1);
(b)is not to cross-examine a witness attending an examination under subsection (1); and
(c)is not to address the justices on an examination under subsection (1)."
Section 74(1) provides that:
"(1)Any justice or clerk of petty sessions may issue his summons to any person requiring him to be and appear as a witness at a time and place mentioned in the summons before such justices as shall then be there to testify what he knows concerning the matter of the complaint."
Section 4 defines the term "justice" as meaning:
"(a)Justices of the Peace having jurisdiction where the Act in question is, or is to be, performed;
(b)a magistrate acting under s 33;
(c)one justice where one justice may exercise the jurisdiction of justices referred to in paragraph (a)."
The term "matter" is defined as follows:
"matter" means any act, omission, fact, or event (except an indictable offence not punishable summarily) upon complaint whereof justices may give any decision against or in respect of any person."
Section 20(2) provides that:
"Where for any indictable offence offenders may in some circumstances be punished summarily, a person shall not be charged with the offence before justices, and justices shall not deal with the charge or examine the defendant or commit him for trial, if there is a magistrate available or the defendant does not consent, in which case a reference in this Act to any number of justices shall be read and construed, with such modifications as are necessary, as a reference to a magistrate."
Section 66 of the Act provides that:
"(1)Where for the purposes of the committal for trial or sentencing of a person charged with an indictable offence -
(a)a witness is examined before justices; or
(b)a written statement or other evidence is tendered to justices,
the room or place in which that occurs is not to be regarded as an open court, and the justices may order that no person is to be in the room or place without their permission.
(2)The justices are not to make an order under subsection (1) unless it appears to them that the ends of justice require them to do so."
Sections 104(2) and (3) provide that:
"(2)The defendant is not to —
(a)give or tender any evidence; or
(b)submit to the justices that there is insufficient evidence before them to put the defendant on his or her trial for the offence.
(3)Unless the defendant pleads guilty to the charge, the justices are to commit the defendant to a court of competent jurisdiction for trial." (my italics)
In a submission on behalf of the applicant Hall, adopted by each of the other applicants, it was submitted that the procedure in s 102 is one previously unknown in criminal procedure. It allows the prosecution to examine compulsorily or cross-examine a witness, including a proposed defence witness, without the defendant being either notified or represented. It was further submitted that the examination may take place before a Justice of the Peace who may be unqualified in the practice of law and, therefore, is unlikely to impose appropriately rigorous restrictions upon the prosecution. It was also submitted that in such closed proceedings, it would be possible for a person to be compulsorily cross‑examined by a prosecutor to obtain evidentiary material or to assist in the investigation of an apprehended breach of the criminal law. The court is said to become a participator in this investigatory activity, lending its coercive powers to the prosecution to aid the prosecution to build a case against the relevant defendant or defendants. This follows from the power conferred on the Justices by ss 1 or 2 of the Justices Act to issue a summons to a person to attend before them pursuant to s 74 of the Act for the purpose of being examined by the prosecution. It was contended that in this case the summons was not issued for the purpose of any function carried out by the Justices, whether judicial or administrative.
It was also submitted that the power or function conferred by s 102 is not a judicial power or function. As Gaudron J said in Gould v Brown (1998) 193 CLR 346 at 67:
"The power to examine witnesses conferred by Ch 5, Pt 5.9 of the Corporations Law is not a power to be exercised in the discharge of judicial duties. It is a power divorced from the determination of any justiciable controversy (see Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357, per Griffiths CJ). It is not directed to the determination of existing rights or liabilities (Waterside Workers' Federation of Australia v J W Alexander (1918) 25 CLR 434 at 463, per Isaacs and Rich JJ; R v Davison (1954) 90 CLR 353 at 369 per Dixon CJ and McTiernan J; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374, per Kitto J; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 666; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189.) Nor is it directed to the determination of guilt or innocence or the imposition of punishment for breach of the law (see Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580, per Deane J; Harris v Caladine (1991) 172 CLR 84 at 147, per Gaudron J). It is simply a power to obtain information. As such, it is not a judicial power. However, that is not to say that the power to examine witnesses in relation to the affairs of a corporation can never be conferred on a Federal court."
The exercise of the relevant power does not involve the carrying out of any judicial function. It was submitted that this would remain the case, even if the court had a discretion whether to commit the defendant following a consideration of the evidence. In such case the committal function is regarded as administrative: R v Murphy (1985) 158 CLR 596. Further, and in any event, the Court of Petty Sessions does not engage in any exercise of judicial power because s 104(2) of the Justices Act provides that the defendant is prohibited from giving or tendering evidence, being examined or making any submissions that there is an insufficient basis to put him or her on trial for the offence. There is no provision for any assessment of the evidence by the Justices. Following a plea of not guilty they are automatically required to commit the defendant for trial by s 104(3). In my opinion, that is clearly not a judicial function.
An alternative argument was also put that, even if the committal function carried out by the Court of Petty Sessions was judicial, the procedure under s 102 was not incidental to that function. This was said to be so for two reasons. First, the examination may take place before a Justice of the Peace who is unable by reason of the operation of s 20(2) of the Justices Act to perform any function under s 104. Section 20(2) provides that:
"(2)Where for any indictable offence offenders may in some circumstances be punished summarily, a person shall not be charged with the offence before justices, and justices shall not deal with the charge or examine the defendant or commit him for trial, if there is a magistrate available or the defendant does not consent, in which case a reference in this Act to any number of justices shall be read and construed, with such modifications as are necessary, as a reference to a magistrate."
Secondly, it was contended that any evidence obtained from an examination conducted pursuant to s 102 is not relevant to the committal of a defendant. This is so because there is no requirement or power of the Justice to inquire into the adequacy of the evidence presented by the prosecution. On the face of it, it appears not to be contemplated that the s 102 material would necessarily be tendered before the committing justice. The event which triggers the duty of the Justice to commit a defendant for trial is the entry of a plea of not guilty. It follows that a deposition obtained during an examination under s 102 is irrelevant to the question whether or not the defendant is committed for trial. This is exemplified in the present case by the fact that the brief of evidence was served on the applicant pursuant to s 103 of the Justices Act on 22 July 2003. It follows that any depositions obtained in the examination which was to be held on 31 July 2003 were not contained in the prosecution brief.
A further submission was made that when s 102 of the Justices Act applies, it picks up the power conferred on a Justice by s 74 of that Act. Section 74 confers a power on a Justice to issue a summons where the complaint relates to a "matter" as defined by s 4 of the Act. The definition of "matter" refers only to summary proceedings. It follows that a Justice cannot validly issue a summons under s 74 of the Act for a s 102 examination, if the complaint is for an indictable offence which is not triable summarily.
By the operation of s 84 of the Proceeds of Crime Act 1987 (Cth), as it was in force in 1995, which is the relevant time for present purposes, the offence with which the applicant was charged was an indictable offence which could not be tried summarily. Hence, the Justices had no power to give any decision against any person in respect of the complaint of the offence because it was not a "matter" for purposes of the Justices Act.
For these reasons, the summonses purportedly issued to the witnesses in relation to the charges against the applicant were invalid.
It follows that s 102 of the Justices Act purports to confer on the Court of Petty Sessions a function that is neither judicial nor incidental to the discharge of judicial power. It is beyond the legislative power of the Commonwealth to pass such a law because Commonwealth judicial power can only be conferred on a Chapter III court: R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ; and Polyukhovich v Commonwealth (1991) 172 CLR 501 at 606 – 607 per Deane J; and at 703 per Gaudron J. This doctrine is subject to what is known as the concept of "persona designata" by which non‑judicial power may be conferred upon named Judges or a specified class of Judges as individuals in specific cases: eg, Grollo v Palmer (supra) at 364 – 365 per Brennan CJ, Deane, Dawson and Toohey JJ and 376 – 377 per McHugh J. In the present case, the relevant power or jurisdiction is conferred upon the Court of Petty Sessions rather than on designated individuals. It follows that the provision could not be validly enacted by the Commonwealth.
While s 102 is valid legislation of the State, because the doctrine of the separation of powers does not apply in its entirety to State courts, in Kable v Director of Public Prosecutions (supra), the High Court held that State courts cannot be given non‑judicial powers that would undermine the role of those courts as courts exercising Federal judicial power. In Fencott v Muller (supra) at 608, Mason, Murphy, Brennan and Deane JJ referred to the judicial power as the power of a sovereign authority to decide controversies between its subjects or between itself and its subjects. Their Honours then said:
"The unique and essential function of the judicial power is the quelling of such controversies [that is, controversies between the subject of a sovereign authority or between the authority and its subjects] by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion."
