Torney, Ex parte- Re Colina & Anor
[1999] HCATrans 154
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 TUESDAY, 15 JUNE 1999, AT 10.17 AM
Copyright in the High Court of Australia
MR D.A. PERKINS: May it please the Court, I appear with my learned friend, MR A.M. PASZKOWSKI, for the prosecutor. (instructed by Kuek & Associates)
MR H.J. LANGMEAD: If the Court pleases, I appear for the respondents. In respect of the second respondent, Justice Burton, there will be a simple submission to the orders of the Court in the usual way without submissions being adopted on his behalf. In respect of the first respondent, it is proposed to adopt submissions made by the counsel for the Commonwealth Attorney‑General. (instructed by Australian Government Solicitor)
MR R.F. REDLICH, QC: If it please the Court, I appear with my learned friend, MR H.J. LANGMEAD, for the Attorney‑General for the Commonwealth intervening and, if necessary, seeking leave to intervene. (instructed by Australian Government Solicitor)
MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MR S.G.E. McLEISH, for the Attorney‑General for the State of Victoria intervening in support of the first respondent and, if so required, seeking leave to intervene. (instructed by Victorian Government Solicitor)
GLEESON CJ: Yes, Mr Perkins.
MR PERKINS: If the Court pleases, I desire to put some submissions, first in relation to grounds 1 to 4. I indicate, as it may be a matter of some relevance to what I put in relation to those grounds, that the prosecutor has given notice that the first leg of ground 8 is to be abandoned.
GLEESON CJ: Where do we find that in the appeal papers, Mr Perkins?
MR PERKINS: That is towards the back of the appeal book on page 215.
GLEESON CJ: So the submission that, “The offence of scandalising the Court is obsolete” is withdrawn?
MR PERKINS: It is not pressed.
GLEESON CJ: Thank you.
GUMMOW J: That is the whole of paragraph 8?
MR PERKINS: It is the first leg of paragraph 8 only. We press ‑ ‑ ‑
GUMMOW J: It is the first sentence of paragraph 8?
MR PERKINS: Yes, and the removal of the word “Alternatively”.
GUMMOW J: Thank you.
MR PERKINS: If the Court pleases, the prosecutor submits that the present trial – I am addressing ground 1 – is a trial on indictment within the meaning of section 80 of the Constitution.
GLEESON CJ: Now, where do we find the indictment?
MR PERKINS: The indictment is found in the application brought by Mr Colina as the Marshal and it is on pages 12 and 13, particularly page 13, of the application book. It may not be clear whether there is a single charge with several counts but, in any event, it would be submitted that that makes no difference in principle. Perhaps I should for a moment point to some of the features that we say are relevant in consideration of this indictment on page 13, if it is an indictment.
GUMMOW J: Well, it is something done as required by Order 35 Rule 10, is it not, of the Family Court Rules?
MR PERKINS: When your Honour says “something done as required” by that order, there is permission in that order to do ‑ ‑ ‑
GUMMOW J: It says what the application must state, how it must be formulated.
MR PERKINS: Yes, but it is submitted that the alleged contempt as set out in paragraph 3 is a contempt not in the face of the court; it is a contempt which on the face of it does not make any allegation about the precincts of the court nor, the prosecutor contends, could it, given the references to the repeated expression in front of Marland House ‑ ‑ ‑
KIRBY J: I am not quite sure where we are going. Do you not have to have a theory of section 80 of the Constitution as to what the words “The trial on indictment of any offence” means?
MR PERKINS: Yes, your Honour.
KIRBY J: This document on page 12 does not purport to be an indictment. Is your contention that though it does not purport to be an indictment, it is in fact an indictment in law, or is your contention that the words “The trial on indictment of any offence” cannot mean that the constitutional guarantee is determined by the form of the document that initiates the proceedings but refers to the nature and seriousness of the offence, or is it both that you are arguing? I just do not understand your theory of the case.
MR PERKINS: It is both, and in answering your Honour in that way I refer to ground 2 on page 214 ‑ ‑ ‑
KIRBY J: But at the moment are you developing the first argument that the document on page 12, though titled an application and though not bearing the normal form of an indictment, is nonetheless in law an indictment for the purposes of section 80 of the Constitution?
MR PERKINS: Yes.
KIRBY J: What is the theory then of what is required by an indictment? What is an indictment in law? Where do we find its source and its definition?
MR PERKINS: We find the source of the definition in both common law and where there is an applicable statute in the appropriate statutes. Specifically in this case, it is contended that the provisions of the Commonwealth Crimes Act and, in particular, section 4 do apply and require the characterisation of this document and they require it for constitutional purposes as an indictment. If I may refer to paragraph 1.1 of the outline of the prosecutor’s submission – I apologise for the form of that document. The submission is that the cluster of documents which includes that on page 13 is or includes a document describable as an indictment ‑ ‑ ‑
McHUGH J: But how do you arrive at that? Historically, at common law, indictments were the product of proceedings before a grand jury. In the course of time various statutes are authorised the laying of indictment without the intervention of the grand jury. Now, there is no grand jury involved here. Where is the statutory framework which equates this procedure with an indictment?
MR PERKINS: The statutory framework is in section 4 of the Commonwealth Crimes Act and, in particular, the definition in section 4G, the definition of what is a corresponding crime in 4H, the empowering provisions in section 4J. It is contended that the expression “indictment” has the meaning given to it by the Commonwealth Crimes Act but if I may return to the matter that your Honour Justice McHugh raised, it is submitted that notwithstanding the absence of a grand jury, there has been until 1900 or 1901 the recognised procedure of proceeding by way of indictment and it is accepted that some of the authorities suggest the true meaning of an indictment is that it is a bill returned by a grand jury. It is contended that that is not an essential feature.
McHUGH J: But may not that be, in Australia at least, because of the provisions – is it 9 George IV Ch 83 which enabled proceedings to be brought by way of information as if they were on indictment in this country?
MR PERKINS: Yes.
McHUGH J: Is there any English authority, apart from statute? Did not English law intervene by statute in the 1930s, the Administration of Justice Act when they did away with grand juries in England? I have not looked at this for years but that is my recollection.
MR PERKINS: It has been suggested that it would be open that grand juries have not been abolished in Victoria, but that is not part of how the prosecutor puts the contentions. It is submitted that in an indictment, if one takes simply the common law statutorily unmodified meaning, is a document, or a charge in writing, which charges an offence which is triable by a jury. It may be thought that there is some circulatory in me putting it like that but in my submission a trial on indictment is, by its nature, something which is of a matter which is indictable and therefore one which requires in the absence of some statutory modification a trial by a jury.
KIRBY J: Is there any expression in any of the section 80 cases of what in the Australian context and for the purpose of section 80 the words “on indictment” mean, having regard to the common law and the history of the word?
MR PERKINS: In the context of section 80, I cannot point to any authority which considers that expression. There are ‑ ‑ ‑
KIRBY J: Because to me the word must have a meaning in the Constitution, quite apart from what is in the Crimes Act. The Crimes Act came along in 1914. But between 1901 and 1914 the word had a meaning.
MR PERKINS: Yes. In our submission, the meaning of the word “indictment” included a written charge of an offence triable before a jury. It is contended and hence the things that appear at point 1.1.1 and the following page, that there are some things that are essential to the nature of an indictment and some things that are not. But it is contended that the essential things include the fact that the offence nominated, or charged, must be an indictable offence, that the commencement of the proceeding must be by way of a written charge. It is contended that the question of whether an indictment may be ex officio is incidental to ‑ ‑ ‑
GLEESON CJ: But if your proposition is right, then section 80 means nothing, does it? If, by definition, an indictment is a document which charges an offence triable by a jury, what is the point of saying, “The trial on indictment of an offence shall be by jury”?
MR PERKINS: Because if it were not for section 80 it would be within the competence of the Commonwealth Parliament to do away with trial by jury in relation to existing indictable offences and the position ‑ ‑ ‑
GLEESON CJ: But I thought your argument that the essence of an indictment is related to the fact that it commences at prosecution which will be dealt with by a jury?
MR PERKINS: Yes, it is, and it is contended that upon the common law definition and meaning of indictment there have been added many statutory modifications, and ‑ ‑ ‑
GLEESON CJ: But suppose the Commonwealth Parliament, instead of legislating for the abolition of juries, simply legislated for the abolition of indictments, what would be the effect of section 80?
MR PERKINS: In our submission, if the Commonwealth Parliament simply legislated to that effect that legislation would be invalid. There is a distinction, in our submission, between the position which obtains as at Federation and the passing of the Constitution and the position which obtains now. It has been recognised in numbers of cases that in respect of the valid exercise of Commonwealth power it is open to the Commonwealth to enact fresh offences which need not be indictable offences. If that is what the Commonwealth does, it is open, it is accepted, for the Commonwealth to legislate to the effect that a particular state of facts will be an offence.
McHUGH J: But this argument will not run, will it, because section 80 proceeds on the theory that hitherto there has been no offence against the law of the Commonwealth. This Constitution creates the machinery by which you can have a law of the Commonwealth. So, from 1900, all offences against laws of the Commonwealth were new to the law. So, the theory of section 80 must be that you can recognise an indictment even though there is going to be some law of the Commonwealth in the future. You seemed to be arguing just then that a distinction was to be drawn between pre-1900 type offences which the Commonwealth could not do away with on indictment and post-1900 offences which they can.
MR PERKINS: That is, in effect, what is said in the supplementary submissions at paragraph 2, and it is submitted that it is open to say that trial on indictment is available in two classes of offence. The first class is indictable offences so classified by the common law at Federation.
McHUGH J: But what does that mean, because there is no common law of the Commonwealth? There are only statutory offences against the laws of the Commonwealth.
MR PERKINS: There are offences, it is submitted, which are offences against the law of the Commonwealth, albeit that they be common law offences such as conspiracies to offend against the laws of the Commonwealth, or conspiracies to undermine the authority of officers validly appointed pursuant to the laws of the Commonwealth.
McHUGH J: But nobody has every suggested, have they, that the indictable offence against the Crimes Act under section 81, or whatever the section is of the Crimes Act, is a common law offence. They are statutory conspiracies, are they not?
MR PERKINS: It is contended that it is open to the Commonwealth to recognise statutory conspiracies by legislation such as section 81. The proposition that is put at paragraphs 2 and 3 ‑ ‑ ‑
McHUGH J: It is not 81. I cannot remember what – I should know it. What is the section that deals with conspiracies? Section 86, thank you.
GUMMOW J: It has been renumbered, has it not?
