Taylor v Attorney-General of the Commonwealth

[2019] HCATrans 127

[2019] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M36 of 2018

B e t w e e n -

DANIEL TAYLOR

Plaintiff

and

ATTORNEY-GENERAL OF THE COMMONWEALTH

Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 19 JUNE 2019, AT 10.02 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friends, MS R.J. SHARP and MS M.A.J. ISOBEL, for the plaintiff.  (instructed by Human Rights for All Pty Ltd)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with my learned friends, MR T.M. BEGBIE, MS K.M. EVANS and MS C. ERNST, for the defendant.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   The parties would have received a communication from the Court asking for assistance in relation to what the Court thinks might be a threshold question.

MR MERKEL:   Yes, your Honours.  We address those at the outset, the two matters we understand we are to address.  The first is the submission of the defendant that the plaintiff was not entitled to bring the private prosecution.

KIEFEL CJ:   Yes.

MR MERKEL: And the second is the consequences that might follow. Can we indicate that if the Court accepts the defendant’s contention, we contend that section 268.121 of the Criminal Code does not reveal the necessary intendment required to displace section 13. 

Can we start by referring to certain observations made by Justice Fullagar in Brebner v Bruce as to the appropriate approach the Court might take. That is in the joint book of authorities, in volume 1 at page 332. It is reported in 82 CLR 161. The issue in Brebner was whether the Post and Telegraph Act manifested an intention to exclude the operation of section 13.  I want to just briefly refer your Honours to his Honour Justice Fullagar’s discussion of the nature of section 13.  His Honour was looking at the common law background to private prosecutions and concluded that although there was some uncertainty about the foundation for that right, section 13 did expand upon it.  His Honour referred to the well‑established first category of cases at the middle of 173, at about point 5, where his Honour said:

In the first class the fact that the offence is of a public nature . . . or that the Legislature has shown that it intended it to be dealt with as an offence of a public nature by providing that it be heard in the ordinary manner and before the ordinary tribunals . . . has led the Court to the conclusion, in the absence of some fairly plain indication to the contrary, that any member of the public may prosecute.

We say that is an appropriate way to approach the kinds of offences with which we are concerned in the present case.  And before addressing the interpretation of the subsection I would like to just refer your Honours to what Lord Wilberforce said – this is not in our folder of authorities but it is a brief quote – in Gouriet v Union of Post Office Workers [1978] AC 435 at 437, where his Lordship said that the right to bring a private prosecution as a historical right:

remains a valuable constitutional safeguard against inertia or partiality –

So we are looking at a basic right that has been a long‑established right and we say that the question the Court should ask, in our respectful submission, is whether the necessary plain intendment appears from subsections (1), (2) and (3) of section 121.

Can we go, first, to section 13(a) itself, which appears in volume 1 of the joint book of authorities, at page 97.  It deals with two categories of proceeding.  We ask your Honours to note the first category relates to:

(a)institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth –

which is the subsection with which we are concerned, and the second is:

(b)      institute proceedings for the summary conviction –

So the section is primarily concerned with the right to commence a proceeding.  We will later draw your Honours’ attention to the use of the word “prosecute” in subsection (2) and explain to your Honours what we say would follow from it.

We then turn to subsections (1), (2) and (3) with which we are concerned in section 268.121, which is at the same book, volume 1, at page 91. We say that on a fair reading it appears quite clear, in our submission, that subsection (3) is intended to qualify subsections (1) and (2). The purpose of subsection (3) is plainly to enable a person to be:

arrested, charged, remanded in custody, or released on bail –

before the procedures in the preceding sections have been able to be undertaken.  We say that necessarily involves an authorisation for a proceeding to be commenced before the requisite consent in subsection (1) is given.

We draw your Honours’ attention to the different text, the words used in each of the sections.  “Commenced” is in subsection (1).  The matters the subject of subsection (3) all relate to procedures that either commence a proceedings, such as a charge, or would occur together with the proceeding for commencement. 

In subsection (2) the word “prosecuted” is used in contradistinction to “commenced”.  We would say if the Attorney’s argument were to be correct, there must be some explanation for why the word “commenced” was not used in subsection (2) but the word “prosecuted” was used.  We say the word “prosecuted” does in this area of discourse have a special well‑established meaning which I will take your Honours to, starting with the Judiciary Act and going to the various criminal proceedings Acts in the various States and Territories.  But “prosecuted” in subsection (2), we say, means prosecuted after committal by way of trial on indictment.  There is a recognition of that when one goes to the Judiciary Act and State proceedings Acts.  But before doing so, can I take this in steps. 

The first step is to take your Honours to the preceding section, section 268.120, which is at page 91 and which makes it clear that:

This Division is not intended to exclude or limit any other law of the Commonwealth –

We say that necessarily captures section 13(a) subject to the intendment.  We say that what would support our argument – can I start with the Judiciary Act – your Honours, I am waiting for section 68; I am not sure if your Honours have it.  Section 69 was just handed up in the Commonwealth’s bundle of additional authorities at tab 3.  Can I just read to your Honours what section 68 provides.  In the context of the enactment of the section with which we are concerned, section 68 provides:

The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure –

There are four procedures set out.  The first is summary conviction, which is the procedure in section 13(b).  The second is:

their examination and commitment for trial on indictment –

which is the subject of section 13(a), and the third is:

their trial and conviction on indictment –

which we say is the subject of subsection (b) of 268.121.  Support for that can be seen from section 69 where, in subsection (1):

Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment –

so we find the very word used in subsection (2) –

in the name of the Attorney‑General of the Commonwealth or of such other person as the Governor‑General appoints in that behalf.

Then subsection (2A) says:

Nothing in subsection (1):

(a)      affects the power of the Director of Public Prosecutions to prosecute by indictment –

Again, we find “prosecute by indictment” is there.  And then in (b):

affects . . . or shall be taken to have affected, the power of a Special Prosecutor to prosecute by indictment in his or her own name;

indictable offences against the laws of the Commonwealth.

What we ultimately say is that subsection (b), understood in the context of ‑ subsection (2), in the context of 268.121, deals with the process identified in section 68, which is the trial on indictment in subsection (1)(c) and has the consequence that the only person who can prosecute by indictment is to be the Attorney‑General.

GAGELER J:   Why do you limit it to (c)?  Why not (b) and (c) – both prosecution?

MR MERKEL:   Sorry, your Honour, which section?

GAGELER J:   Section 68(1).

MR MERKEL:   Yes, your Honour.

GAGELER J:   You say (b) is outside the concept of a prosecution?  You limit it to paragraph (c), as I understand.

MR MERKEL:   Because we read 68, your Honour, in the context of section 69, which separates and provides for the prosecution in the name of the Attorney.  And what I will be doing is I will take your Honours to the Criminal Procedure Act of the various States of the Commonwealth and the Territory, and there seems to be a fairly uniform procedure that the institution of a proceeding by a charge and commences the proceeding is followed by a committal, which is an administrative process, but upon committal the trial by indictment process begins and we say that is the area where a prosecutor has the role, and we say the work that subsection (2) does is to limit the prosecution that occurs on trial on indictment to be in the name of the Attorney and not the other persons identified as potential prosecutors.

We point out that the word “prosecuted” in section 69, your Honour, picks up the very word used in subsection (2) and that ties in this process that I have identified in section 68 neatly with section 13(a), commitment for trial on indictment but not trial on indictment, and (b) for summary conviction.

And we say that the context in which these sections have been enacted necessarily takes one to the Criminal Procedure Act, and can I take your Honours to those.  We hand up, just by way of example – we have got a copy of section 68 now available, your Honour, but we hand up section 68 of the Judiciary Act. We also hand up Chapter 5 of the Criminal Procedure Act, sections 158 and 159.  Can I just start with – I do not think your Honours have it, but I would like your Honours to note that Chapter 4 deals with committal proceedings ‑ ‑ ‑

GORDON J:   I am sorry, where are we now, Mr Merkel?

MR MERKEL:   I am sorry.  Before I go to sections 158 and 159, your Honours, of the Victorian Procedure Act, can I just ask your Honours to note – I think we have handed it up.  Have we handed up to your Honours chapter 4?

NETTLE J:   No.

MR MERKEL: Can I just indicate that Chapter 4 deals with the committal proceeding and applies in all cases under section 96 except where a direct indictment is filed. Then after the committal, we have trial on indictment, which is Chapter 5 ‑ the Criminal Procedure Act 2009 (Vic). So what section 158 provides is:

This Chapter applies if –

(a)      an accused is committed for trial under Chapter 4; or

(b)     a direct indictment is filed against an accused.

What we say is that the provisions to which we have taken your Honours in the Judiciary Act neatly dovetail into the provisions in the Victorian Act which are replicated in substance in every other State and Territory, which allows for a direct indictment, but in the usual case a committal and then, as in 159(1):

Subject to the Public Prosecutions Act 1994, the DPP or a Crown Prosecutor in the name of the DPP may file an indictment.

We also just ask your Honours to note that it is picked up very clearly, for example, this procedure in Queensland, where in section 560(1) of the Criminal Code 1899, once a person is committed for trial the charge is to be on an indictment.