The appellants' contention was that an application to the Supreme Court under the Act is in truth a formality, the outcome of which is dictated by the legislation. Although s 5(1) provides that the Court "may" order detention, if satisfied as to the criteria in par (a) and par (b), the applicant submitted that, when the Act is read as a whole, not only must the Court exercise the power once the criteria have been met (see Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134 – 135; and Mitchell v The Queen (1996) 184 CLR 333 at 345 – 346), but also that it is left with no determinative function. Thus, the Act was said to be an exercise by the legislature of judicial power by directing the Court to find the criteria satisfied and in consequence to make a preventative detention order. As Toohey J said at 95:
"The argument advanced on behalf of the appellant was that the Act vests in the Supreme Court of New South Wales a non‑judicial power which is offensive to Ch 3 of the Constitution. Hence any exercise of that power would be unconstitutional and the Act conferring the power would be invalid. Reliance is placed on what Dixon CJ, McTiernan, Fullagar and Kitto JJ said in R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 at 268):
'The organs to which Federal judicial power may be entrusted must be defined, the manner in which they may be constituted must be described and the content of their jurisdiction ascertained. These very general considerations explain the provisions of Ch III of the Constitution.'
The argument is not one that relies upon the alleged separation of legislative and judicial functions under the Constitution of New South Wales. Rather, it is the jurisdiction exercised under the Act is inconsistent with Ch III of the Commonwealth Constitution because the very nature of the jurisdiction is incompatible with the exercise of judicial power."
At 96 – 97, Toohey J went on to say:
"The appellants' argument of incompatibility of function rests on several foundations. But fundamentally it relies upon the nature of the Act whereby the Supreme Court may order the imprisonment of a person although that person has not been adjudged guilty of any criminal offence. The Supreme Court is thereby required to participate in a process designed to bring about the detention of a person by reason of a court's assessment of what that person might do, not what the person has done."
Gaudron, McHugh and Gummow JJ held that the exercise of jurisdiction under the Act was incompatible with the integrity, independence and impartiality of the Supreme Court as a court in which Federal jurisdiction had also been invested under Ch III. In the present case, Federal jurisdiction has been invested in the Court of Petty Sessions by the Commonwealth Parliament pursuant to s 77 of the Constitution.
In my opinion, because the Court of Petty Sessions can and does exercise Federal jurisdiction, this imposes limitations upon the non‑judicial functions that can be conferred on that court by the Parliament of Western Australia. Such restrictions apply by analogy to the restrictions on the persona designata exception. As was submitted by Mr Walker QC, the analogy holds because the limitations on the ability of both individual Federal Judges and State Courts to carry out non‑judicial functions are concerned with ensuring that the persons or courts charged with exercising Federal judicial power are able to do so with integrity: Kable (supra) per Gaudron J at 103 – 104, and at 116 per McHugh J. Toohey J, at 98, adopted a similar approach as did Gummow J at 140.
It was contended on behalf of the applicants that the analogy between the doctrine applied in Kable and the persona designata exception meant that the persona designata cases provided guidance regarding the categories of non‑judicial power that should be held to be repugnant to or incompatible with the exercise of the judicial power of the Commonwealth. Thus in Grollo v Palmer (supra) at 365, Brennan CJ, Deane, Dawson and Toohey JJ, were of the opinion that non‑judicial functions that were incompatible with the exercise of Federal judicial power may arise in various ways. Their Honours said:
"It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non‑judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise a judicial power of the Commonwealth cannot be authorised to engage in the performance of non‑judicial functions so as to prejudice the capacity either of the individual judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth.
So much is implied from the separation of powers mandated by Chs I, II and III of the Constitution and on the conditions necessary for the valid and effective exercise of judicial power."
Their Honours went on to approve the comments of the Supreme Court of the United States in Mistretta v United States (1989) 488 US 361 at 404, that:
"The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and non‑partisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colours on judicial action."
Their Honours in the High Court went on to say at 366 – 367:
"If the issuing of interception warrants were reasonably to be regarded as a judicial participation in criminal investigation, it would be a function which could not be conferred on a judge without compromising the judiciary's essential separation from the executive government. The judicial method of deciding questions in controversy has no application in exercising the power to issue an interception warrant. Not only is the application of an interception warrant made ex parte; the very issue of a warrant and the identity of the judge who issued it are not disclosed. Unlike a warrant to enter, search and seize, its execution may go undetected by the person against whom or against whose interests the warrant is executed. Unlike a warrant to enter, search and seize, there is no return made on the execution of a warrant which permits a determination of its lawfulness, a review of its due execution and a disposition of the fruit of the execution … The decision to issue a warrant is, for all practical purposes, an unreviewable, in camera exercise of executive power to authorise a future clandestine gathering of information. Understandably, a view might be taken that this is no business for a judge to be involved in, much less the large majority of judges of the Federal Court." (my italics)
The justification for requiring judges to grant or refuse authority in such cases was expressed by their Honours at 367 as follows:
"It is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today's continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law's protection of privacy (see Haisman v Smelcher (1953) VLR 625 at 627) and property (both real and personal), be authorised to control the official interception of communications. In other words, the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other. It is an eligible judge's function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement. It is the recognition of an independent role that preserves public confidence in the judiciary as an institution."
In my opinion, it is clear that the considerations that supported the validity of the conferral of the function of authorising or refusing to authorise interception warrants under the persona designata exception provides no support for the validity of the s 102 procedure. The justice who supervises the s 102 investigation has no independent decision‑making function, and little or no role in controlling the proceedings, including ensuring proper supervision of the conduct of the prosecution. In any event, the procedure under s 102 does not invade the privacy of those subject to it in the same way as the issue of an interception warrant. It follows that the procedure under s 102 involves the justices or the magistrate in criminal investigation in a way similar to the interception warrants procedure considered in Grollo v Palmer (supra). The considerations that favour invalidity in the present context are the same, or at least similar.
In the present case, however, the considerations which supported the validity of the conferral of the interception warrant power on judges are absent in relation to the s 102 procedure. The justification for judicial involvement is less and provides a more powerful basis for finding that the procedure under s 102 is incompatible with the exercise of the judicial power of the Commonwealth than was the case in relation to the authorisation of interception warrants. The procedure under s 102 involves "judicial participation in criminal investigation" as described in Grollo v Palmer. That would seem to be its very purpose, namely, to assist the prosecution to gather evidence and compile a prosecution brief. This assistance is provided without notice to and in the absence of the defendant. In accordance with the analysis of the majority judges in Grollo v Palmer, the application of the principle stated by the majority in that case would compromise the judiciary's essential separation from the executive government. Once that position is reached, the Court of Petty Sessions would no longer constitute an appropriate forum upon which to confer the judicial power of the Commonwealth.
In my opinion, s 102 of the Justices Act is invalid.
Alternative submission that s 102 cannot apply of its own force
In these circumstances, it is not strictly necessary to consider the alternative submission that as a law of the Parliament of Western Australia, s 102 of the Justices Act does not and cannot apply of its own force to proceedings in relation to a Federal offence. As the matter was fully argued, however, I propose to consider the alternative. There is a general rule of construction which would confine the operation of a provision such as s 102 of the Justices Act to State proceedings and officers. In Solomons v District Court of New South Wales (2002) 76 ALJR 1601, Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, said at [9]:
"There is a 'general rule of construction' which would confine the State enactment to State proceedings and officers (Seaegg v The King (1932) 48 CLR 251 at 255. See also Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168 at 169). In any event the 'Justices' referred to in s 2 of the Costs Act are Justices of the Peace. This follows from the definition in s 21 of the Interpretation Act 1987 (NSW). The power conferred by s 2 'was clearly intended to be conferred on all New South Wales courts, at whatever level, exercising criminal jurisdiction'. (R v Manley (2000) 49 NSWLR 203 at 215) The 'Court[,] Judge [and] Justices' identified in s 2 of the Costs Act, and the phrase therein "any proceedings relating to any offence", do not extend to Federal courts created by the Parliament under Ch III of the Constitution or to this Court or to judicial officers of the Commonwealth, and the offences in question do not include offences under a law of the Commonwealth. This follows as a matter of construction of s 2 of the Costs Act in the light of s 12(1) of the Interpretation Act."