McHUGH J: They are statutory offences, are they not? Even if they re‑enact the substance of the common law doctrine, they are statutory offences?
MR PERKINS: It is accepted that they, as they are expressed, are statutory offences but it is also accepted - and the reason for this is the line of authority of this Court which holds that it is open to mould criminal procedure, irrespective of section 80 of the Constitution. It is submitted that based on the distinction that is sought to be drawn in paragraphs 2 and 3 of the supplementary submissions, the result which is contended for in paragraph 4 then arises. It is submitted that it is not open where one simply deals legislatively with a known common law offence, rather than creating a new or differently expressed offence to change the nature – and I mean the nature of whether it is indictable or not indictable – of that offence.
It is submitted that whatever else may happen through the creation of fresh statutory offences which may, it might be thought, include some or all or even more of the elements of contempt, it would be open in that instance to redefine the fresh offence which may include the substance of contempt so as to make it a charge triable either summarily or on indictment. But it is submitted that contempt remains a misdemeanour which is an indictable misdemeanour at common law, and the powers which have been committed to the Family Court create no new offence. They simply deal legislatively with an offence which has already been created, it is contended, by the common law and which must, if tried, be tried on indictment because of section 80.
McHUGH J: What about larceny? Long before the Constitution was enacted larceny could be prosecuted on indictment or summarily. Are all larcenies required to be prosecuted on indictment so far as the Commonwealth was concerned?
MR PERKINS: In our submission the answer to that is to be found in the fact that the legislature has, in the Crimes Act, re‑enacted a number of offences which may have hitherto been common law offences and in so re‑enacting them, it is contended consistent with the authorities of this Court, it is open to the legislature to say this statutory offence shall be dealt with on the basis set out in the distinction drawn in section 4 of the Crimes Act, that is to say that the difference between an offence which is indictable and an offence which may be tried summarily.
GLEESON CJ: The theory that section 8 is a constitutional guarantee requiring trial by jury in certain cases is not one that is necessarily and always a theory in favour of the citizen. We happen here to have a citizen who would prefer to have a trial by jury but there are circumstances in which citizens might prefer to be tried summarily. For example, in New South Wales there are limits on the sentencing powers of magistrates that constrain the maximum penalty that is available if a matter is dealt with summarily.
MR PERKINS: Yes, I accept that that is so.
McHUGH J: And in sexual offences in New South Wales, and even in some murder cases, accused people elect to be tried by judge alone rather than by jury and I think, having regard to the nature of the matter, that they are likely to get a fairer trial in front of a judge.
MR PERKINS: Well, accepting also, with respect, that that is so and that there may on occasions be or be considered to be good reasons for that, it is not a case which, in any more than a factual sense, is of relevance. In our submission this is a matter concerning Commonwealth law. There is no such difference in regimes unless one accepts the difference provided for by section 4 but one cannot do that here because there is no basis for saying that the power to imprison is limited to a particular term of imprisonment and it would, on the face of it, appear to be the statutory scheme that requires the characterisation of this charge or these charges as indictable.
It is submitted that that arises from the sections that I mentioned, and in particular 4G, so this case involves no attack, if I may put it like that, on any alternative legislative scheme, on any scheme which allows majority verdicts in the case of States. Those things do not arise, it is submitted. It is submitted that this case relates solely to the exercise of federal jurisdiction and the manner in which it is to be seen as appropriate that a serious charge of an indictable offence be tried.
KIRBY J: Could I get your help on this? My understanding is that Bernasconi and R v Archdall held in this Court that the words “on indictment” leave it entirely to the Parliament to decide whether or not an indictment is the process for the particular offence and that there is no implication in the Constitution that there is some additional requirement that it be an indictment for serious offences. And then came the decision in Ex parte Lowenstein with the famous dissent by Justice Dixon and Justice Evatt in which they said that that would allow statute to mock the Constitution and later came the decision of the Court in Cheatle which did not have to review the decision in Archdall.
Does Archdall still stand as the authority of the Court to the point that it is entirely up to Parliament to decide whether or not an offence will go by indictment or has Archdall been, in some way, overruled by later decisions including Cheatle or by the logic of Cheatle? What is the authority of Archdall now, because if it is that it is up to Parliament to formulate the process and only what Parliament says is indictable is indictable, then you are finished on this argument?
MR PERKINS: We say ‑ ‑ ‑
McHUGH J: You have more than Archdall to overcome, you have Kingswell, have you not? Because Kingswell reaffirmed the earlier doctrine. It said in express terms that although section 80 applies if there is a trial on indictment, it leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily?
MR PERKINS: Yes. The contention that we put is that, in respect of those authorities, our contentions should not be seen as requiring them to be revisited or as taking their authority on ‑ ‑ ‑
McHUGH J: This is a very difficult argument, it seems to me. I think, speaking for myself, having read what I can make of the arguments that you seek to put, that your only hope lies in an all out attack on Kingswell and on the majority decision in Lowenstein and in Archdall.
KIRBY J: That is what I thought. I thought you were coming here to uphold the dissent of Justices Dixon and Evatt.
McHUGH J: Or Deane in Kingswell.
KIRBY J: Justice Deane.
MR PERKINS: The way that we seek to avoid that attack is, with respect, by drawing a distinction between the prospective exercise of legislative power, and we say that this case does not involve that, because this case does not involve an offence which is the creature of statute - - -
GLEESON CJ: Does your argument mean that if the Commonwealth Parliament enacts a law that says that if anybody spits on the floor of a public place he will be liable to a fine of $10, it is not open to the Parliament to provide that a charge of such an offence can be dealt with summarily?
MR PERKINS: No, on the contrary. We accept that it is open to the Parliament when it legislates, but not otherwise. It must express its will through legislating. We say that when the Parliament legislates, so as to create an offence, it is open to the Parliament to say this offence shall be one which is not to be tried on indictment, or that offence is one which is. The proposition that we put is that this offence, namely contempt of court, is an offence which is an indictable offence. Its status as such, it is submitted, has never been validly altered by the creation of a new offence.
It is submitted that if an enactment purports in relation to an offence which is an indictable offence and remains one, to provide a mode of trial other than that provided for by section 80, then there is an infringement of section 80. But we in no way deny the competence of the Parliament to create fresh statutory offences which, in the example of spitting, is no doubt to be thought to be one which would be at the lower end of the scale of seriousness and hence to invite the appellation summary.
T11 AR
It is submitted that the offence that is being dealt with here is an offence which derives from the common law and it is the offence which is still being used by the Parliament. It is a serious offence and it is submitted that in such a case, it is not open to the Parliament simply by a procedural piece of legislation to sweep away the protection provided – the guarantee, I would contend – provided by section 80.
KIRBY J: Well, that sounds awfully like an attack on Kingswell and the other decisions because if you say there is something beyond the mere mechanism of a procedure which is made from time to time by Parliament, then you are into the territory of the dissenting opinion of Justices Dixon and Evatt and Justice Deane. Otherwise, it is entirely up to Parliament to decide what procedure will be followed. You have to say inherent in the purpose of section 80, is that you cannot just walk out of section 80 by adopting the procedure, or as the Chief Justice said, by abolishing indictments altogether. You cannot do it because that would be to defeat the purpose of the Constitution and, therefore, there has to be some implication but serious offences of a kind yet to be defined, have to be on indictment because, otherwise, you render completely worthless the provisions of section 80 and that cannot have been the purpose of the Constitution.
MR PERKINS: Well, it is contended that the Crimes Act does, in fact, retain the distinction ‑ ‑ ‑
GUMMOW J: What has the Crimes Act to do with this? This all comes out of Chapter III and is a characteristic of the judicial power of the Commonwealth. There is a real question as to whether the Parliament, if it was so minded, could so interfere as to change the nature of the contempt power which inheres federal courts under Chapter III. I know at the moment the Parliament has said that this power is the same as those of the Supreme Court of Judicature in 1903, but they may not have said that and if they had not had said it, it still would have been there under Chapter III. If they had said something constrictive in nature that was really narrowing it, then it might be questioning the validity of the law of the Parliament. This is a Chapter III case. What is there in Chapter III that in the inherent nature of the contempt power that requires anything in the nature of an indictment?
MR PERKINS: I beg your Honour’s pardon, I did not hear the last ‑ ‑ ‑
GUMMOW J: What is there in the nature of Chapter III and the judicial power of the Commonwealth and as part of that, the contempt power that requires an indictment? That is the question you have to face up to and I do not think you face up to that by getting rid of Kingswell, even if you could.
MR PERKINS: It is contended that the power of this Court in relation to contempt is different ‑ ‑ ‑
GUMMOW J: Any court created by the Parliament under section 71.
MR PERKINS: Our contention about that is that what the Parliament has done in the contempt legislation included in the Family Law Act is that it has relied on a pre-existing offence, namely, contempt, and in doing so it has submitted that ‑ ‑ ‑
GUMMOW J: What is the relevant section of the Family Law Act?
MR PERKINS: Section 35.
McHUGH J: That only picks up the power given in this Court under section 24 of the Constitution.
MR PERKINS: Yes.
McHUGH J: But there is an anterior question. Section 24 purports to create a statutory offence of contempt. It is an exercise of a combination of the powers, no doubt, of the section 71 of the Constitution and section 51(xxxix) of the Constitution, but if 24 of the Judiciary Act had never been enacted, this Court would still have had power to punish for contempt because it would have been a power incidental to the grant of setting up this Court.
MR PERKINS: Yes, that is accepted, with respect.
McHUGH J: All 24 does is perhaps to put in statutory form what is already in the Constitution and the constitutional power may be far wider.
MR PERKINS: With respect, that is also accepted that it may be. The question that arises upon a consideration of section 35 is as to the power to try and there does not appear to be in section 35 an express power to try. Now, the submission that we make about that is that it appears from that fact inevitable that the power that is dealt with by section 35 is a summary power related to the Family Law Act and its objects. It is not to be seen or to be treated as creating a separate criminal jurisdiction in the Family Court to try what is at common law an indictable offence. It is submitted that the facts of this case do not raise, and they have been treated, I might add, by the Family Court as not raising the summary contempt power and so it is ‑ ‑ ‑
HAYNE J: Is your submission, then, a submission that is directed to one species of the genus contempt?
MR PERKINS: Yes, it is.
HAYNE J: That is, is your submission a submission confined to contempt by scandalising?
MR PERKINS: Yes, it is.
HAYNE J: And, is it a necessary part of that submission that the court established under Chapter III does not have as a consequence of its establishment any power to prevent scandalising by punishing those who do?
