Reg v Watt

[1988] HCATrans 201

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos Sll9 and Sl20 of 1987

B e t w e e n -

THE QUEEN

Applicant

and

RAYMOND LESLIE WATT

Respondent

Applicationsfor special leave

to appeal

WILSON J

BRENNAN J

Watt

DAWSON J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 SEPTEMBER 1988, AT 10. 19 AM

Copyright in the High Court of Australia

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MR R.O. BLANCH, QC:  May it please the Court, I appear

with my learned friend, MR P. J.. BERMAN, for

the Crown. (instructed by H. Hamilton, Solicitor

for Public Prosecutions)

MR C.A. LULAND, QC:  May it please the Court, I appear

with my learned friend, MR W.C. TERRACINI, for

the respondent. (instructed by J. Cooke, Director,

Legal Aid Commission)

WILSON J:	Yes, Mr Blanch.
MR BLANCH:	May it please the Court, I hand up an outline

of the submissions.

WILSON J:  Thank you. Yes, I think you could launch in - - -

MR BLANCH:  This is an appeal by the Crown against the

dismissal by the Court of Criminal Appeal of

New South Wales of the Crown appeal taken there.

The facts of the case appear in the outline.

Basically, the situation so far as the respondent

is concerned is that he was sentenced in the

supreme court in Sydney to a total sentence of

19 years with a non-parole period of 10 years. The supreme court judge made an order refusing

remissions off the non-parole period.

The respondent escaped on 26 December, was

rearrested and was sentenced before Sydney District

Court on 27 April 1987. When sentenced by the

district court judge, the district court judge

imposed a non-parole period that had the effect

of extending the pre-existing non-parole period

but, at that stage, he did not make an order

that there be no remissions. on the non~parole

period that he fixed.

The effect of the district court judge's

order was to substitute for the supreme court

judge's order a non-parole period which had the

effect of shortening the period that the prisoner

was going to be in gaol.

BRENNAN J:  How did that happen, Mr Blanch?

MR BLANCH: It happened,. Your Honour, in th is way: in sentencing

the prisoner for the escape, the district court

judge was bound to impose a cumulative sentence.

(Continued on page 3)

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MR BLANCH (continuing): In imposing the cumulative sentence

he fixed a fresh aggregate non-parole period - - -

DAWSON J:	He can do that, can he?
MR BLANCH:	Yes.

DAWSON J: Fix a non-parole period which is larger than the

sentence which he imposes.

MR BLANCH:  Yes, Your Honour.

DAWSON J: Is there some reason why he can do that?

MR BLANCH: Well, Your Honour, it is because he is imposing a sentence - the second sentence is cumulative on

the first sentence - he is then, in effect, imposing
an accumulative head sentence and, in respect of
the cumulative head sentence, he fixed a non-parole

period.

DAWSON J: You are probably right. It just seems curious to

me that he can, in effect, vary the order made by the

previous judge.

MR BLANCH: Well, Your Honour, the provision in the

PROBATION AND PAROLE ACT in New South Wales is that

if the second sentencing judge imposes a non-parole period in these circumstances, he can make an order that the non-parole period be in substitution for

a pre-existing non-parole period.

DAWSON J: There is a statutory authority for it, yes.

MR BLANCH; Yes.

BRENNAN J:  What is the provision that says that?

MR BLANCH: Section 24 of the PROBATION AND PAROLE ACT,

Your Honour. If I might just take Your Honour to

the PROBATION AND PAROLE ACT; section 20 is the

section of the PROBATION AND PAROLE ACT which allows

or gives the authority to a judge to fix a non-parole
period where he is sentencing a prisoner who is
already serving a sentence. Then section 24 of
the PROBATION AND PAROLE ACT is the section which
deals with the commencement of the non-parole period
fixed; section 24(2) is the section that deals with
the situation where a judge has fixed a non-parole
period under section 20 - that is in the cumulative
sentencing situation. If Your Honours look at
section 24(2)(b):

Where the court or the Board so orders shall be in substitution for any ..... non-parole period

specified in respect of the original term.

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TOOHEY J:	And this would apply, it appears, Mr Blanch,
even if the matter came before a magistrate for the prosecution of a subsequent offence?
lY1R BLANCH:	Yes, Your Honour.
DAWSON J:	I am told it is a common provision; I just
have not struck it.
MR BLANCH:	Yes, Your Honour.

DAWSON J: In other States as well.

lY1R BLANCH:  The situation in New South Wales is a little

idiosyncratic in so far as the PROBATION AND

PAROLE ACT is concerned. That is a specific

statutory provision. I might say this: that
in this particular case - the question was

never agitated anywhere, but in this particular

case the district court judge did not use the

words that he was fixing the second non-parole

period "in substitution for". It may be that therefore he has not actually done what would

be required under section 24(2)(b). If that were the situation then the problem would be

resolved by reference to section 42 of the

PROBATION AND PAROLE ACT which says that if

for some reason two non-parole periods co-exist

then the longest one is deemed to be the effective one and the shorter one is deemed to be rescinded. So, the upshot of it is, on an interpretation of

the PROBATION AND PAROLE ACT, whatever happened

the end effect would be that the earlier non-parole

period was rescinded by the second order.

TOOHEY J:	I do not follow that, Mr Blanch. If the power
to fix a longer non-parole period is a power
derived from subection (2) (b),  ~·
only a power to substitute,and that power is
not exercised, where is the power then to impose the different non-parole period?

lY1R BLANCH:  The power would come from section 20. which

allows a judge in imposing a sentence to fix a

non-parole period. So that he could - if, for

example, he did not know about a pre-existing

sentence and non-parole period, he might simply

exercise a power to fix a non-parole period

under section 20.

TOOHEY J: But he could only do that, could he not, in

respect of the offence with which he is dealing.

lY1R BLANCH:  Yes, only in respect of the offence with which

he is dealing.

WILSON J: And if it was a shorter period than that already

fixed, then section 42 would strike it down?

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MR BLANCH:	Yes.	But it is because of that that the

curiosity arose in this case. In fact, what had

happened was when the supreme court judge

sentenced the respondent the supreme court judge

assessed the situation as being one where

remissions shou'ld not be given on the non-parole

period. When the matter came before the district

court judge on the escape, in the intervening

period, the Court of Criminal Appeal had decided

the cases of ROGERS and EVANS where they had
indicated that, subject to argument, a sentencing

judge really could not exercise that power or should not exercise that power. The district

court judge then, bound by those decisions, fixed
a non-parole period which had the effect of
supplanting the supreme court judge's non-parole

period and because he made no order that there

be no remissions off the non-parole period, the

effect of the district court judge's order was, in effect, to reduce the sentence being served

by the prisoner.