See also John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd & Ors (1973) 129 CLR 65 (supra) at 79 per Menzies J; at 84 per Walsh J; at 87 per Gibbs J; and at 93 per Mason J; Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 552 – 553, per Gummow and Kirby JJ; and Bass v Permanent Trustee Co (1999) 198 CLR 334 at [35] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
In R v Gee (2003) 77 ALJR 812 at [100] – [101] by Kirby J as follows:
"Because there is no specific Federal law to sustain the proceedings … , it is necessary to decide whether the relevant State laws are picked up by the general provisions of the [Judiciary Act] to invest that Court with Federal jurisdiction. The State laws, on their own, cannot achieve this result. It is not competent for the State Parliament, by its law, to control and regulate the exercise of Federal jurisdiction. … The references in the State Act to the 'court' and 'Full Court' must be read as limited to such bodies exercising State jurisdiction. The reference in the State Act to the 'Director of Public Prosecutions' would likewise be interpreted to refer only to the State office holder of that name. However, the problem lies deeper. Without consent by Federal law, State lawmakers enjoy no power to regulate Federal concerns or the conduct of Federal office holders.
It was to solve such problems that the [Judiciary Act] provided, in a number of sections, for the investment of Federal jurisdiction in State courts and the application of State laws to the exercise of such jurisdiction."
It follows that unless s 102 of the Justices Act is picked up by the Judiciary Act it can have no application in relation to the charges brought against the applicant.
In my opinion, s 102 is not picked up by the Judiciary Act. The relevant provisions in that Act are ss 68 and 79. Section 68(2) provides that:
"The several Courts of a State or Territory exercising jurisdiction with respect to:
(a)the summary conviction; or
(b)the examination and commitment for trial on indictment; or
(c)the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth."
Section 68(2) "is concerned with the ambit of the jurisdiction rather than the content of the powers to be exercised under it": Solomons (supra) at [19] where their Honours said that:
"Section 68 itself distinguishes between jurisdiction on the one hand and powers and procedures on the other. Subsection (1) provides for State laws with respect to procedure to apply 'so far as they are applicable'. Subsections (4) and (5A) confer powers respectively to amend informations and, in appropriate circumstances, to decline to exercise jurisdiction. Subsection (2) is concerned with the ambit of the jurisdiction rather than the content of the powers to be exercised under it."
In my opinion, it follows that once a State court commences to exercise Federal jurisdiction under s 68(2) of the Judiciary Act, the question whether a particular State law applies to the Federal proceedings is answered by reference to s 68(1), although s 79 of the Act may also play a part. It needs to be borne in mind, however, that State laws upon which s 79 operates do not apply of their own force in the exercise of Federal jurisdiction. They apply "as Federal law" as stated by Kitto J in Pedersen v Young (1964) 110 CLR 162 at 165. In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (supra), McHugh J at [129] pointed out that, in its own terms, s 79 of the Judiciary Act applied State law relating to procedure, evidence and the competency of witnesses as follows:
"… except as otherwise provided by the Constitution or the laws of the Commonwealth [shall] be binding on all Courts exercising Federal jurisdiction in that State or Territory in all cases to which they are applicable."
McHugh J said at [130] that:
"State laws cannot be picked up by s 79 unless they facilitate the exercise of the judicial power conferred by Ch III of the Constitution. But where the Commonwealth or a State is party to the proceedings, there would seem to be no limit to the State laws that the Parliament can make applicable to those proceedings. (see ss 75(iii) and 51(xxxix) and s 78 in respect of laws 'conferring rights to proceed against the Commonwealth or a State') By ss 64 and 79 it is the Parliament itself, and not the legislature of the State which has provided the extent to which, consonant with Ch III and subject to the Constitution, State laws will be applicable as Federal laws."
It follows that once the Judiciary Act applies as a matter of practice, subject to any contrary intention in Commonwealth legislation, the State legislation that is picked up should be interpreted and applied as if it had been enacted by the Parliament of the Commonwealth. This is expressly provided in s 79 of the Act and is implicit in s 68(1). The necessary consequence of this is that the State legislation that imposes non‑judicial functions upon State courts cannot be "picked up" because they are incompatible with the exercise of the Commonwealth judicial power or, as it was put in Solomons, (supra), at [24]:
"The first limitation may, as is indicated above, be conceded as satisfied, but a combination of the second, third and fourth is fatal to the appellant's submissions. It was pointed out in Commonwealth v Mewett that, where a particular provision of state law is an integral part of a state legislative scheme, s 79 could not operate to pick up some but not all of it, if to do so would be to give an altered meaning to the severed part of the state legislation. The point was taken further in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd where Gleeson CJ, Gaudron and Gummow JJ said:
'Section 79 of the Judiciary Act renders State and Territory law binding only in cases to which they are applicable. As to State law, this may be taken to reflect what otherwise would be the operation of Ch III. In Kruger v Commonwealth, Gaudron J said:
"There may be statutory provisions couched in terms which make it impossible for them to be 'picked up' by s 79 of the Judiciary Act. Similarly, there may be provisions which impose functions which are beyond the reach of s 79. Even so, I see no reason why s 79 cannot 'pick up' limitation laws or other statutory provisions merely because they are expressed in terms applying specifically to State or Territory courts."
An example in the second category of provisions imposing functions beyond the reach of s 79 would be those insusceptible of exercise as part of the judicial power of the Commonwealth. In Mellifont v Attorney-General (Qld), - JD_03-03019fn015Mason CJ, Deane, Dawson, Gaudron and McHugh JJ observed that:
"[I]n the absence of a constitutional separation of powers, there has existed the possibility that the Supreme Courts of the States might be entrusted with a jurisdiction that did not involve the exercise of judicial power."
As to the first category identified by Gaudron J, the provisions of the Suitors Fund Act 1951 (NSW) considered in Commissioner of Stamp Duties (NSW) v Owens (No 2) 16 may be an example of provisions expressed in terms making it impossible for them to be “picked up” by s 79 of the Judiciary Act. The grant of a certificate under s 6 of the State Act formed a step in machinery which had been established for the indemnification out of a fund set up and administered by New South Wales of an unsuccessful litigant in respect of costs. This Court held that s 79 could not operate to convert the function imposed on State courts into a provision imposing a function on federal courts.'"
Section 68 of the Judiciary Act was enacted pursuant to the power conferred by s 77(iii) of the Constitution to make laws investing any court of a State with Federal jurisdiction with respect to any of the matters mentioned in ss 75 and 76 of the Constitution. These include matters arising under any law made by the Commonwealth Parliament pursuant to s 76(2) of the Constitution: R v Murphy v The Queen (supra) at 617 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ; and see R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345 per Mason J; and Williams v The King [No 2] (1934) 50 CLR 551 at 560 per Dixon J. In Felton v Mulligan (1971) 124 CLR 367 at 393, Windeyer J said that:
"The existence of Federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication. But once a court is duly seized for adjudication of a matter arising under a Commonwealth law, it seems to me impossible to say that it is not exercising Federal jurisdiction and that the provisions of s 39(2) of the Judiciary Act are not to apply."
This passage was approved by Mason, Murphy, Brennan and Deane JJ in Fencott v Muller (supra) at 607. Their Honours went on to say at 607:
"Subject to any contrary provision made by federal law and subject to the limitation upon the capacity of non-federal laws to affect federal courts, non-federal law is part of the single, composite body of law applicable alike to cases determined in the exercise of federal jurisdiction and to cases determined in the exercise of non-federal jurisdiction (cf Felton v. Mulligan (supra) at 392 ‑ 399)."
It follows, as Deane J explained in Breavington v Godleman (1988) 169 CLR 41 at 134 that there is:
"An integrated Australian judicial system for the exercise of the judicial power of the Commonwealth."
In my opinion, this was an important part of the basis of the decision in Kable (supra).
The most recent decision of the High Court on the application and interpretation of s 68(2) is to be found in R v Gee (supra). The Criminal Law Consolidation Act 1935 (SA) provided for a regime of questions being reserved and determined by the Full Court of the Supreme Court of South Australia. The Full Court held that it lacked jurisdiction to consider the questions. This decision was overruled by the High Court which emphasised the policy behind s 68: see at [7] per Gleeson CJ at [24] and [69] per McHugh and Gummow JJ; and [135] per Kirby J. It was also made clear that it is desirable to give the language in s 68(2) a construction that enables it to pick up procedural changes and developments as they occur in the various states from time to time, ibid; and see also at [8] per Gleeson CJ; and at [39] and [45] per McHugh and Gummow JJ. In my opinion, it is appropriate to approach the relevant provisions in the Justices Act on the same basis.