We say what follows from that is that the proper construction of 268.121 in the context of 268.120 and section 13(a) and 13(b) and also having regard to the statutory setting in which these sections do operate by reason of sections 68 and 69 of the Judiciary Act pick up and accept the existing procedures of the States and Territory which separate the committal process, which is the subject of 13(a) of the Crimes Act and the trial on indictment prosecuted under the Judiciary Act in the name of the Attorney‑General or the other persons mentioned in section 68 and that is the work, we say, that is done by subsection (2).

The force of that, we say, must follow from the intentional use of the word “prosecuted” instead of “commenced” because, if the Attorney’s argument were to be correct, there must be some explanation why subsection (2) does not read “a proceeding for an offence against this division may only be commenced in the name of the Attorney‑General”.  So we say the word “prosecuted” is intentionally used in this statutory setting to permit the operation or at least not be inconsistent with the operation of section 13(a) of the Crimes Act.

We say that that construction gives each of the subsections work to do and, in particular, enables the purpose of subsection (3), which is in an urgent situation – it may be that a police officer, once we go outside the Attorney or the DPP, or a private prosecutor, can commence the proceeding or institute the proceeding provided for in section 13(a) and that authority is limited to the matters in subsection (3).

KIEFEL CJ:   Mr Merkel, how do you read sections 13 and 268.121 together?  How do they operate together?

MR MERKEL:   We say, your Honour, that section 13(a) enables the institution of proceedings for the commitment for trial, which is the committal process, but not trial on indictment.  We say that that enables subsection – the carve‑out in subsection (3) to operate in respect of that proceeding.  They can institute the proceeding, but what subsection (3) does is it limits the authority granted by section 13(a) to the process covered by subsection (3), which is “arrest, charge” and so forth.  But after that process has been followed, the proceeding cannot continue any further without the written consent of the Attorney.  And that is the effect of the carve‑out in subsection (3) so that there is a contrary intention but not to prevent the commencement of a private prosecution but to limit the purposes and the steps that may be taken to those set out in subsection (3).

BELL J:   If the function is as you say in relation to sub (2), that what it serves to do is to ensure that proceedings on indictment can only be prosecuted in the name of the Attorney, why is sub (3) necessary since you would say it would be open to the Director or, for that matter, a private prosecutor to commence the proceedings and, naturally, any matters associated with that arrest, charging, remand in custody?  What would be the need for it?

MR MERKEL:   The need for it, your Honour, is subsection (1), which prohibits a proceeding being commenced without written consent.  Subsection (3) authorises the commencement without that written consent but only for the limited purpose there set out.

BELL J:   Yes, I see.  Would an alternative view be that the purpose of the provision is to limit the powers otherwise available to the Director?

MR MERKEL:   That would be a purpose but, because the Director is not singled out, it would also in the usual course, put aside our case, limit the powers of a police officer.  Normally, Commonwealth charges are laid in the usual course by a police officer.

BELL J:   Yes.

MR MERKEL:   It would enable the Director or the police officer to take the steps in subsection (3) but no further steps because the written consent of the Attorney would then be required.  But once the written consent is given then, of course, the steps could be taken until subsection (2) came into effect.

BELL J:   Yes.  Just looking at your reliance on Gouriet, it is one thing to see that a long history of private information being laid might be seen to promote a public policy against dilatoriness on the part of the authorities. But when one looks at the provisions of Chapter 8 of the Code, they were inserted in the International Criminal Court (Consequential Amendments) Act, the purpose of the division being to create offences described as being of international concern, together with related offences.

Having regard to that statutory context – namely, the creation of offences of international concern – it might be that the public policy considerations in Gouriet assume somewhat lesser and different significance.

MR MERKEL:   We would give several answers to what your Honour has raised with us.  The first is that the operation of section 13(a) in this context extends not just to a private prosecution by someone in the position of the plaintiff but also to a police officer or the Director of Public Prosecutions.  Our case might be the exception rather than the rule.  One can see that the need for subsection (3) would be ‑ putting aside the private plaintiff, a need to enable public officials to ensure a person is arrested or charged before they leave the jurisdiction when the Attorney‑General’s written consent has not been able to be obtained.  That serves the public importance that your Honour has identified. 

Secondly, your Honour, we would say that the reason these are matters of international concern does not itself differentiate this from any other serious criminal offence where a private prosecution right has been granted.

GORDON J:   Is that right?  Fullagar in Brebner category 2 was dealing with the nature of the offence in dealing with – his second category of case was directed at that very issue, was it not, that one looks particularly at the nature of the offence in determining whether or not there is this right?

MR MERKEL:   That is right, your Honour, but what his Honour then concluded is that because the second and third categories were more limited than the first public order, which we say this is a public order kind of offence, his Honour concluded that section 13 must be taken to have expanded and codified the common law but in an expanded way.  We say that that is an important point for saying that it is not a right lightly to be inferred away.

KIEFEL CJ: This is an international crime that section 268.121 appears to be concerned to maintain only within the realm of the Attorney‑General. True it might be that the Director of Public Prosecutions might conduct the prosecution, but the Attorney is obviously intended to have control and perhaps more than just control – complete oversight.

MR MERKEL:   Your Honour, we agree with that, and that is why subsection (3) is a very narrow carve‑out to take into account the circumstances where ‑ ‑ ‑

KIEFEL CJ:   As you said, it deals with the practicality of urgency.  I think that is what you said before.  The larger question is:  how does one see a private prosecution in the context of these provisions – a private prosecution for an international crime.

MR MERKEL:   Your Honour, the most obvious answer would be by a person who has been a direct victim of such a crime – that would be an obvious circumstance – or a person who may have knowledge of it and knowledge of the details of it that may not be available to the authorities or that are becoming available to the authorities ‑ ‑ ‑

EDELMAN J:   Is that submission a submission that such a person could commence but not run the prosecution, or is it a submission that the person could commence and potentially, with the consent of and in the name of the Attorney‑General, run the prosecution?

MR MERKEL:   The first, yes, your Honour, and the second, yes, if the consent is given and the Attorney authorises it to be run by that person in the Attorney’s name.  The answer is yes, but it could be the DPP or the police.

EDELMAN J:   So you do not read, then, subsection (2)’s reference to:

may only be prosecuted in the name of the Attorney‑General –

in the same way as the similar provision in Canada, which says, “may be conducted only by the Attorney‑General”?

MR MERKEL:   Yes, your Honour, that is correct.  We say in this context Parliament should be taken to be aware of how this process here dovetails with sections 68 and 69 of the Judiciary Act and is the State procedures which have been adopted and are longstanding which separate committal from prosecution on indictment and we say that is how subsection (2) should be seen.

We, of course, acknowledge Division 268 is an important matter, but there are many other crimes in the country that can have equal seriousness.  We say that the fact that this provision here has this carve‑out, and it is a limited carve‑out in subsection (3), is an explanation for why it is so limited because of the international and other context.

GAGELER J:   Mr Merkel, it is not apparent to me how you use subsection (3).  Is it your contention that any steps that your client has taken or proposes to take fall within subsection (3)?

MR MERKEL:   Yes, your Honour.  What the plaintiff has done is filed a charge sheet and summons in the Magistrates Court and, under section 12 of the Criminal Procedure Act, but for the refusal to consent of the Attorney, the Registrar was required to issue the summons and, as he did not seek an arrest, remand or custody, the step he took was to seek to commence the proceeding and that was intercepted by the refusal of the Attorney to consent.

KIEFEL CJ:   What you are talking about is a step preliminary to anything in relation to the person sought to be charged.

MR MERKEL:   It is to commence the proceeding, your Honour.

KIEFEL CJ:   What your client has done does not fall within subsection (3) at all, does it?  These are steps in relation to the person sought to be prosecuted, which might be undertaken, for example, if the person were present in the country and steps had to be taken urgently to take that person into custody before they left.  In the context of this particular crime, one could see how it might operate.  That has got nothing to do with filing something in the court, preliminary to the seeking of consent.

MR MERKEL:   The way it works, your Honour, under the Criminal Procedure Act is that, upon the filing of the charge sheet and summons, that is treated as an application to the Registrar to issue the summons and that would commence the proceeding.  So under the statute what happened in the present case is that the Registrar sought to have the application reviewed by a magistrate and, before any decision was made on it, application had been made to the Attorney to consent for the purposes of subsection (1) and that consent was refused.

So the only thing that has not happened, which is the step that brings us here, is that the decision of the Attorney intercepted the decision of the Registrar.  The Registrar has agreed to defer that.  The Magistrates Court has agreed to defer making a decision on the charge sheet and summons lodged until the validity of the decision of the Attorney has been determined.

KIEFEL CJ:   I understand that.  I still do not understand how any of that brings you within subsection (3).

MR MERKEL:   Because we are the person who sought to commence a proceeding which would charge a person with a Division 268 crime, and that is the only way a proceeding can be commenced. 

GAGELER J:   So at what point within the Victorian procedure that you have invoked is a person charged?

MR MERKEL:   Upon the issue of the summons to answer the charge that commences the proceeding and the person is then charged. 

KIEFEL CJ:   Do you accept that the person has not been charged, because you say it has been intercepted, to use your term?

MR MERKEL:   Yes, your Honour.  Your Honour, there is a number of statutory procedures that are similar to this, but the usual procedure where there must be a consent is there is quite often a carve‑out in terms of subsection (3).  What your Honour the Chief Justice says is correct, that the person has not been charged but that is really the reason why we are here, to determine whether the reason for that person not having been charged, which is the decision of the Attorney to refuse consent, was a valid decision because that is the only step away from the mandatory requirement imposed under the Criminal Procedure Act for the summons to be issued.

