Re Nolan; Ex parte Young

[1990] HCATrans 287

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~ AUSTRALIA c-

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide	No Al2 of 1990
In the matter of -

An application for a Writ of

Prohibition against the

COMMONWEALTH OF AUSTRALIA

and LIEUTENANT COLONEL

J.A. NOLAN a Defence Force

Magistrate

Respondents

Ex parte -

HUGH YOUNG

Prosecutor

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J

Young(2) 1 4/12/90

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 DECEMBER 1990, AT 10.18 AM

Copyright in the High Court of Australia

MR G.A. HACKETT-JONES, QC: If the Court pleases, I appear

with my learned friend, MR P.A.J. HERRIMAN, for

Sergeant Young, the Prosecutor. (instructed by

Thomson Simmons & Co)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned

friends, MR R. MEUCKE and MR S.J. GAGELER, for the

Attorney-General of the Commonwealth. (instructed

by the Australian-Government Solicitor)

The Court may recollect when we announced our

appearance in the Tracey matter, we indicated our
view that we thought it was inappropriate that the

Commonwealth should be the named respondent for an

order of prohibition. We take the view that

prohibition could not run against the Commonwealth

and we made the suggestion which was taken up by

the Court in that case that there should be an

order pursuant to Order 55 rule 12, that the

Commonwealth should be named as a respondent. We

are happy if that course is adopted in this case

and in which case I will announce my appearance for

the Commonwealth as a respondent, Your Honour.

MASON CJ: Yes, Mr Solicitor.

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my friend,

MR M.D. WALTER, for the Attorney-General for the

State of South Australia. (instructed by the Crown

Solicitor for South Australia).

We intervene in support of the applicants, if

the Court pleases, to put submissions as to the

validity of section 61 and to that extent will be

seeking leave to direct argument to the correctness
of views expressed ·in re Tracey as to the validity

of section 61.

MR K. MASON, QC, Solicitor-General for New South Wales: If

the Court pleases, I appear with my learned friend,

MR L.S. KATZ, for the Attorney-General for New

South Wales. (instructed by the Crown Solicitor

for New South Wales).

We will be taking the position that if

section 61 is valid, there is jurisdiction but if

its validity is in issue, it is invalid.

MR G.L. DAVIES, QC, Solicitor-General for Queensland: May

it please the Court, I appear with my learned
friend, MS R.ATKINSON, for the Attorney-General for
the State of Queensland intervening in support of

the Prosecutor and we will be adopting the

submissions of our learned friend, the Solicitor-

General for South Australia with some additional

Young(2) 2

submissions, if the Court pleases. (instructed by

the Crown Solicitor for Queensland).

MASON CJ: Yes, Mr Hackett-Jones?

MR HACKETT-JONES: If the Court pleases, Sergeant Young is

charged with seven offences against

section SS(l)(a) of the Defence Force Discipline

Act which involves falsification of a service

document namely a pay list.

MASON CJ:  I think you might raise your voice. It is a

little hard to hear what you are saying.

MR HACKETT-JONES: Yes. Sorry, Your Honour - which involves

falsification of a service document, namely, a pay
list. He is also charged with seven offences
against section 135(2) of the New South Wales

Crimes Act as it applies in the ACT extended to

defence force members by section 61 of the Defence

Force Discipline Act and that is, in effect, a

charge of uttering the forged document.

Now, if Your Honour pleases, the substance of the charges is covered, we would submit, by a super

abundance of civilian offences and I have listed

them in my note but perhaps I might mention them

briefly. Section 29A(l) of the Crimes Act which

involves defrauding the Commonwealth by some false

pretence and thus obtaining money, perhaps I should

mention that is an offence that carries a penalty

of five years imprisonment on the Crimes Act;

section 29B is an offence that carries a penalty of

two years under the Crimes Act imposing on the

Commonwealth by untrue representation; section 29D

of the Crimes Act defrauding the Commonwealth and

that is an offence that carries a penalty of

$100,000 fine or imprisonment for 10 years.

Then there is an offence of forgery under

section 63(l)(c) in combination with section 67(b)

document, making a document which is false, knowing	and (e) of the Crimes Act which involves forging a	it to be false. That carries a maximum penalty of
ten years imprisonment.

Then section 64 in conjunction with

section 67(b) and (e) provide an offence of

uttering a forged document. Section 72(c) deals

with fraudulent falsification of a document by a

Commonwealth officer, carrying a maximum penalty of

seven years imprisonment.

DAWSON J:  Mr Hackett-Jones, where do these sections come

from? I have an Act here called Crimes Act (New

South Wales) As amended in its application to the

Australian Capital Territory.

Young(2)	3 MR HACKETT-JONES, QC 4/12/90
MR HACKETT-JONES:	Yes, these come from the Commonwealth

Crimes Act. I am sorry that that may not have been

apparent to you, but I am referring to the

Commonwealth Crimes Act.

The final one, Your Honour, section 74 which

involves furnishing a false return or statement

relating to remuneration by a Commonwealth officer,

and that carries a maximum penalty of two years

imprisonment.

If the Court pleases, we say that the distinction

between Tracey and this case lies in this, that

Tracey involved charges of absence without leave

contrary to section 24(1) of the Defence Force Discipline Act and also an ancillary charge of falsification of a movement document. In other

words, the document was forged in order to take leave to which the serviceman was not entitled.

We would say that this latter charge, the SS(l)(b) charge was clearly ancillary to or closely

interrelated with the charge under section 24(1)

and perhaps I might just refer your Honours to

section 190(4) of the Defence Force Discipline Act

which may be perhaps a proper exercise of the

legislature's powers but (4) provides that:

A civil court does not have jurisdiction to

try a charge of a civil court offence that -

(a) is an ancillary offence in relation to an

offence against this Act -

TOOHEY J:  Mr Hackett-Jones, the charges were, in each case,

amended by adding an enlarged description of the

role of the accused and the duties that he was

performing, no doubt to lend support to the notion

that the charges were associated with service

conduct. Are any of the additional words, that is

the words added by way of amendment, essential to

the commission of any of these offences?

MR HACKETT-JONES:  Not as far as I can see, Your Honour.

Certainly there has been an attempt to invoke, as it were, the Relford principles, there is no

question that that attempt has been made. The

position we take, however, is a more absolute one.

We will be submitting, I think, that the more

absolute position of Your Honour Justice Deane and

Your Honour Justice Gaudron is in fact the correct

ante-Solorio position.

