Ruhani v Director of Police (Aka Nauru Appeal)

[2004] HCATrans 440

[2004] HCATrans 440

IN THE HIGH COURT OF AUSTRALIA

Registry  No C8 of 2004

B e t w e e n -

MOHAMMAD ARIF RUHANI

Appellant

and

DIRECTOR OF POLICE (THROUGH THE SECRETARY OF JUSTICE AS DIRECTOR OF PUBLIC PROSECUTOR)

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 NOVEMBER 2004, AT 10.17 AM

Copyright in the High Court of Australia

MR G. GRIFFITH, QC:   If the Court pleases, I appear with MS K.L. WALKER and MS L.G. DE FERRARI for the appellant.  (instructed by Vadarlis & Associates)

MR P.J. HANKS, QC:   Your Honours, I appear with MR S.J. LEE and MR S.P. DONAGHUE for the respondent.  (instructed by Clayton Utz)

GLEESON CJ:   It seems convenient for us to hear from Mr Hanks first.

MR GRIFFITH:   Yes, your Honour, I am content.

GLEESON CJ:   Yes, Mr Hanks.

MR HANKS:   Thank you, your Honours.  Your Honours will understand that we have dealt with the issues raised by our objection to competency first by considering whether this proceeding ‑ ‑ ‑

KIRBY J:   Where is the Solicitor‑General for the Commonwealth?

MR HANKS:   I do not see him, your Honour.

KIRBY J:   I do not see him either, but you have attacked the validity of federal legislation.  Why is the Commonwealth not here to sustain its legislation?

MR HANKS:   I take it your Honour’s question is rhetorical, because I am not in a position to answer that.

KIRBY J:   You are completely divorced from the Commonwealth of Australia?

MR HANKS:   My instructions come from the Republic of Nauru, your Honour.

KIRBY J:   It is really not a very satisfactory situation as far as I am concerned.

MR HANKS:   I understand that.

KIRBY J:   You have given notices under the Judiciary Act which are intended to enliven the attention of the law officers.  I could understand why the State/Territory law officers are not here, but why the Commonwealth is not here is a complete mystery to me.  I have never heard of such a thing.  In the nearly nine years I have sat here, I have never seen such a situation.

GLEESON CJ:   Mr Hanks, at some stage before this argument finishes we may need some assistance about matters of fact relating to the Republic of Nauru and its history and its constitutional arrangements.

MR HANKS:   Yes.

GLEESON CJ:   Whether you will be in a position to provide us with that information, or your opponent, perhaps remains to be seen.  We would need to be reasonably satisfied that we are adequately informed about facts of that kind.

MR HANKS:   Yes, your Honour.  I think it is unlikely that either of us will be in a position to provide that information and answer those questions immediately.

GLEESON CJ:   Yes.

MR HANKS:   And it may, therefore, be necessary for some note to be prepared to deal with the questions that your Honour has raised.  A representative of my client is, of course, present today, and I can discuss those matters with him and with my instructing solicitors.

GLEESON CJ:   Is there some convenient literary source in which we can find information about the history of the Republic of Nauru and its present constitutional arrangements?

MR HANKS:   Well, I am not in a position to give you an affirmative answer to that at the moment, your Honour.  There may be.  One knows something of the political history of the Republic, about its past at the beginning of the 20^th century as a German possession.

HAYNE J:   Well, there is Professor Weeramantry’s book, Nauru:  Environmental Damage Under International Trusteeship.

MR HANKS:   Yes, but I do not ‑ ‑ ‑

HAYNE J:    ‑ ‑ ‑ which contains some history.

MR HANKS:   Yes, but beyond that, your Honour, I am not in a position to answer the Chief Justice’s question.

GUMMOW J:   What, for example, was the position, if there was one, for appeals between the Commonwealth Act of 1919 and the Commonwealth Act of 1965?  Was there no external appeal from Nauru to any place, in particular, to the Privy Council of any jurisdiction?  I cannot find any Privy Council Order in Council dealing with Nauru.

MR HANKS:   No.  I will have to take those questions on notice, your Honour.

GUMMOW J:   We realise the 1965 Act introduced an appeal to this Court.

MR HANKS:   Yes, quite so.  My learned friend, Dr Griffith, thinks there might be some discussion of this in the judgment of the International Court of Justice that considered issues relating to, I think, the trusteeship.

GUMMOW J:   Yes, this is in the trusteeship period, but running back into the mandate period as well.

MR HANKS: Yes, your Honour. We have looked at this question that is before the Court from, as it were, the other end of the telescope, that is, from the perspective of our Constitution and what it is that our Constitution permits.

GUMMOW J:   By “our” you mean not your client’s?

MR HANKS: That is so, your Honour, by the Constitution under which this Court operates. I think that might be ‑ ‑ ‑

KIRBY J: I just inferred that you meant “our Constitution in Nauru”. You are appearing for Nauru.

MR HANKS: Your Honour, this is a question that arises directly in the context of the Commonwealth Constitution and it is from that perspective that we have approached the question.

GLEESON CJ:   Yes, but it also arises in a wider context, and it is a context about which it is not entirely easy to obtain information.

MR HANKS:   Quite so.  I understand that, your Honour, but I have simply by way of explanation indicated how we have approached the issues in the case.  As your Honours understand, it is our primary submission ‑ ‑ ‑

KIRBY J:   Just picking that up, I mean, your client is the Director of Police, acting through the Secretary of Justice as Director of Public Prosecutions of a foreign country, Nauru. 

MR HANKS:   Quite. 

KIRBY J:    Nauru has the treaty with Australia and there is Australian and Nauruan legislation.  You now come here to challenge that legislation, the Commonwealth of Australia is on notice of your challenge and does not appear at the Bar table.  I just find that remarkable.

MR HANKS:   All of those are facts, your Honour.  We do not contest those facts. 

KIRBY J:   Bordering on astonishing.

MR HANKS:   It is not astonishing that we should raise for determination by the Court ‑ ‑ ‑

KIRBY J:   No, I am not commenting on you.  I mean, in a sense, a foreign country is before the High Court of Australia saying that legislation enacted by the Commonwealth of Australia and the Parliament and by your country is invalid and provides no basis for the jurisdiction of this Court.

MR HANKS:   We say nothing about the legislation ‑ ‑ ‑

GUMMOW J:   What do you say about this, Mr Hanks?  The treaty between Australia and Nauru which is in Australian Treaty Series 1977 No 11.  It contains in Article 6 a provision for termination by your client.

MR HANKS:   That is so, your Honour.

GUMMOW J:   Well, that has not been utilised.

MR HANKS:   Of course not, your Honour.  Now, can I deal with that immediately.  The issue that we raised in our objection to competency is an issue that, from our client’s perspective, must be resolved.  There are indications in judgments of this Court that there are doubts as to the ‑ ‑ ‑

GUMMOW J:   You could resolve it tomorrow by moving under the treaty.

MR HANKS:   No, your Honour, that would resolve it in one way only.  It is appropriate, from our client’s perspective, that the doubts about the validity of the conferral of jurisdiction on this Court effected by what we have called the Nauru Appeals Act be resolved, so that the matter can be settled one way or another.

KIRBY J:   But it is embarrassing to a court, I think, to have suggestions of this kind made to it by counsel for a foreign country and to have no assistance from the government of the Commonwealth of Australia.  I find it embarrassing because this is a matter that touches the foreign relations of this country.

MR HANKS:   Your Honour, we have no responsibility for that aspect of the case.  We are only responsible ‑ ‑ ‑

KIRBY J:   I am not blaming you, but I assume that there were discussions between counsel relating to the matter of the 78B notice.

MR HANKS:   Your Honour should not assume that.  Your Honour should not make that assumption.

KIRBY J:   I find that itself remarkable.

MR HANKS:   Your Honour should assume that we who appear for the Republic have taken instructions from the Republic.  That is what your Honour should assume. 

GUMMOW J:   You do not appear for the Republic, do you?

MR HANKS:   I appreciate that, your Honour.  We appear for an officer of the Republic, but it would be, with respect, mistaken to assume that we have taken instructions or have conferred in relation to the issues raised by this matter with anyone other than our client. 