GAGELER J:   If you are right about the step falling within the word “charged” in subsection (3) then you do not need consent.  That is what subsection (3) says.

MR MERKEL:   That is right, your Honour, but what was sought in the application ‑ if we get to the substantive matters your Honours will see this – was that the consent was sought so the proceeding could then move on to the next stages and that was a necessary step because the carve‑out had been exhausted or would be exhausted after charge.

EDELMAN J:   It is because you separate “charge” from “commencement of proceedings”.

MR MERKEL:   We say that a charge is the commencement, but all that this allows is a proceeding to be commenced by a person being charged and the other activities.  Beyond that, you cannot take the matter any further without the Attorney’s consent.

NETTLE J:   A proceeding is commenced by a charge before the court, not by a charge by a policeman.

MR MERKEL:   That is correct.  It is a charge issued by the Magistrates Court under section 12.

NETTLE J:   So your proceeding will not commence until and unless the Registrar issues.

MR MERKEL:   Correct.

GAGELER J:   Is service necessary? 

MR MERKEL:   No, the service would occur after the charge, your Honour.  The proceeding would have been commenced upon the application being granted, which under section 12 was required to occur as long as the charge disclosed an offence known to law.

NETTLE J: Mr Merkel, could I argue. In Division 16 of the Criminal Code there is another consent provision.  I do not think it is the only one but it is another one.  It does not use the dichotomy of “consent” and “prosecute”.  I just wondered, do you say it assists or does it detract from your argument?

MR MERKEL:   No, your Honour.  There are many uses of these subsections in different formats in different Commonwealth legislation.  I think what we have not found, and I may be corrected on this, is the use of all three.  It is common for there to be a requirement for written consent at the carve‑out in subsection (3), but what is less common – I do not think I can give your Honour an example but my learned friends might – is the use of all three.

NETTLE J: Do you find the “prosecute” anywhere else but in section 268.121?

MR MERKEL:   I think it might be in the War Crimes Act, which my learned friends have handed up, in tab 6. Yes, section 12 of the War Crimes Act has:

An offence against this Act may only be prosecuted in the name of the Attorney‑General or the Director of Public Prosecutions.

The structure of these three subsections is, I believe, unusual but my learned friends may correct me on that.  It is to give meaning and operation to subsection (3) that we are really here about.

NETTLE J:   The War Crimes Act does not have a consent provision for commencement, I take it, like section 12.

MR MERKEL:   I believe not, your Honour.  I think it is common for (1) and (3); that appears in many instances. 

NETTLE J: If you look at, for example, section 16.1 of the Criminal Code ‑ ‑ ‑

MR MERKEL:   Yes, your Honour. 

NETTLE J:   ‑ ‑ ‑ it is only consent to the commencement of proceeding.

MR MERKEL:   That is correct, your Honour.

NETTLE J:   There is no reference to the prosecution of the proceeding.

MR MERKEL:   So that would pick up section 68 of the Judiciary Act, enabling the indictment to be by the DPP or a special prosecutor, which cannot occur in respect of Division 268.

NETTLE J: So presumably under section 16.1 it is clear that “consent” means consent. That is to say, you cannot start a proceeding without first getting the consent?

MR MERKEL:   Well, except of the carve‑out in (2), your Honour.  That would mean you could, in spite of subsection (1), commence a proceeding by charging the person or seeking their remand in custody prior to written consent.

NETTLE J:   Well, I take leave to disagree, I think.  “Charged” in subsection (2), as in subsection (3) of 268.121, there is a reference to a charge by a policeman, whereas a charge which is a charge before the court is the commencement of the proceeding.  Thus far, there has been no charge in your case because the Registrar has refused to issue until and unless he gets the consent of the Attorney.  If he gets their consent and issues, then there will be a charge before the court and the proceeding will commence.

EDELMAN J:   Otherwise subsection (3) would render subsection (1) redundant.

NETTLE J:   As I think Justice Gageler pointed out to you.

MR MERKEL:   Well, your Honour ‑ ‑ ‑

NETTLE J:   I do not think it hurts you, Mr Merkel; it is just the fact.

MR MERKEL:   Your Honour, I understand that.  But we would say it may be that “charged by a police officer”, which does not involve commencement but we would say, normally, the beginning of that process would, although a warrant for arrest may not charge ‑ ‑ ‑

GORDON J:   That is the whole point.  It has got arrest before charge, and you can arrest without charge.  So the whole point is it is directed at things before a commencement of the proceeding.

MR MERKEL:   Well, we say – your Honour, you can only be remanded in custody or released on bail by a judicial process.

GORDON J:   It is dealing with a litany of circumstances which predate getting the consent, up in paragraph (1).

MR MERKEL:   I accept that, your Honour, but we would say that there may be charges before commencement of a proceeding but, in the present context, pursuant to the Judiciary Act and the Criminal Procedure Act, which we would understand is replicated elsewhere, a method of charging is by the court issuing the charge and that would be commencement of the proceeding.  There may be circumstances where commencement has not occurred and that means that what occurs in subsection (3) is not needed to qualify subsection (1).  But we say because ‑ ‑ ‑

GORDON J:   We are trying to give subsection (1) some work to do.

MR MERKEL:   Your Honour, we say the concept of “However”, as the introductory word to subsection (3), is intended to, in all circumstances, including when a charge commences a proceeding, to qualify subsection (1).  But in the circumstance your Honour Justice Nettle put to me, if a police officer charged a person and that was not in that context the commencement of a proceeding, then it would not need to fall in subsection (3) because it is not within the ambit of subsection (1).  But we say, for our purposes, it is sufficient that the circumstances in our case fall within the commencement of a proceeding and the written consent was necessary and that is the way it has been approached.

KIEFEL CJ: Mr Merkel, are there any extrinsic materials with respect to Division 268 which throw light on section 268.121?

MR MERKEL:   Do your Honours have our plaintiff’s supplementary materials?  It is a big folder which contains the – sorry, can we hand up a folder of supplementary materials.  The answer to your Honour is yes.

NETTLE J: Just while you are doing that, could I check something with you. I meant to ask you – I am not sure whether I got an answer – whether subsection (2) of section 268.121 is the only provision of its kind in the Code or are there other instances of that form?

MR MERKEL:   Can I check that, your Honour?  I am not sure; I cannot give your Honour the answer.

KIEFEL CJ:   Has the supplementary materials been shown to the Attorney?

MR MERKEL:   Yes, your Honour.  They have had the index of it, your Honour.

KIEFEL CJ:   Are you going to take us to all of this, are you?

MR MERKEL:   Your Honour, the bulk of it is the Al Bashir decision, which comes down the track but it is about 400 pages.

KIEFEL CJ:   Yes, I see.  What are you taking us to at the moment?

MR MERKEL:   Tab 5, your Honour, answers your Honour’s question.  I think relevantly at page 4 we have the purpose of the division of section 268.1 but I do not need to take your Honours to that.  But in respect of 268 ‑ ‑ ‑

KEANE J:   Before you do that, I notice that it refers in the purpose of the Division to:  Australia will always be able to prosecute.  It does rather suggest that the party interested in the prosecution is the Australian nation. 

MR MERKEL:   Yes, your Honour, but even wider than that, it is an international concern.  But, yes, it is in the interests of Australia as a party to the Statute of Rome, but we need to look at the totality of that context to comprehensively answer your Honour’s question.

KEANE J:   It is the national interest in international affairs, not the interests of some citizens in whether or not a crime has been committed.

MR MERKEL:   To the extent they are not synonymous, yes, your Honour, but that is why we said earlier that that is not a reason to limit access to subsection (3) because the limitation, if the argument against us is correct, extends not just to private prosecutions but to public officials.  Police or the Director of Public Prosecutions could not bring a charge.  To answer the Chief Justice’s question, at page 15, 268.120 is explained, and 268.121 is explained.  It says:

Proposed subsection (1) provides that proceedings under this Division can only be commenced with the Attorney‑General’s written consent, and proposed subsection (2) provides that any such proceedings can only be carried out in the name of the Attorney‑General. 

Proposed subsection (3) provides that a person may be arrested, charged and remanded in custody or released on bail for an offence under this Division before the consent has been given.  This is to ensure that any delay in obtaining written consent from the Attorney‑General will not delay the arrest of a person or allow a person to escape, and that it also will not result in a person being unduly held on remand.

Then subsection 268.122 is referred to, which limits any challenge to the Attorney’s decision in this Court.

GAGELER J:   It rather confirms that subsection (3) is concerned with matters occurring before the commencement of the proceeding.

MR MERKEL:   Your Honour, yes, it provides for matters to occur before commencement but that does not say that subsection (3) also does not deal with commencement.  If your Honour regarded subsection (3) as relating only to matters before commencing, it is wholly unnecessary, and it is not one of these clauses that said for the purposes ‑ ‑ ‑

KIEFEL CJ:   That is not unnecessary.  The explanatory memorandum says why it is necessary.

MR MERKEL:   But all of the activities in (3) could occur in spite of (1) before written consent or without written consent if that were correct.  I have accepted what your Honour has put:  it can occur in respect of matters before the commencement but it also relates to commencement.