WILSON J:  He did also express his own opinion, did he not,

that in view of additional information he had,

had he been free to exercise a<discretion in terms

of ruling out any remissions, he would not have

exercised it?

MR BLANCH:  Yes, Your Honour, that is so. It was against

that technical effect of the order that the Crown

appealed to the Court of Criminal Appeal. The

Crown appeal to the Court of Criminal Appeal was

not in any way seeking to have the sentence increased,

it was just a matter of clarifying the position

as between the two sentences and particularly
as to the question of remissions. There was

an additional technical problem which need not

concern this Court relating to the time of the

commencement of the non-parole period because,

the district court judge, in effect, backdated

prisoner had been recaptured. the non-parole period to the time at which the (Continued on page 6)

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MR BLANCH (continuing):  The Court of Appeal in New South

Wales has decided interpreting section 24(2), the

section that we have just been looking at in the

PROBATION AND PAROLE ACT, have said that it is

not possible for judges to do that in escape cases

because the Court of Appeal looked at .

section 24(2) (a) (ii) and said - the condition they

read there was that:

Where the person in respect of whom the
period is specified was, by reason of the
offence to which the subsequent term relates,

in custody -

and the Court of Appeal has held that where a

prisoner escapes and is recaptured and brought

back to the gaol, from the time he is recaptured,

he is not in gaol by reason of the offence to which

the subsequent term relates.	He is not in gaol by
reason of the offence of escape.	He is in gaol by

reason of being recaptured and serving his original

sentence. So, in effect, the effect of that decision

is that non-parole periodsfor escape charges cannot

be backdated. The Court will see that that

technical aspect of the case was also corrected in the judgment of the Court of Criminal Appeal.

BRENNAN J:  Mr Blanch, could I take you back to Division 2 of the

PROBATION AND PAROLE ACT. Why is it that you say that,

in effect, the second sentence created a shorter

non-parole period by reason of the order made under

21A? Why is it not that the regime established by 20 and 24 stand separate and apart from the regime

established by 25 and 21A? In other words, the

time specified was the time specified and is

subject to the operation of the Act but the question
of whether there is an order made under 21A is an

entirely different question. There was no shortening

of the non-parole period by an order under 21A.	The
non-parole period was the period specified.

(Continued on page 7)

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MR BLANCH:  I am sorry but I am not sure that I understand

Your Honour's question.

BRENNAN J: What I am saying is that, leave 21A aside

altogether for the moment. The orders that were

made on the second occasion correspond precisely

with the powers that are conferred by 20, perhaps

by 24 and perhaps subject to the operation of 45.

MR BLANCH:	Yes.
BRENNAN J:	And those are the non-parole periods which are

specified. The question of whether there is

to be a reduction in those periods pursuant to

section 25 is an entirely different question.

MR BLANCH: Section 25, Your Honour?

BRENNAN J: Section 25, because 25 is the one which provides

for the reduction and 21A is the section which

relieves against the operation of 25.

MR BLANCH:	Yes, that is certainly the situation, Your Honour. There is no question - in a general sense, the
non-parole period fixed.by the district court judge extended the non-parole period fixed by
the supreme court judge. There is no question
about that.  The point we take
is the non exercise of the statutory power by
the district court judge had the effect of
foreseeably shortening, at the time - it is not a question of predicting the future, it is a question of punishment.

WILSON J: It had the potential effect,but depended still

on whether he received the remissions in accordance

with the regulations.

MR BLANCH: Yes, that is true, Your Honour. That is so.

BRENNAN J:  But it had no operation upon the period specified as a non-parole period.

(Continued on page 8)

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MR BLANCH:  Yes, that is true, yes, the period specified

remains, yes.	Well, that was the matter that was
agitated in the Court of Criminal Appeal.	The

interest of the Crown in the matter is not an stand adopted by the Court of Criminal Appeal in
interest in the case of the individual respondent.

looking at the appeal in saying that, in our

submission, that the sentencing court cannot exercise

the power that has been given under section 21A.

It is that point and that point only that we seek

special leave to argue.

WILSON J: That would suggest that notwithstanding the order

that you seek in the notice of appeal,if the Court

were minded to grant special leave, the Crown would
not oppose an order which ultimately, having

clarified the Legal position, dismissed the appeal

rather than send this particular respondent back to

the Court of Criminal Appeal for further sentencing.

MR BLANCH: Precisely, Your Honour.

WILSON J: Yes.

MR BLANCH: In fact, we would almost join in an application

that that happen because we would accept that it is

an intolerable situation to bring the respondent,

again,before the courts here and,again,back in

New South Wales. But it is the question of the

interpretation of the statute that we would seek

to argue. If I might take the Court directly to

the decisions in ROGERS and EVANS because the

very centre of this debate is exactly what the decided about these matters.

The first of the decisions in point of time is

the decision in REG V ROGERS,(1987) 8 NSWLR 236.

That was a case where an order had been made under

section 460A of the CRIMES ACT removing or ordering

that there be no remissions. (Continued on page 9)

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MR BLANCH· (continuing): That power, as I have indicated

in the outline, has now been transferred to

section 69 of the PRISONS ACT. The Chief Justice,

in giving his judgment in that case, if I might

just read it, at page 238F, said:

The remission system is essentially

an administrative mechanism aimed at

encouraging good behaviour by prisoners

and conversely providing for the opportunity

of imposing sanctions for bad behaviour by cancellation of remissions. This is

the sole justification for the existence

of the system. It is not the proper task

of a sentencing judge to devote attention

to the remission system (R. V O'BRIEN).

Then, at page 239, reading the paragraph at the

letter E:

Whatever advantage might be thought

to accrue from the legislature passing this

responsibility over to the sentencing judge,

it is quite apparent that it places the

sentencing judge in an inappropriate - indeed

impossible - role. The whole remission

system is based on the premise that remissions

are an incentive and reward for good conduct

during the serving of a term of imprisonment.

They are granted or withdrawn by prison

authorities in the light of considerations

essentially and properly relevant only to

conduct and other circumstances arising during the course of the sentence being actually served. To attempt in advance

to interfere with the operation of this

system by subjecting it to the control of

the sentencing judge at the time of sentencing,

is to place the sentencing judge in an entirely

false position.	The legislation subverts
the very essence of the remission system

and runs counter to proper and established

penal philosophies both here and elsewhere.