Anyway, if the Court pleases, we would say

that absence without leave is a matter of military

discipline par excellence, and there is no civilian

analogue, so we certainly concede - of course we

Young(2) 4

must concede -that jurisdiction did exist in that

case. However, we say that the essence of the

charge against Sergeant Young is that he defrauded

his employer. The employer happened to be the

army, but the offence is not different in any

essential character from a corresponding offence

committed by a civilian employee of the

Commonwealth and, indeed, it is not in any

essential respect different from an offence

committed by any other employee against his

employer. And, as described above, there are

abundant civilian offences with which
Sergeant Young might be charged.

Now, we would submit, if the Court pleases, that the outer boundary of military jurisdiction

which was established by Tracey has to be

discovered by a cumulative reading of the judgments

of Your Honour the Chief Justice and

Justices Wilson and Dawson and the judgment of

Justices Brennan and Toohey.

We submit that even on this basis, the

jurisdiction that has been asserted against Sergeant

Young fails and we would refer Your Honours in

particular to the judgment of Justices Brennan and

Toohey at pages 562 of the CLR. This is a

historical discussion at this point but if I could
refer Your Honours to the final paragraph

commencing with the second sentence, it was said

that:

The most important aspect of the discipline

which that law was intended to secure was the

control of armed forces to ensure that their

existence as a permanent armed body under

hierarchical command should not threaten the

peace and civil order of the Realm. This

discipline was achieved primarily by

subjecting members of the naval and military

forces to the processes of the ordinary courts

of law where that was practicable and

convenient.

Perhaps, pausing at this juncture, if the Court

pleases, the offences are alleged to have been

committed at Keswick Barracks which is about one

mile, I would say, or perhaps one or two miles from

the centre of the city of Adelaide, so there seems

to be no question of it being impracticable for

Sergeant Young to be charged before a civilian

tribunal. Just continuing with that passage:

It was not practicable and convenient to do so when

the forces were deployed at sea or outside the

Crown's dominions, nor would it have been

practicable and convenient to do so within the

Young(2) 5 MR HACKETT-JONES, QC 4/12/90

Realm in times when the courts were closed

because of hostilities.

Perhaps if I could just refer Your Honours to a

further passage on page 563, about one-third of the

way down:

Naval and military law thus created not only a

system for punishing breaches of the laws

peculiarly applicable to those forces but also

a secondary system for enforcing the ordinary

criminal law against naval and military
personnel where it was not practicable or

convenient for the ordinary courts to exercise

their jurisdiction to do so.

So that statement is, in effect, the converse of the statement on page 562. Of course, that is a discussion of the historical position but later on

it seems to me that Justices Brennan and Toohey

accept that historical position as being the

pre-eminent criterion to be applied where the

question of invoking jurisdiction of a military

tribunal in respect of an offence for which there

are civilian equivalents arises.

I refer Your Honours to a judgment at a later

point, at page 570, and at this point Your Honours

are referring to the two objectives of military

discipline on the one hand and the preservation of

civilian rights on the other and Your Honours say

about one-third of the way down:

To achieve these objectives, civil

jurisdiction should be exercised when it can

conveniently and appropriately be invoked and

the jurisdiction of service tribunals should
not be invoked except for the purpose of

maintaining or enforcing service discipline.

And then, later on that page, Your Honours go on to

propound a test and if I could just refer

Your Honours to the second sentence of that test:

In determining whether it is reasonable to regard the maintenance or enforcement of

service discipline as a substantial purpose of

bringing proceedings, it is important to

consider whether the jurisdiction of a

competent civil court can conveniently and

appropriately be invoked to hear and determine

a corresponding civil court offence.

Then, Your Honours go on to refer to the Relford

principles but it seems to me that the Relford
principles, within the context of the argument,

have a very subordinate importance, compared with

Young(2) 6

this question of fundamental importance: is it

possible to deal with this matter under civilian

law? Is it possible to have those charges

effectively determined by a civilian court? If the

answer to that is affirmative, well, that, I would

submit, ends the matter.

So, we would respectfully submit, that even on

the basis of Tracey, we must win but we would
concede that a cumulative reading of two judgments

which are fundamentally opposed in terms of basic

principle is somewhat artificial so, I suppose, we

would perhaps seek to advance further arguments to

justify what we believe is the correct position,

namely, the one advanced by Justices Deane

and Gaudron. The purpose of doing so, we would

respectfully submit, is that the Court's

declaration of invalidity in respect of

section 190(3) and (5) of the Defence Force

Discipline Act was made per incuriam, that the court did not have cited to it section 4C of the

Crimes Act which is a general provision governing

the interpretation of Commonwealth criminal law

generally. The material provision is

subsection (1):

(1) Where an act or omission constitutes an

offence:

(a) under 2 or more laws of the

Commonwealth .....

the offender shall, unless the contrary

intention appears, be liable to be prosecuted

and punished under either or any of those laws

of the Commonwealth or at common law, but

shall not be liable to be punished twice for

the same act or omission.

We would say that the Court's apparent

intention in declaring subsections (3) and (5) to

be invalid was to preserve the co-existence of a

civilian and a military system and I would refer Your Honours to the judgment of Your Honour the	Chief Justice and Justices Wilson and Dawson at
page 547 where it is said:

In any event, the desirability or undesirability of a person being exposed to

double jeopardy sheds little light upon the

question of the legislative power of the
Commonwealth to enact sections 190(3) and (5).

The section seeks to protect against double jeopardy and proceeds upon the assumption that

statutory provision is necessary to achieve

that objective.

Young(2) 7

And, Your Honours go on to say but that involves an

invasion of civilian jurisdiction and that is

constitutionally impermissible. The point is made

by Your Honours Justices Brennan and Toohey -

DAWSON J:	The point about that passage is that what is said there is that it is beyond the Commonwealth power,
certainly the Commonwealth defence power, to interfere with the constitution of the States by interference with the jurisdiction of the courts
under that constitution.

MR HACKETT-JONES:  Yes, sir, yes. I concede that that

particular passage is related to the jurisdiction

of courts of the States. What I would say though

is that, and I had proposed to leave this to a

slightly later point in my argument, that precisely

the same argument is logically possible and
necessary in regard to courts whose jurisdiction

flows from Chapter III of the Constitution.

DAWSON J: But I am just interested in the per incuriam

argument you are putting.	I do not see it at the
moment.

MR HACKETT-JONES:  Yes. What I am saying, sir, is that the

declaration in fact merely removed provisions of

the functionally supererogatory, that those
provisions in fact do not do anything at all except

repeat a principle that applies anyway and, thus,

one is necessarily in pursuing the question of

invalidity one is then necessarily cast back to an

earlier stage of the document, of the Act.

BRENNAN J:  One has first to construe section 4C, of course,

to determine whether or not prohibition against

liability to prosecution and punishment is speaking

of prosecution and punishment in exercise of the

judicial power of the Commonwealth.