That is the extrinsic material that we understand would be relevant.  We have an alternative submission if your Honours were against us on the way in which subsection (2) should be read. 

EDELMAN J:   Just before you move from subsection (3), do I understand your submission as to subsection (3) in its relation with subsection (1) to be that in circumstances where subsection (3) permits a charge that commences proceedings then subsection (1) operates as some form of condition subsequent so that, although proceedings have been commenced without the Attorney‑General’s written consent under subsection (3), later on there has to be written consent or there never has to be written consent in those circumstances at all?

MR MERKEL:   No, the first, your Honour.  There must be written consent before any further steps are taken beyond those set out in subsection (3).  Can I ask your Honours to note that remand in custody is a judicial process that would occur after or upon commencement or simultaneously with commencement.  We do not suggest for one minute that subsection (3) has any operation beyond the processes there set out, and no further step can be taken without written consent. 

On our construction that we have been putting, that applies up to the committal. The consent of the Attorney will be up to committal and it may come with the DPP being able to take over the proceeding because under the DPP Act, sections 6 and 9, there is ample power for the DPP to ensure the proceeding is conducted in accordance with that policy but they are all steps that would occur after the written consent.

GORDON J:   I am sorry, Mr Merkel, can I just qualify what you just put.  When you said that it would be up to committal, do you mean up to the commencement of the committal or the completion of the committal?

MR MERKEL:   Sorry, the completion of the committal ‑ ‑ ‑

GORDON J:   I just wanted to make sure I understood the submission.

MR MERKEL:   I am sorry, I had not expressed that clearly.  Subsection (2) takes effect upon completion of the committal if there is a trial on indictment, and that is the prosecution ‑ ‑ ‑

GORDON J:   So your submission is that the consent is required for commencement after committal?

MR MERKEL:   No, the other way around, your Honour.  We say that a proceeding cannot be commenced by charge being lodged with the court without the Attorney’s consent.

GORDON J:   Yes.

MR MERKEL:   But subsection (3) qualifies that by enabling ‑ ‑ ‑

GORDON J:   I understand the subsection (3) argument.  How does (2) sit then?

MR MERKEL:   If a person is committed for trial or if there is a trial on indictment which is after committal or by direct indictment then that may only be prosecuted in the name of the Attorney, and that excludes the other persons mentioned in section 68 of the Judiciary Act. 

GORDON J:   So that is no more than a name change.

MR MERKEL:   A requirement that it be in the name of the Attorney, yes, your Honour.

GORDON J:   It is no more than a name change.

MR MERKEL:   Yes.  It goes to the form of the indictment and it must be in the name of the Attorney, yes, your Honour.

NETTLE J:   What would be the position if the matter were tried summarily?

MR MERKEL:   This cannot be because it is an indictable offence, but if it is tried summarily ‑ ‑ ‑

NETTLE J:   Indictable offences can sometimes be tried summarily.

MR MERKEL:   Assuming there are offences here that can be tried summarily in Division 268, that would then cover the same regime but it would be under section 13(b).

NETTLE J:   I am just trying to work how subsection (2) would work in a case where a magistrate determined and the accused consented to having the matter determined summarily rather than committing for trial on indictment.

MR MERKEL:   Your Honour, I think probably, if it were summary and if it were with written consent, the charge would probably have to be in the name of the Attorney under subsection (2).

NETTLE J:   So the prosecution would cover both forms of trial?

MR MERKEL:   Yes, your Honour.  So what we say is that 13(a) and (b) fall into categories that fall into sections 68 and 69 specifically.  That is why the Parliament has used those processes.

BELL J:   Just to be clear, Mr Merkel, your contention is that a private prosecutor, with the consent of the Attorney, may commence proceedings and conduct the committal hearing.  You accept that, in the event of a committal for trial, the prosecution on indictment would not just be in the name of the Attorney‑General but would be either conducted by the Attorney‑General personally, conceivably, or alternatively by the Director of Public Prosecutions, but you are not contending that a private prosecutor could conduct the prosecution on indictment.

MR MERKEL:   No, your Honour.

BELL J:   So it is purely on your contention that it would be open with the Attorney’s consent to conduct the committal hearing in the name of the Attorney.

MR MERKEL:   Yes, your Honour.

BELL J:   Subsection (3) does present some difficulties.  I think you accept, Mr Merkel, that remanded in custody necessarily assumes that the matter is before the Court.  It is rather difficult to see how it is before the Court without proceedings having been commenced.

MR MERKEL:   Correct, your Honour.  To confirm what your Honour put to me about the post‑committal process, section 13(a) only authorises proceedings up to committal.

BELL J:    Yes.

MR MERKEL:   So you cannot go beyond that.

BELL J:    Yes.

MR MERKEL:   It is quite a coherent process having regard to the statutory scheme to which I have taken your Honours.  We do have an alternative submission and that is that if we are wrong in respect of our submission concerning subsection (2), there is another explanation for why the word “prosecuted” is used rather than “commenced” and that is that “prosecution” would be subject to the same carve‑out in (3) as “commencement”. 

So what it really means is that it may only be prosecuted subject to the entitlement of the person who brings the charge to lay the charge and to seek remand in custody or to seek arrest as part of a warrant issued by the court, but the prosecution which must occur in the name of the Attorney is after the subsection (3) steps have been taken.

So the fact that subsection (3) is where it is rather than a subsection (2) on a natural reading appears to qualify both (1) and (2).  On our first reading it is not necessary to qualify (2), but on our alternative construction it would be necessary to qualify (2) and it helps explain why “prosecuted” is used rather than “commenced”.

What it would really mean is that, after the person may have been arrested, charged and so forth under subsection (3), the proceeding can only be prosecuted after that point of time in the name of the Attorney with the Attorney’s written consent.  That is another way of giving each of the subsections work to do in accordance with the purpose which has been delineated.

GORDON J:   In relation to that contention, do you rely upon your earlier submissions about the interaction between section 13 and sections 68 and 69?

MR MERKEL:   Yes your Honour, we do, but the main point of those submissions was to show that the prosecution in subsection (2) dovetails with what is mentioned in 68 and 69 ‑ ‑ ‑

GORDON J:   I know.

MR MERKEL:   ‑ ‑ ‑ but it has the same consequence.  Your Honours, we do have a list of Territory and State legislation that picks up the same scheme as the Victorian and Queensland Acts to which I have taken your Honours.

KIEFEL CJ:   These are the Procedure Acts?

MR MERKEL:   Yes, the Criminal Procedure Acts.  If we could just give your Honours a note of those sections, we would be appreciative of that.  They are the submissions that we put in respect of the point raised by the Attorney.  We would say that, if your Honours’ questions that had put different possible operations of subsections (3) and (1) and (2) might be said to create some ambiguity, we would say that is not sufficient of itself to displace section 13.

What we are putting forward is a reasonably open construction.  We say the necessary intendment, and we would say it should be a plain intendment, cannot be found.  They are the submissions we put on the subsections.  I think in answer to your Honour Justice Nettle’s question, I am told by my learned junior that “prosecuted in the name of the Attorney” only appears in subsection (2) in that Act.

NETTLE J:   Thank you.

MR MERKEL:  Can we now turn to the consequences that would follow if the argument is accepted, and the defendant’s interpretation were accepted by the Court.  Just by way of background to that, can we put to one side paragraph 56 of the Attorney’s submissions.

As your Honour Justice Nettle is well aware, this proceeding was conducted through many directions hearings, with great care and attention being required by all concerned, but particularly by the Commonwealth and ourselves, to ensure that a special case and the questions that arise are put forward in the special case.

I think I am correct in being able to say that prior to this question being raised in paragraph 56, there was no issue raised about the plaintiff’s entitlement to bring a private prosecution, and the questions were formulated on that basis.  But even the submission at paragraph ‑ ‑ ‑

KIEFEL CJ:   Well, that may be, but paragraph 56 of the Attorney’s written submission clearly raises it and you have responded to it in your reply.

MR MERKEL:   Absolutely, your Honour.

KIEFEL CJ:   So here we are, arguing it.

MR MERKEL:   I follow that, but I am looking at consequences that would follow if the argument is accepted.

KIEFEL CJ:   Yes.

MR MERKEL:   I am not suggesting for one minute it should not be argued, indeed obviously it is ‑ ‑ ‑

KIEFEL CJ:   What consequences do you say follow?

MR MERKEL:   The consequences that we say follow, your Honour, is that the special case has been framed on a basis that has assumed this is not a question raised and the proper procedure would be, but again it is a formality, that it would be a question.  But the problem we have is that it changes the whole foundation and framework in which the case has proceeded to the Court.

This is a case that has proceeded on the basis of whether the decision by the Attorney to refuse his consent to the plaintiff’s prosecution was vitiated by jurisdictional error.  If we have no right to bring that prosecution, then the proceeding ‑ the basis for it falls away because we do not and cannot contend that on our application, or request to the Attorney, that can be turned around as a request by the Attorney to issue a proceeding in the Attorney’s name, that is a whole different subject matter.

KIEFEL CJ:   Well, does it mean that the questions in the special case simply do not arise?