The legislature's responsibility for

the remission system was not effectively

discharged by simply conferring on judges

power to withhold remissions thus diverting

any public criticism either generally or

in a particular case from the Government

to the sentencing judge. The extent of the concern required a determination of policy and the due enactment or introduction

of that policy by Act or regulation. The

responsibility belongs to the legislature,

not the judiciary.

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MR BLANCH (continuing):  He developed that down through the

rest of the statement on page 240 until at the

letter D he said:

In the light of those observations I am of the

view that the order made in this case pursuant

s 460A, ought not to have been made. There

was no material upon which it could have been

properly based. I go so far as to say that

it seems to me impossible for this power to

be responsibly exercised by a sentencing judge.

I accordingly propose that that portion of the sentencing order be quashed.

It is in the light of those statements that it is

our submission that the court in New South Wales

is saying that it is a power that the court will

not exercise; it feels it cannot exercise it. That
judgment was then considered in the case of EVANS,

which is reported in the same volume of the New

South Wales.Law Reports at page 540. EVANS was

a case where the order that was made was an order

withholding remissions off the non-parole period.

Reading from page 541 in the judgment of

Mr Justice Hunt at the letter D he referred to

ROGERS. He said:

In an elaborate judgment, the Chief Justice pointed out how the power recently given to courts to withhold a prisoner's entitlement to remissions put the sentencing judge in an

inappropriate - indeed, impossible - role.

This was because the penal philosophy upon

which the remissions systems is based requires

that a prisoner's entitlement to the benefit

of remissions is to depend upon his conduct and
other circumstances arising during the course

of the sentence whilst he is in custody.

BRENNAN J:  Now, that is not strictly accurate, is it? The

reason why I suggest that is because of the formula

in regulation 18 which goes beyond entitlements

under Part XV of the Prison Regulations and includes

also indulgences by the Governor in Council?

MR BLANCH:  Yes, Your Honour is quite correct as to that.

The formula in regulation 18 does cover a broader

range of remissions than simply the good behaviour

remissions.

BRENNAN J:  And is that a point of distinction between the

power to be exercised under 21A and the power which fell

to be exercised under 460A of the CRIMES ACT?

MR BLANCH:  Yes, Your Honour, it is. No, I am sorry. In

a technical sense it is; however, it is quite clear

that the power of the sentencing judge to refuse

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remissions off either the head sentence or the

non-parole period, the order of the judge can

specify which remissions are not to be given so

that it would be conceivable for a sentencing

judge to say he is not to get any good behaviour

remissions in respect of the non-parole period or

in respect of the head sentence. It would have

a differing effect because of the formula in

respect of non-parole periods but it is a power

that could be exercised in respect of either one

or the other.

WILSON J:  But the general power in 21A, to order that the

person shall not be entitled to any remissions

would include the governmental sponsored remissions

attending a Royal visit	or something like that,
would it not?

MR BLANCH:	Yes.
WILSON J:	I would have understood Mr Justice Hunt to be

encompassing that kind of remission in the

phrase "other circumstances arising during the

course of the sentence."

MR BLANCH:  Yes, I think that is probably so, Your Honour.

His Honour went on to say:

(Continued on page 12)

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MR BLANCH (continuing):

It is quite impossible for a sentencing
judge to predict in advance how a

prisoner will behave whilst in custody;

criminologists have agreed that there is

no adequate method of predicting
dangerousness, and there is no relevant

material which could be put before a sentencing judge ..... The legislation giving to courts the power to withhold

remissions, it was said, subverted the

very essence of the remission system

and ran counter to proper and established

penal philosophies both here and elsewhere.

As a member of the Court in that case,

I agreed with what the Chief Justice said.

Further reflection since that time - and a re-reading of some of the relevant literature -

has confirmed in my mind even more strongly

the wisdom of the views which the Chief Justice

expressed and my belief that the legislative

diversion of responsibility for the operation
of the remissions system from the Government

to the courts was wholly inappropriate.

Then over the page, at page 542, reading from just

above the letter D, His Honour said:

It must follow that it is just as impossible

for a sentencing judge to exercise responsibly
the power given by the PROBATION AND PAROLE ACT,
s21A, to withhold ...... as the power to ..... to

withhold remissions on the head sentence.

Indeed, in an appeal heard subsequently by

this Court ..... an order made by the sentencin~

judge pur.suant to the PROBATTON AND PAROLE A'CT,

s21A, was quashed after the Crown accepted the

application of what had been said in RV ROGERS

to such an order.

I just go back up a couple of lines of that piece

that I read:

I must follow that it is just as impossible

for a sentencing judge to exercise responsibly

the power given -

in one case, as it is the other. It is perfectly

clear from both of those decisions, and perhaps

even more clearly from EVANS decision in that

piece that I just read, that what the Court of

Criminal Appeal is saying is that no judge can

exercise the power that is given.

WILSON J:	Mr Blanch, could you just explain for me the incursion into the CRIMES ACT, section 460A? Section 21A
was already in the Act, was it?
Watt

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MR BLANCH:  I am sorry, I will have to go back to my outline,

Your Honour, for the history of these matters.

WILSON J:	Am I taking you, before you have come to it?
MR BLANCH:	No, no, Your Honour.

WILSON J: Because 460A only lasted a matter of months,

I gather.

MR BLANCH:  Yes, it did. It lasted only a matter of months

and then was transferred into the PRISONS ACT.

WILSON J:  Not the - yes.

MR BLANCH:  Yes, not the PROBATION AND PAROLE ACT. The

power still exists, but it now exists in

section 69 of the PRISONS ACT, and in fact it

was transferred fairly soon after it appeared

in the CRIMES ACT.

WILSON J: What·is the difference in circumstances that

attract the one or the other? Is it only the non-parole period that is the subject

of 21A?

MR BLANCY:	Yes.
WILSON J:	And the head sentence is governed by the
PRISONS ACT?
MR BLANCH:	Yes.
WILSON J:	I see, thank you.
MR BLANCH:	So it is our submission, arising from a reading

of those judgments in EVANS and ROGERS, that what
the Supreme Court in New South Wales is saying is that ai judge cannot possibly obey the terms

of the statute. Bringing that to this case,

very little was said in the case of WATT when

it was before the Court of Criminal Appeal.