MR HACKETT-JONES: That may be so, but there is certainly

nothing in that section to suggest a limited

construction, if Your Honour pleases. It simply

says that under two laws of the Commonwealth.	We
would respectfully submit the Defence Force

Discipline Act is a law of the Commonwealth. There is nothing to suggest that that should not apply if the particular law provided for a non-judicial

punishment.

BRENNAN J:  You may be right, Mr Hackett-Jones, all I am

just saying is that there is a question as to

whether or not ttoffencett in 4C extends to include

service offence.

MR HACKETT-JONES: Yes, I suppose I could only say that

there is nothing - - -

Young(2)	8
BRENNAN J:	Your submission is that it does.

MR HACKETT-JONES:  Yes, my submission is that it does. Now,

I simply point out to the Court that section 4C is

expressed to apply unless the contrary intention

appears, and we would respectfully submit that so

far from the contrary intention appearing,
section 190 makes it abundantly clear that it is

precisely the intention of the legislature that

that principle should apply. The Court is clearly

not entitled to substitute its own intention for

that of the legislature, and the Court is only

entitled to pronounce on the validity of the

Commonwealth's legislation given the interpretation

that the Commonwealth itself ascribes to it.

BRENNAN J: There would be another question, would there

not, about section 4C, and that is, if it does

extend to preclude the exercise of jurisdiction by

civil courts of the ordinary jurisdiction which

they would have consequent upon the exercise of

jurisdiction by a military tribunal, whether

section 4C itself is a valid exercise of

legislative power.

MR HACKETT-JONES: Yes, well on that point, Your Honour, we

would say that section 4C is simply an interpretive

provision. The Commonwealth is simply saying,

"This is how we want our legislation to be
understood", and we would submit that there can be

no doubt that such a provision is within the power

of the Commonwealth Parliament. If that is how it

wants its legislation to be understood it is

entitled to say that, and having said that, the

section,. of course, forms part of the juristic

background against which particular Acts like the

Defence Force Discipline Act must be read.

DAWSON J:  Can I see if I understand the argument correctly?

Do you say that section 190(3) and (5) of the

Defence Force Discipline Act cannot be beyond power

because they do not do anything; they are

unnecessary? They do not do anything and are

unnecessary because of section 4C of the Crimes

Act.

MR HACKETT-JONES:  I suppose I would put it in a slightly

different way. I would agree with Your Honour's

proposition that they do not do anything, but what an earlier stage. It then becomes a question of

whether the Act, having been enacted within this

juristic framework, is valid. So the

supererogatory nature of subsections (3) and (5)

means that the question of validity is forced back

to an earlier stage.

Young(2)	9
DAWSON J:	They can only be supererogatory if, in fact, they only do something which is already done and that is
what you are saying.

MR HACKETT-JONES: That is right, that is what I am saying,

yes.

DAWSON J: Yes. But if they attempt to do it again there is

still a question of power, is there not?

MR HACKETT-JONES: Well, I would submit not. If the law

does nothing, then it is merely for the information

of readers.

BRENNAN J:  When you say it is forced back to an earlier

stage of the inquiry, what you are saying, if I

understand it correctly, is that by reason of the
provisions of section 4C there cannot be
co-ordinate jurisdiction between military and civil

tribunals and because the civil tribunals have

priority in relation to jurisdiction, therefore, a
provision which confers military jurisdiction must

be ultra vires.

MR HACKETT-JONES: Yes, I would not quite put it that way.

I would say that, therefore, at that point a law

that confers jurisdiction on a military tribunal

and at the same time abstracts that same

jurisdiction from the civilian tribunal

necessarily, of course, invades the jurisdiction of

the civilian tribunal and is invalid for that

reason - well, because of Part III of the

Constitution which vests that jurisdiction in the

civilian tribunal.

BRENNAN J: Well then we come back to inquiry as to where it

is that the commencement of the invasion occurs.

MR HACKETT-JONES: Yes. Well, I would respectfully submit

that the invasioning occurred by the Commonwealth

enacting a law in a comprehensive form and that

subsections (3) and (5) are really irrelevant to

that.

BRENNAN J:  We can leave (3) and (5) alone. The problem, if

we focus on sections 61 and 4C of the Crimes Act,

for example, is, how is it that section 61 is ultra

vires and in what circumstances, or is it a general

ultra vires?

MR HACKETT-JONES: Well, in regard to section 61, I would

say that Part III of the Constitution to which that

section refers would vest that jurisdiction in

courts constituted under Chapter III. Now, if you

then come along and say, well some other

non-judicial body is to have jurisdiction to

determine those same offences and to take away at

Young(2) 10 MR HACKETT-JONES, QC 4/12/90

the same time that jurisdiction that would

otherwise have existed, that is, we respectfully

submit, the constitutionally impermissible invasion

of jurisdiction.

The point that I really wanted to make was

that the judgments of Your Honours the

Chief Justice and Justices Dawson and Wilson, and
the judgments of Your Honours Justices Brennan

and Toohey were really postulated upon the

non-invasion, the absence of invasion, and so it

was proposed that the two systems co-existed side

by side, subserving essentially different
purposes.Now, we would say, given the fact that

section 4C exists, that position is simply no

longer maintainable.

DEANE J:  May not the relevance be this, that it is one

thing to say that section 190 dealing generally with Commonwealth and State jurisdiction is not within legislative power; it is a completely

different thing to say that section 4C which only

limits Commonwealth jurisdiction or federal

jurisdiction is not within legislative power.

MR HACKETT-JONES:	Yes.
DEANE J:	And that being so to, as it were, nullify

section 190 will, if section 4C applies, not really

get away from the question when the offence is an

offence under Commonwealth law.

MR HACKETT-JONES:  Yes. I suppose what I would say is that

the problem to which His Honour the Chief Justice
referred in his judgment about invasion of the

sphere of State jurisdiction applies a fortiori

where it is a question of Commonwealth

jurisdiction, because there you have a specific constitutional provision that says the judicial

power of the Commonwealth is vested in Commonwealth

courts, in civilian courts.

DEANE J:  But that is a limiting provision. question may be the extent of Commonwealth The prior

legislative power and a Commonwealth law that

limits the application of Commonwealth criminal

law, that may not even have to rely on defence

power.

MR HACKETT-JONES:  With respect, Your Honour, I would say

that the position is precisely the same, whether

one talks of Chapter III or of State courts. In

either case one has, as it were, a kind of bank

account with two persons entitled to draw upon it.