MR MERKEL:   That is correct, your Honour.  We would say that the questions in the special case do not arise, and those questions would become hypothetical.  But we would say that the ultimate consequence of what we are saying is that because we cannot turn this into a proceeding, or the factual matrix into a proceeding for a prosecution which we have not requested, it would follow that the subject matter which formed the basis for the proceeding itself would fall away.

So the outcome would be that the questions put to the Court, it is not appropriate to answer them, but also that we would say the consequence of

that argument being accepted would be that the plaintiff would either have to have leave to discontinue the proceeding or the proceeding would be dismissed and we would say, in the circumstances, which we can address separately, on the basis that there be no order as to costs because this point has not been raised by the Attorney until paragraph 56 – and albeit even then, it was raised in the context of not having a sufficient interest to justify procedural fairness, although raised in terms which quite properly raised the point for argument today so we do not have any quarrel that it needs to be argued and resolved.

KIEFEL CJ:   Are you saying that is relevant to any question of costs?

MR MERKEL:   Yes.  We say that would all be relevant to the question of costs.  But we say when your Honour has asked us to address the consequences that might follow, we say that would be essentially the consequences that might follow.  If the Court pleases.

KIEFEL CJ:   Yes, thank you.  Mr Solicitor.

MR DONAGHUE:   Your Honours, we have handed up a bound volume headed Defendant’s Supplementary Bundle that Mr Merkel has mentioned, and I hope your Honours have.  There is some overlap between the material in that bundle and the material that is already in the joint book but in the interests of efficiency we have just collected the materials I am going to need to take your Honours to now.

Can I start at tab 2, which is section 13 of the Crimes Act, which your Honours have seen, this provision being the statutory foundation upon which the plaintiff relied as the foundation for the asserted right to bring private prosecution.  As your Honours will see, in terms, that right is subject to a contrary intention in the Act that creates the offence.  So what section 13 does is direct one’s attention in determining whether or not there can be a private prosecution to the offence‑creating Act.

Brebner v Bruce, that your Honours were taken to briefly this morning, was a case about section 13 where the Act in question was completely silent as to the question of whether or not there could be a private prosecution and the question the Court was addressing was whether, by implication, a contrary intention could be found.

In that context your Honours were taken to a particular passage in Justice Fullagar’s reasons at 173.  I will not take you back to it but, if you go on a couple of pages to the top of 175, you will see that what his Honour was doing there was addressing the common law before concluding, at the top of 175, that section 13 had changed, including by simplifying the common law and, therefore, the question is what kind of right section 13 confers.

When we follow the instruction in section 13 to look to the offence‑creating provision, that then takes us to 268.121, which your Honours have behind tab 1 and, of course, that has been the focus of argument now.  But, in our submission, one sees in that provision, quite plainly, provisions that reveal the contrary intention of the kind that section 13 recognises may exist.

In order to try to develop that, as we understand the Court’s questions, it is necessary to look at the interaction between the various provisions of 268.121, as has been happening this morning.  Can I start with subsection (2).  In our submission, sub (2) is concerned with the question of the identity of the person who can conduct the prosecution.  It is to be the Attorney‑General or, we submit, someone with the authority to prosecute in the name of the Attorney‑General.

Plainly, it would be possible for the Attorney to bring the prosecution in his or her own name.  That would be consistent with the long‑recognised traditional law enforcement functions of the Attorney as a law officer of the Crown.  It was discussed, amongst other places, in Toohey and in Barton, which is in the authorities in this case.  I will not take your Honours to it, but particularly at 88 to 89.

One sees the current statutory expression of that traditional law enforcement role of the Attorney reflected, in part, in section 69 of the Judiciary Act, which your Honours have been taken to and which is replicated behind tab 3 in the bundle, referring to indictable offences against laws of the Commonwealth being prosecuted on indictment in the name of the Attorney‑General.

One also sees recognition of that role, if your Honours go to the next tab, tab 4.  There are extracts from the DPP Act.  And if you go to the second last page in that extract you will see section 10.  Section 10(1)(a) of the DPP Act sets out that:

Nothing in this Act affects:

(a)the power of the Attorney‑General, of a person appointed by the Governor‑General or of a Special Prosecutor to prosecute by indictment in his or her own name indictable offences against the laws of the Commonwealth ‑

So there is no question that there would be statutory capacity for the Attorney to bring the prosecution in his or her own name. But, equally, it is clear, in our submission, that it is possible for others to prosecute in the name of the Attorney‑General and if your Honours go to the next tab, tab 5, you will see we have extracted section 17 from the Law Officers Act 1964, section 17 of which concerns delegation by the Attorney‑General and, in subsection (2) of section 17, there is a general power conferred on the Attorney:

either generally or otherwise as provided by the instrument of delegation, by writing under his or her hand, delegate to the Secretary of the Attorney‑General’s Department or to the person for the time being holding or performing the duties of the office specified in the instrument of delegation all or any of his or her powers and functions under all or any of the laws of the Commonwealth or of a Territory, except this power of delegation.

So there is a capacity for the Attorney to delegate to an office holder any or all of the Attorney’s functions.  It is not clear and, indeed, it appears that it would not be possible for the Attorney to delegate that function to someone who does not hold an office.

EDELMAN J:   In other words, as I understand, then, you are saying that the operation of subsection (2) is the same as the equivalent provision in Canada that implements the provision of the ICC which provides that the proceedings may be conducted only by the Attorney‑General of Canada or counsel acting on their behalf.

MR DONAGHUE:   In substance, that is right, your Honour.  I have not looked at that provision, but that is the substance of our submission.

NETTLE J:   Why is it expressed, then, in the way in which it is rather than saying it will only be conducted by the Attorney?

MR DONAGHUE:   In the name of the Attorney?

NETTLE J:   Yes.

MR DONAGHUE: Well, your Honour, in my submission, that sufficiently captures the point in that, traditionally, the Attorney would have carried out that function, as is reflected in the historical role of the Attorney, now recognised in section 69. But one can go wider than that, both by delegation and also by reference to the provision I am about to go to in the DPP Act. If your Honours go back to tab 4 and this time look at section 6(1)(baa):

if the Attorney‑General requests the Director in writing to carry on a prosecution of the kind referred to in paragraph (a) –

which is a prosecution on indictment:

that was instituted by the Attorney‑General – to carry on that prosecution –

So that is the provision that contemplates the Attorney might commence the proceeding.  That would be a proceeding in the name of the Attorney‑General that would then be conducted by the Commonwealth DPP.

GAGELER J: You have not given us, I think, section 9 and I do not have it before me. On one reading, section 9(1) would authorise the Director of Public Prosecutions to commence a proceeding in the Director’s own name but also authorise the Director to commence a proceeding in some other way, including in the name of the Attorney‑General.

MR DONAGHUE:   I accept that, arguably, it would extend to that.  That is the words “in any other manner” at the end of the section.  So it may be that, if authorised by the Attorney, the DPP could commence the proceeding in that way.  I accept that.  Or could, if the Attorney commenced it, could carry it on under section (6), both pathways would be possible.

GAGELER J:   Yes.

MR DONAGHUE:   So those are the ways in which we submit that one could have a prosecution that complies with the requirements in 268.121(2), an offence being prosecuted in the name of the Attorney‑General.  We agree with our friends – as far as we are aware, there is no other provision in this Act, in the Criminal Code, of the same kind.

But as Mr Merkel mentioned, the provision appears to have been lifted from the War Crimes Act 1945, which we have extracted behind tab 6. Section 12 of that Act is virtually identical, except that the only difference being that it includes a reference to the DPP, so offence may be:

prosecuted in the name of the Attorney‑General or the Director of Public Prosecutions.

That provision was inserted in that form by the War Crimes Amendment Act 1988. Behind the next tab, in tab 7, we have replicated the explanatory memorandum to that amendment Act. If your Honours turn to page 8, which is the second last page of the extract, which deals with section 12, the first sentence just recites the terms of the provision. The second sentence:

The nature of the offences in the Bill make it desirable to exclude the possibility of private prosecutions.

So where that language was first used, having regard to the nature of the offences and the kinds of considerations, particularly your Honour the Chief Justice and your Honour Justice Keane have raised, these are international crimes, as they were in the War Crimes Act, and as they are now in Division 268.  That formulation:

prosecuted in the name of the Attorney‑General –

was utilised to exclude the possibility of private prosecutions.

KIEFEL CJ:   In the legislative history, was the War Crimes Act repealed at the time these provisions were provided for in the Criminal Code Act?

MR DONAGHUE:   I do not know the answer to that.  We can check that.

KIEFEL CJ:   When you say it was lifted from the War Crimes Act, its immediate provenance was the War Crimes Act. 

MR DONAGHUE:   That appears to be its immediate provenance.  It is the only provision that we have found on the Commonwealth statute book that uses that exact formulation, and the language tracks in what we submit is a closely analogous context, in that Division 268 obviously now includes offences of this kind.

The War Crimes Act, the reason it might not have been repealed, and I would need to check it, is that the War Crimes Act itself was concerned with World War II war crimes.  So it may be that they – yes, it is still in force, and that would be the reason.

KIEFEL CJ:   I see.

MR DONAGHUE:   So your Honour might recall in Polyukhovich, for example, there was the debate about prosecution of World War II war crimes.

KIEFEL CJ:   Yes.