GLEESON CJ:   Yes, go ahead.

MR HANKS:   Thank you, your Honour.  It is our primary submission, as your Honours know, that the 1976 Act, which came into operation, I believe, on 21 March 1977, purports to confer on this Court jurisdiction which is truly appellate and not original. 

That, of course, is the language which is used in the legislation itself.  It is said in section 5(1):

Appeals lie to the High Court of Australia from the Supreme Court of Nauru in cases where the Agreement provides that such appeals are to lie.

GUMMOW J:   Appeals lay to this Court for many years from the Commissioner of Trademarks and from the Registrar of Trademarks to the Commissioner of Taxation.

MR HANKS:   Of course, your Honour, and we understand what our opponents say in relation to that.

GUMMOW J:   From the earliest times, this word “appeal” has had a chameleon-like quality in federal jurisdictions.

MR HANKS:   Indeed it has, your Honour.  In the present case it is fixed, that quality is fixed, a colour is fixed.  It is not liable to variation and it is fixed because what we have here is an appeal from a court ‑ ‑ ‑

HAYNE J:   No, we do not, we have an appeal not from a court that is a court within the Australian constitutional structure.

MR HANKS:   I accept that too, your Honour.

HAYNE J:   But that you are about to embark upon a path that says appeal has a fixed meaning because an appeal from a court, the assumption is that the court is a court within the relevant judicial structure.  This is not.

MR HANKS:   The curiosity with this legislation is that it proceeds on the assumption, of course, that the Supreme Court of Nauru is within an appellate structure which the Act creates.  It is a legal fact that the Supreme Court of Nauru is constituted as a superior court of record.  It is also a legal fact, as your Honour Justice Hayne pointed out, that it does not sit within what one might describe as the Australian curial system or scheme, that is a fact as well.  But it is, nevertheless, a superior court of record.

HAYNE J:   By whose law?

MR HANKS:   By the law of Nauru.

HAYNE J:   Just so.

MR HANKS:   The Act assumes – that is the Appeals Act with which we are concerned – that this Court will exercise jurisdiction, which we characterise as appellate but our friends say is not appellate, within that Nauruan legal schema, for the Court is authorised when determining the appeal ‑ ‑ ‑

KIRBY J:   The problem for this argument is that there are so many instances where the word “appeal” has been used in federal legislation in Australia that is not strictly a constitutional appeal.

MR HANKS:   Again, your Honour, we appreciate that but, with respect, those instances require some consideration and scrutiny and when they are looked at, they are quite peculiar.  They either answer this description:  they are cases in which the power which is being exercised by the body in question is not judicial but administrative – and there are many such examples with which your Honours are well familiar – or where the body is exercising, perhaps anomalously, a truly judicial function, the body is not a court. 

One might take as an example of the second situation the Defence Force Appeals Tribunal which this Court has held, indeed this year, exercises a form of judicial power.  Consequently, there was some debate as to whether it was possible to have “appeal” to the Federal Court of Australia.  The conclusion reached by this Court is that where the Federal Court exercises jurisdiction in relation to what is called an appeal on a question of law from the Defence Force Appeals Tribunal, the Federal Court is exercising original jurisdiction rather than appellate jurisdiction.  In our submission, what characterises those cases is that either the body appealed from is not a court or, alternatively, the function in respect of which the appeal is brought is administrative rather than judicial.  In the present case, in our submission, we have a superior court of record constituted under the law of Nauru ‑ ‑ ‑

KIRBY J:   But can the answer be that that is not a court within the Australian legal system not exercising judicial power of the Commonwealth and therefore it is in the same relationship to our judicial system as those administrative bodies?  It is just not an Australian court.

MR HANKS:   Your Honour, we accept, obviously – we do not quarrel with that premise – it is not an Australian court.  That is undoubted.  But it is invested by the law, according to which, under the Nauru Appeals Act, this appeal and every other appeal is to be determined – it is vested with the authority of a superior court of record. 

KIRBY J:   That is according to the law of Nauru, though, not according to our – you see, you are relying on an implied negative inference to be drawn from the structure of the Australian Constitution and its language, and that, if it exists – which I doubt – is for the purpose of protecting the judicature of Australia.  This court is a foreign court, and therefore does not, as it were, enliven that negative implication which is protective of the Australian judicature. 

MR HANKS:   I appreciate, your Honour, that there is a distinction which can be drawn.  Whether that is a fundamental distinction that justifies characterising this function as non‑appellate is the point that we are debating.  Your Honour will understand that we say this is a peculiar situation where this Court is vested with what is described as appellate jurisdiction.  We accept the description by itself is not determinative.  It is vested with what is described as appellate jurisdiction, and it is instructed that it is, in the exercise of that jurisdiction, to make such order as is appropriate, including any order which could be made by the court appealed from.  It is plain that in doing so it is, in our submission, to apply the law of the Republic of Nauru to that resolution. 

KIRBY J:   You are on firmer ground, I think, when you say that quite apart from the language – leave the language entirely to one side – the nature and character of the proceeding as having been determined in a court, even though it is a foreign court, is of its nature and character appellate.  The problem with that is that some of the so‑called appeals from administrative tribunals could be viewed as appellate, in one sense, and yet it has been held that they are within the original jurisdiction of the Court. 

MR HANKS:   Well, as your Honour understands, I do not want to retrace the steps that we have already made.  Those so‑called appeals from administrate bodies are plainly, according to the decisions of this Court, characterised as exercises of original jurisdiction because the review, if described as an “appeal”, is given a very specific and narrow character.  Typically, it will be an appeal on a question of law, though not always, and as such that question can properly be characterised as a question or a controversy that arises under the relevant statute. 

Now, in the present case we have a judgment, an order from a body which is described under the law by reference to which this Court is to undertake its task as a superior court of record, and we have drawn comfort from what was said by some members of this Court in Re Macks; Ex parte Saint to the effect that where one has a judgment of a superior court of record the appropriate and only way in which that judgment can be reviewed is through the process of appeal.

KIRBY J:   That was said in the context of an Australian court.

MR HANKS:   Indeed it was, your Honour.  We understand that our friends say that it is inapplicable here because this is a foreign court, but we would answer that with this response which we have made already, not a foreign court within the system of law which this Court is directed to apply by the Nauru Appeals Act.

HAYNE J:   Is that any more than a legislative choice of law, that is, at its root, if this Act be valid, when this Court determines an issue by reference to the rules which you find in the law of Nauru is not this Court simply giving effect to the law of the Federal Parliament and thus the application immediately of federal law?

MR HANKS:   We think, your Honour, that will ‑ ‑ ‑

HAYNE J:   In no wise different from any choice of law case.

MR HANKS:   If your Honour will permit me to defer an extended answer to that question, that arises in the context, as we understand it, of the argument that we have here, an exercise of original jurisdiction under 76(ii).

HAYNE J:   Just so.

MR HANKS:   Yes, and what our friends have described, I think, as the federalisation point, the federalisation of Nauru law.  Now, there are significant reasons we think why that will not withstand analysis.  We think that when one considers, for example, the controversy in the present appeal it is plain that that controversy has arisen under the law of Nauru and not some assimilative Act, if I might use the American term, of the type that your Honour is suggesting.

HAYNE J:   Buried within that answer lies the assumption that what in truth is in exercise is appellate not original jurisdiction.  The assumption is buried because you assume that the question is whether the court below was right or wrong, not the question whether on the material now before this Court, whether by agreement or otherwise, the rights and obligations fall one way rather than the other.

MR HANKS:   Thank you, your Honour.

HAYNE J:   It was, of course, intended to help you, as you had noticed, Mr Hanks.

MR HANKS:   And accepted in that spirit, your Honour.

GLEESON CJ:   Mr Hanks, the schedule to the Act that you are taking us to contains the agreement and the first paragraph of the preamble to the agreement invites the reader to recall something.  Where can we most conveniently find a description or an account of that which is to be recalled?

MR HANKS:   Your Honour is referring to the recollection.  Can I will answer that question later, your Honour?  I understand it is important.