If one draws out all the balance then there will not be anything there for the other to draw upon

and so therefore the jurisdiction, or the money -

Young(2) 11 MR HACKETT-JONES, QC 4/12/90

perhaps to pursue that analogy - that would have

been available is no longer available. That

jurisdiction is taken away and vested with somebody

else.

Now, His Honour the Chief Justice saw that as

a problem in relation to State criminal law. I

would simply say that Part III, although I agree it

is a provision of limitation, it says that the

judicial power is only exercisable by certain

courts but it, in effect, guarantees those courts

the exercise of anything that could be

characterized as judicial power.

So if that is invaded, as it were, if a part

of that jurisdiction is taken away, (a) it is an

invasion of the proper sphere of the courts

exercising judicial power but also it seems to me

that it invalidates, as it were, the kind of basis

upon which this parallel system of civilian and

criminal justice was postulated and in that respect

I would refer Your Honours to 166 CLR 538, the

first paragraph:

Of course, the end to be achieved by

martial law, consistently withs 5l(vi) of the

Constitution, is the promotion of the

efficiency, good order and discipline of the

defence forces and no more. This object was

made clear by this Court in Groves v The

Commonweal th.

And then, of course, that famous passage was

recited and, perhaps, if I could refer on to

page 541, just at the end of the first paragraph:

Thus the power to make laws with respect to

the defence of· the Commonwealth contains

within it the power to enact a disciplinary

code standing outside Ch III and to impose

upon those administering that code the duty to

act judicially.

Now, I agree that the words "standing outside"

might be interpreted in a number of different ways

but the way I would respectfully interpret them is

that "standing outside and not encroaching upon"

would be the correct way to read that passage.

BRENNAN J:  I am afraid I do not understand that,

Mr Hackett-Jones. Are we speaking about the

judicial power of the Commonwealth under Chapter

III?

MR HACKETT-JONES: Yes.

BRENNAN J:	Is that what is not to be encroached upon?
Young(2)	12MR HACKETT-JONES, QC 4/12/90

MR HACKETT-JONES: Yes, that is so, Your Honour. That is

how I would interpret that passage, that is the

military system stands outside. If it does not
stand outside - perhaps, if I could put this way:

you cannot say that the military system stands

outside the Chapter III system if in fact there is

a direct encroachment on the Chapter III system.

BRENNAN J: Encroachment meaning what?

MR HACKETT-JONES:  A direct abstraction of matters that fall

within that Chapter III system from the one system

to the other; a direct transference of matters

from the civilian system to the military system.

DAWSON J:  Why not? Why cannot an offence be something to

do with military discipline as well as the criminal

law?

MR HACKETT-JONES: There is no reason at all, Your Honour,

but what I would say is that the Defence Force Discipline Act goes far beyond that because it

purports to deal, given the juristic framework in which it is enacted, it purports to deal not only with the offence as a matter of military discipline

but in its general community aspects.

DAWSON J: But I thought that was the whole point of that

judgment, that, in fact, that is not so, but in so

far as what would otherwise be a civil offence is a

military offence is only so or legitimately so if it

could be connected with the good order and

discipline of the forces.

MR HACKETT-JONES: Yes. What I am saying, if Your Honour

pleases, is that that argument does not hold water
because there is a direct abstraction of the matter

from the civilian system. So when a military

tribunal deals with a particular service offence

the effect of so doing is to remove that offence

from the civilian system altogether.

Now, I am not disagreeing with what

Your Honour says as to the interpretation of the

judgment. All I am saying is the judgment is

wrong.

BRENNAN J:  The judgment, so far as it goes, is right,

because it says, "That does not happen because

190(3) and (5) are invalid". Your proposition is

that the judgment is wrong because section 4C does

what the Court said 190(3) and (5) could not do.

MR HACKETT-JONES: Well, I suppose it could be put that way,

yes.

Young(2)	13 MR HACKETT-JONES, QC 4/12/90
BRENNAN J:	Is there any other way of putting it that would

be valid?

MR HACKETT-JONES:  I am sorry, Your Honour, I did not

catch -

BRENNAN J:  Am I wrongly stating your argument?

MR HACKETT-JONES:  No. I think what you say is correct,

that 4C, which is part of the juristic framework

within which the Act is enacted, does the same job as 190(3) and (5), and thus, because the Court did not consider 4C, the Court was wrong.

BRENNAN J: Well, if 190(3) and (5) was invalid, how can 4C

have a valid operation of the same kind?

MR HACKETT-JONES: Well, 4C is simply a statement by the

Commonwealth legislature as to how is wants its

criminal law to be interpreted.

BRENNAN J:  I appreciate that but the point is that if it be

right to say section 190(3) and (5) are invalid,

how can an operation be attributed to 4C which

gives them the same operation as that which has

been struck down?

MR HACKETT-JONES: It is difficult for me to answer that in

the sense that, of course, on my argument, 190(3)

and (5) were simply provisions that were

functionally irrelevant anyway and all I am saying

is that the fact that there is this particular

juristic framework within which the Act is enacted

and the fact that 190(3) and (5) are functionally

irrelevant anyway, means that the question of

invalidity is pressed back to an earlier stage.

BRENNAN J:  I may be misunderstanding your argument, but I

perceive it to be based upon the proposition

that 4C relates to two areas of judicial power

under Chapter III and if that being so by vesting

any jurisdiction in the military branch it is

abstracted from the civil branch.

MR HACKETT-JONES: Yes, it has that effect, yes.

BRENNAN J:  The first proposition is whether or not 4C does

relate to exercises of federal judicial power under

Chapter III.

MR HACKETT-JONES: Yes, well I agree, I simply say yes it

does, and it also applies to exercises of judicial

power under the Defence Force Discipline Act.

BRENNAN J: Yes.

Young(2)	14 MR HACKETT-JONES, QC 4/12/90
MR HACKETT-JONES:	I was in the course of referring

Your Honours to a number of passages and

demonstrating that the upholding of the military

jurisdiction by five Judges of this Court, was

based on non-encroachment of the military

jurisdiction on the civilian jurisdiction and,

there was just one other passage - the passage at

547, to which I have already referred, and I would

merely repeat the point that what is said in that

passage as to invasion of the jurisdiction of State

courts applies a fortiori to invasion of the

jurisdiction of federal courts exercising

jurisdiction under Chapter III of the Constitution.

MASON CJ:  I think you have made that point.

MR HACKETT-JONES:  Yes. Now, I would just refer

Your Honours to some passages in the judgments of
Your Honours Justices Brennan and Toohey and
Your Honours say in that case, about a third of the

way down that page, 569:

If the latter view were adopted without

qualification, service tribunals would be

authorized to trespass upon the proper

jurisdiction of the civil courts over defence

members and defence civilians and their civil

rights would be impaired. The protection of

Magna Charta and the victory of Parliament over the Royal forces which resulted in the Bill of Rights would become the unintended casualties of the Australian Constitution.