At page 29 of the appeal book the Chief Justice, who gave the, judgment for the Court, just referred

to EVANS and ROGERS.	In doing that, at line 25
on page 29, he said:

The Court expressed the same view .as had

been expressed in ROGERS upon the inability
and inappropriateness of attempting at the
time of sentencing to interfere with the

future operation of the remissions system.

And then simply applied the decision in EVANS

to the case in point.

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BRENNAN J: Well, Mr Blanch, you say this is the Crown's

appeal to test the validity of that general

proposition that the power cannot be exercised.

MR BLANCH:	Yes, Your Honour.
BRENNAN J:	No doubt the Crown has some notion of the

principles which ought judicially to guide the

exercise of the discretion.

MR BLANCH:  The exercise of the discretion to withhold

remissions or - - -

BRENNAN J: Yes.

WILSON J: Yes.

MR BLANCH:  Yes, Your Honour. We would submit that they

are exactly the same principles as are applicable

to the withholding of a non-parole period.

BRENNAN J:  Well, why was it not picked up in that case by the

non-parole specification?

MR BLANCH:	I am sorry, Your Honour?
BRENNAN J:	Why would it not be picked up by the trial judge

in determining or specifying the non-parole period?

MR BLANCH:  I am sorry, Your Honour says, why would not it

be picked up. I am not -

BRENNAN J: 

If the principles which are to govern the exercise

of the power under 21A are the same as those which
are to govern the exercise of the power under
section 20, why is it that effect would not be

given to whatever considerations are applicable

by the specifying of a period under section 20,

leaving nothing to be done under 21A?

MR BLANCH: Well, Your Honour, it is simply a question of

the flexibility of a sentencing judge in the form

of sentence that he can impose. That is a practical

question but a sentencing -the intention of the

legislature, clearly, was to give to the sentencing

judge an extra power and flexibility in fixing the

sentence. It is another way of arriving at a

particular sentence. For example, this could be

said about the situation: clearly - and I could take

the Court to the second reading speech which is very

short - clearly what was in the mind of the legislature

was and as, I think, the Chief Justice said in ROGERS

case, fairly plainly, a legislative concern with

what has become known as the principles of truth in

sentencing and an alternative method of achieving

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the same thing is to introduce legislation

abolishing remissions of non-parole periods

altogether. However, the government has

maintained a system of providing for remissions

of non-parole periods rather than having an

inflexible system of not allowing remissions

at all but given to judges the power to exercise

that. P~sumably on few occasions, the power to

make an order refusing a non-parole period is

a power that is rarely exercised and, presumably,

the intention of the whole legislation is to
provide to the courts the power to exercise that

discretion on the assumption or in the expectation,

I would think, that it would be a power that would

not often be exercised, the legislature being faced

with a situation that the only other way to enter

into some solution to the debate about truth in

sentencing is to remove the remission provisions

as they relate to non-parole periods altogether

which would be a much harsher end result.

BRENNAN J: Well, I must say that I do not understand, at the

moment, having regard to the provisions of

section 25 and the provisions of the regulations,

what it is that the judge is to state by way of

his reasons, when he exercises the power under

21A.

MR BLANCH: Well, Your Honour, it is - - -

BRENNAN J: What he can properly state - - -

MR BLANCH:	What he can probably say. Well, the formula used by Mr Justice Maxwell is as good a formulation
as any: the reasons for exercising that
discretion and because of the nature of the offence
or the antecedents of the offender.

(Continued on page 16)

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MR BLANCH (continuing):  I might point out that there is a slight variation in the

discretion that is given to refuse remissions in the

sense that it is restricted entirely to the antecedents

of the prisoner and the nature of the offence, whereas
the power to refuse a non-parole period is, on those

bases, or for any other reason. It is a slightly

broader basis. But they are powers that are,generally

speaking, no·.t exercised. It is a rare exercise of

power, but it is done on the basis,	and properly
done	on the basis of simply explaining - the
sentencing judge explaining	it is because of the

nature of the offence he refuses, remissions or
refuses to fix a non-parole period or, because of
the antecedents of the prisoner.In this case,

Mr Justice Maxwell said it was because of the offence

itself.

That was his view of the seriousness of the

offence and that is a proper exercise of that

discretion.

BRENNAN J:  In other words, so long as a judge uses the formulae

that is prescribed in the section, all is well.

MR BLANCH:  Well, Your Honour, that is the first step. One

would expect that if it is power that is used

responsibly, then it would be properly explained
and would be explained in terms of why the power was
being used in the particular case; why the offence

was of such a nature as to justify the exercise of

that discretion. But it is no different in exercising

this power to exercising the power that is given

the PROBATION AND PAROLE ACT. It all comes down to

a question of how the judge responsibly and properly

exercises the discretion that he is given.

WILSON J:  But it is difficult, is it not, to see the scope of

the discretion under 21A being wholly subsumed or

existent within the primary discretion to fix a

non-parole period, and one is left asking what is

there in the nature of the offence or the antecedent

character of the person convicted that could activate

the discretion to refuse remissions that should

not already r.·have guided the judge in fixing the length of the non-parole term under section 21.

MR BLANCH:  Yes, Your Honour. I accept what Your Honour says,

that there are difficulties in choosing between

various sentencing options. However, the answer

would have to be a different answer in respect of

each particular factual situation. But the thinking

of the fact situation where a judge is concerned

about whether to fix a non-parole period or not,

he may come to the view that the offences are of such

a nature, and the offender's history is of such a

C2Tl3/l/VH	16	8/9/88
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kind that he would normally get to the point of

thinking, well, should I fix a non-parole period.

He may very well decide that he should fix a

non-parole period because the prisoner is the sort

of person who, when released in the community,

should be released into the community under

supervision rather than simply let out of gaol.

Certainly, I would expect that that would be a

popular method of dealing with serious offenders.

In that situation the judge may decide that,

nevertheless, he is going to make an order that

there be no remissions on the non-parole period.

I can only say as to any of these options that

I would expect that they would be exercised rarely.

They are not common options within the sentencing

practices of New South Wales, certainly, or the

refusal of non-parole periods is not a common

option. It is something that occurs regularly,

it is not so rare that it is unusual, but it is

not a commonly exercised option.

(Continued on page 18)

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WILSON J:  Which is the section that empowers the Court not

to fix a non-parole period?	I apologize if you
have already told us.

MR BLANCH:  Section 21. In fact it is the next area that

I move to in the written submissions, just dealing with the fact that that is a power that has been exercised.

Just before coming to that, if I might.

just read sections of the second reading speech.