HAYNE J: You would find it, I suspect, in Act No 115 of 1965, the Nauru Act of the Commonwealth.

GUMMOW J:   Section 54.

HAYNE J:   Perhaps you say it is to be found elsewhere.

MR HANKS:   I would not be so bold, your Honour.

GUMMOW J: Well, there is a real question you see: is section 54 supported by 122 of the Constitution or is it supported by the external affairs power or the Pacific Islands power?

MR HANKS:   Well, it would, of course, be our argument ‑ ‑ ‑

GUMMOW J:   Given the date and the very substantial nature, if one can say that, of the law officers of that time of the Commonwealth, I am sure these things were looked at.

MR HANKS:   I am sorry, did your Honours say that that question would have been considered?

GUMMOW J:   I am sure of it.

MR HANKS:   Yes, and I am sure that is so, your Honour.

GUMMOW J:   Sir Anthony Mason was Solicitor-General.

MR HANKS:   Yes.  Of course, it would have to be our argument that the only possible support for the conferral of that appellate jurisdiction would lie in section 122 in the territories power.

GUMMOW J:   Well, was Nauru during the UN trusteeship a territory for the purposes of 122?

MR HANKS:   This has ‑ ‑ ‑

GUMMOW J:   There was some discussion of that in relation to New Guinea in Fishwick v Cleland, I think.

MR HANKS:   Well, I am not able to answer that question, your Honour, at this point.

KIRBY J:   I notice that in that first preamubular statement to the agreement reference is made to appeals from the Court of Appeal of the Island of Nauru and that on page 133 this appeal is an appeal from the judgment and orders of Chief Justice Connell of the Supreme Court of Nauru.  Is there a Court of Appeal of Nauru?  If so, has the process within Nauru been exhausted before this appeal has been brought, or process has been brought?

MR HANKS:   No, your Honour, there is no Court of Appeal in the Republic.

KIRBY J:   What is the Court of Appeal of the island of Nauru referred to in the first preamubular statement to the agreement?

MR HANKS:   My understanding, your Honour, is that it no longer exists under the Constitution of Nauru.  There is a Supreme Court of Nauru, there is facility for that court to be constituted as a Full Court, but the judgment of his Honour Justice Connell is, as we understand it, the final judgment of the Supreme Court of Nauru in respect of which, according to the 1976 Act, an appeal can be brought directly to this Court without leave.

KIRBY J:   If there is a Full Court of the Supreme Court of Nauru, why would one not normally require that that process of the Full Court be exhausted before this Court becomes engaged?

MR HANKS:   Your Honour, my understanding of the structure of the Supreme Court of Nauru is that there is no provision requiring an appeal, or permitting an appeal, from a single judge of the Supreme Court to the Full Court.  My understanding is that the Court can be constituted by more than one judge and in so doing would not sit in appeal on judgment of a fellow judge of that Court.

KIRBY J:   Anyway, you do not raise any objection to the appeal on that basis.

MR HANKS:   No, your Honour. 

KIRBY J: And, maybe at some stage if I could have a little note on that point because, at least on the face of the agreement – and you tell us that the Constitution provides for a Full Court – one would normally expect that to be exhausted before we are involved.

MR HANKS:   I think I can answer your Honour Justice Kirby’s question with a little more detail.  Article 57(1) of the Constitution of Nauru allows the:

Parliament may provide that an appeal . . . from a judgment, decree, order or sentence of the Supreme Court constituted by one judge to the Supreme Court constituted by not less than two judges –

but the parliament has not so provided.

GLEESON CJ:   How many judges are there in the Supreme Court?

MR HANKS:   There is one judge appointed, your Honour.  There is one commission on my understanding. 

GLEESON CJ:   Chief Justice Connell.

MR HANKS:   Yes.

KIRBY J:   I understand.  Just to get out of the way matters that may be completely irrelevant, in your written submissions you refer to a provision of the agreement that

An appeal is not to lie to [this Court] from the Supreme Court of Nauru…where the appeal involves the interpretation or effect of the Constitution of Nauru.

I saw you cited that in paragraph 10 but I did not find a provision making any objection to the competence of the appeal on that footing.  Is that a correct reading of the submissions, or not?

MR HANKS:   It is currently, your Honour.  Your Honour will recall that the notice of objection to competency did raise an objection based on that part of the agreement for one of the grounds of appeal asserted the invalidity of the Immigration Act and regulations, the constitutional invalidity of those provisions.  That was ground 6(b) and our objection to competency objected to that ground for the reason that it was properly excluded.  The appellant has abandoned that ground of appeal and, therefore, we do not press that basis of our objection to competency. 

KIRBY J:   So we are really only confined to the appellate or original jurisdiction points under the Australian Constitution.

MR HANKS: Yes, your Honour. I do not propose to spend more than another minute on the section 73 point, we might call it. Your Honours understand that if it is properly characterised as appellate for the purposes of Chapter III of the Constitution, then it is our submission that it lies and must lie outside this Court’s jurisdiction. The categories of appellate jurisdiction are defined tightly and precisely in section 73.

KIRBY J: All of this rests on a premise that what you call definition is an exclusive definition. It is not there in the words, as Justice Higgins pointed out many years ago. It is something that has been read into the Constitution by members of the Court.

MR HANKS:   That is so, your Honour, although apart from Justice ‑ ‑ ‑

KIRBY J:   I mean, it does not say “shall be and shall only be”.  There is nothing to that effect.

MR HANKS:   That is so too, but apart from Justice Higgins, the view has been consistently expressed by members of this Court that ‑ ‑ ‑

KIRBY J:   Well, it was not expressed by me.  I do not accept it at the moment, subject to argument.

MR HANKS:   Yes, I understand that, your Honour, but may I say ‑ ‑ ‑

KIRBY J: I mean, if this is the Constitution we are interpreting and it is a Constitution which is concerned with the jurisdiction of courts and the external affairs power is enlivened, who knows what the future will involve in the use of the external affairs power of this nation by the Parliament of the nation, in good co‑operation and good governance of the countries of the Pacific. Why should we give such a narrow reading? It is not there in express terms. This is a Constitution. One would not normally give it such a narrow reading. I do not see why we should.

MR HANKS:   Well, your Honour will understand that since – let us take some of the highlight judgments in Re Judiciary and Navigation Act, Boilermakers’ Case.

KIRBY J:   Yes, but they were written years and years ago.  We are living in a new age.  We are in the 21^st Century.  In our relationships with the Pacific Islands, they were countries of uncivilised savages in the view of people in those days.  They are now independent nations who may well wish to invoke the jurisdiction of this Court or have the co‑operation of the Australian judicature.

MR HANKS:   Your Honour, I wish to refer to three cases only.  I have referred to two, notwithstanding their antiquity, 1926 and 1956.

GUMMOW J:   What do they show?

MR HANKS: What do they show? They, in our submission, show that Chapter III is a complete and exhaustive statement of the judicial power of the Commonwealth, and that the categories of appellate jurisdiction listed in section 73 are complete and exhaustive, subject to one exception recognised in the case of section 122.

KIRBY J:   The fact that you have the exception makes it very hard to say it is an absolute rule.

MR HANKS:   I was about to say, your Honour, the exception has become more controversial in recent times.  There have been some doubts expressed as to the propriety of that exception.

KIRBY J:   So we are going to cut off all appeals from the Territory courts, or pretend that they are in the original jurisdiction?

MR HANKS:   Your Honour is asking me whether that is the likely outcome of ‑ ‑ ‑

KIRBY J: What a fantastic result that would be for the Australian nation and Constitution. The fact that it is so fantastic makes it necessary to re‑examine the premise.

MR HANKS:   I am not advocating for that, your Honour.  I am merely making as a footnote the observation that there have been some doubts expressed about the appropriateness of that exception.

GUMMOW J:   The necessity for the exception, not the appropriateness of it.

MR HANKS: We do not need to test it, your Honour, with respect. What we need to recognise is that the Court has consistently taken the view that Chapter III is an exhaustive and complete statement of the jurisdiction that this Court has and the jurisdiction that may be invested in this Court. So far as appellate jurisdiction is concerned, that is contained and defined exhaustively by section 73.