MR PERKINS: It is contended that in the case of Commonwealth offences that that may be so and that in this case it is so. It is contended that the provisions of the Judiciary Act, and in particular section 68 and the sections which follow it, create a criminal jurisdiction and in the case of offences against laws of the Commonwealth invest that jurisdiction in State courts and, if I may say so with respect, the proposition that a court may not or should not be able to deal with a matter of scandalising itself and do it itself is not to be seen as something which cuts across any necessary doctrine as to the law of contempt. The power to try for the offence of scandalising is to be seen as exercisable, in our contention, by courts set up under the constitution of the Judiciary Act to deal with indictable offences, criminal offences.
McHUGH J: But have you not got to face up to the language of section 35 of the Family Law Act which refers you to section 24 of the Judiciary Act which says by statute this Court has:
the same power to punish contempts of its power and authority as is possessed at the commencement of this Act –
that is, in 1903 –
by the Supreme Court of Judicature in England.
And does that not then direct you to what were the powers of the Supreme Court of Judicature of England in 1903? If they had a power of scandalising, then that power is picked up by section 24 and again picked up by section 35.
MR PERKINS: In our contention, that continuum which your Honour described is undoubtedly there, but the provisions in section 35 provide a power to punish contempts and that, in my submission, is not on the face of it, sufficient to invest a statutory Federal Court with the criminal jurisdiction to try what is an indictable criminal matter.
KIRBY J: How could that possibly be? How could you possibly punish unless you have the power to try? I mean, it would be an outrage that a court could punish without trying and finding guilty. That is inherent.
MR PERKINS: It is submitted, with respect, that it may sometimes be thought inescapably implicit that the power to punish carries with it the power to try but, in our submission, the plain words of the section do not do what one might have expected would be done and the section’s failure to create the criminal jurisdiction to try is, in our contention, consistent with the proposition that the contempt contemplated by section 35 is a summary contempt. It is not contended that there is no power where events occur in the face of the court to try and it is sometimes seen to decide immediately that there has been a contempt in the face of the court. This is quite a different situation calling for the application of different principles and it is submitted that the power to punish, and that is the reference to the power to punish contempts made in section 35, is a power which relates to summary contempts.
KIRBY J: That means you can try summary offences.
MR PERKINS: Yes, in our contention.
KIRBY J: Trying or conducting the trial is implicit in section 35. It is just that it is not implicit in respect of so-called indictable offences.
MR PERKINS: If I may say so, it is not implicit in the case of crimes. I accept that begs the question in a sense but the contention is that it is not implicit in the case of what is an indictable misdemeanour. The criminal jurisdiction of the Commonwealth, it is submitted, has been accepted as being exercisable through the investing by the Judiciary Act, sections 68 and following, with federal criminal jurisdiction. It is contended that that wide grant of power in the Judiciary Act in section 35 is consistent with the proposition that section 35 is to be limited to a power to punish things which occur effectively in the face of the Court but, if that is too narrow ‑ ‑ ‑
KIRBY J: Even that must be tried. You cannot just simply say, “Well, you’ve committed an offence and I punish you for it”. The common law steps in and requires you to give the detail of the charges, particulars of it, and carry out a trial. Therefore, “trial” is, even on your own theory, implicit. It must be inherent in your argument that section 24 of the Judiciary Act in respect of this Court also misfired and that we have no power, unless we can find it somewhere else, on indictment to try a person for contempt. Presumably in your theory the trial has to be conducted somewhere else and then the Federal Courts, this Court or the Family Court in the case of the Family Law Act, step in to perform the punishment function. It seems a very weird construction to impose on section 24 of the Judiciary Act and section 35 of the Family Law Act.
MR PERKINS: This Court would have a power – question whether it goes further – to try an offence of scandalising with a jury. It is our contention that that is significantly different from the position that obtains in the Family Court. There is no provision for trial of indictable offences in the Family Court. There is, on the other hand, provision by way of the things implemented in the Judiciary Act that I have referred to to try with a jury. It is contended that, whilst the reference is made to the powers of this Court – and it would be a question for this Court to consider in the event that there was an application to have an offence of scandalising this Court dealt with by a jury, but the distinction is between what this Court may do and what the Family Court may do. The Family Court is a court of limited jurisdiction and it is limited in ‑ ‑ ‑
GUMMOW J: But it is a superior court.
MR PERKINS: It is a superior court of record, it is accepted. It has, nonetheless, limited jurisdiction because ‑ ‑ ‑
GUMMOW J: Well, so do we. We do not try running down cases.
MR PERKINS: It is accepted, with respect, that ‑ ‑ ‑
KIRBY J: Tantalising though that would be.
MR PERKINS: The Family Court legislation lacks any provision to implement trial by jury. That is not to say that it may not be treated as implicit but it may be that the appropriate analysis is that the criminal jurisdiction, so far as it concerns offences against laws of, and I mean to include the authority of, the Commonwealth, is to be exercised, in the case of an offence in Victoria, by Victorian courts exercising Commonwealth criminal jurisdiction.
GLEESON CJ: Mr Perkins, I asked you earlier what was the indictment in the present case, and you said it is that which appears on pages 12 and 13 of the appeal book. Could I ask you, what is the law of the Commonwealth against which your client allegedly offended?
MR PERKINS: Our submission is that the law of the Commonwealth which is alleged to have been offended is the judicial authority of a statutorily created Federal Court; the offence of scandalising the legislatively created Family Court, in my submission.
KIRBY J: Do you concede that as at 1903, such a power existed in the Supreme Court of Judicature of the United Kingdom of England?
MR PERKINS: Yes.
KIRBY J: So why, following Justice McHugh’s question, do you not trace it through? Section 35 gives them the power of this Court. This Court has the power of the Court of Judicature in England. That court had the power to deal with scandalising, therefore, by that means, the Family Court has the power. What is wrong with that logic?
MR PERKINS: In our submission, the reason why that is wrong is the proper construction of the grant of power in section 35 and whilst I accept that one looks at the continuum and leads back, the grant of power in section 35 is, it is contended, incomplete, in circumstances where there are no provisions which would allow its full implementation. It is contended that where there is an indictable offence, the court, in dealing with that indictable offence must, at the very least, before taking any further step, if the charge is contempt by scandalising, consider the question of whether it is inappropriate to proceed without a jury.
In circumstances where that question arises, that is where the question of the appropriate mode of trial of the offence of scandalising the court arises, it is submitted, with respect, that the basic scheme of the Crimes Act is relevant. It is submitted that the objection, or lack of consent on the part of the accused is a relevant matter, and it is submitted that the fact that contempt by way of scandalising the court is an extraordinary or exceptional charge and only to be laid in exceptional circumstances, is another factor which is to be taken into account.
Another factor is the often expressed desire of the courts to avoid the contempt powers being seen as simply authorising some sort of personal redress on the part of a judge or judges who might be seen as not approving or liking things that are being said about the court, the judge or the judgments.
GLEESON CJ: Mr Perkins, what, in your submission, was the position in 1901 as to the usual practice in England or in the colonies before Federation before dealing with offences of this kind?
MR PERKINS: In the context of having abandoned the first part of ground 8, I think I have to abandon also the touchstone which was going to be the basis for implementing ground 8. To answer your Honour’s question, it is accepted that there were occasions on which scandalising the court were dealt with by a judge sitting alone. On the other hand, the procedure ‑ ‑ ‑
GUMMOW J: But dealt with on what procedure? Does this term “indictment” come into that procedure as understood in England in 1900?
MR PERKINS: In my submission, it would be more properly to be characterised as an information or a charge.
GUMMOW J: But laid by whom?
MR PERKINS: According to practice, either by the judge or as occurs more recently or as may occur by an appropriate officer of the court such as the prothonotary.
GLEESON CJ: The reason I asked the question was that the facts of the present case touch precisely on the point of difference between Justices Dixon and Evatt in Lowenstein and Justice Deane in Kingswell because he disagreed with their attempt at setting the bounds between those offences which Parliament may make punishable summarily and those which it may not and he disagreed with them on the question of the length of the possible term of imprisonment and the significance that may have and left it by saying that it was serious offences against the law of the Commonwealth that required trial by jury but Justice Deane looked at the history of offences which were punishable summarily and which were not punishable summarily as at the time of Federation and regarded that as important. If it should be the case that as at the time of Federation as a matter of history offences of this kind were not punishable on indictment, that itself, on Justice Deane’s approach, might have some significance.
MR PERKINS: Yes, that is accepted. I think if I may return to the step before that step, it is contended that as at immediately prior to Federation the question of the appropriate manner of trying for contempt by way of scandalising the court allowed the answer that it could be done in appropriate circumstances by the judge or the court but it was an offence which was an indictable offence and which it was appropriate to try by jury.
In our submission, there is no guidance in the authorities unless one retreats to the position that some way or other of dealing with this contempt is obsolete as to the circumstances in which propriety may require jury and on the other hand in which propriety may allow a judge to deal with the matter alone.
KIRBY J: This is propriety. This is simply a matter of the judge’s discretion or the judge’s assessment of what is necessary in the particular case. Why would we be involved in a matter of that kind? I thought you were here to challenge the legality of what had occurred.
MR PERKINS: Yes. It is submitted, with respect, that the circumstances of this case and specifically where this case may be seen as a case not connected with any particular case before the court, is a case which did not occur in the face of the court, what we contend, it is a case in which there was no attempt to divert or flavour, or change the course of justice. It is contended that, in those circumstances, it is not open to a judge to decide that this contempt which may involve his or her own personal dignity, is a matter which should be tried by that judge. It is contended that the proper administration of federal law requires, at least in the case of courts which, whilst by name may be superior courts of record, are still subject to the Constitution. It is contended that it is not open to such a superior statutory court to try matters in the circumstances that I have mentioned, by judge alone.
HAYNE J: Do you challenge then the statement of history that is most conveniently found in Director of Public Prosecutions v Australian Broadcasting Corporation 7 NSWLR, particularly at 595, where the court there described the history of prosecutions for contempt saying, amongst other things, that “procedure by indictment “is for all practical purposes obsolete”? The last known instance of trial on indictment being in R v Tibbits (1902) 1 KB. Do you challenge the history that is recorded at the first numbered paragraph on 595?
MR PERKINS: Your Honour, it is not contended that it would not be open, as a matter of history, to say that a procedure appears to be obsolete, but the question, in our submission, is where one goes, assuming that it has been obsolete or it is, or it is obsolescent, and what the effect of that is.