I have spare copies if the Court does not have

the Hansard available. It is a very short speech

but, at page 2579, the then Attorney-General

said, half-way through the first paragraph:	The
measures:

are seen as an assurance that people who are

incarcerated for the protection of the community

can be required by a court to serve the

full term of that incarceration.

And over the page, at 2580 at about point 3, he said:

Since this reform -

and that is the reform about allowing remissions

off non-parole periods -

was introduced, however, there has been

a concern that the courts have been deprived

of the power to fix a real minimum sentence.

As the court is unable to take the possibility

of remissions into account in fixing a sentence,

the court cannot nominate the actual period

the person must serve before release. The

provisions of these bills are brought into

the House in order to ensure that the courts

have this power where the particular case

calls for such a measure.

the history of remissions so that these I have taken the time to review briefly

reforms can be seen in their context.	At
the same time it should be obvious from

this background that the Government's policy

in relation to remissions is soundly based.

.I shall now turn to the bills individually -

and then he deals with the amendment to the CRIMES ACT as it then was, that is the insertion of section 460A. At the end of that paragraph, he points out that

it is a measure introduced for the protection

of the community and:

allows the court a wide discretion in refusing

remissions, just as it has in almost every

other sentencing option. Where the court

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makes an order under the provisions of this

bill, it must state its reasons for doing

so. This is no more than would be expected

of any court -

et cetera. And, over the page, at the very last

statement in this speech, in the second-last

sentence:

In some cases the benefits derived from
the use of remissions must give way to the

need for adequate protection for the

community and punishment for the criminal.

I believe that the provisions of these bills

will allow the courts to give full weight

to the community's interests in the difficult

task of sentencing serious offenders.

It is clear what the legislative purpose was

in introducing the legislation. It is our submission
that the questions raised as to how a judge goes
about exercising that discretion and the difficulty

of determining whether he will exercise that discretion as opposed to a discretion not to

fix a non-parole period are practical difficulties

that sentencing judges face all the time. The

difficulty in doing it is not a reason, in our

submission, for the Court refusing, as in our submission it has done, to exercise the power given to it by the legislature.

(Continued on page 20)

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MR BLANCH (continuing):  Once again, in reading the second

reading speech and the purposes behind the

legislation, it is clear that this is a measure

that has arisen in the terms, in many ways, of

being a measure that is introduced for the purpose

of attempting to preserve the system of remissions
of non-parole periods which was a system introduced

by the government for the purpose of providing

an incentive for prisoners in gaol and allowing them

an early release.

There really seem to be two ways of addressing

a solution to that debate, and the two ways are

to give the court the power, in an appropriate case

as the court sees fit, to refuse remissions or

for the legislature to take the remissions away

altogether which is, as I indicated, a much harsher

addressing of that particular solution.

BRENNAN J:  Mr Blanch, do you have any reference that you

could easily give us of the cases where it was

held that the court was unable to take the

possibility of remissions into account in fixing

a sentence?

MR BLANCH:	Yes, in O'BRIEN's case, Your Honour.
BRENNAN J:	Thank you.  I do not want to delay you.

O'BRIEN's case is the one that sets out the reasons

why, I suppose, that view is adopted?

MR BLANCH:  Yes. It is reported-in (1984) 2 NSWLR 449.

It simply states the classic reasons that the

court does not know what remissions are going

to arise or the results of executive action and,

therefore, it is not appropriate for the court

to take it into account.

BRENNAN J:  Is there not a decision of this Court which

considered the question?

MR BLANCH:  Yes, I am sorry, Your Honour. I am not sure

that the case of PAIVINEN did not come to this

Court.

BRENNAN J:	That may be it, yes.
MR BLANCH:	It was a case involving an ACT prisoner and

a question about whether ACT prisoners had

remissions of - - -

BRENNAN J:  Yes, I think that might be it. Thank you.

MR BLANCH:  It is our submission, in brief, that there

is no problem about the courts exercising the

power in a theoretical sense. There are practical

CZT15/l/MB	20	8/9/88
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difficulties. But as I indicated and outlined

in the outline of argument, it is a power that

the courts have used. I have mentioned a couple

of cases in the outline, that I will not go to,

they are just illustrative of cases that have

been before the Court of Criminal Appeal where

the question of refusing to fix a non-parole

period has been looked at. I would simply make

the point that it is all part and parcel of the general legislative trend to give more power to the courts.

(Continued on page 22)

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MR BLANCH (continuing): Historically, anything to do with

the prison system or prisoners, once they were

sentenced, was entirely outside the hands of the

judges and they were matters that were dealt with

historically by licences and pardons. The trend

in recent years has been, particularly in New

South Wales, the introduction of the PAROLE OF

PRISONERS ACT which was the statute which preceded

the present statute in 1966, gave to the courts the
power to fix non-parole periods or refuse to fix
non-parole periods and that was a first major step
in removing into the hands of the courts the power
to govern what happened to the prisoner after
sentence. These provisions are simply another
manifestation of that. In our submission, it is an

appropriate grant of power to the courts and one that

can be exercised.

In essence, our submission about EVANS and

ROGERS cases is this: that it is true what is said

by Mr Justice Hunt and the Chief Justice in those

cases, that - particularly what the Chief Justice

said in ROGERS case - it is true that the remission

system is a system basically governing good

behaviour in gaols. The Chief Justice makes the

point that it is impossible to predict what the
prisoner's behaviour is going to be in the gaols.

Our submission simply is this: that this power

has nothing to do with that. It is not a power

that is dependent upon any assessment of how the

prisoner is going to behave in gaol at all. It

is a power that is given purely and simply as a

form of punishment to the court and it is a power

that is exercised on that basis and on that basis

alone. So, to criticize it on the basis of - suggesting that it is expecting the court to anticipate behaviour in gaol or that it trangresses

the O'BRIEN principle of not doing that is, in our

submission, incorrect. It is simply, as was

indicated in the second reading speech, a power that is given to the court in the form of being

an extra punishment and, on that basis, it is a power that ought to be exercised.

