Theophanous v The Commonwealth

[2005] HCATrans 320

[2005] HCATrans 320

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M22 of 2005

B e t w e e n -

ANDREW CHARLES THEOPHANOUS

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 4 MAY 2005, AT 10.17 AM

Copyright in the High Court of Australia

MS D.S. MORTIMER, SC:   If your Honour pleases, I appear with my learned friend, MR R.M. NIALL, for the plaintiff.  (instructed by Zindilis Barristers & Solicitors)

MR D.M.J. BENNETT QC, Solicitor‑General of the Commonwealth of Australia:   If your Honour pleases, I appear with my learned friend, MR C.J. HORAN, for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Just before I call on you, Ms Mortimer, am I right, Mr Solicitor, in thinking that I do not have any outline of argument from the respondent?

MR BENNETT:   That is my understanding.

HIS HONOUR:   Yes, very well.  Yes, Ms Mortimer.

MS MORTIMER:   If your Honour pleases.  The directions that we seek, your Honour, are set out in the summons save for one that needs to come out and one that needs to come in.  In paragraph 3 of the summons we seek directions about the filing of notices under section 78B – I understand that has been done, your Honour – and we would also seek after paragraph 4 an order that this matter be adjourned for further directions after the filing of a case stated.  Your Honour sees that we have in our written submissions made argument about why we say this matter is not appropriate for remittal.

HIS HONOUR:   Yes.

MS MORTIMER:   We are not at present certain, your Honour, what the Commonwealth’s position is about whether it proposes to file a defence and a demurrer or what the Commonwealth thinks ought to happen on the motion to the issues that we have raised.

HIS HONOUR:   Well, do I understand it then that you want pleadings with a timetable of defence 14, reply seven, draft stated case then to be prepared by you within 28 and then come back?

MS MORTIMER:   That is so, your Honour.

HIS HONOUR:   Is that the general structure?

MS MORTIMER:   That is, your Honour.

HIS HONOUR:   Yes.  Can I just understand a little better than I presently do – and it may be your answer will be no – what is encompassed by paragraph 20 of the statement of claim that:

In so far as Part 2 of the Act applies to the plaintiff, it is invalid in that it purports to confer federal jurisdiction . . . contrary to Chapter III of the Constitution.

MS MORTIMER:   Your Honour, we say that although what this legislation purports to do is confer the judicial power of the Commonwealth on a State court, it does not do that because the manner in which the court is called upon to exercise its power is not a proper exercise of judicial power when one looks at the task that is conferred on the court.  That is the way it is put.  We say it can be seen in a number of ways, your Honour, but what it is really doing is giving effect to an administrative decision that is made by the Minister and to be implemented by the court.

HIS HONOUR:   Well, you will need to take me through that because I do not ‑ ‑ ‑

MS MORTIMER:   Does your Honour have a copy of the Act?

HIS HONOUR:   Yes, I do, and I have presently the print as at 24 May 2001.  Is that a convenient enough print?

MS MORTIMER:   I hope so, your Honour, because that is the one I have.  Your Honour will see that the Act is divided into several parts.  The part which we attack and with which this claim is concerned is Part 2, the making of a superannuation order.  Just skipping over some of the definition sections which do have some relevance, your Honour, there is a decision that is called upon to be made under section 16 of the Act by the Minister which is premised on the conviction of a person who is described as “an employee”.  In the definition sections, your Honour, that ranges from judges down to public servants and/or employees of Commonwealth authorities. 

HIS HONOUR:   And, relevantly, a member of either House.

MS MORTIMER:   And, relevantly, a Member of Parliament, that is so, your Honour.  If the Minister forms the requisite opinion under section 16(b), then an authorisation is given in writing to the DPP.

HIS HONOUR:   Yes.

MS MORTIMER:   What follows from section 17 is the imposition of a duty on the DPP to make an application.  That having been done, the matter that needs to be considered by the court is set out in section 19.  The only matter about which the court needs to be satisfied is whether what the person has been convicted of is a corruption offence.

HIS HONOUR:   Yes.