In the present context, the Court of Petty Sessions process mandated by s 102 must be susceptible of characterisation as providing for the "examination and commitment for trial on indictment" of a defendant, as that expression appears in s 68(1)(b) of the Judiciary Act. It must be accepted that as a matter of constitutional law, s 68 of the Judiciary Act cannot simply "pick up" s 102 of the Justices Act as a judicial function. As has already been seen, the power or function conferred by Div 2 is one of an administrative character as distinct from a judicial character. It follows that the only constitutional basis for any part or parts of the procedure under Div 2 being "picked up" is that the relevant part involves the exercise of a power "incidental to a judicial function", so that its adoption would not be beyond power. It is well established that no power other than a judicial power, or a power or function incidental to a judicial power, may be lawfully conferred by the Commonwealth Parliament on State Courts: British Medical Association in Australia v Commonwealth (Pharmaceutical Benefits case (No 2)) (1949) 79 CLR 201 at 236 per Latham CJ; Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151 – 152 per Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ; Hilton v Wells (1985) 157 CLR 57 at 68 per Gibbs CJ, Wilson and Dawson JJ; Murphy v The Queen (supra) at 614 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ; Gould v Brown (1998) 72 ALJR 375; and Kable v Director of Public Prosecutions (NSW) (supra) at 66 per Brennan CJ; 103 per Gaudron J; 115 per McHugh J; and 135 per Gummow J.
It follows that provisions relating to committal can only be "picked up" if and to the extent that they involve a power "incidental to a judicial function". Clearly, the procedure for determining whether a person should or should not be committed for trial is related to the judicial function as their Honours held in the joint judgment in Murphy (supra) at 614, to which I have already referred. As the High Court explained in Murphy, the functions of the Court in committal proceedings include deciding whether a person charged should or should not be committed for trial. This function is a distinct and identifiable function which, though administrative in character, has the juridical result that a person either is or is not committed for trial. In each case, while they are not judicial proceedings as such, they are nevertheless Court proceedings in which the Magistrate or Justices constituting the Court are bound to act judicially and make an assessment whether the evidence adduced at the committal proceeding is sufficient to put the accused person on his or her trial. The procedure followed at the hearing of committal proceedings is similar to that followed on the hearing of other judicial proceedings. The ordinary consequence of an adverse determination of committal proceedings is the committal for trial of the accused on the basis that he or she is either committed to prison or released on bail until the sittings of the Court before which he or she is to be tried.
It is apparent from an examination of s 102 that an examination under this section has nothing to do with the examination and commitment of the accused. It is a distinct administrative or investigative procedure for the gathering of evidence in the course of what could aptly be described as a "quasi judicial process". It is not part of any process of committal. It was common ground that the brief served on the present applicants as named defendants to the committal proceedings pursuant to s 103 of the Act did not include the depositions from the proposed but stayed examinations. The brief was required to be served 14 days before the committal was listed for mention pursuant to s 103(2) of the Justices Act. The committal mention was listed for 8 August 2003 following the service of the brief on 22 July 2003. The clear inference is that it was never intended by those responsible for the prosecution that the depositions were to be tendered at the committal stage for the presiding Magistrate or Justices.
The clear purpose of the process, as was made plain by the complainant's submission in opposition to the grant of the orders nisi at [24] and [31] was to gain evidence for a subsequent trial. In my opinion, this separate and distinct administrative investigative function was not an integral or any part of the examination and committal of the defendant with the consequence that s 102 was not "picked up". As a consequence, the Court of Petty Sessions had no Commonwealth legislative basis to carry out the process and enforce the summonses to compel the attendance of the named witnesses because they had been issued without lawful authority.
It was submitted on behalf of the applicants that there was a further reason why s 102 was not "picked up". Federal jurisdiction can only be exercised in respect of a Federal matter. The concept of a "matter" has as its essence a justiciable controversy between parties. In Re Wakim; Ex parte McNally (1999) 198 CLR 511 at [138], Gummow and Hayne JJ said:
"It must be taken to follow from the court's decisions in Philip Morris, Fencott and Stack, however, that the identification of the justiciable controversy between parties is not determined only by the considerations of there being separate proceedings and different parties in the one court. And in some circumstances a single matter can proceed through more than one court. That follows from the court's decision in R v Murphy (1985) 158 CLR 596 at 614, 617-618 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ. There, committal proceedings in one court and the trial of indictable offence in another court (there having been an order for committal in the presentation of an indictment) were held to be the curial process for determination of a single matter; the matter which the trial would ultimately determine."
Their Honours also said in [139]:
"The central task is to identify the justiciable controversy."
In each of the cases before the Court, there are two parties to the relevant justiciable controversy, namely, the complainant in each case and the respective defendants who are the applicants before us. These are the parties to the controversy in respect of which jurisdiction has been conferred on the Court of Petty Sessions to deal. In my opinion, it follows that it is impossible for the Court to purport to exercise the judicial power of the Commonwealth pursuant to a power which expressly provides in s 102(2) of the Justices Act that:
"The defendant … is not a party to an examination … "
There is an additional and broader basis why the procedure under s 102 of the Justices Act is inapplicable. The process outlined in Div 2 which includes s 102 is not in substance or in form a law or procedure for examination or committal as there is no determination of a legal or factual issue. In my opinion, as was submitted by counsel for Salmat, the proceeding contemplated by s 104(3) and the other relevant provisions, cannot be properly characterised as a "committal proceeding", as that expression has been understood in the last 150 years. It is a different process or function to that of examination and committal as it has been understood both in this country and in England and Wales. In my opinion, the submission by counsel for Salmat, that by analogy with the principles in relation to s 79 of the Judiciary Act, s 68 does not "pick up" the procedure under s 102 or s 104(3) as surrogate Federal law must be accepted. The consequence is that the summonses issued to compel attendance have been issued without lawful authority and that the decision to issue them should be quashed.
It does not follow that the procedure in the Act is invalid of itself. As counsel for Salmat rightly pointed out, there are numbers of examples where a portion only of a power or procedure of a State Court is "picked up" when dealing with a Federal offence, compared with its power when dealing with a State offence: see, for example, Kesavarajah v The Queen (1994) 181 CLR 230; Brown v The Queen (1986) 160 CLR 171; and Cheatle v The Queen (1993) 177 CLR 541. The consequence is that the examination process has no application to Commonwealth offences. Further, s 102 of the Justices Act provides no authority for a Court of Petty Sessions to issue a summons to obtain evidence material to Federal criminal proceedings that are pending.
It was also submitted that once criminal proceedings in relation to a Federal offence have been commenced, it would constitute a contempt of the Court to which a defendant would be committed to utilise coercive powers to obtain forensic material to deploy at a trial. In my opinion, it is not necessary to consider that submission for present purposes.
It follows that the action of the first respondent in issuing the summonses for compulsory examination was contrary to law and should be quashed. It further follows that the Court of Petty Sessions should be prohibited from seeking to exercise the powers under ss 102 and 104(3) because it would be unlawful to do so in the exercise of the judicial power of the Commonwealth. It also follows that the orders nisi should be made absolute and that the applicants are entitled to the declarations and injunctions sought in the writ to the extent necessary to reflect the invalidity of the issuing of the various witness summonses.
Application of the Administrative Decisions (Judicial Review) Act 1977 (Cth)
It was submitted on behalf of the contradictor that Davis had a right to seek a review of Mr Grinter's decision only in the Federal Court pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act"). In my opinion, there is no substance to this submission. This is a matter which could only be agitated in the Federal Court. In this respect, I am in complete agreement with Steytler J.
STEYTLER J: As will be apparent from the judgment of Malcolm CJ, which I have had the advantage of reading, each of the three matters before the Court comes by way of the return of an order nisi made by a single Judge of this Court on 30 July 2003.
On 11 March 2003 the applicant Salmat Document Management Solutions Pty Ltd ("SDMS") was charged by complaint with one count of organised fraud on the Commonwealth, contrary to s 83(1) of the Proceeds of Crime Act 1987 (Cth) and s 5(1) of the Crimes Act 1914 (Cth). On the same day the applicant Hall and two others by the names of Patrick Joseph Ward and Nicholas John Aldridge were each charged by complaint with being knowingly concerned in the commission of the offence by SDMS.