Just as to that matter, this Court in POWER's

case - .m.d I will not take the Court to POWER' s case - but Your Honours will remember that in POWER's case

the question arose as to the real intent of
non-parole periods and whether they were vehicles
for rehabilitation and reform or whether it was
seen as a punitive measure on the basis of providing

a minimum period of imprisonment and this Court in

POWER's case referred, with approval, to the concept

of a non-parole period or minimum sentence period as

a term of imprisonment and should properly be seen

as a punishment and, once again, just referring to,

without going to VEEN's case, when VEEN's case was

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considered by this Court, the Court, of course,

referred to punishment and protection of the

cormnunity as being appropriate matters to be

taken into account and those are precisely the

sorts of matters that were addressed in the

second reading speech and, in essence, our
submission is this: that what is being done

by the Court of Criminal Appeal in New South

Wales is that it is not obeying the statute,

the INTERPRETATION ACT, which requires the court to give effect to the purpose of the
legislation. In fact, the interpretation
adopted by the court in these cases is doing

precisely the opposite. Those are our submissions,

if the Court pleases.

WILSON J:  What is the point of the note at the end of your

submissions?

MR BLANCH:  I am sorry, Your Honour. In that part of the

submissions I was just dealing with the, or

just looking generally at the philosophy behind

sentences and whether the sentencing power, what sentencing powers properly vest in the court and

what powers in the executive and just developing

the theme that I have spoken to; that there has

been a transfer of control over the prison system

and aspects of sentences to the courts_ past the

point where the court simply imposed a sentence.

(Continued on page 24)

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MR BLANCH (continuing):  I was just noting in respect of

non-probation periods that when the court does

fix a non-probation period it is an absolute

non-probation period and nothing can be done by the executive about that at all. So it is just another example of the power that the courts have

over the sentencing process and what happens to

prisoners thereafter.

WILSON J:  It is the term non-probation that I am not familiar

with,.Mr Blanch.

MR BLANCH:	Yes, I am sorry, Your Honour.
WILSON J:	Section 14 Feads quite sensibly on the premise

that there having been no sentence imposed the

prisoner is entitled to be released, but that

probably just demonstrates my lack of familiarity

with the Act.

MR BLANCH:  It may demonstrate great perspicacity in the

draftsmen of the Act, Your Honour. The PROBATION

AND PAROLE ACT is divided into Part 11, which- deals with probation periods - Part II is divided into

Division 1 which deals with probation periods, and

that begins at section 5 of the Act. No, I am sorry.'

What I said in the first place was right. Part II deals with probation which begins at section 5 and Part III deals with parole which begins at section 17.

A non-probation period is basically defined, or the

circumstances are defined in section 6, and generally

when a judge imposes a sentence of not more than

three years the judge fixes a non-probation period.

If a sentence is more than three years he fixes

a non-parole period.

When a non-probation period is fixed, the non-probation period is fixed on the basis of

ordering that the person be released from prison

at the expiration of the non-probation period.

The non-probation period is also reduced by
remissions.	The prisoner, when released to

probation, if he breaches the probation order, is

not brought back to gaol to serve the balance of

his sentence; he is charged with a breach of

probation and the court then imposes a sentence for

breach of probation so that it is a different regime

of dealing with prisoners, but the philosophy is

that it is for less serious offences, shorter

sentences, and it provides - all I was indicating

in the written submissions was that it provides a

greater degree of control by the courts.

WILSON J:  Yes, I am sorry I intervened. It is just a

regime with which I am not familiar.

BRENNAN J:  Mr Blanch, do you have anything to say about the

question of the costs of this application for

special leave?

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MR BLANCH:  No, Your Honour. If the Court saw fit to

order costs against the Crown that would be something

that would be acceptable.

WILSON J:	Thank you, Mr Blanch.	Yes, Mr Luland.
MR LULAND:	Thank you, Your Honours.	Could I hand up

my written submissions, if it please Your Honour?

(Continued on page 26)

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WILSON J: Yes, Mr Luland.

MR LULAND:  Your Honours, it is our submission that the Court

of Criminal Appeal, of course, has never said

that there does not exist a power to make an

order under section 21A and perhaps I should

first of all take Your Honours to what I see

as a mi'sreporting in the headnote of REG V ROGERS

referre to. It says that it was held that:

The order under the CRIMES ACT 1900, s460A,

withholding remissions from the sentence

and non-parole period was made without power,

there being no material upon which -

and then it refers tc page 240, paragraph D.

His Honour the Chief Justice did not say in that

paragraph that there was no power for a judge to

make a particular order. His Honour was dealing
with the question of the discretion exercised

by the sentencing judge in this particular case

and says clearly that in the court's view there

was not sufficient and adequate material for

the sentencing judge to make such an order.

It is our submission that this is what each of

the cases that have arisen as a result of these sections -both the probation and parole section

and the sections under the CRIMES ACT, which

now has been transferred to the PRISONS ACT,

which you have heard - is about: whether there
was adequate material in the specific cases

coming before the Court of Criminal Appeal on

each occasion as to whether in fact the

sentencing judge had correctly exercised his
discretion. And in each case the court has said
that there did not present adequate material for

the judge so to do.

It is our submission, Your Honours, that

of course the Court of Criminal Appeal was quite

correct in each case where it says this.

DAWSON J: But did it not go rather further than that

and say there never could be any material?

MR LULAND:  It says it is impossible to imagine circumstances

in which there would be adequate material and,

of course, that is the difficulty as presented in

this particular case today, as presented by

His Honour Mr Justice Brennan when he refers to

how does one distinguish between non-parole period

and remissions when making each of those orders.

And therein, I submit to the Court, lies the

very real difficulty in this case, because the

underlying philosophy of remissions - from_the

time it was first enacted in the CRIMES ACT

section 461, through to the most recent amendments

now in the PRISONS .ACT - was, as His Honour

Mr Justice Street said in these cases, that it is

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essentially a mechanism aimed at encouraging

the good behaviour of prisoners and for the
administration of the gaols. That is the
underlying philosophy in the particular sections
and regulations that govern the whole question
of remissions and therefore one readily sees

the difficul~ as presented in each of these

cases to the Court of Criminal Appeal, the very

real problem of a sentencing judge attempting

to make such an order.

DAWSON J:	Why cannot the sentencing judge say, "Well, look,
I don't care how good this man is in prison,
I still don't think he ought to be released before this particular date. Because of the nature of the offence I don't think he should
have the benefit even of good conduct in
prison."? I mean, it is a perfectly imaginable
thing for him to take an attitude like that,
is it not?

(Continued on page 26)

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MR LULAND: Well, with respect, Your Honour, I see that as

undermining the whole philosophy of what the

remission system is, in fact, about, encouraging the

behaviour. They are presented now with a form as

soon as they go in under the PRISONS ACT stating

what the remissions system is all about, that it is

to encourage you to be of good behaviour, and that is

the underlying philosophy of the particular Act.