HAYNE J: It is not so much obsolescence so much as the proposition advanced there that from 1765, and after the undelivered draft judgment in Almon’s Case, courts in England claim jurisdiction to punish all contempts by summary procedure. Is that an accurate statement of legal history and if it is, what then follows from that history is, of course, a separate question? But, at the first level, is it an accurate statement of legal history?
MR PERKINS: Well, it is not, in our contention, in so far as it does not recognise that in cases such as Tibbits which are just post-Federation, the procedure of indicting a person for scandalising was still being followed and the contention of the prosecutor is that, as at Federation, there were two ways in which a contempt by scandalising might be dealt with.
It is contended that, because scandalising was an indictable offence, it was within the rubric of section 80 when it was passed and it may be that section 80 is to be regarded as having, either expressly or by necessary implication, done away with the power to try that indictable offence otherwise than on indictment. To go to the question of obsoleteness or obsolescence, in our contention, it adds nothing to a procedure which may for other reasons remain viable to observe that it has not been implemented for some time. One does not have to go as far as the proposition that common error sometimes passes as common law, and I apologise for not putting it in its Latin, but the mere fact of obsolescence in the absence of application of principle cannot, in our submission, be regarded as deciding the matter one way or the other.
GLEESON CJ: But one of the problems about the approach to section 80 taken respectively by Justices Dixon and Evatt in Lowenstein and the somewhat different approach taken by Justice Deane in Kingswell is that they do not seem to deal with the problem which may be largely a modern problem but was not unknown in earlier days that there is a wide range of offences dealt with, either summarily or on indictment, depending on choices made sometimes by the prosecution and sometimes by the accused.
CALLINAN J: And sometimes by a magistrate also, I think.
MR PERKINS: That is accepted, with respect, that there are occasions on which - for example, on a committal for trial, a magistrate may take the view, I think in some cases of his or her own motion, that there will be no committal for trial, that the matter will be dealt with summarily because of its reduced importance. I have to say I do not have a recollection of the extent to which the consent of the accused to that procedure is fundamental or the extent to which non-objection to that procedure may be applied by the magistrate.
McHUGH J: In New South Wales it used to be by consent. I do not know whether that still is the case. I think it was 377 of the Crimes Act of New South Wales enabled a magistrate to proceed summarily with the consent of the accused.
MR PERKINS: Yes.
McHUGH J: I am sure there are equivalents in other jurisdictions.
MR PERKINS: The problem here, it is contended, arises from the fact that there is as a matter of history a duality of possible procedures but there is, apart from the provisions of the Crimes Act, no legislative way of identifying that the matters which must be taken into account in considering the choices, that is, if section 80 is not such an enactment. It is contended that it is.
KIRBY J: You say it is contended that it is. I am really now completely confused as to whether you are supporting a reconsideration of the line of authority to adopt either what Justice Dixon and Justice Evatt said in Lowenstein or what Justice Deane said in Kingswell or some variation or whether you accept the authority of the Court, as I took you to earlier say, and do not seek to reopen those principles. Now, we had better get it absolutely clear because if you do not seek to challenge those authorities I will apply the established law.
MR PERKINS: I think we would seek to challenge those authorities.
GUMMOW J: You need leave, do you not?
MR PERKINS: I accept that. I trust my hesitation is apparent.
KIRBY J: It is not only apparent but it is a change of tack from about an hour ago.
McHUGH J: And it may also need 78B notices.
MR PERKINS: Yes, I do not think I could contend otherwise.
GLEESON CJ: What exactly do you seek leave to argue? Do you seek leave to support the view of Justices Dixon and Evatt or do you seek leave to support the view of Justice Deane or do you wish to contend for a different view again?
CALLINAN J: Or each of those in the alternative perhaps?
MR PERKINS: I think in the event that we seek leave to put this contention, I would be seeking leave to put them in the alternative so that the matter could be ‑ ‑ ‑
GLEESON CJ: Is there a third alternative or are there only two alternatives?
MR PERKINS: There are those two.
GLEESON CJ: Thank you.
GUMMOW J: What do you say – I still do not understand what you say is the law of the Commonwealth.
MR PERKINS: The law of the Commonwealth ‑ ‑ ‑
GUMMOW J: It seems to me if you succeeded in what you are now foreshadowing, you would still have to face up to what in this particular branch of jurisprudence is the law of the Commonwealth where one is talking about contempt which, to my mind, comes out of Chapter III.
MR PERKINS: It is contended that the law of the Commonwealth includes not only the statute law of the Commonwealth but that part of the system of common law which is specifically able to be called in aid in respect of Commonwealth functions.
GUMMOW J: When you are talking about the common law, it seems to me you are really talking about what is inherent in the nature of the judicial power of the Commonwealth under Chapter III.
CALLINAN J: Any law incidental to the enforcement of a Commonwealth law, is that the way you would put it?
MR PERKINS: Yes, with respect, it would be put in that way. It would also be put on the basis that the ‑ ‑ ‑
GUMMOW J: It is an offence against a law of the Commonwealth. True enough if proved, it is executed, no doubt, by some statutory procedures perhaps, but you have to identify an offence against a law of the Commonwealth, and this is an offence of scandalising the Court – a species of contempt.
MR PERKINS: Yes. The law of the Commonwealth that it is contended is involved is the law which relates to the judicial authority of the Commonwealth and, in particular, the judicial authority of the Family Court ‑ ‑ ‑
GUMMOW J: We have to find some sections, you see. We cannot leave it up in the air.
KIRBY J: What was your answer to Justice McHugh’s question concerning 78B notices, remind me? Were any such notices given? How did Mr Graham learn of these proceedings, just his usual vigilence or was it something more?
MR PERKINS: Section 78 notices were given. They ‑ ‑ ‑
KIRBY J: Do they sufficiently cover the point of the scope of section 80 of the Constitution? Where do we find the section 78B notices?
MR PERKINS: It is page 151, and the question raised is identified in paragraph 4. I think I can take it no further than to contend ‑ ‑ ‑
GLEESON CJ: There is no application for an adjournment to give a fresh notice on your part, so we will deal with your application for a leave to reopen in the light of all the relevant considerations, including that one.
MR PERKINS: If the Court pleases. I wish to refer to the supplementary submissions and to paragraph 6. The submissions are premised upon the distinction which I sought to draw, and which is set out in paragraphs 2, 3 and 4. Beyond asking that those contentions be read, in effect, I do not propose to address them further. I have referred to some of the relevant sections in what I have been putting to the Court and they are referred to in paragraph 11.
KIRBY J: Do I understand, in the light of your application to enlarge your arguments to rest on section 80, that paragraph 2 of the supplementary submissions have to envisage a third category? That is to say, first, indictable offences so classified by common law at federation. Second, indictable offences so defined by an enactment; and third, indictable offences as required by section 80 of the Constitution.
MR PERKINS: Yes, if your Honour pleases.
KIRBY J: Now, as to the first category, that is to say those indictable offences by common law at Federation, do we take it from that decision of the New South Wales Court of Appeal that at Federation in England a proceeding by way of contempt was regarded as indictable or could be proceeded by way of indictment in England?
MR PERKINS: Yes, in my submission.
KIRBY J: So that if you are incorporating by section 35, section 24 of the Judiciary Act, that does incorporate as at the time of enactment of the Judiciary Act the capacity at least to proceed by way of indictment for a contempt, at least a contempt not in the face of hearing of the Court.
MR PERKINS: Yes.
KIRBY J: Would it not be helpful to your case if you were to present to the Court a number of cases in England in the last part of the 19th century or early part of this century which illustrated the fact that contempts of scandalising variety did proceed by way of indictment? Are there such cases?
MR PERKINS: The case of Tibbits has been mentioned.
KIRBY J: Is that the last – that is said to be the last and was said to have been overtaken by more recent practice, but is there any other such case in England, in Australia or in the United States of America where they have a constitutional provision requiring jury trial?
MR PERKINS: Not where there is a constitutional provision. I have to say I am not aware of ‑ ‑ ‑
KIRBY J: Have you looked at the American authorities on this?
MR PERKINS: I have made some searches of the American authorities. In that vast sea of authority I cannot say that I have – I am sorry, I meant to say that I cannot guarantee that I have found anything that there may be. But if I may say so, with respect, the way that we put it is that in the end – and this might be thought consistent with our abandonment of the first alternative in ground 8 – that it cannot simply be that the courts look at something which is constitutionally required and say, in effect, well the Constitution is in this respect obsolete. The question of obsoleteness may be a good guide in many ways, but obsolescence of a procedure is, in our submission, not something which can be the stone on which all of this is to turn. In our submission, the matter must in the end be seen not as being one of obsoleteness in fact, but as a situation in which the principle still exists and is to be applied, or if the principle never existed that, of course, is another matter.
But it is submitted that this must be seen as being a matter of principle. Hence our abandonment of any statement about obsoleteness. The matter of obsoleteness if dealt with in the submissions at 1.7 which might conveniently be found at footnote 38. In circumstances that we have abandoned the first alternative in ground 8, I do not wish to say more about this than I need to – I am sorry?
KIRBY J: You do not rely on any of that?
MR PERKINS: No, it is perhaps fair to say that what has been put in point 1.7 and the sub-points of 1.7 perhaps brought out from the prosector’s perspective the irrelevance of the tag “obsolete”. There seem to be a number of procedures which are obsolete and, like whipping for non-payment referred to at 1.7.3, it could hardly be thought that as a matter of principle any court in this country would have an on-going application of such procedure.
That does not appear simply from the obsolescence of the proceeding. It is something that results from the application of principle and the disestablishment of principles that may have been inherent in the obsolete and abandoned procedure.
GLEESON CJ: Now, in addition to a number of points you wanted to make concerning section 80 of the Constitution you have some grounds relating to the particular facts and circumstances of this case.
MR PERKINS: Yes.
GLEESON CJ: Have you covered the points you wanted to make about section 80?
MR PERKINS: If I may be taken to have said what is set out in the first four and a half pages of the submission, I think I have.
KIRBY J: Does the abandonment of obsolescence involve abandonment of any argument based upon the decision of the Court in Lange and the consequences of the holding since the establishment of the Commonwealth of the implied right of free speech on matters of politics?
MR PERKINS: No, it does not. No, it does not involve an abandonment of those ‑ ‑ ‑
KIRBY J: You are going to come to that later as a separate head.
MR PERKINS: Yes, I am.
GLEESON CJ: I understood that to be one of your arguments relating to the particular facts and circumstances of this case.
MR PERKINS: Yes, it is.
