Reid v The Queen

[1999] HCATrans 468

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M78 of 1999

B e t w e e n -

DOUGLAS EDWARD REID

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 1999, AT 3.20 PM

Copyright in the High Court of Australia

MR P.J. O’CALLAGHAN, QC:   If the Court pleases, I appear with my learned friend MR P.J. HANKS, QC for the applicant (instructed by Coadys).

MR J.I. FAJGENBAUM, QC:   If the Court pleases, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions).

GLEESON CJ:   Yes, Mr O’Callaghan.

MR O’CALLAGHAN:   If your Honour pleases, the issues in this application are fairly clearly defined in the submissions which have been filed, and I hope that I can be fairly brief in relation to them.

Your Honours, we submit that if the framers of the Constitution had intended that the Commonwealth would have the power to regulate State courts dealing with State matters, then that would have been found in Chapter III and specifically within section 77, that is as a matter of logical compilation of the Constitution, if the Commonwealth was to have power to invest, which it clearly has, State courts with federal jurisdiction, but also to control State courts in dealing with State matters, there, you would have expected to find it. We say that its absence is of fundamental significance.

Secondly, we say that as the judgments of the Court of Appeal and, indeed, of the submissions of our learned friends are concerned, they go to, if I might put it this way, an excuse of the legislation, subsection (xxii), of saying it only modifies the hearsay rule.  The implication being that, because it is a small amount of interference or a small amount of regulation, then it is permissible.  Conversely, one would imply that there ought to be a different answer if, for instance, there was a provision similar to this which sought to reverse the onus of proof in a particular line of cases.  But we say that is the fundamental issue on which this appeal arises.  Can the external affairs power sustain a power to interfere or regulate in any way with a State dealing with State offences?  It is not to the point again, we say, to look at 51 and point to instances of where the Commonwealth are there dealing with matters of Commonwealth legislation such as bankruptcy or, more specifically, in (xxiv) and (xxv) when they are dealing with matters which flow throughout the Commonwealth.

We say that, absent a specific power to interfere with or regulate the powers of the State in dealing with State matters, one can get no relief by looking at what is clearly enough an external affair or external affairs in the context of subsection (xxi) and then adding as an appendage, and this also applies to State courts in dealing with State offences.  I am not sure, your Honours, whether I can usefully take the time of the Court in making

those submissions at any greater length than that.  That is the issue which is raised and which we say is an appropriate vehicle for special leave.

GLEESON CJ:   Thank you Mr O’Callaghan.  Yes, Mr Fajgenbaum.

MR FAJGENBAUM:   If the Court pleases, it is our contention that the fundamental error of my learned friend’s application can be demonstrated by assuming a situation where Parliament has not passed any legislation under section 77 investing a State court with federal jurisdiction and assuming that every matter arising under the law of the Commonwealth is tried in a State court exercising its own State inherent jurisdiction.

Now assuming no federal jurisdiction and assuming all matters arising under Commonwealth law are to be tried in State courts exercising State jurisdictions - and of course the State courts are bound by the laws of Parliament because of covering clause 5 at least - that question then arises as to whether, in the exercise of its legislative powers under section 51, the Commonwealth could make a law relating to procedure or evidence in matters arising under laws, otherwise within the legislative power of the Commonwealth when litigation in respect of those laws arises in State courts.

It is our respectful submission that it has been clearly held by the High Court on a number of occasions that the Commonwealth Parliament can, in the exercise of its legislative power under section 51, make laws relating to practice and procedure.  Milicevic v Campbell is an example of that, in which the High Court held that section 233B(1)(ca) of the Customs Act, which reversed the onus of proof, was a valid law of the Commonwealth with respect to trade and commerce. 

It was also clearly spelt out in the Orient Steam Navigation Company v Gleeson which is referred to in Milicevic 132 CLR, and if the Court has Milicevic handy there, it is at page 319 of the report.  Justice Mason refers to the judgment of Mr Justice Dixon, as he then was in Orient Steam Navigation Company v Gleeson, which was, again, an evidentiary provision which deemed certain people to be prohibited immigrants unless they proved that the person in question proved to the contrary.  And what his Honour Mr Justice Dixon said in that case, as referred to on page 319, is:

“Upon such matters, falling as they do within the subject over which the Commonwealth has power, the Parliament may place the burden of proof upon either party to proceedings in a court of law.  The onus of proof is a mere matter of procedure.  If the Parliament

may place the burden of proof upon the defendant, it may do so upon any contingency which it chooses to select.”

And the question that arose in that case was whether the relevant provision of the Immigration Act was a valid law of the Commonwealth within section 51, and no question arising under Chapter III arose at all.  Now they are the contrasts, your Honour.

As my learned friend, Mr O’Callaghan, said, the differing positions are well set out in the rival contentions in the application book, but in our respectful submission, my learned friend’s application is based on that fundamental fallacious premise and also based on the fallacious premise that within section 51, one can draw a distinction between provisions such as section 51(xxiv) and 51(xxv) relating to legislative powers with respect to service and execution of process and the full faith and credit matters, and matters such as immigration, trade and commerce.  In the latter two cass it is said that the Commonwealth Parliament has no power to make laws respecting procedure or evidence in respect of matters arising under those powers.  We say that is fundamentally incorrect, and the matter is clear beyond peradventure.

GLEESON CJ:   Thank you.  Mr O’Callaghan.

MR O’CALLAGHAN:   Your Honours, quite briefly. Years ago a very prominent Queen’s Counsel of this State, who is now dead, was being cross‑examined and he was being cross‑examined very brilliantly, and he was asked to assume that certain facts were so and he said, “I refuse to make the assumption”. That punctured the cross‑examination. What our learned friend starts off with is to say, “Assume that we did not have Chapter III”. But we have Chapter III and the Constitution must be interpreted in the light of its existing provisions not what might be the case, what might be convenient, what might be a happy compact between Commonwealth and State. We must take the Constitution as we find it and apply the law accordingly. Even if the assumption were correct, the Commonwealth would have to take the State courts and their procedures as it found them. With respect to Milicevic, it is talking there about federal matters and federal offences.

Does our learned friend’s contention go to the extreme that, in respect of a State court dealing with a State offence, the Commonwealth could legislate either via the external affairs power or some other power to reverse the onus of proof?  We say those sorts of examples demonstrate why this application should be granted.  If the Court pleases.

GLEESON CJ:   The Court is of the view that there is insufficient prospects of success in an appeal to warrant a grant of special leave and the application is refused.

AT 3.30 PM THE MATTER WAS CONCLUDED