The third authority that we would refer to that reinforces this point is the Court’s judgment in Gould v Brown.  Admittedly, what was in issue there was the investiture in the Federal Court of original jurisdiction in matters ‑ ‑ ‑

GUMMOW J:   I think you mean Wakim, do you not?

MR HANKS:   One does, your Honour, but, with respect, the formulations of principle are more extensive in Gould v Brown.  Wakim, in our respectful submission, assumes much of the analysis and discussion in Gould v Brown.  Undoubtedly, Wakim is the authority, but what it does, in our submission, is endorse the view that was expressed by the statutory minority in Gould v Brown.  That is how we would read it.  It is for that reason that in our written submissions we have referred your Honours to a number of the passages from the judgments in Gould v Brown. Each of those passages stresses the exhaustive nature both of the prescription of original jurisdiction in sections 75 and 76 and of the appellate jurisdiction in section 73.

CALLINAN J:   Mr Hanks, could the Commonwealth Parliament establish a tribunal not called the Federal Court but under the external affairs power in furtherance, for example, of a treaty with another country that wanted Australia to provide an appellate jurisdiction for it?  That would still be possible, would it not?  It just simply would not be a Chapter III court.

MR HANKS:   I think it would be possible, your Honour.  Again, it depends on the incidentals, as it were, that are attached to the so‑called jurisdiction.

CALLINAN J:   But Chapter III is concerned with the judicial power of the Commonwealth, not with the judicial power of some other country.

MR HANKS:   That is so.

CALLINAN J:   Or some other form of judicial power, for that matter.

MR HANKS:   Indeed, and it would be permissible for that reason, we think, for such a body to be established, perhaps with capacity to come to a conclusion which by itself is not ‑ ‑ ‑

CALLINAN J:   It may have no force at all under Australian law.

MR HANKS:   That is right.  It would not be immediately enforceable.

CALLINAN J:   But enforceable perhaps in the country with which Australia has made the treaty.

MR HANKS:   Yes.  I am sure it has not escaped your Honours’ attention that there are some parallels in this situation with that example.  That is, the orders that this Court makes in resolution of what we will call the appeal from the Supreme Court of Nauru are enforceable not by reason of their character as orders of this Court, but by reason of the legislation of the Republic of Nauru.

Justice Callinan, you will recall that under the United States Constitution, Congress can create what are called “legislative courts” and vested in a variety of functions which lie outside the Article III judicial power, which is tightly defined within Article III of the United States Constitution in a similar way that, we say, the powers of this Court are tightly defined in 75, 76 and 73. So that is possible in the United States, but it is the fact that the Supreme Court would not be permitted by the Constitution to hear an appeal from such a legislative court where the legislative court was dealing with a matter that lay outside Article III. Now, we think in the case of ‑ ‑ ‑

GUMMOW J:   Well, that is not entirely true.  Tax questions get into the federal court system.  They start off in the Tax Court.

MR HANKS:   That is so, your Honour, and the legislative court, of course, may be vested with Article III functions.

GUMMOW J:   But they get into the United States federal court system as original jurisdiction, as I understand it.

MR HANKS:   Yes.

GUMMOW J:   It is like the AAT here.

MR HANKS:   Yes.

GUMMOW J:   That is an apt analogy, probably. 

MR HANKS: The point which we were developing is simply that, in our submission, section 73 does define what one can describe as the appellate jurisdiction of this Court.

GLEESON CJ:   How does your argument concerning the exhaustiveness of Chapter III relate to the fate of the Interstate Commission?

MR HANKS:   Your Honour, my understanding is that the judgment of this Court in New South Wales v The Commonwealth (1915) ‑ ‑ ‑

GLEESON CJ:   The Wheat Case.

MR HANKS:   The Wheat Case, yes, was driven by the terms on which the members of the Commission were appointed. Those were terms which were directly contemplated by, I recollect, section 103 of the Constitution, but they were not terms that were consistent with section 72. My understanding is that the judgment of this Court was that because the members of the Commission did not hold the tenure required by section 72, it could not be characterised as a court. It could not exercise any part of the judicial power of the Commonwealth, so that it could not make orders that were immediately enforceable.

Now, we would see the Wheat Case as considering the obverse question to that with which we are concerned here.  The question before the Court arising out of our objection to competency is whether the jurisdiction that may be vested in a Chapter III court, namely, the High Court of Australia, is exhaustively defined in the three provisions to which we have referred, 73, 75, 76, whereas the question in the Wheat Case was whether a body other than a Chapter III court could be vested with some aspect of that judicial power of the Commonwealth, defined in those provisions.  So we may be mistaken, your Honour, of course, but we do not see that the discussion in that case would throw much light on the questions presently before the Court.

GUMMOW J:   No, but it shows “appeal” in 73 can be a limited creature.  It can be a question of law, purely.  Does not that follow from 73(iii)?

MR HANKS:   That is so.

KIRBY J: I do understand the textual arguments about section 73. I have been down that track and understand it, but could you just give me an indication of any reason of principle or constitutional policy, given the history and character of our Constitution and the job it has to do for the decades and the centuries, why one would wish within that document, or should read the document as excluding the facility of the appeal that the Parliament has provided for? I can understand arguments within the Federation, but where this is a country external to the Federation that has sought, by agreement with Australia, to have access to this Court, and the Parliament has so enacted, why in terms of our constitutional principle does the Constitution prevent that?

MR HANKS:   That is a difficult question, your Honour, obviously.  The considerations which ‑ ‑ ‑

KIRBY J: The British Parliament could have so provided at Federation, and did by the Privy Council, Orders in Council or the Parliament could have so provided for appeals from colonies or former colonies. There is no question about that, and given the world in which the Constitution has to operate, why would one read the Constitution as forbidding such a facility where Australia and a foreign country have so agreed and both Parliaments have so provided.

MR HANKS:   Your Honour will recall from the views expressed in Re Wakim, for example, that, as we understand it, textual considerations were critical.

KIRBY J:   I understand that but in decision making one has three guiding stars, authority, principle and policy and I am leaving authority aside for one moment.  I understand those arguments and I am asking you to address the other two.

MR HANKS:   What I am saying to your Honour, I think, is that in this area textual considerations have assumed critical importance ahead of ‑ ‑ ‑

KIRBY J: Yes, but my point, Mr Hanks, is that the text has been read with eyes of earlier generations which were not addressing the Constitution in terms of its role as the foundational law of this nation – speaking into the 21^st century.

MR HANKS:   Yes.

KIRBY J:   I am asking you to address that question, if you wish to.

MR HANKS:   Again, I would have to say that that does not - in our submission, that approach does not play a role in the development, as we understand it, of the view which this Court has adopted as to the exhaustive character of Chapter III and its statement of those matters in respect of which this Court can be vested with jurisdiction.

KIRBY J: You will not answer my question. The Constitution says the “Court shall have jurisdiction”. It does not say the Court shall not have jurisdiction. Therefore, as far as I am concerned, the textual arguments are barren but, for the moment, I am assuming that they provide an obstacle of authority and I am asking you to address the reason why that should be so. Why would one read a Constitution and a text that does not have such forbidding language to narrow the text of a national Constitution operating in a world of global and regional activities such as we see today. That was not the world of the 19^th century.  It is the world of the 21^st.

MR HANKS: If I could give, your Honour, a partial answer. This Court, as your Honour could tell me far better than I could explain to your Honour, plays a critical role in preserving the balance of power within the federal system. Hence, when the Constitution was drafted, the reservation to it of inter se matters which could not be taken to the Privy Council. That is a critical function which it performs and that was certainly a consideration which was referred to by the majority in this Court in the Boilermakers’ Case as a reason why a strict division should be maintained between judicial and non-judicial functions and courts and bodies that were not courts.

KIRBY J:   Thank you for that argument.  I understand that is addressing the federal situation.

MR HANKS:   That is so.

KIRBY J:   What about the external situation?