Now, where does a judge have the material to present

or to make such an order? In my submission, if he

is to look at the nature of the offence, he should

be looking at the nature of the offence with that

underlying philosophy.

DAWSON J:  But it is a philosophy which is not accepted

universally, is it? In fact, very recently, in an .

inquiry in Victoria,conducted by Mr Justice Starke, it was

said that remissions are really ineffective for this

purpose. What is effective are administrative

changes, transferring a man from one division to

another and putting him in another gaol and so on -

they are the things that encourage good conduct

effectively. But remissions, really, because of

their automatic nature, or almost automatic nature,

do not have that effect.

MR LULAND:  Well, with respect, Your Honour, of course it

was not the situation at the time that Mr Justice Maxwell

made this order, I must concede. But now, under the

PRISONS ACT, under sections 62 through to section 69,

it is a different system.	They are not automatic now,
they must be earned.	The Commission has to assess

monthly whether a prisoner be entitled to his

remissions and a calculation is made, a giving or

taking away the remissions that he may be entitled

to, and they are not automatic as they were prior to

the recent amendments of the PRISONS ACT section 62 on,

and therefore a prisoner is earning his remission

now in New South Wales.

DAWSON J:  I was rather putting it that there are other -

there are alternative means of ensuring good conduct

and there might be some justification for leaving

it to the judge to say, well, at least I am not

going to accept remissions in this case, you will

have to look to the other means. But I am really

just debating -

MR LULAND:  Yes, Your Honour. But it is our submission that

that is the underlying philosophy and that is what

the Court of Criminal Appeal applied itself to in
attempting to discern whether the judge

had the adequate material to make these orders and

it is a question, as His Honour the Chief Justice

says, of attempting to predict the future good

conduct.

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DAWSON J: I am really saying the same thing again. That is

something I find hard to accept. I can see that

you would very rarely make an order, but why cannot
you say, "No good conduct on the part of this man,

by reason of the nature of the offence he has committed,

could wipe out the seriousness of that offence, and,

therefore, I do not think he ought to be entitled to

remissions."

MR LULAND: Well, yes, Your Honour, and, of course, one does

that in the question of the non-parole period. It is

nature of the offence or the antecedents of the

the same test there, with the added aspect that

prisoner. The difference there, our submission is,

that if a person is to be entitled to a non-parole period
at all, of course, one looks to the nature of the

offence to see if, in fact, he has committed

similar type offences before, looked at his antecedents

to see if, in fact, he has been given opportunities

of parole in the past and has abused the opportunities

given to him; they are all proper tests as to whether

one specifies a non-parole per,iod or whether one does not.

(Continued on page 30)

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MR LULAND (continuing):  When one comes to the questions

of remissions, one is looking at the underlying
philosophy, as I put it, as to the administration

of the gao~ and good conduct. If one looks at

that particular question and asks, "How does

one apply the nature of the offence to that?"

It may very well be that an offence committed whilst in gaol: assaults upon warders - which

happen, of course, may be a very relevant consideration

on the question of the offence. The antecedents

of the prisoner may very well go to his previous

conduct in gaol, if he has previously misconducted

himself in gaol. That would be the proper and

adequate material for the sentencing judge to

have before him if he is looking at the question

of ordering that there be no remissions.

That, I submit, is the distinction that

one can readily draw between refusing to specify
a non-parole period or, alternatively, the question

of no remissions.

WILSON J:  The last matter you mentioned, the question

of his conduct in prison on prior occasions -

of course, there is no reason why that could

not be before the sentencing judge simply as

part of the antecedents?

MR LULAND:	Of course not, Your Honour.
WILSON J:	I am just having some difficulty with the statement

in ROGERS, that the discretion was not exercised

properly, there being no material upon which

it could have been properly based. The court

had all the circumstances surrounding the offence

that disclosed its nature and it had such evidence

relating to the antecedents of the offender as

·was thought to be relevant, why is that not the

material upon which the discretion could properly

be based?

MR LULAND:  I would submit that that would be very proper

material for His Honour to be taking into account

as to whether he specified a non-parole period,

or whether he did not, if one is looking at

the purpose of non-parole periods. I appreciate

it is not the only aspect of non-parole periods
but one of the major aspects of non-parole periods
is the rehabilitative question of a person to
encourage good behaviour whilst he is on parole

and one looks at that philosophy, at previous

offences or - - -

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WILSON J:  But when one looks at the Act and finds precisely

the same criteria expressed for the exercise of one or other discretion: on the one hand whether to specify a non-parole period at all

or whether to order that remissions shall not

be applicable, t~ere is no reason to say it

is not possible for a trial judge to say, "Well,

bearing in mind the desirability of fixing a

non-parole period so there can be a specified

period of supervision following his release",

that is one consideration the judge could take

into account, and he will fix the length of the

non-parole period by reference to whether in

addition it should be a finite terrr., t·hat is
to say, without regard to the remissions.

The exercise of the second discretion might well determine whether to fix a non-parole period

at all, and its length. Is there something wrong

with that?

(Continued on page 32)

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MR LULAND:	No, Your Honour, not that I readily see but, nevertheless, it does, in my respectful submission,
overlook the question of what remissions are all
about, if I may say so.

DAWSON J: That is what I find difficult to grasp. Remissions

are a reward and, in some circumstances, because of

the nature of the offence, he is not entitled to a

reward. That is the way it goes, is it not? It is

perfectly logical.

MR LULAND: Well, except that if one applies that strict test,

of course, he has never had the opportunity for that

reward and - - -

DAWSON J: No, no. Whatever he does in prison - a judge may

say, "When I look at this offence I just don't think

he should receive any reward for good conduct.	He
will do his time." Now, he would rarely say that

but one can think of circumstances in which, perhaps,

that might be justified.

MR LULAND:  Yes.

DAWSON J: This man is no:t entitled, by reason of the nature

of the offence, to the benefit of the remission

system.

MR LULAND:  Yes. Well, in my submission to you, it does

confuse the two areas of remissions as opposed to

nc,-parole periods; that they are different aspects

tt one is applying their mind to and for the

resissions, it is going to - - -

DAWSON J:  The length of the non-parole period is not a

reward.

MR LULAND:  No, it is - - -

DAWSON J: It is fixed with reference to different considerations,

albeit, also fixed by reference to the nature of the

offence and antecedent but with different things in

mind.

MR LULAND:  It is not a reward, of course, but it is an

encouragement that - - -

DAWSON J: Remissions are a reward.

MR LULAND:  A reward to be earned, now, in New South Wales.