KIRBY J: So your attack on scandalising as an offence is not that it is obsolete by the common law or in any other way but that it must now be read as subject to the decision in Lange and the right to speak on political powers and economic matters and social matters.
MR PERKINS: Yes, that is so, and, with respect, if one were to look at the law prior to its declaration in Lange it would be submitted that the things which it is appropriate to include or it is appropriate to have brought before a court by way of a scandalising charge would be things related to the administration of justice in particular cases.
KIRBY J: But this business of appropriate is rather difficult, is it not, because that is just a question of the exercise of the discretion of some prosecutor or of a particular judge? It is not a question of law. It is a question of discretion.
MR PERKINS: It is contended that there are some circumstances in which it may be merely a matter of discretion. It is contended that this is not one of them.
GLEESON CJ: Once you move away from your argument based on section 80 which calls in question the very procedure that is being adopted against your client in the present case, what exactly is the nature of the jurisdiction of this Court that you are presently invoking? For example, in so far as you argue that what was allegedly said and allegedly done by your client was not a contempt of court, that is an argument that seems to go to the merits of the charge. What is the jurisdiction of this Court that you are invoking once you move away from your section 80 argument?
MR PERKINS: It is contended that there is, in the circumstances of this case, a misuse of Commonwealth judicial power in that that power is being used in circumstances which infringe the right of the prosecutor to freedom of speech in its – I am sorry?
McHUGH J: No, finish your answer.
MR PERKINS: I was going to add to that that it is contended that in a federation the independence of – the repositories of judicial power and legislative power is essential and has been emphasised, and it is contended that this particular exercise of moving into the stifling, as it is contended it is, of speech about a political issue, involves a compromise of the principle of independence of judicial power.
GUMMOW J: That is a Chapter III argument.
MR PERKINS: Yes, your Honour.
GUMMOW J: If you are seeking to read down Chapter III - one way of putting it - to accommodate what you say flows otherwise from the Constitution as to freedom of speech.
McHUGH J: Am I missing a document? Where, in your submissions, is this argument raised about Lange? I have only two documents and unless my memory is getting worse than I think it is, I just cannot recollect any argument about Lange in this case.
MR PERKINS: The matter arises from ground 7 and the contention behind ground 7 ‑ ‑ ‑
McHUGH J: Yes, well that is ‑ ‑ ‑
GUMMOW J: That says “abuse of process”, that is a different thing.
McHUGH J: An “abuse of process”. There is not a word in your written submissions as far as I can recollect about Lange. I do not think the case is even mentioned, is it?
KIRBY J: I may have read it in the submissions of the Attorney-General of the Commonwealth.
McHUGH J: That is right because the interveners raised the question, but it is not raised in your argument as far as I can recollect.
GUMMOW J: It is certainly not under the 78B notice at 152.
MR PERKINS: I accept that, with respect.
McHUGH J: The rules of this Court in relation to written submissions, Mr Perkins, are there for the benefit of the parties as much as the judges and are certainly of great benefit to the judges, but I know you apologised at the commencement of your argument for these submissions and I assume that you are not responsible for them, but they are very unsatisfactory, to say the least, and on this particular point they say nothing.
MR PERKINS: With respect, your Honour is right and I apologise again. I accept that that is not sufficient.
GLEESON CJ: It is not for us, is it, to get into the merits of an argument as to whether your client committed a contempt of court? If the matter proceeds to trial, that will be the subject matter of the trial, will it not?
MR PERKINS: If this Court were to hold that there is a summary power to deal with the offence of scandalising, it is submitted that the application of the authorities would prevent the Court from proceeding summarily.
GLEESON CJ: But you want to argue, if I understand the argument, that Justice Burton cannot go ahead with a summary hearing of the kind threatened.
MR PERKINS: Yes.
GLEESON CJ: In addition to your section 80 grounds, you want to argue that there are reasons relating to bias, either personal or institutional, which prevent that threatened procedure and which should lead us to intervene at this stage to stop that procedure going ahead.
MR PERKINS: Yes.
GLEESON CJ: I have no difficulty understanding the jurisdictional basis of those arguments but, in so far as you are trying to persuade us that your client is not guilty, why is that our concern?
MR PERKINS: With respect, I do not put that contention. I refrain from putting it because it would be presumptuous, and I accept that it would not be a matter on which this Court could act and that it would not be a matter which this Court would investigate at this time.
KIRBY J: That is why I understood, after I had read the Attorney‑General for the Commonwealth’s submissions, that you might be putting an argument, though, as Justice McHugh has pointed out, you do not deign to mention it, that since the decisions in the so‑called Free Speech Cases, in particular Lange, that in so far as the common law had previously provided for an offence of scandalising the Court, that, subject to any limitations on the invasion of Chapter III, you have to read Chapter III with the implied free speech which is inherent in the democratic nature of the polity that is established and that you cannot therefore now hold that there is scandalising. It has become obsolescent by reference to the understanding of the implied right of free speech in the Constitution or the inability of the common law or of parliamentary law to cut down on the right of citizens to speak freely about matters of political, social or economic concern.
That is why I directed the question at the issue of obsolescence, but you have abandoned that, I understand, and I do not want to provoke you into changing your mind or course again because, unless you can raise it on that basis as a way of attacking the existence of scandalising compatible with the Constitution, really it is, as the Chief Justice has pointed out, a matter of the merits of the case and we are not at all concerned with that. That is a matter for the trial.
MR PERKINS: It is accepted that the mere merits of the case are not matters appropriate to ventilate here in this proceeding.
McHUGH J: I am not sure about that. I mean, on its face, it may be arguable that the material could not, given the implied freedom, be constitutionally permissible.
MR PERKINS: With respect, that argument I do desire to put and that is not abandoned but that is not the way it was considered – perhaps I might say there may be some further reflection about it, but it was considered that that was not what was raised by the first leg of ground 8.
McHUGH J: No, I know.
MR PERKINS: So, it is, on the other hand, contended that in circumstances where all that has occurred on the allegations themselves is political speech, it is not appropriate to use a procedure ‑ ‑ ‑
McHUGH J: Appropriate or lawful?
MR PERKINS: It is not lawful.
KIRBY J: That is not what ground 7 talks of. I mean, it is hinted at there, and if you look at it 10 times you might find it in some parts of it but it is concerned with an assertion that it is an abuse of process. It does not say, “It is not constitutionally permissible to proceed by way of contempt for scandalising the court in the circumstances of the charge, having regard to the implied right of free expression found in the Constitution”. Now, that it is not there and it has not been the subject of 78B notices and it is not even mentioned in the slightest whisper in your written submissions. It is really a most unsatisfactory failure to focus on the legal contentions that are to be argued.
GLEESON CJ: Would such an argument be consistent with a decision of this Court in Gallagher?
MR PERKINS: In my submission, it would. The case of Gallagher was quite a different type of case, in our submission, because of the direct relationship between the allegations of scandalising and a particular case and that, in this case, is entirely absent and it is submitted that ‑ ‑ ‑
GLEESON CJ: I am looking at paragraph B on page 13 of the appeal book which sets out details of the alleged contempt. That is matter of a kind, is it, which you say is covered by this implied right of free speech and cannot, by reason of that right, lawfully be charged as a contempt?
MR PERKINS: Yes, in our contention, I may not have sufficiently called attention to the absence of the ability to contend, and it is not contended, that the front of Marland House is, or is equivalent to, the precincts of the court.
KIRBY J: Is there not a New South Wales authority on this, a person who was handing out pamphlets outside the District Court.
McHUGH J: That is Fraser.
GLEESON CJ: About alleged police verbals?
MR PERKINS: Yes, there is.
KIRBY J: Was that unanimous? Is that authority questioned?
MR PERKINS: The feature that it is contended removes this case from that is that this set of actions, assuming the things alleged by the prosecutor, is part of a set of statements which involve Commonwealth enactments and powers being exercised pursuant to those enactments.
This case directly, it is submitted, raises the question about the right to ventilate or to exercise one’s rights to speak about legislative change and about the unsatisfactoriness of either decisions being made or the legislative framework which permits them to be made.
GUMMOW J: That may be an important question, but it seems to me that there is a duty imposed on the Court by 78B(1) of the Judiciary Act not to proceed with it, because you have not given notice.
KIRBY J: Why is not the correct procedure for us to adopt, you not having raised the matter in your originating document clearly, you not having given 78B notices on the point, the point being, at least, potentially an important one, which is mentioned in some of the Free Speech Cases, and it not even been whispered at in your written submissions, for this Court to say, “Well, we just will not deal with that matter”. You can take the point at a trial, if a trial takes place, if you fail on the other point. That will be time enough for the issue to be refined and presented and relied upon in this Court later. ‑ ‑ ‑
GUMMOW J: With some facts, fact finding. There were detailed directions hearings before Justice Hayne, were there not?
MR PERKINS: Yes, they were.
GUMMOW J: Was this matter mentioned in the course of those, this point, the Lange point? Looking at the transcript, his Honour went to great pains to try and get this matter in an orderly form.
MR PERKINS: I accept that, with respect. His Honour did and ‑ ‑ ‑
HAYNE J: And also to confine the grounds, or rather more accurately put, to ensure that all of the grounds on which you relied were the subject of notice to opposite parties, and that this did not happen before the Full Court. The points were lately thought of.
MR PERKINS: I think I must accept what has just been said but may I say, in so far as what was said related to the grounds, it is not the circumstance in which we seek to add a ground, it is submitted that ground 7 is sufficient, and we ‑ ‑ ‑
GUMMOW J: Assume one is against you on that, what is your answer to what Justice Kirby said to you as to what should happen? It seems unanswerable to me.
MR PERKINS: I would accept that it would be. With respect, I could not answer that. If the Court is minded to act on a view of the matter, I would accept that it would be open to act in the way that has been foreshadowed by your Honour Justice Kirby. I would, with respect ‑ ‑ ‑
GLEESON CJ: Just excuse us for a moment, would you please, Mr Perkins? The Court is of the view that this point is not covered by ground 7.
MR PERKINS: If the Court pleases.
GLEESON CJ: Now, that brings you, I think, to the bias questions, does it not?
MR PERKINS: Yes. I would want to refer the Court to the submissions which are set out at 1.8. I want to refer – may I ask that my submission up to 1.8.2 be taken as read.
GLEESON CJ: Yes.
MR PERKINS: I wish to address something in relation to 1.8.2. It is our submission that there is a distinction to be drawn between courts which are courts of first instance and appellate courts in this respect and, in particular, in the respect identified at 1.8.2 of freedom from outside interference, including other judges. Now, it is submitted that where one is dealing with a trial court it must be clear that the judge deciding an issue is to have complete liberty to decide without ‑ ‑ ‑
GUMMOW J: Let us assume, unless the contrary is show, I suppose.