MR HANKS:   I understand also your Honour would say that is not a complete answer, but that proposition is the beginning of the development of a further proposition which is that in order to maintain the reality and the appearance of the independence of this Court from one of the parties within the federal system, the Commonwealth, the divisions drawn in Chapter III must be strictly observed – the limits drawn in Chapter III must be strictly observed and the Court should not suffer the Commonwealth Parliament to go beyond those limits. 

Now, that would be, in our submission, a reason why the negative implication should be drawn from the positive and has been drawn.  No encouragement should be offered to the Commonwealth to step outside the boundaries.  Now, in the present case, we say the Commonwealth has stepped outside that boundary by the enactment of the Nauru Appeals Act.  Notwithstanding that it might be to the advantage of the countries of the Pacific or it might be to the advantage of Australia’s international relations, it nevertheless trespasses on the limitations that the Commonwealth Parliament must observe.

KIRBY J: If you think of any other arguments – I appreciate your argument there. Of course, the Court is not only a constitutional court; it is also a court of general law for this nation and therefore we are not confined solely to our constitutional function. But if there are any other arguments of that character that you think of later, I would appreciate a note because, as far as I am concerned, the authority of the Court has been narrow and pedantic and not appropriate to a living Constitution that speaks for the new age.

MR HANKS: Well, with respect, we think that we have explained as clearly as we can our position in relation to the exhaustive character of the section 73 jurisdiction. We acknowledge, as we have said earlier, that as the law currently stands, section 122 is seen as permitting the conferral of appellate jurisdiction on this Court in matters from the territories and the rationalisation for that is that the territory courts are supported by 122, which is a general legislative power, and that general legislative power authorises some additional jurisdiction to be conferred on this Court in relation to territory matters.

Each of the cases in which that proposition has been advanced, perhaps most obviously Spratt v Hermes in 1965, have recognised and insisted that it is an exception and that the exception does not extend to a conferral of jurisdiction on this Court that is supported by, for example, one of the paragraphs in section 51.  We had in mind, in particular, what was said by Justice Kitto in Spratt v Hermes (1965) 114 CLR 226.

KIRBY J: Conceptually, it is a difficulty for your argument, though, is it not, because if the words “shall have jurisdiction” mean “shall have, and only have, jurisdiction”, then Territory appeals are not in section 73 and therefore there is a fatal dagger at the heart of your argument on the text of the Constitution.

MR HANKS:   Well, could I just take your Honour to what was said by Justice Kitto in Spratt v Hermes to complete the point, and I will come back to the fatal dagger, your Honour. 

KIRBY J:   I just wonder how his Honour wriggled out of that one. 

MR HANKS:   I will not forget.  At page 255.8, his Honour has reviewed some of the previous authorities and says in that last paragraph:

every member of the Court who has touched upon the subject since (with the possible though not certain exception of Evatt J. in Ffrost v. Stevenson) has accepted the proposition, even if he has not given it his approval, that Chap. III does not limit in any way the authority of the Parliament under s. 122 to make laws with respect to the exercise of judicial power which are laws for the government of a territory –

Then at about page 256.2:

there has been a continuous acceptance of the validity of laws conferring on the High Court appellate jurisdiction in respect of territories, notwithstanding any disregard they may evince of Chap. III –

And over on the following page, at about point 6, his Honour said:

I am of opinion that we ought to hold as a corollary of Bernasconi’s Case . . . that the power of Parliament under s. 122, being unrestricted by anything expressed or implied in Chap. III, extends to conferring on the High Court original as well as appellate jurisdiction in any matter, provided that in doing so it is a law for the government of a territory. 

KIRBY J:   That is merely stating a conclusion.  It is not explaining how he comes to it, on your theory. 

MR HANKS:   How he comes to it, your Honour, is by reference to a long line of authority. 

KIRBY J:   I thought you were going to give us a complete ‑ ‑ ‑

MR HANKS: That is simply how he comes to it. He says this is sufficient to justify what we would describe as the exception to the exhaustive nature of section 73.

KIRBY J:   It just does not jell.  It just does not jell with the text. 

MR HANKS:   Let me go back to your Honour’s dagger, not pointed at the heart of our argument at all, with respect.  The fact that this exception has been recognised does not mean that another exception need be recognised.  This is an anomaly, section 122 ‑ ‑ ‑

KIRBY J:   If we can have one anomaly, we can have another for the external affairs and good governance of the countries of the Pacific. 

MR HANKS: In our submission, your Honour, any law which purported to confer additional jurisdiction on this Court in relation to Nauru must be a law supported by section 51(xxix) or (xxx), and as such would purport to confer on this Court an additional part of the judicial power of the Commonwealth. That is, with respect, not permitted unless the appeal be such as to fit within one of those categories identified in section 73. That is our point.

If your Honour were correct, with respect, it would be open to the Commonwealth Parliament to confer appellate jurisdiction on this Court in relation to a judgment of the District Court of New South Wales involving a trading corporation where the issues in that case were exclusively State issues.  That law would be a law with respect to trading corporations, arguably, within 51(xx), and that would be, perhaps your Honour might say, an additional little anomaly which does not disturb the constitutional principle.  We say that would be an invalid attempt to supplement the exhaustive appellate jurisdiction of this Court. 

HAYNE J:   Boilermakers may be understood as proceeding from a view that the way in which the intersection between legal systems of federal, State, Territory to the extent to which it is sensible to speak of them as separate is to be regulated in Chapter III, bearing in mind, among other things, that the judicial system is ultimately unified at its apex in this Court, but the questions which are engaged where the intersection in question is not an intersection between legal systems of the polities the subject of the Constitution may themselves be quite different, may they not?

MR HANKS:   The underlying questions, yes, your Honour, they may be.

HAYNE J: And they may point further, may they not, to a difficulty that is implicit in understanding that intersection by reference to section 73 and appellate jurisdiction? How does the intersection generate appeal? I can understand the argument that it may generate controversy in an original jurisdiction, but how does an intersection of the legal system of polities, one of which is outside the Constitution ‑ ‑ ‑

MR HANKS:   Totally independent and sovereign, let us say, yes.

HAYNE J:    ‑ ‑ ‑ lead us off to this field of appeal?

MR HANKS:   Undoubtedly, your Honour, if I could borrow Justice Kirby’s phrase, there are critical anomalies here in the conferral of what appears to be and what we say is in substance appellate jurisdiction on the High Court.  As your Honour says, the court from which that “appeal” is brought is a court of a different polity, that is one that is completely independent of the Commonwealth of Australia and all its constituent parts.  That makes the concept of an appeal quite anomalous.  Your Honour might say so anomalous as to be a poor description of the nature of the proceeding.

HAYNE J: But what the search for underlying policy in connection with section 73 may reveal is that the relevant policy to be identified is that which is articulated in Boilermakers, namely a policy concerning the regulation of judicial power in connection with the Constitution of the Federation in a federal system. Those considerations of policy may lead you to a conclusion that leads at least to a tension in understanding that section 73 can be engaged in a case such as the present but it may also lead you, if we speak in terms of daggers, to the knife in the napkin for you, which is that it tips you over into original jurisdiction.

MR HANKS: We understand – I do not want to mix too many metaphors here, your Honour – that there is a balance here and that some pressure is being applied to one side of the balance which is intellectual and conceptual pressure which is pushing us towards the second part of our argument, which is that if this is not appellate jurisdiction, if indeed it cannot properly be characterised as appellate primarily because the Supreme Court of Nauru lies outside the Australian curial system and that one has here at best a first exercise, as our friends put it, of the judicial power of the Commonwealth, if that be the case, then we must address in the alternative the arguments that resist the proposition that this is original jurisdiction of the type contemplated by the Constitution.

McHUGH J: That is the argument you have to face up to. Unlike Justice Kirby, I do not have the slightest doubt that section 73 is exhaustive of the appellate jurisdiction of this Court. But what is your answer to the proposition that what this Act confers is original jurisdiction on the Court? There is a matter for the purposes of section 76(ii) of the Constitution, which is the determination of rights, liabilities and privileges of Nauruans, including the Nauruan Government, or including Nauru itself, by reference to the law of Nauru.