BELL J: If one were to look at the scheme of 268.121, read with section 6(1)(baa) to which you directed our attention, that permits the Attorney to request the DPP to carry on a prosecution that the Attorney has instituted, one could understand as a view of the scheme that having regard to the nature of the offences in this division, the consent of the Attorney is required to commence a prosecution and that would extend to a prosecution instituted by the DPP.

MR DONAGHUE:   Yes.

BELL J:   That it is considered, having regard to the nature of the offences in this division, that they should be prosecuted in the name of the Attorney‑General of the Commonwealth.  So that the Attorney might direct, as a matter of practice, that the DPP carry on the proceeding instituted by him but under this scheme the proceedings would still be styled in the name of the Attorney?

MR DONAGHUE:   In the name of the Attorney, yes.

BELL J:   Yes.  So that would be a way of making sense, as it were, of the three provisions?

MR DONAGHUE:   Yes, that is right.

BELL J:   Yes.

MR DONAGHUE:   That is right.  In our submission, the explanation for the word “prosecuted” that one sees in subsection (2) is that ‑ and this arises or was picked up by your Honour Justice Nettle’s question ‑ from the fact that the provision needed to deal with the possibility that the prosecution might be on indictment, but also that it might be summarily because this provision, 268.121, is dealing with prosecutions for offences against this division, the whole of 268.  And the way the Commonwealth criminal provisions are divided up, if the maximum penalty is 10 years or more, the offence has to be prosecuted on indictment.  If it is under 12 months it is summarily.  And if it is in between, between one and 10, it can be prosecuted either way, with the consent of the defendant.

There are provisions, numerous provisions in 268 that are punishable by maximums of five years or seven years, so that there provisions that fall into that category.  So the word “prosecution” is being used in a way that cannot, as our friends would have it, be tied just to indictable offences. 

NETTLE J:   Mr Solicitor, can I just clarify with you an answer you gave to Justice Bell.  Did I take you to say that in subsection (1) of 268.121 the purpose of the consent is to allow the Director of Public Prosecutions to get the consent of the Attorney before kicking off, as it were?

MR DONAGHUE:   Yes.  In cases where the Attorney was actually prosecuting him or herself it would be odd, to say the least, to require the Attorney to get his or her own consent.

NETTLE J:   Indeed.

MR DONAGHUE:   But because of the possibility that the offence will be prosecuted by the Director in the name of the Attorney, by the mechanism that Justice Gageler mentioned, by the mechanism that Justice Bell mentioned, it may well be that the Attorney is as a general rule, consistently with, say, the delegation power under 17 as well as the Law Officers Act, perfectly happy for the Director to have a capacity to prosecute offences against 268 but still wants, case by case, to check off on the appropriateness of a particular prosecution, hence the consent requirement.

The Director, on my submission as to the interaction of these provisions, even having ticked the box of subsection (2) and being someone who can prosecute in the name of the Attorney, there is then a secondary requirement for the consent of the Attorney‑General.

GORDON J:   A second check mechanism.

MR DONAGHUE:   Yes, case by case, because the delegation might not be case by case.  There is no requirement for the capacity to prosecute in the name of the Attorney to be a case by case capacity, and because of that the consent requirement makes sense, in our submission.

NETTLE J:   So (2) is to be read as saying, an offence may only be prosecuted by a person who has extant authority to prosecute in the name of the Attorney?

MR DONAGHUE:   Precisely. 

NETTLE J:   Then only in the name of the Attorney.

MR DONAGHUE:   Then only in the name of the Attorney, and then, because of (1), only with the consent of it. 

NETTLE J:   That is a lot to read in, particularly when one has regard to section 13 of the Crimes Act and the common law which preceded it.

MR DONAGHUE:   Section 13 of the Crimes Act takes us to this provision and makes its operation subject to this provision.  When one goes to sub (2), and says, an offence against this Division may be prosecuted only by the Attorney, once it is recognised that that includes summary prosecutions as well as indictable prosecutions, it is difficult to give content to that provision.  It is difficult to see how the prosecutor under section 13 could ever meet that requirement.  Certainly, that seems to have been the view that was taken when the same words were used in the War Crimes Act, given the explanatory memorandum says the purpose of those words was to exclude a private prosecution.

NETTLE J:   It just does not have the consent provisions in the War Crimes Act; that is the trouble.

MR DONAGHUE:   No.  I accept that that is so but unless the consent provisions are abstracting from the operations that those words would have in the War Crimes Act context and, we submit, have now, unless those words do less work than they would otherwise have done because of the addition of the consent requirement, in our submission, your Honours should still conclude that they require, as a first step, a prosecutor who has the authority of the Attorney to bring the proceeding in his or her name and then, as a second step under (2), consent.

GORDON J:   Why then are they absent from the War Crimes Act?  I mean, that is the question.  You say that they come from or their immediate precedence is the War Crimes Act.  One goes there, one does not find the structure. 

MR DONAGHUE:   One does not find both structures.

BELL J:   One possible reason for that is that it was considered in relation to the War Crimes Act that a prosecution could be conducted either in the name of the Attorney‑General or in the name of the Director of Public Prosecutions and it made provision in those terms. Here, the scheme, when one looks at the provisions of Chapter 8, read with the Director of Public Prosecutions Act, does contemplate that in fact the prosecution may be conducted by the Director but nonetheless it requires the consent of the Attorney and that it is in the Attorney’s name.  It is a different scheme, perhaps reflecting the international character of the offences that are the subject of the division.

MR DONAGHUE:   I embrace that, your Honour.

KIEFEL CJ:   That might be a convenient time for the Court to take a break.

AT 11.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.34 AM:

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, can I complete the submissions I wish to make about the meaning of the word “prosecuted” in subsection (2) by making two points. The first is, if your Honours have the supplementary bundle the plaintiff handed up which contained the explanatory memorandum to the Consequential Amendments Act behind tab 5 in their large bundle and if your Honours turn to page 15, which is the page dealing with 268.121, at about point 3 on the page there is the heading “Proposed Section 268.121”, and the paragraph there reads:

Proposed subsection (1) provides that proceedings under this Division can only be commenced with the Attorney‑General’s written consent, and proposed subsection (2) provides that any such proceedings can only be carried out in the name of the Attorney‑General.

The point we make is that, to the extent that it assists at all, the word “proceedings” is used by reference to both provisions as if they are the same and that the scope of the words is the same.  Our friends invite you, as I understand the submission, to find that “prosecution” in sub (2) means only prosecution on indictment, whereas sub (1) extends at least to a committal proceeding.  They make the point that 13(a) only, at most, would entitle them to commence the committal proceedings so they seek to draw that distinction.  That is not a distinction that textually appears, in our submission, in 121 and certainly the explanatory memorandum suggests that the ambit of the two provisions is the same. 

That supports, in our submission, the proposition that insofar as one gets any assistance out of the dichotomy or the break‑up of proceedings in section 68 of the Judiciary Act, the proper way to read “prosecuted” is as including at least paragraphs (a), (b) and (c) of section 68 of the Judiciary Act.  That is, it picks up summary procedures, it picks up committals and it picks up trial on indictment. 

I have already addressed why it should be read as at least including summary procedures as well as indictable procedures.  In our submission, there is no reason to take a committal proceeding, a trial on indictment, out of that scheme.  Indeed, your Honours would recall from R v Murphy that the Court has held that a committal is closely related to the trial on indictment that follows; they are all part of the same matter.

Finally on this point, the word “prosecuted” or derivations thereof is used repeatedly in a wide variety of different contexts in the Criminal Code. We have not given your Honours all of the provisions but there are many sections that use those words and they sometimes use the words in a very generic sense. We have not given it to your Honours but to give your Honours one example, in section 272.6 of the Criminal Code there is a provision headed:

Who can be prosecuted for an offence committed outside Australia

The provision commences by saying:

A person must not be charged with an offence against this Division –

unless various conditions are met.  So the word there is used where the substantive provisions connected with “charging” is used in other ways, in a generic way, obviously, intended to pick up the whole criminal process, by way of example, without taking your Honours to it, 11.2(5), 72.2 and 122.4A.

KIEFEL CJ: Do you say subsection (3) of section 268.121 just has no bearing upon the construction of the earlier subsections?

MR DONAGHUE:   I might not go quite so far as to say no bearing, but very little bearing.  I was about to come to subsection (3).  I think I have said what I need to say about subsection (1). 

Subsection (3) appears to be intended, as some of your Honours put to Mr Merkel, to be directed at steps that might need to be taken as a matter of urgency in relation to the person when they are physically present and need to be dealt with.  The explanatory memorandum says the same thing.  So it is dealing with arresting and charging a person who is actually there and where urgent steps need to be taken.

Where we differ from our friends is that, as I understood the submission, it was suggested that what they were seeking to do here was permitted because it fell within (3) and in particular the word, it was asserted, fell within the meaning of the word “charged.”  And here I need to take your Honours briefly to the facts because what the plaintiff actually sought to do was to file a proceeding in the Magistrates Court, and your Honours will see that in the special case at paragraph 8, which is on page 14 of the special case book.

So initially there was an attempt to lodge a charge seeking a summons on 16 May.  Then on 19 May ‑ this is paragraph 14 ‑ there was an attempt to lodge an amended charge sheet and summons, which they sought to have substituted for that ‑ they had attempted to lodge on 16 May.  That amended document appears in the special case book at pages 76 and 77 and it is a document headed “Charge‑Sheet and Summons” and it sets out the details of the charge that the plaintiff sought to – or the charge that the plaintiff alleged.