DAWSON J: Yes.

MR LULAND:  To be earned. Non-parole period, true, it is not

a reward but it, too, is an encouragement, an
encouragement towards rehabilitation and remissions

is a reward, in the sense of - - -

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DAWSON J: Well, POWER's case says the non-parole period is

a punishment.

MR LULAND:  It is - yes, in the overall sentence, it is a

punishment but it is an encouragement to the

rehabilitation of a person. It is not a reward.

It is an encouragement for that particular purpose,

to encourage the person to rehabilitate himself

when, and if, he does get his parole. One finds

it difficult to say that about remissions which,

in fact, are something that they may or may not get when they get into the prison and they have

to earn those as they go along and, in our submission, as Mr Justice Street said, the Chief Justice said, it is impossible to see how

one in exercising a discretion could look to that

question of whether a person is going to behave

themselves in gaol as opposed to it simply being

a punishment of refusing them in the first place.

WILSON J:  The present Act was amended in 1986 by the addition

of a new series of sections you referred to.

MR LULAND:  Yes, Your Honour, 62, I think, is the - - -

WILSON J: Yes. Anyway, I can - - -

MR LULAND:  Yes, section 62, it is, Your Honour, and it goes

through to section 69 and the relevant area and it
is seen in section 63 that the commission there -
the commission has to determine the number of

days remission that a prisoner can earn up to a

maximum of 15 days, I think it is.

WILSON J: Yes.

BRENNAN J:  I suppose there would be an alternative way of

looking at this, would there not, Mr Luland?	That
is that if approaching the exercise of the
jurisdiction under sectionsl9 or 20, to fix a
non-parole period, one follows precisely the
direction that was given in POWER to consider	the
time for which the prisoner must remain in confinement.

(Continued on page 34)

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BRENNAN J (continuing):  Then I suppose one would say, "Well,

having regard to the exercise of that power, in the

light of that principle, we cannot allow the time

which the prisoner must spend in confinement to

be eroded by the exercise of a power or by the

provisions of section 25 of the Act", therefore

reversing what was done in O'BRIEN's case, an order

under section 21A should be made in every case,

or in most cases. What do you say to that?

MR LULAND:  Well, Your Honour, I can only say, as I have

been submitting, that it has not been seen through
the legislative philosophy that remissions be

considered on the question of sentence itself.

It is a stage beyond the question of sentencing

going to the administration of the prison system.

BRENNAN J:  That is all very well when the regime of

O'BRIEN's case was in and the matter of section 25

in its operation was outside judicial purview, but

21A now brings it ~ight back into judicial

consideration and if the judge then has two

discretions to exercise, one with respect to
- non-parole period and the other with respect

to remissions and he approaches the exercise

of a power with respect to the non-parole period

as specifying the time which the person must

remain in prison, why is there not prima facie

to be an order made under section 21A?

MR LULAND:	In every case -
BRENNAN J:	Prima facie?

MR LULAND:  Prima facie. Well, Your Honour, except that

it overlooks the remission system as it exists

in the PRISONS ACT and the regulations,that it is

there for that particular purpose, for the

administration of-and the rrechari.ism of encouraging

good behaviour and the legislatures have said,

in the sections I have referred to, 62 to 69, that

there shall be remissions as long as they are earned

and the corrnnission so assess them month to month
and that to interpret the section 21A- that in

every case there will not be remissions, with

respect, I do not see that as being intended or

desirable.

WILSON J:	At the time of POWER the prevailing wisdom was that remissions were applicable only to the head sentence, was it not, at the time of the decision
of this Court in POWER?
MR LULAND:	No, Your Honour.

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WILSON J:  When did remissions first become applied so as

to reduce the non-parole period?	Has it always
been so?

MR LULAND:  It was well after POWER's case.

WILSON J: Well, that was the point I was putting to you.

You see, originally it was recognized exactly as

said in POWER, a non-parole period was not

affected by remissions. But, of course, the

legi~lative intervention subsequently to render

remissions applicable to a non-parole period may

now have to be taken into account in construing

the totality.

(Continued on page 36)

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MR LULAND:  I think it was 1983 when the rem1ss1ons on

non-parole periods were first enacted.

WILSON J:  Yes, that was what I was seeking from you.

MR LULAND:  Yes, and of course the section 21A, I think,

was about 1986, where the legislature - - -

WILSON J:  Yes. No, you have answered the question, 1983

or thereabouts.

MR LULAND:	Yes.
WILSON J:	Thank you.
MR LULAND:	They are the submissions I wish to - - -
BRENNAN J:	Do you have anything to say about costs?
MR LULAND:	Of course, yes, we do.  We ask for costs.
WILSON J:	I should also ask you this, Mr Luland. Naturally

you would, if the Court - and. the Court will retire

for a moment to consider what course it should

take - if it were to reserve the matter for its

consideration, and if given that consideration it

were to grant special leave to appeal, I take it

you would urge us not to interfere with the present

order against your client?

MR LULAND:  Of course, yes, Your Honour.

WILSON J:  Yes, thank you. Yes, Mr Blanch?

MR BLANCH:  I do not wish to say anything more about that,

Your Honour, except there was just - I am sorry,

I do not wish to say anything in reply. I just

wanted to make this comment as to that aspect. the purpose of clarity of the prisoner's situation,

if it were open to the Court to do that it would be

a course that would be worthy of consideration.

I only say that because I understand that this

prisoner comes from Queensland and there was some

talk at one stage, at least, of him going back
there for the purposes of facing other matters or

transferring back to a prison situation. The fact

that this appeal is interfering to that extent with

whatever he wants to do, and if it were possible

for the Court to resolve his personal situation,

at an early point, then it is a course that might

be appropriate.	I am not quite sure how that could
be done.

BRENNAN J:  Mr Blanch, do you say that the implication of

allowing the appeal in this instance, or at least

giving a construction of the Act along the lines

for which you have contended would necessarily

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require a reconsideration of the principles

expressed in POWER'scase as applicable to the

exercise of .the powers under sections 19 and 20?

MR BLANCH:  Not a reconsideration, You1 Honour. In our

submission, the power given under those sections

is perfectly consistent with the intepretation

adopted by the Court in POWER of the purposes

legislation.

WILSON J:  The Court will retire for a moment to consider

the matter.

AT 11.39 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.49 AM:

WILSON J:  The Court will consider its decision 1n

this matter.

AT 11.49 AM THE MATTER WAS ADJOURNED SINE DIE

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