On about 8 July 2003 each of the applicant Davis and two other men, Ken Pitt and Leonard McDonald, was served with a summons, issued by a Justice of the Peace under s 74 of the Justices Act 1902 (WA) and for the purposes of s 102 of that Act (which provides for compulsory examination of witnesses by the prosecution), requiring him to appear at the Perth Court of Petty Sessions on 31 July 2003 in order "to testify what … [he knew] concerning the matter of the … complaint". Thereafter each of the applicants SDMS and Hall, took out an originating motion requiring the Justice of the Peace who issued each witness summons to show cause why a writ of certiorari should not be issued, quashing his decision to do so. The motion also required the Justices comprising the Court of Petty Sessions to show cause why a writ of prohibition should not be issued against them preventing them from proceeding further with respect to the examination of any of the witnesses concerned and "from proceeding further with respect to committing or purporting to commit the Applicant to a court of competent jurisdiction for trial pursuant to Section 104(3) of the Justices Act". At about the same time the applicant Davis took out an originating motion seeking relief by way of the issue of a writ of certiorari quashing the decision to issue a witness summons against him. He also sought the issue of a writ of prohibition preventing the Justices comprising the Perth Court of Petty Sessions from proceeding further with respect to his examination. In each case, orders staying the relevant proceedings until the determination of the application were sought.
Each application was supported by a ground to the effect that the summonses were issued "without lawful authority", in that s 102 of the Justices Act has no application to proceedings against persons charged with offences against the laws of the Commonwealth. The applicant Hall also contended that s 102 of the Justices Act is not a valid law of the Parliament of Western Australia. Orders nisi were granted in each of the applications, in terms reflecting the respective motions and, in each case, a stay was ordered. As I have earlier said, each of the matters has now found its way to this Court on the return of the respective orders nisi.
Before us, each of the applicants advanced arguments (some ranging wider than others) in an attempt to make good the proposition (to which I shall, for the sake of convenience, refer as "the federal jurisdiction proposition") that s 102 of the Justices Act has no application to proceedings against persons charged with offences against the laws of the Commonwealth, with the consequence that the summons, or summonses, in question were unlawfully issued. The applicant Hall also advances arguments in support of his contention that s 102 of the Justices Act is not a valid law of the Western Australian Parliament.
In my opinion, it is necessary only to consider one of the arguments advanced (on behalf of all three applicants) in support of the federal jurisdiction proposition, being one to the effect that s 102 has no application to proceedings relating to a complaint issued in respect of an offence under federal law because that section has not been made part of federal law by any provision of the Judiciary Act 1903 (Cth). Quite obviously, s 102 cannot apply of its own force in criminal proceedings which are an exercise in the criminal jurisdiction of the judicial power of the Commonwealth.
In order to consider that argument, it is necessary first to consider the relevant provisions of the Judiciary Act in order to ascertain the extent to which those provisions confer jurisdiction upon State courts with respect to persons who are charged with offences against the laws of the Commonwealth and apply State laws in aid of that conferral of jurisdiction. It is then necessary to consider the relevant provisions of the Justices Act in order to understand their nature and purpose before answering the question whether they are made applicable, by any of the relevant provisions of the Judiciary Act, to persons charged with offences against the laws of the Commonwealth.
The Relevant Provisions of the Judiciary Act
There are three sections of the Judiciary Act which are of potential application. They are s 39(2), s 68 and s 79. I will deal with each in turn.
Section 39(2)
Section 39(2) provides that the courts of the States shall, within the limits of their several jurisdictions, be invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, subject to various exceptions, conditions and restrictions, none of which is presently relevant.
This section is an exercise of the power given to the federal Parliament, by s 77(iii) of the Commonwealth Constitution, to make laws, with respect to any of the matters mentioned in s 75 and s 76 of the Constitution, investing any court of a State with federal jurisdiction. There are nine categories of such matters, five of them being provided for by s 75 and the remaining four by s 76. The only one of those categories which is relevant in this case is that provided for by s 76(ii), being any matter arising under any laws made by the federal Parliament.
The words "federal jurisdiction", in s 39, include, prima facie, all jurisdiction within the limits of the judicial power: Ah Yick v Lehmert (1905) 2 CLR 593 at 611, per Barton J. However, the general provisions of s 39(2) must be controlled by any special provisions which are inconsistent with them: Seaegg v The King (1932) 48 CLR 251 and R v Williams; R v Somme (1934) 34 SR (NSW) 143 at 148 ‑ 149, per Jordan CJ. That is to say, the general operation of the section can, of course, be excluded or cut down by other legislation, whether expressly or by inference. However, as Rich, Dixon and Evatt JJ pointed out in Adams v Cleeve (1935) 53 CLR 185 at 190 ‑ 191, in order to exclude its operation upon any part of federal jurisdiction, more is required than merely a special provision conferring part of the jurisdiction which s 39 also confers. Rather, this general grant of jurisdiction "will only be displaced in whole or in part by another statute when that statute evinces an intention to exclude or otherwise limit the jurisdiction conferred by s 39": R v Ward (1978) 140 CLR 584 at 589, per Gibbs ACJ and Stephen, Mason, Jacobs and Aickin JJ.
Section 68
Section 68(1), s 68(2) and s 68(3) of the Judiciary Act read as follows:
"(1)The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a) their summary conviction; and
(b)their examination and commitment for trial on indictment; and
(c) their trial and conviction on indictment; and
(d)the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several Courts of that State or Territory by this section.
(2)The several Courts of a State or Territory exercising jurisdiction with respect to:
(a) the summary conviction; or
(b)the examination and commitment for trial on indictment; or
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
(3)Provided that such jurisdiction shall not be judicially exercised with respect to the summary conviction or examination and commitment for trial of any person except by a Judge, a Stipendiary or Police or Special Magistrate, or some Magistrate of the State or Territory who is specially authorized by the Governor‑General to exercise such jurisdiction."
The purpose of these provisions has been variously expressed. In Williams v The King [No 2] (1934) 50 CLR 551 at 558 Rich J said that their purpose was to "assimilate criminal procedure, including remedies by way of appeal, in State and Federal offences". In the same case, at 560, Dixon J said that their purpose was "to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice" (see, also, in this respect, Leeth v Commonwealth of Australia (1992) 174 CLR 455 at 467, per Mason CJ, Dawson and McHugh JJ and Putland v The Queen (2004) 204 ALR 455 at [4] to [7]). In R v Gee (2003) 212 CLR 230 Gleeson CJ said, at [3], that, when State courts hear criminal cases in federal jurisdiction, the general purpose of s 68 is to bring about the result that, in the exercise of such jurisdiction, State courts apply the same procedure as when they exercise State jurisdiction. He went on to say, at [7]:
"That general policy reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter. The federal legislation enacted to give effect to that choice, therefore, had to accommodate not only differences between State procedures at any given time, but also future changes to procedures in some States that might not be adopted in others. That explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time."
McHugh and Gummow JJ, in that case at [24], similarly expressed the opinion that, in their application to State courts, the words "exercising jurisdiction" in the opening words of s 68(2) refer to the jurisdiction conferred by the relevant State law in operation from time to time, whether enacted before or after the commencement of the Judiciary Act. They said that what had been said by Dixon CJ, Kitto and Taylor JJ of s 39 of the Act in the Commonwealth v District Court of the Metropolitan District Holden at Sydney (1954) 90 CLR 13 at 20, as follows, was also true of s 68(2):
"There is nothing in the language of s 39 to prevent the provision receiving an ambulatory effect and the known purpose of the provision could hardly be achieved unless it received such an effect or was repeatedly re‑enacted at frequent intervals."
They went on to say (ibid):
"This 'basal character' … of s 68(2) in the investment of federal jurisdiction ensures that, within the limits of its provisions and s 80 of the Constitution, the exercise of federal jurisdiction is facilitated by those developments which from time to time are provided by State law for the exercise of jurisdiction in State matters."
They also considered (at [39]) that the expressions in s 68(2) "with respect to" and "the like jurisdiction" were of wide import, quoting what had been said by McHugh J in Solomons v District Court of New South Wales (2002) 211 CLR 119 at 139 as follows:
"… 'like jurisdiction' is the authority to decide 'matters' … arising under federal laws in a manner similar to the authority of the court to decide matters arising under State law after allowance is made for the fact that the State jurisdiction arises under State law and federal jurisdiction arises under federal law".
They accepted (at [37]) that a single "matter" can proceed through more than one State court (see also R v Murphy (1985) 158 CLR 596 at 614, 617 ‑ 618) and (at [40]) that, where a trial court is invested with jurisdiction, it need not be the only State court which is invested with federal jurisdiction in that "matter" which arises under federal law and s 68(2) may operate to invest federal jurisdiction in those State courts which together, under the existing State court structure, exercise "like jurisdiction" with respect to matters arising under State law.