MR HANKS:   Yes, your Honour.  If your Honour puts it in those terms, that is our answer.  That is, the matter inevitably – the controversy about rights, liabilities, obligations ‑ ‑ ‑

McHUGH J:   Federal law operates by reference to Nauruan law which is the factum which gives rise to these federal rights.  Now, it may be described in a number of ways.  One way is, I think, as the present appellants say, that it is a right to have the correctness of the judgment reviewed by reference to Nauruan law, but maybe another way of looking at it is it is a determination of the rights, liabilities and privileges of Nauruans by reference to Nauruan law, and it is an exercise of original jurisdiction.  What does “appeal” mean?  What does “original jurisdiction” mean?

MR HANKS:   Well, how many questions should I answer, your Honour?  Let me just deal with 76(ii).  Putting on one side 75(i), although our friends wish to say something about that, we think that given these two propositions, 75(i) is something of a distraction.  The two propositions are that the concept of “arising under” is identical, we would say, in 75(i) and 76(ii).  That is the first proposition.  The second proposition is that the treaty or the agreement has been implemented through legislation. 

One does not, in those circumstances, need to resort to the terms of the treaty when one has legislation which adopts and implements the treaty for the purposes of Australian law.  So then the critical question is whether one can say that this controversy brought to the Court for resolution is one that arises under the 1976 Act, what we have described as the Nauru Appeals Act.  That is, what is the source of the rights and liabilities which the appellant seeks to vindicate and seeks to impose on the respondent?  Is that source to be found in a law of the Commonwealth?  If it is not, the only way in which that law of the Commonwealth can ‑ ‑ ‑

GUMMOW J:   You talk about the source.  The question is a sufficient source for the purposes of federal law.

MR HANKS:   In our submission, it is not a source at all, your Honour.  It is no more, with respect, than the purported conferral of a jurisdiction to hear a particular type of proceeding in which that controversy will be agitated and at the end of which that controversy will be resolved by an order of this Court.  That is the structure of the Nauru Appeals Act.

McHUGH J:   It cannot be enforced here, can it?  It can only be enforced by reason of section 54 of the Nauruan legislation.

MR HANKS:   That is right, your Honour.  I will just check we have the right section.

McHUGH J:   Yes.

MR HANKS:   I think we are talking about the Appeals (Amendment) Act. Well, we have section 46 of the Appeals (Amendment) Act 1974 (Nauru).  That recognises, we would say, that the Court can make an order which would be effective.  I mean it is not as explicit as your Honour might have had in mind, but it is an implicit recognition the Court can make an order – this Court can make an order which will be recognised in the Republic.

McHUGH J:   Since Polyukhovich is there anything to stop the Federal Parliament, if it wished, giving the Federal Court of Australia jurisdiction to determine the rights of French persons according to the Civil Code.  That is an external affair, is it not?

MR HANKS:   Yes, of course, it would be an external affair.  In our submission, if the legislation is expressed so as to adopt, for the purposes of that law, the provisions of the Civil Code then that would be effective; that is, that ambitious exercise would be constitutionally effective so far as the law of Australia is concerned.  There is one reservation that I might want to make about the constitutional efficacy of that, and that is that it might be said that the Parliament was vesting the Federal Court with no more than the jurisdiction to express an opinion with no legal consequences and, therefore, we would not be part of the judicial power.  So that might bring it undone, your Honour.  And there is an aspect of that which infects this legislation.

HAYNE J:   Let it be assumed that this was within power and the Court were to make an order:  appeal dismissed with costs.  Who would enforce, or who could enforce, the order for costs?

MR HANKS:   It would be enforceable by the respondent.

HAYNE J:   By resort to the process of this Court, for example, against real estate owned by the appellant in this country in the example I hypothesised?  Is it the marshal that comes to call, or someone else?

MR HANKS:   In our submission, your Honour, that order, by virtue of the Appeals (Amendment) Act (Nauru) would be recognised and would be enforced in Nauru.

HAYNE J:   I understand that, but could it be enforced in Australia, for example, against real estate owned or property owned by the party, subject to the order, located within Australia?

MR HANKS:   Subject to one important qualification.  We would say the answer might be yes, your Honour.  But the one important qualification is that the powers of this Court are essentially the powers to make such order as could have been made by the Supreme Court of Nauru.  Now, there is a question that would arise as to whether that court could have made an order for costs in force within Australia.  We think it could if it was registered.  So we think the answer to your Honour’s question is probably yes, in that one situation, but an order of the character which the appellant seeks, your Honour, is a totally different character.

HAYNE J:   It is habeas, yes, I understand that. 

MR HANKS:   It cannot be enforced in Australia.  It can only be enforced in Nauru and it can only ‑ ‑ ‑

HAYNE J:   There may be many examples where that is so, where the subject matter and all that has to be done is located only on the island of Nauru; hence the reference to the ancillary order of costs. 

MR HANKS:   Can I go back to Justice McHugh’s question:  why is this not, as it were, an example of Nauru law being the factum on which the Commonwealth law operates, with the Commonwealth law giving rise to a controversy?  We had thought about other cases where similar questions had been considered and we thought perhaps the judgment in Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 might be of some assistance. Your Honours, what might be useful – I will take your Honours to the judgment of Justice Taylor at page 556. Your Honours will recall that this was a challenge to the validity of section 31 of the Conciliation and Arbitration Act.  The terms of the section are set out on page 529 in the headnote. 

McHUGH J:   You have to remember that Justice Taylor was a dissenter in Boilermakers. 

MR HANKS:   Well, many have been on the road to Damascus, your Honour.  He was not a dissenter in this case. 

McHUGH J:   I know. 

MR HANKS:   The terms of the legislation are set out in the headnote on page 529.  This was a provision that authorised an appeal to that court, the Court of Conciliation and Arbitration, from a judgment of any other court in proceedings, for example, involving the interpretation of the Act or involving the interpretation of an order or an award, to take those as examples.  His Honour considered the validity of section 31 and at page 556.3, his Honour says:

Coming now to s. 31 of the Conciliation and Arbitration Act we find that it purports to do two things –

and his Honour sets out in summary terms what section 31 provides, then refers to section 77(i) of the Constitution. This, of course, is on the assumption which was prevalent at this point that the Arbitration Court could exercise part of the judicial power of the Commonwealth. His Honour then goes down to consider original jurisdiction. He says:

These considerations immediately direct attention to the character of the matters in respect of which such provision is made, for unless they are matters which are mentioned in s. 75 or s. 76 there is no constitutional foundation ‑ ‑ ‑

GUMMOW J: What is he saying at 556 and 557? I understand what he is saying beginning in the middle of 557, about section 73. Is he saying that this from “any other court” would include State courts exercising purely State jurisdiction? Because if he is saying that, is he saying anything more than what he then says about section 73?

MR HANKS: I think so, your Honour. I think what Justice Taylor was proposing, and, in our submission, this is not a difficult or controversial proposition, was that the conferral itself of the power to hear an appeal – let us say that can be described as conferral of original jurisdiction in a controversy or a matter which is outside 75 and 76 – that conferral of jurisdiction to hear the appeal and determine whether there has been error does not itself give rise to a matter within section 75 or 76, and, if that is so, it would not give rise to a matter within section 76(ii), the conferral of the jurisdiction on the Court to determine whether there has been error.

GLEESON CJ:   Do you mean by that that if a State law empowered a State Supreme Court to give advisory opinions a law of the Federal Parliament conferring on this Court jurisdiction to entertain an appeal from a decision of the State court in such a case would not be a valid conferral of either appellate or original jurisdiction?

McHUGH J:   We held it is not a conferral of appellate jurisdiction, did we not, in President of India Limited v Moor – that case from Western Australia, I think.

MR HANKS:   A purely advisory opinion.

GLEESON CJ:   Therefore, not a matter.

MR HANKS: Yes. There is no controversy in those circumstances and, in our submission, it would follow that the law of the Commonwealth which purports to give this Court jurisdiction to, as it were, review that opinion would not itself be supported by section 76(ii) because the matter which would come before this Court, if I can use the word “matter” in a very loose sense, the issue which would come before this Court would not answer the description of a matter arising under that law.