But the dichotomy is not necessarily complete.

Then, at page 571, Your Honours go on to say that

it is the functional difference between military

and civilian proce~dings that justifies the co-

existence of the two systems and that point is made

at about the middle of page 571:

It is the difference between the purpose of

proceedings before service tribunals and the

purpose of proceedings before civil courts

that justifies the subjection of service

personnel to the jurisdiction of both.

Then, there is a somewhat extended passage going from pages 575 to 576 and Your Honours are there

referring specifically to the question of invalidity of sections 190(3) and (5) and

Your Honours say:

Their invalidity flows also from broader considerations. To give effect to these provisions is to assume for service tribunals

the authority to pre-empt the jurisdiction of the ordinary courts. That was the subject of

Young(2) 15 MR HACKETT-JONES, QC 4/12/90

the Lords' protest which was satisfied in 1721

by withdrawing from the Mutiny Act the full

benefit of a court-martial acquittal ..... the

history of naval and military law does not

reveal any impairment of the criminal

jurisdiction of the ordinary courts. It has

always been understood that military

personnel, subject to military discipline, are

no less subject to the criminal law and
amenable to the jurisdiction of the ordinary

courts.

Your Honours then quote a passage from

Pitchers v Surrey County Council in support of that

view and various other judicial authorities and

then on page 576, about half the way down:

A defence member is and must remain liable to

the ordinary criminal law; he does not

acquire immunity merely because he has been

dealt with by a tribunal other than the

ordinary courts.

So, Your Honours were clearly postulating the co-existence of civilian and military systems and

that a person who had been punished under the

military system would remain liable to be proceeded
against and punished under the civilian system.

Now, what I say is that that objective simply cannot be achieved consistently with section 4C,

that 4C is a valid law of the Commonwealth because

it merely states how the Commonwealth wants its

legislation interpreted and having made that

statement it is not for Your Honours to find some contrary intention, it is to declare the validity of the legislation having regard to the fact that

that is how it expects you to interpret it.

So we would respectfully submit that these considerations should lead the Court towards the

rather more absolute position that was endorsed by,

Yo Your Honours Jutice Deane and Justice Gaudron

and just to, I suppose, support that view we would

like to add a few arguments of our own.

The first point we make which is not, I think,

in contention is that the defence force

magistrate's jurisdiction is founded on

section Sl(vi). There is, however, a difference of

opinion in the court as to the effect of the second

clause of section Sl(vi). Your Honours will recall that Sl(vi) empowers the Commonwealth Parliament to

make laws with respect to:

The naval and military defence of the

Commonwealth and of the several States, and

Young(2) 16 MR HACKETT-JONES, QC 4/12/90

the control of the forces to execute and

maintain the laws of the Commonwealth.

Now, Your Honour Justice Gaudron, I think,

interpreted the second clause as being applicable

to defence force discipline. We would respectfully

submit that the better view is the view taken by

Your Honours The Chief Justice and Justice Dawson

that this latter clause in fact refers to the

control of, perhaps, the Commonwealth Police Force

or ASIO, perhaps, but:

the control of the forces to execute and

maintain the laws of the Commonwealth -

we would submit, requires a very forced

construction to apply it, say, to the discipline of

troops perhaps fighting in Vietnam. I suppose, in

some sense, they might be said to be doing that but

it is a very artificial and forced construction, we

would submit. We would say that the foundation of

the judicial power on section Sl(vi) carries within

it the principle of its own limitation and the

first point, we submit, that needs to be noticed is

that defence denotes a purpose rather than a

subject-matter and that point was made by

His Honour Justice Dixon in Stenhouse v Coleman,

(1944) 69 CLR. He says at the top of page 471:

Some of the difficulties which have been

felt in the application of that power seem to me to be due to the circumstance that, unlike

most other powers conferred by s.51 of the

Constitution, it involves the notion of purpose or object. In most of the paragraphs of s.51 the subject of the power is described

either by reference to a class of legal,

commercial, economic or social transaction or
activity (as trade and commerce, banking,

marriage) or by specifying some class of public service (as postal installations,

lighthouses), or undertaking or

operation ..... In such cases it is usual, when
the validity of legislation is in question, to

consider whether the legislation operates upon

or affects the subject matter, or in the last

case answers the description, and to disregard

purpose or object.

Now, we would submit that what is being said

here is a matter of fundamental logical importance,
and the Court itself unfortunately, in subsequent
decisions, lost sight of the importance of what it

said here. Perhaps I might mention at this stage

it seems to me that the designation of defence as a

purpose rather than a subject-matter means that the

techniques of a priori categorization simply cannot

Young(2) 17 MR HACKETT-JONES, QC 4/12/90

be applied to it. Perhaps if I can describe what I

mean by that: if there is a constitutional power

to make laws with respect to the growing of

vegetables, for example, and you have a particular

law providing for the growing of broad beans you

can buy a priori categorization. You can say

because broad beans are vegetables, therefore that

law is within power. Conversely, if you have a law

with respect to raising chickens you can say,

"Well, chickens are not vegetables." Therefore

that law is not within power.

But if you have a power that is designated by

its purpose or object, then no subject-matter is

necessarily included within that power, and

conversely no subject-matter is necessarily

excluded from it.

In Stenhouse v Coleman, Mr Justice Dixon seems

to have recognized that logical consequence,

because on page 469 of (1944) 69 CLR he says, and

this is the second paragraph:

When the question is whether a measure is

incidental or conducive to the prosecution of

a war that is being fought, the solution of

the question is bound to depend much less upon
the abstract formulation of the general test

or criterion to be applied than upon a correct

ascertainment of the true nature and operation
of the provisions impugned and of their

bearing upon the prosecution of the war.

In other words, what he is saying there in logical

terms, is that a priori categorization is not

appropriate but a posteriori valuation is

necessary. In other words, you look at the thing

by considering what effect it has on a society or

on its particular subject-matter and then in the
context of wider society. Perhaps I could

illustrate the importance of that in relation to

defence by an example from the Trojan War which, as

Your Honours remember, was won by the Greeks by

building a wooden horse, filling it with soldiers.

It was then given to the Trojans. The soldiers

came out at the dead of night and attacked the

Trojan from within the city walls and thus won the

war.