MR PERKINS: Yes, your Honour, but it is something which, in our submission, influence from other judges in circumstances where the other judge is not a party to the hearing and all its incidents is, on the rare occasions that it can be postulated, something which is contrary to the requirements of judicial independence which derive from the Constitution.
KIRBY J: Now, I do not quite understand what your submission is here, because the written submissions are very obscure. Is it that your client was entitled to stand outside the Family Court and say the sorts of things that are mentioned on page 13, but that nobody on behalf of the Family Court had any right to respond? It seems a very curious notion of free speech – or could not respond without then being the subject of the accusation that everybody in the Court is biased and cannot properly try the contempt that is charged against your client. I mean, that seems to extrapolate - takes lots of steps to get to that point from the fact that a media officer of the Family Court at some time says something on behalf of the Chief Justice.
MR PERKINS: It was not the media officer, with respect, it was the Chief Justice himself.
KIRBY J: But the Chief Justice is not trying the case. Why is there a vicarious liability on the part of the judge assigned to try the case for what was said by the Chief Justice, assuming that in some way to have demonstrated the tendency? How can you taint the whole Court?
MR PERKINS: The Chief Judge, it is contended, has, by virtue of his position, an authority, at least in some matters, which is greater or is perceived as being greater than other members of the Court.
McHUGH J: It certainly is not, and I hope it is not perceived that way. I do not think too many Chief Justices of my acquaintanceship would think ‑ ‑ ‑
HAYNE J: And see the error of their ways very quickly.
GLEESON CJ: I do not intend to give any evidence in this matter
MR PERKINS: Yes, this is not a matter of personal dynamics, with respect.
GLEESON CJ: But what he has is a responsibility and that includes a responsibility on occasions to protect the Court. What is he supposed to do? Stand by and not answer these accusations or these allegations without thereby disabling any member of the Court from dealing with a contempt case?
MR PERKINS: The question whether the allegations constitute contempt is a matter that has to be adjudicated upon. One might think that if a journalist weighed in and published his or her views about the contempt in a way which assumed a particular view of the matter, that that would have the capacity even for judges sitting alone to affect the judgment which may in many respects be discretionary or partly so as ‑ ‑ ‑
GUMMOW J: No, we have to get down to tin tacks. Section 21B of the Family Court Act imposes by force of the statute certain responsibilities on the Chief Justice of that court, does it not? It says:
The -
judicial officer –
is responsible for ensuring the orderly and expeditious discharge of the business of the Court –
That is not a section found in all legislation establishing Federal Courts but it is in this one.
MR PERKINS: Accepting that that is one of the functions of the Chief Judge, it is not a function which would, for example, entitle a Chief Judge to hasten the dispatch of business by pouring scorn, if that is what happened, on a particular set of views expressed by a person in the course of political speech.
CALLINAN J: Mr Perkins, this is what, an apprehended bias point, is it? Is that what it really is?
MR PERKINS: Yes. In my submission, whilst the authorities do not necessarily bring together the twin pillars of judicial independence and bias, they, in my submission, rather overlap.
CALLINAN J: Can I ask you another question. It is an apprehended bias point in substance. That is correct. You might want to make that point by reference to the pillar of judicial independence and perhaps other matters, but fundamentally that is what the point is, is it not, an apprehended bias point?
MR PERKINS: Yes, it is.
CALLINAN J: Well, why are we hearing it on a prerogative writ application?
MR PERKINS: Because it is contended that if it can be shown that a particular court has an actual personal or organic bias, it is respectfully submitted that that is a matter which would entitle this Court to grant prohibition.
CALLINAN J: Is not that an appeal point really, that the issue of apparent bias will itself first be tried in the Family Court, or wherever the contempt proceedings are brought, and then if in fact there is apparent bias or bias, that would afford a ground of appeal. I do not see it immediately as a jurisdiction point.
McHUGH J: This Court has issued prohibition to the Family Law Court on grounds of reasonable apprehension of bias on a number of occasions. It did in Watson’s Case. There are a number of cases.
MR PERKINS: Yes.
KIRBY J: That is the particular justices of the court, not to the whole court. To get up for prohibition or for the prerogative type relief, you really have to either establish the corporate disqualification of every judge of the Family Court so that this contempt, if it be a contempt, cannot be remedied in the Family Court at all and probably cannot be remedied anywhere, or you have to argue the Canadian authority about some sort of organic, which is the same thing. You have to really argue some sort of vicarious disqualification of every member of the Family Court. Is that not right?
MR PERKINS: Yes, I think it is, with respect. I am not sure that it was ‑ ‑ ‑
KIRBY J: That is what you would seek to do, is it not?
MR PERKINS: Yes. I was not proposing to put it on the basis of a vicarious disqualification.
GUMMOW J: The only writ you seek at the moment is directed to a particular judge, is it not? What you seek is an order restraining that judge from proceeding. Is that not right?
MR PERKINS: Yes, it is.
GLEESON CJ: But there is nothing about that judge that is different from any other member of the court? Nothing about what that judge has said or done is different from any other member of the court?
MR PERKINS: Yes, that is so.
KIRBY J: That is why I used the word “vicarious”. You are trying to make him in some way tainted by the actions of the Chief Justice. How do you do that?
MR PERKINS: Yes, I accept the use of the word, with respect.
KIRBY J: It is not an accurate legal description but you know what I am meaning.
MR PERKINS: Yes.
KIRBY J: Now, how do you make the actions of the Chief Justice affect the particular judge against whom you seek relief? Is this some theory of yours that all judges march in step with the Chief Justice of the court?
MR PERKINS: Not at all. The circumstances of this case include the circumstance that the Marshal can only act in circumstances where his authority is within the matters defined. I refer to sections 38N(2) of the Family Law Act, and to 38P.
KIRBY J: That has nothing whatever to do with a judge of the court. These are officers of the court. We are talking here about the judges of the court who hold independent commissions under the Constitution. It is a scandalous suggestion that they would march simply in harmony with their Chief Justice and not exercise their independent constitutional commission. It is completely alien to our whole notion of judicial independence.
MR PERKINS: With respect, may I highlight a couple of things in section 38P? The responsibilities of the Marshal are dealt with in that section and 38P(2)(b) makes what is clearly an appropriate provision for the matters there referred to. Nonetheless, the bringing of an application for contempt by way of scandalising the court is not within those functions, nor is it ‑ ‑ ‑
GUMMOW J: That is a different point. What is the basis in the statute or the rules which supported the taking of the steps by the Marshal here?
HAYNE J: It is Order 35 rule 3(2), is it not? Order 35 rule 3(2) as engaged by Order 35 rule 2(e)(i).
GUMMOW J: The court directed the Marshal presumably.
MR PERKINS: Yes, I was going to refer to section 38N(2) as the statutory basis upon which the Marshal may have acted here and it is submitted that the power and function of bringing this prosecution must have been, assuming regularity, pursuant to section 38N(2) and, specifically, by reason of a power or function given either by the Act or the Chief Judge, and it is submitted ‑ ‑ ‑
GUMMOW J: What is wrong with Order 35 rule 3(2)? You do not submit that rule ‑ ‑ ‑
MR PERKINS: I am sorry, Order 25?
GUMMOW J: Order 35 rule 3(2):
The Family Court may direct the Marshal to make an application under this Order.
It is not suggested that rule is made beyond power.
MR PERKINS: That order, as submitted, deals with contempt in the face of the court ‑ ‑ ‑
HAYNE J: Is it not engaged by Order 35 rule 2(e)(i), “contempt of: (i) the Family Court”, that is, contempt in any of its forms?
MR PERKINS: It is submitted that it is not, for this reason, that rule 2(e)(i) applies where there is an allegation made by someone other than the Marshal, and someone other than the court. It is submitted that that is to apply in the case of an allegation of contempt by a litigant and that is one of the fundamental things which it is submitted is missing in this case.
HAYNE J: On that construction, Order 35 rule 3(2) would have no work to do whatever, if that construction be right. The court may, under that subrule, “direct the Marshal to make an application under this Order”, no matter where the information comes from: litigant; judge; third party; whatever.
MR PERKINS: I think I will not add anything to my submission about that.
GLEESON CJ: We only get to this argument on the assumption that what your client did was capable of constituting a contempt of court. If that assumption is not correct, we do not get to this argument.
MR PERKINS: Yes.
GLEESON CJ: All right. Assuming that what your client did was capable of constituting a contempt of court, what exactly is the conduct on the part of the Chief Justice that you say has now forever immunised your client against the consequences of that contempt?
MR PERKINS: The conduct of the Chief Judge is conduct which goes to the ability to adjudicate the conduct ‑ ‑ ‑
GUMMOW J: Whose ability?
GLEESON CJ: But where do we find it? What exactly is it?
MR PERKINS: The conduct is his addressing the public and assembled judges in circumstances which show in effect a joining of issue by the Chief Judge in relation to many of the criticisms of the Family Court which are made, if the allegations are accepted, by the prosecutor.
GLEESON CJ: You mean that Chief Justice Nicholson contradicted the allegedly scandalous assertions?
MR PERKINS: Yes, he did that.
GLEESON CJ: Well, what is wrong with that?
MR PERKINS: The truth or otherwise of the proposition that those assertions are scandalous and the truth or otherwise of their scandalousness is the very matter which is to be considered in the event that there is a trial.
GLEESON CJ: You mean there is a possibility that Justice Burton would have concluded that the statements referred to in paragraph B on page 13 were correct, had he not been interfered with by the Chief Justice’s comments.
MR PERKINS: It is contended that the very issues which arise in the course of the adjudication of a charge of contempt are the issues in respect of which the Chief Judge has published views. That has ‑ ‑ ‑
KIRBY J: Where do we find these views on which you rely?
MR PERKINS: Page 134 is the exhibit note. The address to the judges is something which commences on page 135 and ‑ ‑ ‑
KIRBY J: Is your argument something along these lines, that it would be all very well if your client could have his say and the Chief Judge, on behalf of the Family Court, could have their say ‑ ‑ ‑
MR PERKINS: Yes, your Honour.
KIRBY J: And that is the marketplace of ideas and that is left to citizens to make up their own mind. But where the Chief Judge enters the fray and has his say in a way that contradicts your client’s say, there is then something offensive in the Family Court itself reinforcing the say of the Chief Justice by commencing contempt proceedings against your client.
MR PERKINS: Yes, your Honour.