Kirby J, in that case, said (at [113]), that "it is a mistake to interpret words in isolation or as if locked in a statutory time capsule". He said that s 68(2) reflects a recognition that federal law will often be lacking in detail to cover situations arising in the exercise of federal jurisdiction in State courts and that it was consequently necessary to provide the means of borrowing State laws so as to fill gaps in procedural law. He, too, considered that the Judiciary Act was intended to have an ambulatory and remedial function, but said (at [115]):
"This conclusion does not require that every innovation of State law be picked up, and applied, in the exercise of federal jurisdiction in State courts. The jurisdiction invoked must still fit within the terms of the … [Judiciary Act] and the requirements stated or implied in the Constitution. The application is limited to investing State courts with 'like jurisdiction' in federal criminal proceedings. This necessitates the drawing of lines about which opinions will sometimes divide. However, in performing this function it is important to keep in mind the purpose for which the provisions in the … [Judiciary Act] were enacted. Relevantly, the legislative policy was to put the exercise of federal jurisdiction generally on the same footing as the exercise of State jurisdiction and to avoid the creation of two wholly independent systems of criminal justice (Williams [No 2] (1934) 50 CLR 551 at 560). Increasingly in recent years, such considerations have led to a broad construction of the enabling provisions of the … [Judiciary Act] so as to make available to the parties in federal jurisdiction new facilities enacted by State law (Peel (1971) 125 CLR 447 at 456, 468; cf R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345)."
Under the provisions of the Justices Act 1902 (WA) on 9 May 2003 the matters were adjourned to 8 August 2003 for a committal mention.
On 8 July 2003, Mr Trevor Cedric Grinter, a Justice of the Peace, issued a summons requiring Mr Barrymore Charles Davis to appear on 31 July 2003 before a Justice to be examined on behalf of the prosecution.
On the day before the intended examination, I granted orders nisi for writs of prohibition and stayed proceedings on the committal mention and the summons pending determination of the writ of prohibition. On the same day I directed that notices, pursuant to the Judiciary Act (Cth) s 78B, be served on the several Attorneys‑General and that notice of the
application be served on the Commonwealth Director of Public Prosecutions ("the DPP") as an interested party.
At the hearing on the return of the order nisi, the Court was satisfied that notices under the Judiciary Act s 78B had been duly served. The Court received notice by the first and second respondents indicating that they did not intend to be heard by counsel and would abide the decision of the Court.
The DPP appeared through counsel and is the effective respondent to the application.
Although there is a degree of overlap in the various contentions, each of the applicants advances slightly different arguments.
Salmat Document Management Solutions Pty Ltd
Salmat identifies that the basal issue to be determined is whether there exists an incompatibility of parts of the Justices Act procedure with the grant of Federal jurisdiction provided for in the Judiciary Act s 68 so that the relevant parts of the Justices Act Div 2 procedure are not "picked up" as a matter of surrogate Federal law.
Barrymore Charles Davis
Mr Davis is a witness to be examined. The argument advanced on his behalf is more confined. He contends that the Justices Act s 102 has no application to proceedings relating to the complaint of an offence against Federal law.
Mathew James Hall
The argument advanced on behalf of Mr Hall is wider in terms asserting invalidity in the Justices Act s 102.
In summary, Mr Hall argues:
(a)a Justice cannot validly issue a summons pursuant to the Justices Act s 74 and s 102 where the defendant is charged with an indictable offence which cannot be tried summarily;
(b)alternatively, the Justices Act s 102 is invalid because the power or function it purports to confer on the Court of Petty Sessions of Western Australia is inconsistent with or repugnant to the capacity of the Court of Petty Sessions to be vested with the judicial power of the Commonwealth pursuant to The Constitution Ch III;
(c)Alternatively, s 102 is not applicable to proceedings in Federal jurisdiction because:
(i)as a law of the Parliament of Western Australia s 102 of the Justices Act does not and cannot apply of its own force to proceedings in relation to a Federal offence; and
(iii)section 102 is not picked up and applied in Federal jurisdiction by the Judiciary Act.
The DPP
The DPP, in summary, disputes each contention. It asserts that the Justices Act s 102 is a valid exercise of power of the Western Australian Parliament and that Federal law picks up a procedure under the Justices Act.
The DPP also raises a specific response to the application by Mr Davis that he has a right of Federal Court review of the decision under the Administrative Decisions (Judicial Review) Act of the Commonwealth and that this Court does not have jurisdiction to review the decision: s 9(1)(a).
Resolution of the submissions by Davis
I am in complete agreement with the reasons of Steytler J, including his further reasons relating to the applicant Davis regarding certiorari.
There are additional conclusions as to why I agree with the orders Steytler J proposes, subject to submissions as to the precise form of relief.
They are in summary:
•The provisions of the Justices Act are not provisions respecting the procedure for the examination and commitment for trial on indictment under the Judiciary Act s 68(1) and so Federal jurisdiction is not extended to the proceedings in question under s 68(2).
•The proceedings under the Justices Act s 102, though described as committal proceedings, are not incidental to the exercise of judicial power and Judiciary Act s 68(2).
To explain these conclusions I will outline the nature and scheme of the Justices Act. I will only sketch the nature and scheme of the Judiciary Act and the consequences of the grant of Federal judicial power because Steytler J has set these out in detail.
The Court of Petty Sessions was exercising Federal jurisdiction
It is not in issue, but nevertheless worth stating because it is fundamental, that the Court of Petty Sessions was exercising Federal jurisdiction in the committal proceedings. This Court, in determining the applications, is also exercising federal jurisdiction.
The Justices Act and scheme
The general history of committal proceedings in England and their importation into Australia was traced by Dawson J in Grassby v The Queen (1989) 168 CLR 1 at 11 and following. Suffice to say, history discloses that committal proceedings have changed in character over the centuries. The important historical change for present purposes was The Indictable Offences Act 1848 (UK) known as the "Sir John Jervis Act". That Act provided for the examination of witnesses and the recording of their evidence in deposition form. In an early evolution of the bundle of rights now compendiously known as "the right to silence", the defendant was not obliged to submit to examination. The words "committal for trial" were a slight misnomer under previous proceedings and still are. The "committal" referred to was actually a committal to gaol pending trial or, of course, admission to bail. The committal for trial by a Magistrate was not then a determination that an accused should stand trial, that being left to the Grand Jury.
In Western Australia in 1883 by an Act entitled The Grand Jury Abolition Act Amendment Act, 1883, the Grand Jury was abolished: s 4:
"A Grand Jury shall not be summoned for the Supreme Court of Western Australia, nor for any General Quarter Sessions for the said Colony."
The Grand Jury Abolition Act Amendment Act also provided by s 5:
"Whenever any person shall be or shall have been committed to custody or held to bail for trial for any felony or misdemeanour before the Supreme Court or before any Court of General Quarter Sessions, an information may be filed if the person is committed for trial before the Supreme Court by the Attorney General with the Registrar of the said Court, and if the person is committed for trial before any Court of General Quarter Sessions an information may be filed by the Chairman thereof with the Clerk of such Court of Sessions."
The Grand Jury Abolition Act Amendment Act also provided that the Attorney General and the Crown Solicitor, or some other person, may act as public prosecutors and conduct all criminal trials in the Supreme Court (s 10), and that the Attorney General may in the exercise of discretion decline to file an information (s 11). The Grand Jury Abolition Act Amendment Act was predicated on the existence of prior committal hearings at which the depositions of witnesses were taken.
The Grand Jury Abolition Act Amendment Act was amended in 1893 by 57 Victoriae No 6 but the amendment is immaterial for present purposes. The Grand Jury Abolition Act Amendment Act was repealed when a Criminal Code was enacted: "An Act to establish a Code of Criminal Law" [Assented to 19th February 1902] s 3. By s 550:
"The practice and procedure relating to the examination and committal for trial of persons charged with indictable offences are set forth in the laws relating to justices of the peace, their powers and authorities."
Under the Criminal Code 1902, Ch LXI entitled "Indictments" provided for the nature of indictments (s 557), for Ex officio Informations (s 558), and for the arrest of a person charged who is not in custody and who has not been committed for trial or held to bail.
In 1902 the law relating to the authority and jurisdiction of Justices was to be found in the Justices Act 1902, 2 Edwardi VII No 11.
Section 73 provided that when a person is charged with an indictable offence the depositions shall be reduced to writing and read over and signed. Section 74(1.) provided:
"ANY justice or Clerk of Petty Sessions may issue his summons to any person requiring him to be and appear as a witness at a time and place mentioned in the summons before such justices as shall then be there to testify what he knows concerning the matter of the complaint …"
Part V entitled "Proceedings in case of Indictable Offences" set out a procedure under s 102 to be followed after the examination of the witnesses on the part of the prosecution was completed. The Justices were to give the defendant the opportunity to speak. By s 106:
"WHEN all the evidence offered upon the part of the prosecution against a person charged with an indictable offence, as such, has been heard, if the Justices then present are of opinion that it is not sufficient to put the defendant upon his trial for any indictable offence, the Justices shall forthwith order the defendant, if he is in custody, to be discharged as to the complaint then under inquiry."
