Torney, Ex parte- Re Colina - [1999] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M85 of 1998

In the matter of -
An application for Writ of Prohibition against HERMIE GENEROSO COLINA (MARSHAL) OF THE FAMILY COURT OF AUSTRALIA
and
THE HONOURABLE JUSTICE BURTON OF THE FAMILY COURT OF AUSTRALIA
Respondents

Ex parte -
PRESIDENT TREVOR DONALD TORNEY
Prosecutor

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 JUNE 1999, AT 10.20 AM

(Continued from 15/6/99)

GLEESON CJ: Yes, Mr Redlich.

MR REDLICH: If it please the Court. We have provided the Court with some of the debate that took place before the final format of section 80 was determined and we have referred to that in paragraph 21 of our submission in which the wording was changed from “the trial of all indictable offences” to “trial on indictment”. We submit that from that debate and the wording that was adopted, the intent was made clear that the focus was to be on the nature of the proceedings rather than the nature of the offence. In our respectful submission, the well‑settled principles enunciated by this Court have reflected that distinction.

KIRBY J: So you say that the Parliament can simply abolish “all indictable offences” and it does not matter?

MR REDLICH: If Parliament chooses to say that an offence is to be heard summarily, that is the effect of section 80.

KIRBY J: And if Parliament said that that was to be so in all offences, section 80 would be spent until Parliament might revive later ‑ ‑ ‑

MR REDLICH: Section 80 would be spent if there was to be no proceedings before a jury. What section 80 does, your Honour, is to preserve all of the rights that are traditionally associated with trial by jury where that is to take place. As Justice Dawson said in Brown’s Case, there was absolutely nothing to indicate in the history of either the legislation or the decision of the courts of this realm that in any sense the flexibility that is left as a result of the interpretation of section 80 is likely to be abused.

KIRBY J: Well, that might be so but one must always test propositions by the extension of the logic of them.

MR REDLICH: Indeed.

KIRBY J: The extension of the logic of your proposition is pretty unpersuasive to me.

MR REDLICH: If I may say so with respect, your Honour, it has been the overwhelming view of this Court for over half a century with, I think, two notable exceptions, your Honour.

KIRBY J: Three.

MR REDLICH: Three. May I just make these further passing observations. In the motion moved by Mr Barton in the debates not only was focus directed to the need to preserve the right for summary hearings, but specific reference was made to contempts as being one of the bases for which the wording…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Torney, Ex parte- Re Colina

Details

AGLC: Torney, Ex parte- Re Colina [1999] HCATrans 156
Case: [1999] HCATrans 156
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Torney for a writ of habeas corpus, seeking the release of one Colina from custody. The application was heard by the High Court of Australia.

The central legal issue before the Court was whether the detention of Colina was lawful, specifically in relation to the validity of a warrant issued under the Migration Act 1958 (Cth). The Court was required to consider the interpretation of provisions within the Migration Act concerning the detention of non-citizens and the circumstances under which such detention could be challenged.

The Court's reasoning focused on the constitutional framework governing the executive power of the Commonwealth and the interpretation of statutory provisions relating to immigration detention. The Justices considered the scope of the Parliament's legislative power in relation to aliens and the implications of the High Court's previous decisions on the matter. The application for the writ of habeas corpus was ultimately dismissed.

Orders