When one tries to situate the legal significance of that document within the Victorian Criminal Procedure – and if your Honours turn to the last tab in the book we have handed up, you will see we have extracted section 6 of the Criminal Procedure Act of 2009.  You see that one of the ways in which a criminal proceeding is commenced ‑ so using the same word as subsection (1) of 268.121, is:

by filing a charge‑sheet containing a charge with a registrar of the Magistrates’ Court –

So the plaintiff was endeavouring to commence a proceeding – that is what filing a charge sheet in the Magistrates Court does.  He was endeavouring to do the precise thing that subsection (1) says cannot be done without the consent of the Attorney‑General.  And, in our submission, it makes a nonsense of that requirement to say, well, I was allowed to commence the proceeding because I also call what I was doing charging the person under subsection (3).  If the plaintiff was entitled to do that, then that deprives subsection (1) of any work.  Why would one ever need to go back to get the consent of the Attorney‑General if you have already done the thing that the Attorney’s consent would relate to?

KIEFEL CJ:   So you say “charge” in subsection (3) refers to charge by the police?

MR DONAGHUE:   Exactly.

KIEFEL CJ:   The difficulty with subsection (3) in terms of drafting, though, is that it refers to matters which occur after proceedings have commenced in court, namely, remanded in custody and released on bail.

NETTLE J:   I suppose it could be a bail justice, could remand them in custody.

MR DONAGHUE:   It could be.  It is the problem because we are talking, of course, here about a Commonwealth provision which may well be operating in conjunction with State laws ‑ ‑ ‑

KIEFEL CJ:   In a State.  That is true.

MR DONAGHUE:   ‑ ‑ ‑ picked up from a wide variety of different contexts so it is hard to know exactly ‑ ‑ ‑

KIEFEL CJ:   How it is going to operate in a given circumstance.

MR DONAGHUE:   ‑ ‑ ‑ how it is going to work; it is.

KIEFEL CJ:   Yes.

MR DONAGHUE:   It is best understood, in our submission, really, as an avoidance of doubt provision in some ways ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ to say, you can do all of these things, whatever the applicable State criminal proceedings happens to be but what you cannot do is commence the proceeding under subsection (1), and that here is what the plaintiff tried to do.  That is really all I seek to say, unless the Court has any further questions on the question of construction.

As to consequences, as we heard our friend – he accepted that if your Honours were to find in our favour on that point, then the proceeding would lack any utility.  The point, as was recognised in the Court’s question, is a point that we took in paragraph 56 of our written submissions.

KIEFEL CJ:   Although not at an earlier point, Mr Solicitor.

MR DONAGHUE:   Your Honour, we have – I accept that we did not put it in this precise way at an earlier point.  I do accept that.  Nevertheless, we took the point as part of our defence of the special case.  What we have said, right from the start, although not putting it in this way, is that this is a proceeding that evidently lacked any possible utility, that it had a very academic and hypothetical flavour to it, because there was no meaning prospect that Ms Suu Kyi would ever be prosecuted in an Australian criminal court.  The difficulty is that it was commenced in this Court for obvious reasons, having regard to the privative clause and the exclusions of jurisdiction and there was no very satisfactory way to dispose of it, notwithstanding its very hypothetical nature, short of a referral to the Full Court, because any decision made by a single Judge could have been brought here anyway, by way of appeal.

So we have consistently maintained that the proceeding lacks utility.  Certainly one way of characterising the outcome of the constructional exercise that has been discussed this morning is that relief in relation to the Attorney‑General’s consent decision under (1) would lack utility because even if that decision was flawed, by reason of subsection (2), nothing could follow, a prosecution could not continue.  If your Honours analysed it in that way then there is, your Honours will have seen, because of what is in

our submission evident lack of utility of a particular question in the special case, question 4, which asks ‑ ‑ ‑ 

GORDON J:   What other relief.

MR DONAGHUE:   ‑ ‑ ‑ what relief, if any, should be given, and their submissions directed to that assert that there is no utility in the grant of any relief in this proceedings.  In our submission, the appropriate disposition of the special case is to answer question 4 “none”, to answer question 5 “the plaintiff”, and to answer the other questions “unnecessary to answer”.

I am reminded by my learned friends that in fact in some of the discussions that the parties had before your Honour Justice Nettle in directions hearings it was indicated by my learned friend that there would be an appeal if the matter was disposed of by a single Justice.  In the end it seemed that we were going to be here before the Full Court almost irrespective of what arguments we advanced at first instance.

NETTLE J:   I think all of that is pretty clear, Mr Solicitor, it is just the come‑lately nature of the point first taken and albeit then somewhat obliquely in paragraph 56 of your written submissions, which is seen now to be determinative of the proceedings.

MR DONAGHUE:   Your Honour, we submitted that there was no right to bring the prosecution.  I suppose the difficulty from our perspective is that our friends always framed what they were doing – their characterisation of what they were doing was something they were entitled to do under subsection (3).  If that characterisation was correct then it at least seemed to us to be fixing on a point prior to the point that may now turn out to be dispositive in relation to the absence of authority under (2). 

They just asserted that if they won the proceeding and they achieved consent they would be entitled to prosecute in the name of the Attorney.  We never accepted that.  I accept, your Honours, that we have never developed the argument in this way.  There did not ever seem to us to be an appropriate occasion on which to do so, and there is no reason, in our submission, to think that had we done so that would have avoided the need to appear before the Full Court to agitate these issues in light of the position that our friends took, that there would be an appeal if the matter were dealt with by a single Justice.  Unless there is anything further, those are our submissions.

KIEFEL CJ:   Thank you, Mr Solicitor.  Anything in reply, Mr Merkel?

MR MERKEL:   Yes, your Honours.  Could I just deal with the last matter first.  The question of utility is quite vexed.  We say it depends on the merits and the finding the Court may take on the merits.  It has been hotly contested because we have said there is a different question between the utility of the relief which, given that the Magistrates Court is awaiting a decision of this Court as to whether the charge sheet would issue, is a totally different question as to the practical utility of any criminal process that might ultimately issue if the charge is filed and the Attorney gives his consent.  There are no agreed facts concerning utility which would have to be the subject of some argument.

More importantly, on the question of the framing of questions for the Court and the way my learned friend seeks to have question 4 answered, question 4 was posed on the basis of the answers to the earlier questions, with the utility issue being raised by my learned friend.  But we had a number of directions hearings which your Honour Justice Nettle will recall very clearly, where a great deal of care and attention was given to the formulation of the questions to ensure that the issues being raised would be before the Court and this was not one formulation that arose or was suggested prior to paragraph 56.  So to say that an appeal was going to happen in any event is not correct because this question had not been considered ‑ ‑ ‑

BELL J:   This question had not but the position, as I understand it, taken at the directions hearings was that this was a case that was weak, essentially a hypothetical case, and there was discussion about the utility of the Commonwealth taking that point before a single Justice with, as I understand from your side, no demur to the proposition that that would provoke an appeal.

MR MERKEL:   Your Honour, that is correct, but we say that the arguments on weakness were put on the merits, and we disputed that.  If we do get to that stage of submissions, we say that, particularly in the light of the recent decision of the appeals chamber of the International Criminal Court, there are substantive grounds for the appeal to succeed on the basis of jurisdictional error, and the constitutional issues ‑ ‑ ‑

BELL J:   Jurisdictional error in relation to the failure of the Attorney to have regard to a decision not been handed down?

MR MERKEL:   No, no, error as to a rule of customary international law that does not exist in respect of the particular ‑ ‑ ‑

BELL J:   You are relying on the decision of the court postdating the Attorney’s ‑ ‑ ‑

MR MERKEL:   Yes.  That decision was going back 200 years, your Honour.  It was not based upon something that just emerged; it was a well‑established principle.  But the main point I want to put is that there is a substantial issue and a substantial argument on the merits that necessarily is embraced in question 4.

KIEFEL CJ:   Speaking of international law, Mr Merkel, do you contend that Australia is under an obligation under international law to consider prosecutions of this kind?

MR MERKEL:   Your Honour, the answer is in the circumstances where they arise as part of the prosecutorial process under the Division 268 procedures ‑ ‑ ‑

KIEFEL CJ:   You would appreciate the point that I am making ‑ ‑ ‑

MR MERKEL:   Yes.

KIEFEL CJ:   ‑ ‑ ‑ that it is a question, potentially, of Australia’s international obligations, not a private person’s sense of grievance?

MR MERKEL:   Absolutely, your Honour, and we have decisions of the appeals chamber, or a decision of the appeals chamber, that would say it is Australia’s obligation to consider that, not the next step that it must in all circumstances issue the prosecution.  But we say it has undertaken obligations under the Statute of Rome in respect to its primary jurisdiction, which is a central issue of dispute between ourselves and our learned friends.

KIEFEL CJ:   You do not think that that assists in understanding this Act in light of the earlier provision of the War Crimes Act?