Section 107:
"IF in the opinion of the Justices, the evidence is sufficient to put the defendant upon his trial for an indictable offence, then they shall order him to be committed to take his trial for the offence before some court of competent jurisdiction, and in the meantime, shall by their warrant, commit him to gaol, there to be safely kept until the sittings of the court before which he is to be tried, or until he is delivered by due course of law or admitted to bail as hereinafter mentioned."
I complete the historical narrative by noting that the Criminal Code of 1902 was repealed, although substantially re‑enacted by the Criminal Code Compilation Act 1913. Any differences are irrelevant to this case.
I have traversed this history for two reasons. The first is to demonstrate the jurisdiction and authority of Justices with respect to committal proceedings as at the enactment of the Judiciary Act 1903 (Cth). The second is to show that the historical narrative by Dawson J in Grassby, though principally tracing the evolution of committal proceedings in New South Wales, can be applied directly to Western Australia, making his conclusion at 15, quoted by Steytler J, also applicable at least until 2002.
The evolution of the committal process in Western Australia
Much has changed in the last 100 years. The significant changes for present purposes commenced in 1976 with the Justices Act Amendment Act 1976 No 33 of 1976. This introduced for the first time the concept of what is colloquially known as "the paper committals".
The definition of "preliminary hearing" was added to the Act:
"'Preliminary hearing' means a hearing to determine whether there is sufficient evidence for a person charged with an indictable offence to be committed to a court of competent jurisdiction for trial or sentence."
Section 69 was expanded to include the use on a preliminary hearing of written statements in a particular form: "admissible as evidence before it to the like extent as oral evidence to the like effect by that person; …". At a preliminary hearing Justices were required to read aloud or cause to be read aloud any admissible parts of the statement, sign it and, if necessary, order the person to attend and give evidence.
The procedure was substantially changed. By s 101A, when a person was first brought before Justices, the charge was read and then adjourned and at least four days before the resumed hearing, the prosecution was obliged to file and serve the written statement which the prosecution proposed to tender in evidence. The ability to take a deposition from a witness under s 73 remains. Section 101B provided for the procedure at the resumed hearing:
"(1)On the resumption of the hearing adjourned under subparagraph 4 of paragraph (b) of subsection (1) of section one hundred and one A of this Act and after the depositions of the witnesses, if any, called by the prosecution have been recorded in accordance with subsection (1) of section seventy three of this Act, the defendant shall be required by the Justices to elect whether or not to have a preliminary hearing.
(2)…
(3)If the defendant … elects to have a preliminary hearing there shall be a preliminary hearing but otherwise there shall not be a preliminary hearing."
In the event that there was an election for no preliminary hearing s 101C applied with the result that there was a committal for trial without consideration of the evidence.
Other provisions in relation to preliminary hearings enabled the Justices to examine all witnesses called by the prosecution and to have regard to written statements tendered in evidence.
The clear effect of the 1976 amendments was to provide an alternative to the traditional committal proceedings. If a defendant so elected, there would be no preliminary hearing and no consideration of the sufficiency of evidence.
The procedure was further refined in 1992 to provide what is colloquially known as "the fast‑track" system of expedited committal for sentence. Under the 1976 procedure, the prosecution was effectively obliged to supply to the defendant written statements of all witnesses before an election could be made. Under the 1992 amendments, after the adjournment following the first hearing, the prosecution was required to file and serve a statement of material facts and a copy of any material statement made to police officers, either on video‑tape recording or otherwise.
Upon resumption, if the defendant pleads guilty, the Justices shall, without convicting the defendant, commit the defendant to a court of competent jurisdiction for sentence. If the defendant does not plead guilty on this return, then in broad terms the preceding provisions applied and upon an election for a preliminary hearing, the Justices were required to decide whether to discharge the defendant on the basis the evidence is not sufficient for trial or to commit for trial. The 1992 amendments have been successful in enabling an expeditious disposition for defendants who are prepared to acknowledge their guilt at an early stage.
Importantly, in both the 1976 and 1992 amendments, the defendant retained the right to elect for a preliminary hearing with consequent consideration by the Justices as to the evidence and a determination whether to commit for trial. The decision of Justices however, under s 106 and s 107, still did not determine whether a person would stand trial. The ultimate decision to file an indictment, or decline to file an indictment, remained and remains with the prosecuting authorities; in this case the Director of Public Prosecutions. Although it is unnecessary to decide, I consider that these provisions were encompassed by the Judiciary Act s 68.
The 2002 amendments to the Justices Act
There can be no doubt that the purpose of the 2002 amendments to the Justices Act was to abolish preliminary hearings. The Bill was introduced following the Law Reform Commission of Western Australia's Final Report on the Review of the Criminal Justice System in 1999. In a Second Reading Speech on 27 March 2002, the Attorney General said:
"This report recommended widespread reforms to increase the accessibility and efficiency of the justice system in this State. I have previously indicated that I intends to make this report the blueprint for the structural reforms to the justice system in Western Australia.
This Bill is an important step in that process. It gives effect to the recommendations of the Law Reform Commission to abolish preliminary hearings and to replace them with a regime of disclosure by the prosecution and, to a lesser extent, by the defence. This Bill streamlines the administration of the criminal justice system by replacing an archaic process with a new and better system that will be more efficient in its use of time and resources of the courts, the prosecution and the defence. …"
The nature of the amendments
The fast‑track system remains in place. The amendments introduced by the Criminal Law (Procedure) Amendment Bill 2002 take effect if the defendant does not plead guilty. In that case the Justice is required to give the defendant a copy of the Ninth Schedule to the Act. That provides:
"The hearing is going to be adjourned …
The prosecution may apply to have witnesses examined in court before the hearing resumes. The evidence of any witnesses so examined will be recorded in depositions and you will be provided with copies of those depositions or notice of depositions recorded on video tape.
… When the hearing is resumed you will be required to plead to the charge [charges]. The prosecution will then be required to tender certain statements and video tapes.
You will be committed to the Supreme Court [or District Court] for trial, or sentence, as the case requires. The evidence will be sent to the Supreme Court [or District Court] and will not be published before trial.
…"
True to the intent of the Ninth Schedule, the Justices Act s 102 continues the ability of the prosecution to summon witnesses to give evidence.
A duty of disclosure, both general and particular, is imposed on the prosecution by s 103 and the Justices are given specific power under subs 103(7) to discharge the defendant or adjourn the hearing of the complaint to enable the prosecution to comply. No consideration of the evidence by Justices is contemplated or allowed.
When those provisions have been complied with the matter is brought back for committal mention, the procedure being set out in s 104.
In summary, in the case of the defendant who wishes to plead not guilty:
•A duty is imposed upon the prosecution to disclose its case with power to the Justices to discharge the defendant if there is a non‑compliance or adjourn the hearing of the complaint to enable compliance;
•The defendant is not a party to an examination of a witness;
•There is no judicial consideration whether the evidence is or is not sufficient to put the defendant on trial.
The previous procedure where Justices maintained, albeit to a limited degree, a supervisory role in respect of prosecutions by requiring, on the defendant's election, a determination as to whether a defendant should be committed for trial, has been abolished. In its place is a form of compulsory continuous disclosure which commences under the Justice Act but continues on indictment: Criminal Code s 611B. Insofar as the function of a committal procedure was in part to apprise the defendant of the nature of the evidence against him, that function is now performed by the duty of continuous disclosure.