Now, assume for example, that the Greeks being democratic people had passed a law to build the

wooden horse and that the validity of that law came

to be tested by reference to the Australian

Constitution. The technique of the Court in the

Communist Party case, at any rate, is to say here

is a law with respect to the building of a wooden

horse. There is no relevance of that to defence,

Young(2) 18 MR HACKETT-JONES, QC 4/12/90

therefore it does not come within the defence power

or, if it does, it only comes within that power in

a peripheral or incidental sense.	Now that, with
great respect, is absolute nonsense.	The building

of the wooden horse was absolutely central to the

defence strategy and when Mr Justice Kitto, for

example, says in the Communist Party case at 83 CLR

at 278 about a third of the way down:

The point of fundamental importance is that,

before a measure can be pronounced valid, a

capacity to assist defence, or a sufficient
relevance to another subject of power, must be

perceivable in what the law itself does, not

in what will follow when it does it. Turn to

facts concerning the character, objects,

activities or propensities of an association

which is made the specific subject of a law, and you turn away from the relevant inquiry; you are looking no longer at the legal

operation of the law but at the practical

results likely to follow in the train of its

operation; you are concerning yourself, not with power, but with matters which provide a reason for a purported exercise of power.

Now, with great respect, if you apply that to the wooden horse, you say, "This law builds a wooden

horse and we are not permitted to pursue the

inquiry any further". That method of analysis, if

Your Honour pleases, merely tends to confirm

Mr ..... view of the law, and, as I say, it fails to

appreciate the fundamental difference between a

teleological power, something that denotes purpose,

and another power that denotes subject-matter.

Now, because it is a purposive power, the range of

its operation expands and contracts according - - -

MASON CJ:  You do not need to spend much time on that, do

you, Mr Hackett-Jones?

MR HACKETT-JONES:  No, Your Honour, I agree. I have simply

put some references in my notes and I certainly

will not bother to labour them. I suppose our

fundamental position is stated in my paragraph (c)

on page 4 of my notes where our basic position is

that although we would concede that the defence of
the country may require the existence of a standing

army and that obviously if you have a standing army

then some sort of disciplinary regime is required,
nevertheless the circumstances calling forth the
exercise of the power do not justify a

comprehensive system of military justice in the

form of the Defence Force Discipline Act which we

say is, in any event, obnoxious for a number of

other reasons.

Young(2) 19 MR HACKETT-JONES, QC 4/12/90

The first of these I need not labour because

this is territory that has been gone over again and

again. Groves v the Commonwealth makes it clear

that the system of military justice cannot be a

substitutionary system and my contention is that

the juristic framework in which this Act has been

enacted unnecessarily makes it a substitutionary

system and there is really no way for the Court

out of that dilemma.

The second point I want to make is that the

right to civilian trial or, at any rate, trial by

an organization or by a tribunal that is

independent of the organization by which the
prosecution is brought is in the nature of what

Mr Justice Fullagar - perhaps I will not impute to

Mr Justice Fullagar the licence that I have taken
with Latin - but Mr Justice Fullagar uses the word

"privilegium" in its republican sense, meaning a

law that infringes private or individual rights and

the word "privilegium" in its post-Augustan sense,

that is in the Latin of the empire, in the Latin of

Tacitus rather than the Latin of Cicero, came to

mean the actual private right that was actually

infringed.

So when I have said that Sergeant Young's

right to civilian trial or a trial by a court that

is independent of the prosecution, I have simply

used the word "privilegium" in a sense that bears a

reciprocal relationship to the sense in which

Mr Justice Fullagar used it.

I would respectfully - I am sorry,

Your Honours may be offended by the - if
Your Honours would prefer me to remain with the republican Latin rather than - I will have to call

it something else.

BRENNAN J: Instructed, not offended, Mr Hackett-Jones.

MR HACKETT-JONES:  What we say about it, anyway, whatever

you call it, it is a civilian right, a civil right,

that must on any sensible valuation be regarded as

valuable, as important to the individual as the

rights of free association, the contractual rights,

the rights of property that were in issue in the

Communist Party case and I would simply refer

Your Honours to the passage that Your Honours have

yourselves quoted in your judgments.

In Burdett v Abbott Lord Mansfield makes the point that when a civilian enlists he does not

divest himself of his civilian rights but they

remain with him in full effect. And we would

submit that the principle to be deduced from the

Communist Party case is that in time of peace the

Young(2) 20 MR HACKETT-JONES, QC 4/12/90

defence power does not authorize the destruction of

civilian rights and therefore does not authorize

the destruction of Sergeant Young's right to have

these matters determined by a civilian tribunal if

that is what he wants.

In support of that contention we would refer

Your Honours to the judgment of Mr Justice Dixon at 192 which does not appear in my note. About

two-thirds of the way down he is here talking not

about the defence power but he divides up the

power, I would submit, rather curiously into power

to deal with the enemy outside the gates and power
to deal with the enemy inside the gates. He says
that if you are dealing with the enemy inside the

gates that is not an exercise of the defence power

it is an exercise of an implied power to defend the

Commonwealth from insurrection and I doubt whether

the distinction possesses any materiality because

he appears to deal with it in exactly the same way

as the defence power. But he says:

Wide as may be the scope of such an ancillary

or incidental power, I do not think it extends

to legislation which is not addressed as

oppression violence or disorder or to some
ascertained and existing condition of

disturbance -

I am inclined to think that the word "not" in that

passage may be included by error but I am not sure

about that -

and yet does not take the course of forbidding

descriptions of conduct or of establishing

objective standards or tests of liability upon

the subject, but proceeds directly against

particular bodies or persons by name or

classification or characterization, whether or

not there be the intervention of an Executive

discretion or determination, and does so not

tentatively or provisionally but so as to affect adversely their status, rights and liabilities once for all.

I suppose I would put particular emphasis on that

last phrase "so as to effect adversely their

status, rights and liabilities once for all".	He
is saying, I think, that a law that infringes

individual rights of the kind that were in issue in

the case cannot be justified under this ancillary

power. Then, there is a further passage on

page 195, just at the bottom of that page:

Throughout this case I have been impressed

with the view that the validity of the Act

must depend upon the possibility of bringing

Young(2) 21 MR HACKETT-JONES, QC 4/12/90

into application as at the date of the assent

to the Act the conceptions as to the operation

of the defence power which hitherto have been

generally regarded as appropriate only to a

time of serious armed conflict. Unless this

were possible I have failed to see a way of

reconciling it with constitutional principle.

So, in effect, he is saying that a law that takes

away individual rights, a law that is purportedly

based on the defence power, whose effect is to

abstract individual rights of personality, cannot

be justified in time of peace.