MS MORTIMER:   In our submission, although it may be the case that in some legislative formulations that is sufficient to characterise what has been done as an exercise of judicial power, it is not in this case.  When one looks at the scheme of the legislation, we say it is so heavily weighted towards only one outcome being likely that all the court is really doing is implementing the decision the Minister has made.  Now, that is one aspect.  Your Honour, the other aspect is that unlike, for example, the forfeiture cases where what has been done ‑ ‑ ‑

HIS HONOUR:   But is that an argument that there is no matter, or what is the contravention of Chapter III?  I mean, it may be that I am asking you questions which you say I should not ask and you should not have to answer.  If that is so, so be it.  But it did not leap off the page to me what the Chapter III issue was that you sought to agitate.  I am not saying there is not one; I just need to understand it a little better.

MS MORTIMER:   Your Honour, there are several ways it can be put and I would not want to be held to saying that these are the only ways we are going to put it.  One is that really what the court is being called on to do is to implement an administrative decision.  It is not deciding a controversy in any real sense of the word, not when the scheme is looked at and when the definition of “corruption offence” is taken into account.

We say also, your Honour, that what this legislation does is it exposes a person to double jeopardy because what occurs is that there is a punishment for an offence – in this case in relation to the plaintiff under the Crimes Act – and then quite separately and, we say, independently there is the confiscation of property – not property that was used in the offence, not property that is the proceed of a crime – under an entirely separate piece of legislation.  We say that this is punitive legislation and it is double jeopardy.  One important provision in this Act is section 43 which proscribes or prevents the sentencing court from taking into account the possibility of the making of an order under this Act.

HIS HONOUR:   Yes.

MS MORTIMER:   So we say there are a number of ways it can be put.

HIS HONOUR:   Yes.

MS MORTIMER:   I trust that might be sufficient for your Honour’s purposes.

HIS HONOUR:   Yes, thank you.  Now, Mr Solicitor, what do you say I should do?

MR BENNETT:   Your Honour, we submit it would be more appropriate to remit the matter.  The case involves the application of subtle constitutional principles.

HIS HONOUR:   Where would I remit it, do you say, Mr Solicitor?

MR BENNETT:   To the Supreme Court of Victoria.  One possibility if that occurs is that the County Court has power – that is the court to which the application has been made for an order – to refer questions of law to the Court of Appeal of Victoria.  The Supreme Court, of course, has internal procedures which would enable the same thing to take place.  So the matter could be determined perhaps with the two matters if they were to be heard together – they are the same issue – by the Court of Appeal of Victoria.

The Chapter III argument which has been raised, we would submit, is not going to take very long to deal with, whoever deals with it, for fairly obvious reasons.  The court has a judicial function which is clearly laid down by the legislation in deciding if something is a corruption offence and, if so, making an order.  The mere fact that it may be easy does not stop it being judicial.  Fortunately, there are some matters which go to courts which are easy, but they are nevertheless judicial.

We would submit that those are matters which can be dealt with by the Supreme Court of Victoria.  It is not a case where there is any conflict of authority in relation to the applicability of section 51(xxxi).  There is a case in South Australia which was referred to, and the Supreme Court of Victoria may well choose to follow it unless satisfied that it is plainly wrong, I think is the current test, but that is not a reason for not remitting.  There is no conflict at this stage.  It is a fairly simple constitutional issue.  Bearing in mind the time which would be taken in this Court – I have in mind the problems of hearing constitutional cases this year because of the impending change in the composition of the Bench ‑ ‑ ‑

HIS HONOUR:   …..first time constitutional cases have been heard by all available Justices, though that is less than the full complement.  If you say it is all so plain vanilla, the awful prospect of a 3:3 division, you say, should not loom at all.

MR BENNETT:   That does not loom large, your Honour, although one always has the shadow of Gould v Brown if that occurs.  We would submit this is a case which is perfectly appropriate for remission.  There are no ‑ ‑ ‑

HIS HONOUR:   What factual issues are there in the case, if any?

MR BENNETT:   None, your Honour.