GLEESON CJ: What is the best example that we find in the evidence of the Chief Justice contradicting, as you say, what your client has said? Is it the bottom of page 137?
MR PERKINS: Yes, and as one goes through that section one finds on page 138 what in our submission is a direct intervention in the political process – I withdraw that. What it is is a comment upon the exercise by dissatisfied people of those people exercising their political rights and at line 12, in particular, one sees the Chief Judge making comments to the effect that there is something inappropriate for people to be putting complaints through the political system to their Members of Parliament. Now, with respect, it is not suggested that the Chief Judge, like all others, judges and non-judges, is entirely entitled to his views as well as his analysis, but there is in these words a suggestion that the exercise of judicial power by the Federal Court is not the proper subject of statements by way of complaint and comments which may be part of what he refers to as the culture of complaint.
It is submitted that absent a contempt charge the vice we contend exists in these remarks would be, in many respects, completely beside the point but given that there was – given the contempt charge, it is submitted.
GUMMOW J: Well, you fix on 138, line 30, do you?
MR PERKINS: Yes, that is part of it, but line 24, that statement with which the client does take himself to be identified and I accept that that is his act, perhaps - he accepts that he is identified with men’s groups - and so it is raised in his mind, or one would say it is raised in the mind of somebody reading these statements, whether it is not a received view of those who are presided over by the Chief Judge that ‑ ‑ ‑
GUMMOW J: You say people are free, if they want to, to try and bring about changes in the law to the disadvantage of one sex.
MR PERKINS: With respect, that is not what I am contending for.
GUMMOW J: No, but that is assumed to be something that is a discreditable activity.
MR PERKINS: Yes.
GUMMOW J: Yes, you say it is just an attempt to change the law.
MR PERKINS: Yes, everything that is said between line 24 and line 32 ‑ ‑ ‑
GUMMOW J: There is nothing necessarily sinister in trying to bring about a change in the law.
MR PERKINS: No, but that is what we contend. But to attribute without evidence or analysis to those involved in demonstrating or attempting to change the law, sinisterness, or as appears at lines 27 to 28:
a complete absence of concern for children other than as objects, their rights and entitlements.
That is, in our submission, tarring, it appears to be men – but at least men who complain – with the comments that the Chief Judge is making.
HAYNE J: Let it be assumed, purely for the purposes of argument, that the paragraph about which we are now talking is understood to mean, or understood to include reference specifically to your client. What is it you say that follows from the Chief Justice saying that?
MR PERKINS: What follows is that in the Chief Justice saying that, or as a result of the Chief Justice saying that, there is an absence of the ability of those who may be affected by that rhetoric, as I would with respect say it is. It is a situation which ‑ ‑ ‑
GLEESON CJ: Judges spend their entire life listening to rhetoric.
MR PERKINS: I accept that, with respect.
GLEESON CJ: Your argument might have a certain force if this were to be a trial presided over by Chief Justice Nicholson, but the question that was put to you invites attention to the step that you take in the direction of Justice Burton. What exactly is that step?
MR PERKINS: The step is this: that the things that have been said by the learned Chief Judge either influence – and I would say that we do not have evidence of influence – or give the appearance of having a propensity to influence the judgment of those before whom those remarks are made.
HAYNE J: The unexpressed premise of the argument is that the trial judge will follow what the Chief Justice has said, is that the premise?
MR PERKINS: No, it is not.
HAYNE J: If it is not, what is the premise?
MR PERKINS: The premise is that the appearance given by the stating of these words and these views, is that they are things which may affect – and I can, as a matter of fact, put it no higher – either the judgment or the approach taken to the matter generally, or they may affect the way in which this particular prosecutor is seen by any of the judges hearing those remarks. I accept, with respect, what your Honour Justice Kirby said about the obligations that arise and which can be expected to be attended to upon the taking of oath of judicial office.
KIRBY J: But would it not be fair to say that it would only be a person ignorant of the judicial institution, ignorant of our Constitution, ignorant of the requirements of Chapter III, ignorant of our history who would assume that a judge would go into court and abjectly supinely perform what the Chief Justice has said in a media release rather than listen to the evidence and determine the matter on the basis of the facts proved in the case.
MR PERKINS: The aspects of abjectness and supineness are not, in any way, part of ‑ ‑ ‑
KIRBY J: But that is what you require. You require that to be assumed, that that is what is to be attributed to the reasonable observer in the public; that the courts are like corporations where judges do the bidding of the chief executive. That is a complete negation of our constitutional history.
MR PERKINS: I make, in these circumstances, no allegation of actual bias, and I do not, with respect - I contend that I do not need to rebut such a suggestion, and that the matters that your Honour Justice Kirby put to me ‑ ‑ ‑
GUMMOW J: No. But his Honour was putting to you that what you have to say is the reasonable reaction, and his Honour was questioning that.
MR PERKINS: In circumstances where ‑ ‑ ‑
GUMMOW J: It would be unreasonable to have that reaction by reason of all the matters his Honour was putting to you.
McHUGH J: It goes beyond that because, it would not only be the appearance that it would somehow affect the judge, but that the judge would not be open to any form of argument, and it is that latter condition which is overlooked time and time again. So far as I am concerned, judges should only be disqualified in terms of appearance of bias for this sort of argument when a conclusion can be reasonably drawn that no argument will change their minds. The fact that a judge has expressed a view on a previous occasion does not mean that the judge will not change his or her mind after you hear argument. I have done it on hundreds of occasions. I have seen other judges do it on numerous occasions, and that is the issue.
Let us look at what the issues that underlie this charge of contempt. What will they be at the trial, assuming there is a trial? One, whether these words were spoken. Two, whether they were likely to lower the estimate of the Family Court in the eyes of the community. Three, were the words true or fair comment on a matter of public interest, or published under qualified privilege of the constitutional protection, as the case may be? How can you draw the conclusion from what you have referred us to at page 138 that a Family Law Court Judge could not fairly try those issues by reason of these laws?
MR PERKINS: With respect, in my submission, what your Honour has put to me is appropriate to be put in circumstances where I may make an allegation of actual bias. In my respectful submission, in cases such as the one your Honour mentioned of Armstrong, it may not have been thought that the things that had happened showed irredeemable bias. I accept that judges change their minds, I accept that judges listen. I put nothing to the contrary of that at all but, with respect, in this case you have in effect the Chief Judge, the notional head of the court, making remarks which are very much bound up with the authority of the court in themselves. Whilst it may well be that you can postulate that particular judges would be completely unaffected or, as some of the authorities talk about, might go so far the other way to shake off any notion of imputed bias, that the reality would be that the trial would be fair. That is not ‑ ‑ ‑
CALLINAN J: Mr Perkins, the other point I suppose you have got is that the remarks may not be so relevant to the actual commission of the offences of contempt as they are to the punishment that should be imposed, having regard to the character of the person making them and the nature and content of what he made. If those remarks could be regarded as being in relation to your client, there are factors there that might be relevant to the question of punishment.
That may be an argument; I do not know. In other words, a person engaging in the grossest form of harassment and deliberately doing so might attract a greater punishment for contempt than perhaps a person who is not doing it with that sort of motive or intention. In other words, you have to look at both punishment and the commission of the offence.
MR PERKINS: Yes. If I may say so, could I take up what was just put by saying this, that it is the very question of the bona fides of my client or of these groups which is in issue and the remarks of the learned Chief Judge, in my submission, leave no doubt as to what his view of that matter is.
McHUGH J: That is his view at the moment but even the Chief Judge himself was trying the case, it would seem to me that there would be a serious question as to whether or not he would be disqualified because the fact that he makes these statements on a particular occasion does not mean that when he hears the evidence in detail or the evidence that you would want to put forward on behalf of your client that he would not want to change his mind. That is what judges are about, listening to the evidence, determining the case on the evidence and the submissions of counsel.
KIRBY J: You have to say that when the great helmsman speaks it is forever finished, that the judges cannot do their duty.
MR PERKINS: With respect, I do not say that.
KIRBY J: Well, you have to say that then the public will never thereafter believe that a judge will harken to the evidence and determine the matter on the evidence and on the argument.
MR PERKINS: I trust I am not repeating but, in my submission, tests about actual bias are not this case. I do not put this case on the basis that there is a demonstrated actual bias either on the part of the Chief Judge or on the part of Justice Burton.
McHUGH J: I am sorry to interrupt you, but you must put it on the basis that in the public mind judges are not independent when their Chief Justice speaks. That must underlie the whole of your submissions.
GLEESON CJ: Well, there might be a superficial, even if narrow, attraction to that notion, Mr Perkins, but perhaps we could come back to it at 2.15.
MR PERKINS: If the Court pleases.
AT 12.53 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.19 PM:
GLEESON CJ: Yes, Mr Perkins.
MR PERKINS: I wonder if I could just, on passing, add consideration of section 4 – no capitals, no sub-letters – of the Crimes Act to my argument, in relation to section 80. I am not going to address it. I want to refer the Court to it, nonetheless. I was asked - and I wanted to take the Court to the relevant parts in the application book - how, as a matter of fact, in the instant case, it is said there has been a lack of institutional independence on the part of the Family Court. I wish to make some references to – perhaps, if it is convenient, I will say the pages I am going to refer to and then I will refer to them specifically – to pages 128 and 129, 132 and 133, 137 through to 139, 142, 193, 196 and the several following pages, and page 199.
GLEESON CJ: Suppose that, instead of making a speech to a gathering of judges, Chief Justice Nicholson had himself dealt with the case of contempt by scandalising the court a year before this case came before Justice Burton, and suppose in his judgment in his case Chief Justice Nicholson had said, “Contempts of this kind are too frequent; they are very serious threats to the integrity of the court and they must be dealt with when proved with the utmost severity”. If he had issued a judgment along those lines a year before, would that have any effect on disqualifying Justice Burton when he came to deal with this case?
MR PERKINS: No, I would not contend that it would and, if I may say so, the reason that I would not make such a contention would be that absent from the example that your Honour the Chief Justice gives is any suggestion that his Honour in so coming to the views he expressed was influenced by any matter not available for him to be influenced by on the material in the case which we postulate he was dealing with.
Now, in my submission, there would be no basis upon which it could then be contended that his Honour on any evidence was guilty of any bias, technical or otherwise, or of a lack of independence in the way that he came to that judgment. With respect, that highlights one of the differences between what he did and what he might have done. It is our contention that judgments are to be arrived at on the basis of the instant case or cases and not on the basis of the application of something which may well be seen as the policy of the court there to be arrived at on the basis of the consideration of the given case, and there are indeed a couple of instances in the published remarks of the learned Chief Judge which highlight the very matter that your Honour the Chief Justice has raised.