Then, again, on page 196, about a third of the

way down:

Is it possible, however, to sustain the Act on the ground that under the influence of events the practical reach and operation of the

defence power had grown to such a degree as to

cover legislation providing no objective
standard of liability relevant to the subject
of the power but proceeding directly first by

the pronouncement of a judgment by means of

recitals and then in pursuance of the recitals

acting directly against a body named, and

bodies and persons described, in derogation of

civil and proprietary rights?

And, again, I would place some emphasis on

this derogation of civil and propriety rights in
that particular rhetorical question to which he

clearly expects the answer, "No". And then, again,

in the judgment of Mr Justice McTiernan, the

question of derogation from civil liberties and

rights is dealt with at pages 206 to 207:

It is implicit in the Act that Parliament

is of opinion that the persons to whom it

applies are indiscriminately per sea danger

to the Commonwealth. This opinion is
insufficient to connect the Act with any
subject matter of legislative power and to

justify the restriction of their civil

liberties. In a period of grave emergency the

opinion of Parliament that any person or body

of persons is a danger to the safety of the

Commonwealth would be sufficient to bring his or their civil liberties under the control of

the Commonwealth; but in time of peace or

when there is no immediate or present danger

Constitution has not specifically given the

of war, the position is otherwise because the control of civil liberties and it cannot be

Young(2) 22 MR HACKETT-JONES, QC 4/12/90

regarded as incidental to the purpose of
defence to impose such a control in peace

time.

So, there again, I would submit, he is making

the point that the derogation of important civil

rights and liberties is not open to the

Commonwealth in time of peace, under section Sl(vi)

of the Constitution and, again, he emphasizes the

point at page 210, where he - this is about a third

of the way down:

But their mere aims as communists, apart from

their actions, are not sufficiently

substantial to give the Commonwealth

Parliament a foot-hold on which to enact laws to deprive all the members of the class of

civil liberties which in peace time are immune

from Commonwealth control.

BRENNAN J: That is a very absolute statement, is it not,

by Mr Justice McTiernan, and if one adopts the

teleological to the defence power, I suppose one

must look to the nature of a power which is created

by a law in order to determine whether its

particular exercise can justifiably be connected to

the purpose of defence.

MR HACKETT-JONES:  Yes. I would agree with Your Honour in

that. I think that the distinction which

Their Honours make between peace and wartime is

exaggerated. It is often said, for example that
the Battle of Britain was not won in 1940, it was

won in the 1930s when radar was invented and the

spitfire was developed, and I am inclined to think

that Their Honours, in a case like this, tend to

exaggerate the difference between peace and war.

BRENNAN J:  The words were perfectly apposite to the case

which Their Honours there had in hand perhaps.

MR HACKETT-JONES: Yes.

BRENNAN J: It does not really throw a lot of light on the

exercise of a power to proceed by way of military
law against a serving member of a standing armed

force.

MR HACKETT-JONES:  We would say, with respect, that exactly

the same issues are involved. It is a civil right

of great importance which the Commonwealth is

seeking to trample upon. It is not to be treated

as a light matter at all and while I would be

inclined to say that this distinction between

peace-time and wartime is given an exaggerated

importance in the case, I would still say, I think,

that it is a useful distinction to make and

Young(2) 23 MR HACKETT-JONES, QC 4/12/90

especially so far as protection of civilian rights

are concerned.

BRENNAN J: Say, for example, there was some question of issuing a document which contained confidential military information of use to the enemy and that

is already covered by a provision, let us say, of
the Crimes Act. Would one then say that if the

information had been acquired by a serving officer

by reason of his office, that it would be outside

the ken of military tribunals in a time of peace?

MR HACKETT-JONES:  No. I think it is in that kind of

example that the judgment is too absolute. I mean,

obviously, the defence of the country can be very

severely prejudiced by actions that are taken in

time of peace and, I would say, well, the Court

makes a somewhat artificial distinction, that each

case has to be looked at on its merits and you

decide on whether the particular exercise of the

power, given the circumstances calling forth its

exercise, justify the particular law in question.

BRENNAN J:  Does that take you back to some kind of Relford

analysis?

MR HACKETT-JONES:  My position has always been a relative

position. You see, what I would say is that the

defence power is a kind of continuum that if the

particular state that was prophesied by the prophet

Isaiah when the lion lies down with the lamb and

the militarist beats his sword into a ploughshare,

if society reached that stage, then what was

justified by the power would reduce to nil.

On the other hand, when society is desperately

fighting for its life against a dangerous enemy,

the range of what may be done goes up

proportionately, and it may be that ultimately

every aspect of life falls within the range of the

defence power in that situation.

I would say though that exercises of the

defence power ought to be, if I may respectfully

say so, ought to be looked at with particular
scepticism and I would say that for the reason that

issues of defence, issues of militarism, issues of

security, tend to appeal to people at a

sub-rational level. One has only to look, for

example, at the disintegration of Greek democracy
after the death of Pericles to see what a profound

danger defence issues have in their capacity to

pervert rational democratic judgment. For that

reason, I would respectfully suggest that the Court
should approach the issue with a fair level of

scepticism.

Young(2) 24 MR HACKETT-JONES, QC 4/12/90

I mean, take for example, the Falklands

crisis, the phrase "the Falklands effect" has

entered into our vocabulary because it means the
increase in popularity that a government obtains at

home by successfully prosecuting a campaign abroad. Now, it seems to me that that is a fundamental fact

of human nature and it is one that lends itself

very much to exploitation by political demagogues
and in fact if you look at the Communist Party

case, I would respectfully suggest to you that that

is a case about political demagoguery, although

that is not mentioned in the case. But when you

look at the Act, I mean, what does it do? It

abolishes associations. You do not have to have

much knowledge of history to know that mild

persecution of a group of social dissidents merely

increases their cohesion. You have really got two

options in a case like that, either you leave them

alone altogether or you proceed against them with a

thoroughness of somebody like Hitler.

But, of course, as Dr Joseph Goebels showed by

identifying an internal, or a supposed internal,

enemy by appearing to proceed resolutely against

the internal enemy, that is an excellent means of achieving social cohesion and popularity at home,

and he exploited that particular device very

effectively. Now, our own demagogues here in

Australia were not so expert and, consequently,

they failed. But if Dr Goebels had been here, I

suggest to Your Honour, he would not have failed.

That has taken me somewhat away from what I

was saying -

MASON CJ: But it was all in answer to Justice Brennan's

question.

MR HACKETT-JONES:  Yes. I just wanted to refer Your Honours

to Mr Justice Williams' comments to a similar

effect on page 229, where he says, about two-thirds

of the way down - well he is quoting views that he

has previously expressed, I think.