HIS HONOUR:   If it went forward, whether in this Court or another court – let us leave aside where for the moment – what factual base would be needed for determining the points at issue?  Are there any facts outside this?

MR BENNETT:   No, your Honour.

HIS HONOUR:   Does one need, for example, to bear in mind what happens under other superannuation arrangements other than government superannuation arrangements?

MR BENNETT:   One would not have thought so, your Honour.  It is common knowledge, of course, that private superannuation funds frequently have similar provisions or analogous provisions.  But, your Honour, we would submit it is a ‑ ‑ ‑

HIS HONOUR:   And that is not something the Commonwealth would wish to pray in aid? 

MR BENNETT:   One would not have thought it would be necessary, your Honour.  I suppose to the extent that they are factors…..notorious fact of which a court can take judicial notice, something referred to in textbooks on superannuation, for example.

HIS HONOUR:   There are lots of things referred to in textbooks on superannuation these days, Mr Solicitor.  The superannuation law is not easy, I think, to follow, is perhaps the politest thing I could say. 

MR BENNETT:   But, your Honour, we would submit that when one looks at the cases on forfeitures and the cases on penal provisions and so on, it is hard to see any room for the application of 51(xxxi) here, but that is a matter to be argued and, again, it is a fairly short constitutional point.   There are no facts which would be relevant, we would submit, beyond fairly straightforward uncontested facts.

Once the matter was dealt with by the Court of Appeal of Victoria, if there was an application for special leave, that would be considered on its merits if there is thought to be anything in the constitutional points.  But the

mere fact that the constitutional argument is raised does not necessarily involve the proposition that it is either difficult or important, as one sees frequently on special leave days.  So we would submit that the appropriate course is remitter, but if your Honour is not minded to remit it, the orders my learned friend has suggested would seem to be appropriate directions.  If the Court pleases.

HIS HONOUR:   Ms Mortimer, I am not minded to make any order for remitter at the moment.  That is not to say that at a later stage of this process questions of remitter may not re‑emerge.  I am minded to give you the directions you seek, bring it back on then at some suitable time.  I would be minded to bring it back on on Monday, 6 June 2005.  Do you wish to be heard against that?

MS MORTIMER:   No, your Honour.

MR BENNETT:   Is that the Queen’s birthday or the 13^th?

HIS HONOUR:   The 13^th is the Queen’s birthday, I think, Mr Solicitor.  So we are a week ahead of that.

MR BENNETT:   Yes.  Perhaps your Honour one might add the words “or any demurrer” in paragraph 1.

HIS HONOUR:   Yes. Then on or before 4.00 pm, 18 May 2005 the Commonwealth file its defence and any demurrer in answer to the plaintiff’s statement of claim; on or before 4.00 pm, 25 May 2005 the plaintiff file and serve any reply; on or before 4.00 pm, 1 June 2005 the plaintiff file and serve a draft case stated pursuant to section 18 of the Judiciary Act 1903 (Cth); and adjourn the matter for further directions ‑ ‑ ‑

MS MORTIMER:   Your Honour, I am sorry but can I just mention a matter about the date that my learned junior has just reminded me of.

HIS HONOUR:   Yes.

MS MORTIMER:   That he and I are opposed in a matter that is scheduled to be running on that day.  So if it is not inconvenient, your Honour, and ‑ ‑ ‑

HIS HONOUR:   Yes.

MS MORTIMER:   ‑ ‑ ‑ I understand the following Monday is the Queen’s birthday, would it be possible to be the Tuesday?

HIS HONOUR:   No.  The sittings are occurring in the week commencing Queen’s birthday.  On the following week there is a Canberra sittings followed by Brisbane sittings of the Court, so that it would have to fall in the week commencing the 6^th.  I would sit at 9.00 am if that would assist counsel.

MS MORTIMER:   Yes, 9.00 am would assist, your Honour.

HIS HONOUR:    If we say 6 June 2005 at 9.00 am or such other time as may be directed and if I make the costs of the directions costs in the proceeding?

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Yes.  There will be orders in those terms.  Adjourn the Court.

AT 10.35 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 6 JUNE 2005