GLEESON CJ:   The Judiciary and Navigation Act decision did not turn upon the fact that the function purported to be conferred on this Court was not a judicial function.  It turned upon the fact that there was not a matter, is that not so?

MR HANKS:   That is so, yes, your Honour, indeed.

GLEESON CJ:   So that if the New South Wales Parliament purported to confer on the Supreme Court of New South Wales power to give advisory opinions to the New South Wales Government about the validity of some Act it proposed to undertake about the validity of proposed legislation then the problem in federal terms would not be that that is not an exercise of judicial power, it would be that there is no matter.  Could you solve, from the point of view of federal jurisdiction, the absence of matter by saying, “The matter is created by the federal legislation that confers on the High Court jurisdiction to entertain, perhaps in its original jurisdiction” - I will use the neutral expression, “an application for review of the decision of the Supreme Court”?

MR HANKS:   So as to convert what was not a controversy into a controversy.

GUMMOW J:   Wait a minute.  Your first question is whether the State law is valid.

MR HANKS:   Yes.

GUMMOW J:   The R v Queensland Case would say it is not because the States cannot confer jurisdiction on State courts to render advisory opinions on matters involving the Constitution. That is what the case decided.

MR HANKS:   Quite so.

GLEESON CJ: I am not talking about matters involving the Constitution, or necessarily.

MR HANKS:   I may have missed your Honour’s hypothetical and all the details but did your Honour have in mind State legislation purporting to confer that jurisdiction on this Court?

GLEESON CJ:   No, no.  State legislation purporting to confer on a State court a capacity to give advisory opinions.

MR HANKS:   Yes, and then ‑ ‑ ‑

GLEESON CJ:   Legislation of the Commonwealth purporting to confer on this Court power to hear an appeal.

In the alternative, if the Court does not accept the proposition that the rights and duties of the parties depend for their enforcement on the treaty, we would say that ‑ ‑ ‑

KIRBY J:   Can I just ask you to pause there and I will ask you the question I asked Dr Griffith.  I can see how the right to come to this Court could arguably arise under the treaty as well as under a law made by the Parliament.  What I have more difficulty in seeing is how the right which you wish to contest the obligation and duty arises under the treaty as distinct from under the law, the migration law and regulations of Nauru.

MS WALKER:   It is our contention that the matter certainly does arise under the law of Nauru, but that does not require that it be seen to arise only ‑ ‑ ‑

GUMMOW J:   What is the matter?

MS WALKER:   The matter, your Honour, is the determination of the substantive ‑ ‑ ‑

GUMMOW J:   What is the right or duty involved?

MS WALKER: The right is the right of the appellant not to be unlawfully detained. The duty is the duty upon the respondent not to unlawfully detain the appellant as a matter of Nauruan law. So in that sense the matter arises under Nauruan law, we do not dispute that, but we say that it can also arise. My learned leader has submitted it can also arise under section 76(ii).

KIRBY J:   So you have a transmogrification theory.  You say it arises originally under the law of Nauru but once the jurisdiction of this Court is invoked under a treaty, it also arises under the treaty.

MS WALKER: That is right, it also arises under the treaty. It is not a case where one has to say a matter can arise only under one system of law. It can arise under Nauruan law but it can also arise under the treaty for the reason, we submit, that the treaty provides for the effective enforcement of the rights and duties of the parties. If that is not accepted, then we would say nonetheless the matter arises indirectly under the treaty. There we would say we do not have to demonstrate that the rights and duties in question owe their existence to the treaty or depend upon the treaty for their enforcement because there is the possibility that the matter can arise indirectly. We say that the treaty, by bringing the matter before this Court by allowing invocation of this Court’s jurisdiction under section 75(i), the matter therefore arises indirectly under the treaty.

Your Honours, that concludes the submissions for the appellant.

GLEESON CJ:   Thank you, Ms Walker.  Yes, Mr Hanks.

MR HANKS: Unless my memory fails me, Justice Gummow asked me a question about the predecessor of the current appeal mechanism, namely, the appeal mechanism provided under the Nauru Act of 1965. Looking at that Act, it would appear that it is in a sense a comprehensive ‑ ‑ ‑

GUMMOW J:   It cannot have been based on section 122 ‑ ‑ ‑

MR HANKS:   I will come to that in a moment, your Honour.

GUMMOW J:   ‑ ‑ ‑ given the nature of the trustee arrangement, which was for a joint authority combining three countries.  You cannot say therefore that Nauru was placed under the law of the Commonwealth.

MR HANKS: Quite. However, can I make this point, that the Nauru Act of 1965 was a comprehensive instrument. One might describe it as an instrument providing for the government of Nauru, establishing a legislative council, an executive council, an administrator, arming the legislative council with authority to make laws for Nauru except on reserved topics which were to be made by the Governor‑General, and providing for the law in force in Nauru in section 61.

HAYNE J:   But what appears in the 1965 Act stems, does it not, from firstly the trusteeship agreement, which is the first schedule, which was a trusteeship to three governments as joint administering authority, and then the agreement made by those three governments, which is the agreement in the second schedule, which in turn through Article 5 of the second schedule agreement, that is, the agreement between UK, New Zealand and Australia, provided for the establishment of various courts, including the provision for an appeal to the High Court?

MR HANKS:   That is right.  All of those courts on Nauru were created by this Act, that is, by the 1965 Act, and undoubtedly they were required to administer the law of Nauru which would consist of those aspects of the law which were continued by section 61 together with those items of legislation in the name of ordinances which were passed by the Legislative Council and by the Governor‑General.

McHUGH J:   Plus custom, was it?

MR HANKS:   That may be the case, your Honour, but section 61 simply provides that all laws in force immediately before the commencement of this part – as laws of the Territory – continue in force.  Now, the precise content of that is not critical to this aspect of the argument.  It is plain that the authority of those laws within Nauru, so far as this Act was concerned, depended on section 61 of this Act.

If any controversy were to arise, any matter were to be litigated within the judicial system of Nauru established by this Act, that matter, we would say, would arise under section 61.  If it is the fact that the 1965 Act was supported by section 51(xxix) because it implemented, gave effect to, the treaty or because it operated outside Australia - either of those alternatives are available - then the matter which would form the subject of the litigation in the court of Nauru would be a matter arising under this Act.

The nominal appeal to the High Court of Australia could properly be characterised as an exercise of original jurisdiction under section 76(ii). There could be no doubt that the law which gave rise to the rights, liabilities that were in controversy was the 1965 Act, a law of the Commonwealth. That would be, as your Honours understand, on our argument, quite different from the situation presented by the agreement and the 1966 Act. At this stage, I do not propose to say any more about the background – the historical background – unless your Honours have any further questions.

HAYNE J:   It may not much matter, but do we know anything of any arrangements for exercise of judicial power in the period between the making of the tripartite arrangements of 1919 made before the mandate was granted and the 1965 trusteeship or the 1965 Act giving effect to the trusteeship?

MR HANKS:   I have not been able to isolate anything over the luncheon, your Honour.

HAYNE J:   Because I am left with an impression, which may be quite mistaken, that the British Phosphate Commissioners were the sole source of power on Nauru and the notions of controversies, matters and the like had no content.

MR HANKS:   They were alien concepts, your Honour, perhaps, in that environment.

HAYNE J:   Yes.

MR HANKS:   What we have located is the 1919 Act which ‑ ‑ ‑

HAYNE J:   Yes.  If you can find anything – as I say, it may in the end not matter a jot, but for my own part I would be assisted.

MR HANKS:   Yes.  Now, your Honours, some short points in reply, if I might.  Our friends have dealt with the problem of enforcement of orders of this Court and have referred to the availability of Nauruan law for enforcement.  We would remind your Honours that at least ‑ ‑ ‑

GUMMOW J:   There was a Judiciary Ordinance of 1922, it seems, in Nauru – perhaps you could look for that in due course – but it did not provide any appellate structure that I can work out.  Anyhow, I interrupted you. 