MR MERKEL:   No, your Honour.  We say this is an entirely different structure.  In fact, if we get to the merits, the structure of this Act is unique.  There is no, as far as we are aware, counterpart to where an international treaty has set up a legal process for a primary jurisdiction to be exercised in the member States, which at the relevant date were 123 States, and only a complementary jurisdiction in the International Criminal Court in respect of the crimes as defined in the Code.  And we say that, if and when we get there, the arrest warrant case was dealing with an entirely situation.

EDELMAN J:   All of that does provide some powerful context against the potential fragmentation of proceedings on this preliminary issue, fragmentation that would occur if private prosecutions were even contemplated.

MR MERKEL:   No, your Honour.  The primary prosecution – the whole structure of the scheme is for the primary prosecution to undertake the obligation in the first instance and the International Criminal Court’s jurisdiction only relates to matters that were admissible because the primary State had failed or neglected or was unwilling to pursue a prosecution.

EDELMAN J:   Yes, because it is the obligation of the primary State.  One would hardly expect that obligation to be discharged by a private prosecutor.

MR MERKEL:   No, your Honour, of course not.  We do not say it would be discharged by a private prosecutor but that ignores the very limited carve‑out which the legislature has provided for, which has to be given, we say, some work to do.

Can I just move to ‑your Honour had raised with my learned friend the Canadian situation. If your Honour was referring to section 9 of the Crimes Against Humanity and War Crimes Act 2000 in Canada, that really makes the point that is not made in subsections (1), (2) and (3) because, under subsection (3) of section 9, it says:

No proceedings . . . may be commenced without the personal consent in writing of the Attorney . . . [and] may be conducted only by the Attorney General of Canada or counsel acting on their behalf.

And subsection (4) says:

No proceedings for an offence under section 18 –

being a particular offence:

may be commenced without the consent of the Attorney General –

which is unrelated to that.  So in Canada you have a clear enunciation of what my learned friend is asking your Honours to find is the work done by 268.121.

EDELMAN J:   That is the question, that when you have in this particular international context obligations that are placed upon a State, would one expect that the different wording between Australia and Canada is designed to achieve very different effects?

MR MERKEL: We say the different wording, for present purposes, is the very limited carve‑out. And we say we have taken your Honours there, and we say that is the explanation. But can I move on to say that my learned friend took your Honours to the DPP Act sections in tab 4. We just ask your Honours to note in section 10(1) the words “prosecute by indictment” appear, which again is consistent with what we have said. My learned friend also took you to section 6 of the Criminal Procedure Act (Vic). Could I just ask your Honours ‑ that is at tab 8 of the Commonwealth folder.

GORDON J:   Sorry, Mr Merkel, what was that provision?

MR MERKEL: Tab 8, and it is section 6 of the Criminal Procedure Act (Vic). Can I just ask your Honours to note, it is not there, but section 5(a) says:

A criminal proceeding is commenced by –

(a) filing or signing a charge‑sheet in accordance with section 6 –

And that picks up what section 6 provides. And section 6(3) provides:

A charge‑sheet must –

(a)      be in writing; and

(b)      be signed by the informant personally –

We have not taken your Honours to it, but that closely relates to what happens in section 12 of that Act.  Could your Honours go to tab 9 of the book of supplementary materials that we handed up this morning?

BELL J:   That is your supplementary materials?

MR MERKEL:   Yes, your Honour, the thick one.  Tab 9 sets out section 12.  The way the process works is in subsection (1)

On the filing of a charge‑sheet under section 6, an application may be made to a registrar of the Magistrates' Court for the issue of –

(a)      a summons to answer to the charge . . . or

(b)      a warrant to arrest ‑

And then on subsection (4):

On an application under subsection (1), the registrar must, if satisfied that the charge discloses an offence known to law, issue –

(a)      a summons to answer to the charge; or

(b)      subject to subsection (5), a warrant to arrest.

And then the form of the charge sheet for charges on charge sheet or indictment is set out in the schedule, and the form complies with the schedule.  They are the provisions that we say relate to the commencement of the proceeding.

My learned friend did seem to suggest that all the matters in subsection (3) could relate and do relate to matters that could precede commencement.  Could I just give your Honours to a decision in the New South Wales Court of Criminal Appeal.  We do not have this in our list of authorities.  It is B v R [2008] NSWCCA 85, where a provision in terms of subsection (1) and subsection (3) but without subsection (2) was considered by the Court of Criminal Appeal.

The question in that case is whether an attendance notice which had been issued, which was the equivalent of the summons and charge sheet, was the commencement of the proceeding.  What had happened there is that the Director had given consent before the committal.  At paragraph 87 Chief Justice Spigelman comments on the words:

“remanded in custody” before any consent is issued.

Then his Honour observes, as must be well accepted, that “remanded in custody” must mean by a court.  We say that is a case that is helpful in understanding this process, but we also say that my learned friend’s submissions on summary jurisdiction ‑ ‑ ‑

BELL J:   Mr Merkel, just before you come to that can I just inquire:  do you say that the document that your client took to the Magistrates Court has been filed with that court, or is it the position that the court has declined to accept for filing the document.  Is that so?

MR MERKEL:   Yes, your Honour.  The way it has worked, as I understand it, to fit into the statutory scheme is that the document was taken for filing.  It was lodged, and the lodgement is treated as an application to the court to issue the summons and charge sheet.  The registrar took the matter to a magistrate for review to see whether there was an obligation to issue it.  At the same time as it was lodged, an application was made for consent by the Attorney.  The Attorney’s refusal was communicated to the Magistrates Court and to us, and at that point we asked the Magistrates Court that, if they were proposing to not issue, they defer that decision until this case has been heard.

BELL J:   All I am seeking to understand is you took us to section 6(1) of the Criminal Procedure Act with its definition of the commencement of a

criminal proceeding and, as I understand it, you do not contend that any step taken has amounted to the filing of a charge sheet or the equivalent.

MR MERKEL:   That is correct.  My learned friend took your Honours to the explanatory memorandum in respect to subsection (2) and relied upon the words “carry on”.  We have two observations.  If submissions fail to explain why the meaning of subsection (2) was equivalent to “shall not be commenced other than in the name of” why the word “commencement” was not used and “prosecution” was, we say an explanation that even meets “carried on” was the one we gave as our alternative construction that even if “prosecute” had a wider meaning, for subsection (3) to have the work it would do, it would mean “carried on” after the processes in subsection (3) had been engaged in because on that construction we say subsection (3) qualifies both subsections (1) and (2), which is a natural reading of those words.

We finally say that much has been suggested, particularly by our learned friends, about the international character of these charges but the irony of the current situation is that the submissions which the Attorney puts would equally apply to a police officer, a Director of Public Prosecutions or a private prosecutor because, if his submissions are right, the police would not be able to exercise the functions they would normally exercise in laying charges or seeking a warrant for arrest at the commencement of a proceeding.

So we say that giving the significance and nature and context to the section in Chapter 8, there is no reason in principle why our submissions that section 13 has not been met with the necessary contrary intent.  They are the submissions we put to your Honours.

KIEFEL CJ:   Thank you, Mr Merkel.  The Court will consider the position it will take and adjourn until 2.15.

AT 12.04 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:  Having heard argument on the question whether section 268.121 of the Criminal Code Act 1995 (Cth) authorises a private prosecution, at least by a majority the Court answers the questions of law raised by the special case as follows:

1.Is the defendant’s decision to refuse to consent under section 268.121 of the Criminal Code to the prosecution of Ms Suu Kyi insusceptible of judicial review on the grounds raised in the amended application?  Answer:  unnecessary to answer.

2.If “no” to question 1, did the defendant make a jurisdictional error in refusing consent under section 268.121 of the Criminal Code to the prosecution of Ms Suu Kyi on the ground that Australia was obliged under customary international law to afford an incumbent foreign minister absolute immunity from Australia’s domestic criminal jurisdiction (the asserted immunity) for one or more of the following reasons:

(a)under customary international law as at the date of the defendant’s decision, the asserted immunity did not apply in a domestic criminal prosecution in respect of crimes defined in the Rome Statute?

(b)by reason of:

(i)the declaration made by Australia upon ratifying the Rome Statute;

(ii)Australia’s treaty obligations under the Rome Statute; and/or

(iii)the enactment of the International Criminal Court Act 2002 (Cth), and the International Criminal Court (Consequential Amendments) Act 2002 (Cth),

the obligations assumed by Australia under international law were such that the defendant was not entitled to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute?

(c)by reason of:

(i)the declaration made by Australia upon ratifying the Rome Statute;

(ii)Australia’s treaty obligations under the Rome Statute;

(iii)the enactment of the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth); and/or

(iv)the Diplomatic Privileges and Immunities Act 1967 (Cth), the Consular Privileges and Immunities Act 1972 (Cth) and the Foreign States Immunities Act 1985 (Cth),

the defendant was not entitled under Australian domestic law to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute?  Answer:  does not arise.

3.If “no” to question 1, did the defendant make a jurisdictional error in refusing consent to the prosecution of Ms Suu Kyi on the ground that he failed to afford the plaintiff procedural fairness?  Answer:  does not arise.

4.What relief, if any, should be granted?  Answer:  none.  The amended application should be dismissed with costs.

5.Who should bear the costs of the special case?  Answer:  the plaintiff.

Reasons will be provided in due course.

The Court will adjourn to 9.30 am on Friday, 21 June in Brisbane and Sydney.

AT 2.19 PM THE MATTER WAS CONCLUDED