Dawson J's conclusions in Grassby, at 15, no longer apply to the present function of committal hearings in Western Australia. The evolution of the Office of Director of Public Prosecutions throughout Australia, and in Western Australia the enactment of The Director of Public Prosecutions Act 1991, have further altered the statutory regime. In Price v Ferris (1994) 74 A Crim R 127 Kirby P described the object of a DPP as follows at 130:
"What is the object of having a Director of Public Prosecutions? Obviously, it is to ensure a high degree of independence in the vital task of making prosecution decisions and exercising prosecution directions. Its purpose is illustrated in the present case. The Court was informed that in the prosecution of a police officer, it is now normal practice in this State for the prosecution to be 'taken over' from a private prosecutor or informant and conducted by the DPP. The purpose of so acting is to ensure there is manifest independence in the conduct of the prosecution. It is to avoid the suspicion that important prosecutorial discretions will be exercised otherwise than on neutral grounds. It is to avoid the suspicion, and answer the occasional allegation, that the prosecution may not be conducted with appropriate vigour. Analyses by law reform and other bodies have demonstrated conclusively how vital are the decisions made by prosecutors:… Decisions to commence, not to commence or to terminate a prosecution are made independently of the courts. Yet they can have the greatest consequences for the application of the criminal law. It was to ensure that in certain cases manifest integrity and neutrality were brought to bear upon the prosecutorial decisions that the Act was passed by Parliament affording large and important powers to the DPP who, by the Act, was given a very high measure of independence. …"
Those comments may be precisely adapted to the Commonwealth Director of Public Prosecutions. In Ex parte Christianos v Director of Public Prosecutions (1992) 9 WAR 345, Pidgeon J dealt with a submission that there was a fundamental defect going to the root of the trial where there was a loss of a benefit of a ruling of law that the applicant be discharged from committal. Pidgeon J held at 352:
"This would arise in every case in which the Attorney‑General or his authorised officers exercise their right to present an ex officio indictment. To permanently stay a trial on this basis would be to deny the Attorney‑General the power and would be saying that it is not open to him ever to present an ex officio indictment if there has been a discharge and if he has no further evidence. I have indicated that I consider this proposition is untenable at law."
Parliament has replaced the preliminary hearing, where a judicial officer was required to make a decision whether or not to commit for trial, with a new regime. The Court of Petty Sessions monitors compliance with prosecution disclosure. The Director of Public Prosecutions makes all the prosecution decisions. The transfer of power over prosecution decisions before trial is complete. The role of the grand jury and the committing magistrate has been entirely replaced by the functions of the Director of Public Prosecutions and a statutory duty of disclosure. Nothing remains of the committal process but its echo in the use of the word "committal" in the Justices Act.
The Judiciary Act 1903
Part X is entitled "Criminal jurisdiction". Division 1 is entitled "Application of laws" and commences with s 68.
The policy of s 68(2) is to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice: Williams v The King [No 2] (1934) 50 CLR 551 per Dixon J at 560 and provision is both general and ambulatory: R v Gee (2003) 212 CLR 230 per Gleeson CJ at [6].
In Leeth v Commonwealth of Australia (1992) 174 CLR 455 at 467, the majority (Mason CJ, Dawson and McHugh JJ) noted that there is no general requirement contained in The Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth. The jurisdiction to try persons charged on an indictment for Federal offences is specifically conferred by s 68(2) of the Judiciary Act although the general provisions of s 39(2) remain. In Gee, Kirby J noted at [99]:
"… Provided there is a foundation in its legislative powers, the Federal Parliament can enact laws to govern the exercise of federal jurisdiction, both at first instance and on appeal. However, such laws must conform to the rule obliging the Commonwealth to accept state courts as it finds them. …"
At [113]:
"Although the word 'appeals' might not, in isolation, include the type of procedure provided by the State Act, it is a mistake to interpret words in isolation or as if locked in a statutory time capsule. It is necessary to look at the purpose for which s 68(2) is included in the JA [Judiciary Act]. This reflects a recognition that federal law will often be lacking in detail to cover situations arising in the exercise of federal jurisdiction in state courts. Accordingly, it was necessary to provide the means of borrowing state laws, whether about the jurisdiction of courts or the application of state laws so as to fill the gaps in procedural law …"
Importantly for present purposes Kirby J noted at [115]:
"This conclusion does not require that every innovation of State law be picked up, and applied, in the exercise of federal jurisdiction in state courts. The jurisdiction invoked must still fit within the terms of the JA and the requirements stated are implied in the Constitution … Increasingly in recent years, such considerations have lead to a broad construction of the enabling provisions of the JA so as to make available to the parties in federal jurisdictions new facilities enacted by State law."
The underlying philosophy for the liberal interpretation of the Judiciary Act as expressed by Kirby J at [131] and [132] is said to be, in part, because of the recognition of a need to facilitate and take advantage of innovations of jurisdiction and law in federal jurisdiction, as they are introduced in the laws of particular States. In Gee Callinan J said at [192] about s 68:
"… It is expressed in comprehensive terms implying thereby an intention to 'pick up' as comprehensively as possibly state procedural laws. …"
It may be accepted that s 68 is to a degree ambulatory in effect.
However, s 68 must still be construed according to its terms. As the historical analysis shows, the words "their examination and commitment for trial on indictment" had a very different meaning in 1903 to the procedure prescribed in 2003. Acknowledgement of the ambulating effect of a provision does not enable the law to be rewritten or interpreted in a way that virtually rewrites it.
During the period following the hearing, while the Court was considering its decision, counsel for Salmat drew our attention to Putland v The Queen [2004] HCA 8; 204 ALR 455. This is the most recent examination by the High Court of the operation of relevant provisions of the Judiciary Act, particularly s 68.
Although not of special relevance, part of the judgment of the Court offers some support to the conclusion I have just stated. In a joint judgment Gummow and Heydon JJ said at [32]:
"Section 68(2) of the Judiciary Act gave to the Supreme Court of the Northern Territory the like jurisdiction with respect to persons charged with offences against the laws of the Commonwealth to that with respect to "the trial and conviction on indictment" of persons charged with offences against the laws of the Territory. The expression "the trial and conviction on indictment" has to be read in the light of the primary meaning of the word "conviction". This denotes the judicial determination of a case by a judgment involving two matters, a finding of guilt or acceptance of a plea of guilty followed by sentence. The words "or Territory" were added after the word "State" wherever occurring in s 68 by s 14 of the Judiciary Amendment Act 1976 (Cth) ('the 1976 Act')."
Adapting the reasoning to the present, the word "committal" has to be read in the light of its primary meaning. In this case, the primary meaning is a hearing to determine whether to commit for trial. It cannot extend to an examination of a witness in the absence of the defendant without any consideration of the nature of evidence so obtained.
Kirby J, in dissent, in sentiment similar to that he expressed in Gee noted in Putland at [65] ‑ [66]:
"65.This Court has adopted a broad interpretation of the Judiciary Act so as to make available to parties in federal jurisdiction novel measures enacted by State and Territory law. Given that the provisions of the Judiciary Act necessitate adaptation of the posited law, so that it can apply in different parts of the Commonwealth, no narrow view should be taken of its terms. For matters in criminal jurisdiction, State and Territory laws will often be more innovative in procedural law, in particular, than the laws enacted by the Federal Parliament, with its pressing national concerns.
66.Nevertheless, the task presented by the intersection of different legal regimes "necessitates the drawing of lines about which opinions will sometimes divide". So it is in the present appeal. I differ from the majority in their finding that the provisions of the Judiciary Act pick up and apply a section of the Sentencing Act (NT). …"
In other words, less eloquently expressed, Kirby J recognises that despite the recognition of innovation implicit in the Judiciary Act s 68 there are still textual limits to the extent to which new procedures can be encompassed by the terms of the section.
The examination of a witness on oath, the reduction of that examination to writing in the form of a deposition and, vitally, the consideration of that evidence as part of a decision whether to commit for trial, might be regarded as incidents of the exercise of the judicial power to try an accused person in another court. R v Murphy (1985) 158 CLR 596 stands somewhat outside the general run of cases concerning the power being exercised by a court conducting a committal hearing, a power generally regarded as administrative. Some may regard Murphy as being confined by its own facts. However, it is binding on this Court and is authority for the principle that a committal hearing is so closely connected with the exercise of judicial power that its conduct is effectively an incident of judicial power.
In my opinion, the regime under to the Justices Act so far removes the examination of a witness from the judicial process that the exercise of the power to examine witnesses in the manner proposed in this case is no longer an incident of judicial power. The Justices Act s 102 is a grant of power to compel reluctant witnesses to give evidence to assist the Director of Public Prosecutions to determine whether to present an indictment. It is a grant of executive power, not judicial power. A magistrate is not exercising judicial power when hearing an examination under s 102.
No necessity to decide submissions of Salmat and Hall
These applicants sought relief on a wider basis. Like Steytler J, I refrain from dealing with those submissions, especially the submission as to general invalidity of the Justice Act amendments and particularly s 102.
The validity of the Justices Act affects the State of Western Australia. Even though the State did not wish to be heard in these proceedings, I would still be slow to determine the issue without submissions on behalf of the State, especially as it is unnecessary to determine the wider issues of invalidity in order to resolve this case.
I should not be taken as impliedly accepting that the Justices Act provisions are invalid. The issue remains open.
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