MR HANKS:   I wanted to take your Honours, if I might, briefly to what was said by the Chief Justice and Justice McHugh in Abebe (1999) 197 CLR 510 at 528, paragraph 32.

GUMMOW J:   You have already looked at that, have you not?

MR HANKS:   Where your Honours said:

The existence of a “matter”, therefore, cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability. 

Then, after a disclaimer, there is the positive statement:

It does mean, however, that there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable. 

If it is the fact that the proceeding presently before the Court is a proceeding commenced in this Court – that is, this is on the assumption that the Court is dealing with an exercise of original jurisdiction – then it is an essential characteristic that there be a remedy enforceable in this Court. 

McHUGH J:   It may be a declaration, it may be advice, and, in that sense, it is enforceable.  It is a right that is enforceable, it is something. 

MR HANKS:   Well, your Honour understands out submission that because of the arrangements between Australia and Nauru, the order of this Court, if it were favourable to the appellant, would depend upon the law of Nauru for its enforcement. 

McHUGH J:   Not necessarily.  Why does section 31 of the Judiciary Act not apply, assuming that it is in original jurisdiction – it may not have much practical application – and that all that the Nauruan law then does is to pick up the decision of this Court as a datum, in effect, and apply it in Nauru?  If we make a costs order in favour of one party or another and you have assets within the jurisdiction or if you are within the jurisdiction, it can be enforced against you.

MR HANKS:   Your Honour will have observed that I limited the submission that I made to an order effectively directing a release, or the consequence of which would be to require the release from detention of the appellant.

McHUGH J:   Yes.

MR HANKS: It is our submission that in the absence of the specific provisions in the law of Nauru that would not be enforceable. There is nothing that would make that order enforceable in this Court. Our friends referred, as we understood it, to the provisions of section 8 of the Appeals Act, which would authorise the Court to remit the case to the court at first instance and that that would be sufficient to give efficacy to any judgment developed within this Court.

There is, perhaps, an anomaly here, your Honours. The power of remittal, according to the law of Nauru, is not available for an appeal such as this. That is section 46 of the Appeals (Amendment) Act (Nauru) which specifies, according to Nauruan law, the orders that may be made by this Court upon the hearing of any appeal under a part relating to non-criminal matters include affirmation, reversal or modification, et cetera, but they do not include the power to remit. So that the power contained in section 8 of the Australian Nauru Appeals Act to remit to the Supreme Court of Nauru would not be available in a non-criminal appeal. My junior has just reminded me that I have just managed to mislead the Court. Section 46 now provides for remittal, so that there is a conformity.

HAYNE J:   Where do we find the text as amended most conveniently, Mr Hanks?

MR HANKS:   I can hand that up – I am grateful to my learned opponents for providing us with that.  The version which we have reproduced in the book of legislation does not include this amendment to the Amendment Act.

GLEESON CJ:   Thank you.

KIRBY J:   When does this come into force?  Is this on the document?

MR HANKS:   It has been in force for some time, your Honour, so it would appear.

GUMMOW J:   This is the 1976 amendment.

MR HANKS:   It does, your Honour, yes.  Now, there is something we wish to say in response to our friend’s reliance on Hooper v Hooper. It is a very short point. It essentially depends upon comparing section 11 of the Matrimonial Causes Act 1945, with section 8 of the Nauru Appeals Act. Hooper v Hooper 91 CLR 529, your Honours, the terms of section 11 are quoted in the joint judgment at page 534, at about point 6 on the page.

Your Honours will see that the effect of these three provisions, 10, 11 and 12, contained in Part III of that Act was first to confer jurisdiction on a State court to deal with a matrimonial cause, notwithstanding that the parties were not domiciled in that State. That was the effect of section 10. Section 11, the critical section, was to direct that State court to exercise the jurisdiction which section 10 invested in it, in accordance with the law, other than law relating to practice and procedure of the State or Territory in which the person instituting the proceedings is domiciled. In our submission, that is a clear adoption of the substantive law, and a direction to the forum to apply the substantive law of the other State.

Your Honours will find on page 536 an explanation given by the Court as to why the objection to these provisions, Part III of the Matrimonial Causes Act, was not well founded.  At about point 6 on the page their Honours said:

As a matter of substance, however, it –

that is, Part III –

confers rights, though it does not tell us precisely what those rights are. It is s 11 that tells us precisely what those rights are. They are the rights which the person mentioned in s 10(1) has according to the law of the State in which he or she is domiciled. A substantive “law of the Commonwealth” is thus enacted, and, whenever a “matrimonial cause” is instituted putting any of those rights in suit, there is a “matter” which “arises” under that law of the Commonwealth.

It is, without labouring the point, our submission that section 8 is not even a pale shadow of section 11 of the Matrimonial Causes Act.  In that context can we draw your Honours’ attention to what was said by six members of this Court in LNC Industries v BMW (Australia) 151 CLR.

KIRBY J:   What is the proposition that you contend this case stands for? 

MR HANKS:   It stands for the proposition, your Honours, that ‑ ‑ ‑

GUMMOW J:   I would have thought this did not help you very much, because the real substratum of the dispute, if I could call it that, there was the breach of trust case. 

MR HANKS:   It was, your Honour, but the ‑ ‑ ‑

GUMMOW J:   Nevertheless, there was federal jurisdiction. 

MR HANKS:   But the trust was one that was given content by the relevant regulation, regulation 9. 

GUMMOW J:   See, if you look at the submission from New South Wales at 577, it seems to be rather reminiscent of what you have been submitting to us this morning, mutatis mutandis. 

MR HANKS:   What we derive from it, your Honour, is that the Court found in the law of the Commonwealth, which was in the relevant regulation, the subject matter of the contracts which, as their Honours put it at page 582.5: 

The subject matter of the contracts and of the action arose under and existed only by reason of the provisions of the Regulations and the Act in pursuance of which the Regulations were made. 

That is what gave content to the claim which LNC Industries were seeking to agitate.  As your Honour, for good reason, recalls, this was a proceeding in which one of the parties sought to appeal to the Privy Council and was restrained from doing so because of the operation of section 39(2) of the Judiciary Act, that coming into operation because the claim arose under a law of the Commonwealth within section 76(ii). But the reason that it did so arise was that the content of the claim derived from the regulation, as their Honours made clear at page 582, that regulation being a law of the Commonwealth, notwithstanding that the claim was framed as one for breach of trust.

Those are the substantive matters, your Honours.  There are some additional matters that Justice Hayne and Justice Kirby, at least, have asked us to investigate to see if we can assist the Court.

KIRBY J:   Well, I express at the end of the case, as I did at the beginning, my surprise and regret that the Commonwealth was not here to assist the Court in relation to the matter which involves, at least on my view, very important questions concerning the purpose, structure, design and principles of the Australian Constitution.

MR HANKS:   Your Honour, what we can investigate and matters in respect of which we can assist the Court are matters relating to the history of the government ‑ ‑ ‑

KIRBY J:   I am not criticising you, Mr Hanks.

MR HANKS:   I understand that, your Honour.

KIRBY J:   Or your client.  I am saying that when one has a problem which concerns the structure and operation of the Constitution of the Commonwealth one normally can expect the assistance of the law officer of the Commonwealth appearing for the Commonwealth.

MR HANKS:   I am not seeking to cavil with that, your Honour.  I am simply offering to assist the Court in relation to the particular questions that were raised about what we might describe as the history of Nauru.  That is something, I think, which we can attend to, and will.

So far as the question of costs is concerned, they ought properly to follow the event, if this application is unsuccessful – that is, the objection to competency is unsuccessful – we should pay the appellant’s costs of and incidental to the objection to competency.  They should not be on an indemnity basis.  We have not acted unreasonably.  We have brought a matter before the Court which does require resolution and is in our client’s interest.  Thank you, your Honours.

GLEESON CJ:   Yes, thank you, Mr Hanks.  We will reserve our decision in this matter and we will adjourn until 12 noon tomorrow.

AT 3.40 PM THE MATTER WAS ADJOURNED