"For the purposes of defence the Commonwealth

can in times of war pass legislation affecting

the rights of the States and of their citizens

and corporations under State laws to a greater

extent than it can in times of peace. But the
extent to which it can entrench upon these
rights is limited by the reasonable
necessities of defence during the period of
the war ..... "

So, again, he is saying that if you are going to entrench upon civilian rights that has to be

justified by some situation of external danger.

Young(2) 25 MR HACKETT-JONES, QC 4/12/90

And I refer you to the judgment of

Mr Justice Fullagar, at page 261, where he says:

It is a privilegium, but it is a good law.

He is talking about a law passed under the divorce

power; but then he goes on to say -

But, if the Parliament enacts a privilegium

which on its face bears no relation to any

head of legislative power -

perhaps it would have been better if he had said,

with respect, "if it purports to pass a privilegium

in pursuance of a purposive power" -

it is likely to be extremely difficult to

justify it under any head of power.

Perhaps I should not have interfered with his

syntax but what he is saying, in effect, is you

treat privilegium, that is a law that operates

directly against civil rights and liberties, with

particular scepticism. And then, again, at

page 268, he says, there - this is just a few lines

down from the top:

The second is that the Parliament had, and

has, undoubted powers to deal with such a

situation as is envisaged by the preamble.

The only question is whether it has power to

deal with it by the particular means adopted.

So, the point he is making there, I think, is a

question· of proportionality. Presumably he is

saying that the particular means that were adopted

here was to proceed directly against individual

rights that cannot be justified in time of peace.

Then, Mr Justice Kitto, at page 277, about two-

thirds of the way down, says:

The Court can take judicial notice of the fact	that in October 1950 international tension had
reached a point of real danger to Australia.
The possibility of a war breaking out in the
near future was by no means to be overlooked.
In that situation the defence power, at least,
had a wider application than it has at times
when no danger of war appears; but, even so, it was not possible to see, in the light only of that situation, a relation between any of
the powers referred to and a law dissolving a
specified association and confiscating its
property.

section 61 and its validity, we submit, is

something which is infected by all the submissions

but it is drawn together by paragraph 4. And in an attempt to complete what might be called the verbal

of my learned friend, the Solicitor-General, may I	hand to the Court the transcript of the hearing of
15 November 1988, extracts pages 157 to 160, where
this argument was put by my learned friend to the
Court.

It is our submission that the argument by my

learned friend, Mr Doyle, one in which there was a

live issue before the Court, was an argument which

was dealt with and, we submit, rejected by five

Justices and, obviously, of course, we would submit

that the joint judgment of the Chief Justice and

Justices Wilson and Dawson rejected the argument

that section 61 was invalid. And we say that the

judgment of Justices Brennan and Toohey, at

Young(2) 76 4/12/90

pages 568 to 571, determined that section 61 was

valid to the extent of proceedings for offences

which can reasonably be regarded as substantially

serving the purpose of maintaining an enforcing

civil discipline.

Turning to the issue of reading down that

Your Honour Justice Deane raised with me, we would

say that it would follow that because of the clear

view of the three Justices that there was no

occasion for them to consider issues of reading

down or narrowing the operation of section 61, on

the other hand, we would say that this was an issue

particularly addressed by the judgment of

Justices Brennan and Toohey and one where, without

particular reference to section 15A of the Acts Interpretation Act, we submit it is quite clear

that Their Honours in their judgment took the view
in holding that section 61 was valid to the extent

that they determined, that it was a provision

capable of being read down so as to apply validly

in particular circumstances, which circumstances
could be considered as they became relevant for
consideration in particular cases.

We submit that they held plainly that the provision was capable of application to varying

circumstances and this particularly is said at

page 569. We submit that section 61 was accepted

by those two Justices as appropriate and adapted to

securing discipline where:

the discipline of the defence forces would
require the enforcement of a code of conduct
appropriate to a defence member in the

Australian Capital Territory.

This was said at page 568. Their Honours accepted

that section 61 in its terms would not support

proceedings for offences in circumstances which

had:

no relevant connexion with service discipline.

Their Honours dealt with the problem of ambulatory

operation by stating that it was to be resolved in

a case by case application with the prosecuting

authorities or tribunals determining where the

proceedings for the prosecution of a service

offence will serve a substantially disciplinary

purpose.

Now, in our submission, when one puts together the two judgments one does have a decision of this

Court which, so far as section 61 is concerned, is

determinative that section 61 has a valid operation

at least to that extent and we would submit that

Young(2) 77 4/12/90

that proposition remains a good proposition

notwithstanding it may be put that three of the

Justices included within that count of five did not

have occasion because of their conclusion on the

principal argument which was put for the validity

of section 61 to consider this issue of ambulatory
and narrowing operation having regard to the

circumstances. Having made that proposition, it is

our submission that the Court should not now

reconsider this argument by - - -

GAUDRON J: But Mr Solicitor, does not that proposition have

this difficulty that it simply was not necessary to

consider the validity of section 61 on the approach

taken?

MR GRIFFITH: Necessary for who, Your Honour?

GAUDRON J: For the Chief Justice, Justices Wilson and

Dawson and Justice Brennan and Toohey. On the

approaches they took it was simply not necessary

for them to consider section 61 - the validity of

sectoin 61.

MR GRIFFITH: In our submission, Your Honour, in the way

that the argument progressed in Tracey, the
validity of section 61 was put in issue as much as

the validity of section 55.

GAUDRON J: Well, it was not in the charge sheet, was it?

MR GRIFFITH:  Your Honour, the charge sheet was section 55.

GAUDRON J: Yes.

MR GRIFFITH: But in the argument before the Court,

Your Honour, in effect, the validity of the whole

act was put in issue and it ranged from section 190
to section 55, to, as I pointed out, Your Honour,

specifically section 61 and as is stated in

page 541 of the judgment of the three Justices who

concurred, this was something which was submitted

during the course of argument and something which

they addressed in their judgments.

Now, Your Honour, as to whether one says, "Is

that necessary?", Your Honour, one might say, you

could reconstruct a judgment and say, "Well, we

will only talk about, say, section 55 or the

absence without leave provision to the exclusion of

all other sections". But, in our submission,

Your Honour, this matter was before the Court with

those volumes of statutory materials and history

and the entire Act thrown in issue before the Court

and this was the matter which was addressed by the

Court in answering those questions with respect to

the prosecutor in that case.

Young(2) 78 4/12/90

MASON CJ: Well, Mr Solicitor, it is 20 past 4. We will

adjourn now and will resume at 10 o'clock tomorrow

when you can turn, perhaps, to the stronger parts

of your argument.

MR GRIFFITH: If Your Honour pleases.

AT 4.20 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 5 DECEMBER 1990

Young(2) 79 4/12/90