If I may I will come to those in a moment but I was going to take them in the sequence in which they appear in the application book, things that I wish to rely on appear. I am starting with page 128 and I say that it is not without significance and it can be put more strongly than that that these remarks are seen to be coming at a time when there are pending contempt charges against the prosecutor and you can pick out, one might think, several features about the prosecutor and if you work on those features, in the end you may well have created an atmosphere of disadvantage if you say things to the disadvantage or disparagingly about the prosecutor as a litigant.
So, on page 128 there is a television program in which the learned Chief Judge of the Family Court is being interviewed. Now, it is not put at all that judges may not or should not select occasions upon which they may say things to the media. That is a matter which, as the extract from Justice Thomas’ book, which is included under the heading “Public Commentary by the Judiciary” at footnote 71 of my submissions, something upon which various judges may have and apply different opinions and it is not suggested that there is anything wrong with that. At page 128, lines 19, 20, 21, 22, 23 and 24, there is a set of statements being made or there is a discussion being undertaken by the learned Chief Judge which is one which concerns what will always be roughly half of the litigants within the system.
Here it is apparent that the learned Chief Judge is being asked about a serious claim made, as it indeed is, by commentators, disgruntled litigants and learned authors alike that there is in fact a gender bias, and the approach of the learned Chief Judge is, in my submission, one which simply sweeps aside the possibility of argument about that point. I say when he says, “well that’s nonsense”, and then, “Is it possible there’s some justification?”, and he says there is. Now, that, with respect, is evidence of the lack of dispassionate neutrality which is central to decision making in a court which must necessarily involve the very question at issue in those questions.
GLEESON CJ: The question at issue being whether the court is systematically biased.
MR PERKINS: Yes.
GLEESON CJ: And that is an attitude on which the court should maintain a dispassionate neutrality on whether it is systematically biased.
MR PERKINS: To say of an organisation that it has some systemic bias is not to attribute bad faith to the organisation, it is to make what some people would consider to be an observation of fact, but whether it is or not ‑ ‑ ‑
HAYNE J: Now, Mr Perkins, before you go on with this point, reliance on that part of the affidavit to which you have just referred is not mentioned in the grounds, is it? Indeed, it was expressly disclaimed, was it not, in the course of the directions hearings that I held? Is that right?
MR PERKINS: I have to say, with respect, that if it is I am not conscious of it.
HAYNE J: Well, go, please, to page 210 of the application book, ground 5. Was there not considerable debate in the course of the directions hearing about the basis on which this application would be made and was there not, ultimately, confinement by you to the exhibits there referred to?
MR PERKINS: Yes, I accept that that is so and I do recall, if I may say so, that the question arose as to the ability of the prosecutor to rely on any other material and I do accept that it was clear that if there was to be reliance on anything else, then that was to be reported. I am not sure if that covers what your Honour had in mind?
HAYNE J: At the moment it seems to me that that which you have just taken to is not one of the grounds upon which you move.
MR PERKINS: If I may – and, with respect, without conceding that that is right ‑ ‑ ‑
GUMMOW J: You have to because it is paragraph 14, is it not? What you have been reading us at page 128 is paragraph 14, whereas at page 210 you confine yourself as a ground to paragraph 10 which is an annexed newspaper publication, I think.
CALLINAN J: Mr Perkins, while you are looking at that page, you do not now press any actuality of bias, do you?
MR PERKINS: No.
CALLINAN J: I thought you had said several times you do not.
MR PERKINS: No, I do not.
CALLINAN J: Well, line 17 on page 210 is abandoned then, the reference to actuality?
MR PERKINS: Yes.
McHUGH J: But your client’s account at page 128 is seriously deficient if the account set out at page 204 of the transcript is correct, is it not?
MR PERKINS: I accept the account at 204. I was going to ask the Court to look at pages 132 and 133. Again, in terms of the account of what was actually said, I do not put the proposition that the summary which is in the articles at 132 and 133 is to be taken as correct over the transcripts where they exist. Perhaps I will refrain from addressing the Court on those two pages in the light of what has just been said. I will go to ‑ ‑ ‑
GUMMOW J: You mean page 132 is exhibit A, is it not? That is in, as I understand it.
MR PERKINS: What appears on page 132 is an account of what the learned Chief Judge said in his address to members of the court. That is a secondary ‑ ‑ ‑
GUMMOW J: All I am putting to you is, paragraph 5 on page 210 would suggest that you rely on it. Do you still rely on it?
MR PERKINS: Yes.
GLEESON CJ: In so far as this speech of the Chief Justice, under the heading “Men’s Groups”, expressed the policy of the court of which you complain, does part of that policy include what appears in the last two lines on page 179?
MR PERKINS: Yes, it does. I accept that that is an overriding consideration and I accept that in the Family Court, as in other courts, that is what judges strive to do.
GLEESON CJ: Including in contempt cases.
MR PERKINS: Absolutely. I do not, at all, wish to be seen as suggesting that that proposition is not tenable but, nonetheless, there are circumstances which arise which legitimately call into question the fairness of particular courts or judges dealing with matters. In my submission the circumstances here are of that character. If I may go to page 179, I was going to ask the Court to look at 137, but it is convenient to look at the transcript of the remarks provided by the respondents.
The first thing of note, in my submission, is the fact that it is considered appropriate to deal with the topic of men’s groups at all and, in my submission, the fact that such groups singled out is a matter which heightens the consciousness of the reader to the things which come next. Immediately after the two lines that your Honour the Chief Justice referred to on page 180, the parts at the address that I say are relevant, it is my submission that coming as it does within the rubric of the talk on men’s groups, the listener or the reader, or the person who knows that this is being said, could, and probably would, take the view that the learned Chief Judge is saying that complaints made by men’s groups and those people in them, are not genuine complaints.
I say that that derives from the first six or seven lines and then is the attribution on lines 7 and 8, to pressure groups - presumably that is a reference to men’s groups – working to, in a sense, manipulate the system. That is what the learned Chief Judge would, in my submission, inevitably be taken as saying. The next part, and I do not want to be repetitive here, but I have referred to what on page 138 was lines 24 on – that appears on page 180 at line 17 – to say that there is a more sinister element, in my respectful submission, raises, on the part of those who agitate the concerns mentioned by the learned Chief Judge, the real concern about whether individually or organisationally those concerns that they consider pressing have been or are to be written off.
The attribution to men’s groups, as appears at line 20 on page 180, of the view that “women’s emancipation has either not occurred or should not have done so” is attributing to men’s groups, and perhaps to men as a class, the view that one could say that they are being accused by the learned Chief Judge of being troglodytes, and people who are completely unaware and unreasonable. It may be in given cases that that may be so, but that is not, in our submission, a reason to label men’s groups or men or any unspecified group of people as though they are to suffer the disadvantages of membership of the group which the learned Chief Judge so identifies.
The other parts of the paragraph at lines 17 to 26, it can be seen that they contain a number of assertions which in ordinary parlance could be described fairly as sweeping assertions. They are assertions which are attached or said to be attachable by the learned Chief Judge to people of the class mentioned by him, and one could only say, in our respectful submission, that the attachment of those connotations to men or membership of men’s groups is disadvantageous.
Now, the last three lines of those lines that I have mentioned a moment ago specifically talk about people demonstrating “in strident terms outside the Court” and then, “Some even stand for Parliament, with a signal lack of success”. Those facts may be entirely right. Many political movements, if one were to address this, might be said to have germinated from a very small beginning and it is not part of the propositions that we wish to agitate that any particular political group or alignment of people is to be seen as being right or wrong. But, with respect, it can be seen that the learned Chief Judge is referring to matters which do not, on the face of it, seem to have any proper relevance to the facts that he is addressing. Lack of political support may be observably there.
That, in our submission, is not a basis upon which that group, politically unsupported as it may be, is thereafter to be treated as legitimately the object of some disadvantage by reason of the group and if it is not being said that there is some basis for it to be so treated, one would ask, in our respectful submission, what is the reason for it being there at all. Is this a situation in which the learned Chief Judge wishes to take some satisfaction, as it were, from the lack of political support of some people. If that is the case it is something which, in our respectful submission, simply cannot stand up because the criticism being made by the learned Chief Judge of this class of litigant is an irrelevant criticism, making relevant as it does something which is irrelevant.
McHUGH J: Well, this is a criticism of the Chief Justice but what has it to do with Justice Burton? I mean, if it is irrelevant, why is there any ground for supposing that he would not regard it as irrelevant if he ever remembered it or if it was ever brought to his attention?
MR PERKINS: The requirement of independence, it is contended, is not only personal but institutional.
McHUGH J: Well, maybe it is. Let it be assumed that it is. Does this requirement of independence of an institution require judges to be perceived as acting contrary to their judicial oath?
MR PERKINS: No, it does not, with respect, and that is not put. It is not put that by any conscious act that any judge of the Federal Court or the Family Court or any court in this country would be taken to be acting contrary to the oath of office but that, with respect, is the start of the question and not the end of it because the question still arises as to the way the administration of justice appears to be affected by a chief judge buying into what is, no doubt, partly an issue of judicial administration – that is conceded – but is partly and unavoidably a political issue in respect of which people are entitled to have their views.
McHUGH J: I know but you cannot get anything more political than the sterilisation of mentally affected young women of tender age but Marion’s Case came up to this Court and unless my recollection fails me the Chief Justice was in dissent in that particular case. Obviously the other judges at his court were not affected by his views about what was a very political issue. It will not be the first. Many other instances, I am sure, can be found in the family law reports.
MR PERKINS: With respect, it would be treated by the prosecutor as a demonstration of his judicial integrity but, that having been said, what the effect of these remarks by the learned Chief Judge appears to be is the sterilisation of debate.
McHUGH J: But why do you say that, Mr Perkins? The Chief Judge sees his quarters attacked by groups of men. He makes statements about it. They may be right or they may be wrong. Views may differ. Obviously your clients have not accepted the criticism of them for a moment. But it really seems to me to border on the fanciful to think that when a case comes before a judge of this court, that that judge is going to be perceived as being influenced in some ways by what the Chief Justice says in a public forum any more than if he had said it in a judgment. Supposing he had said these things in a judgment.
MR PERKINS: A judgment is perhaps the epitome of the judicial function. This speech, with respect, is no such thing.
McHUGH J: Well, it may be. Supposing he had said these very things in a judgment rightly or wrongly. Let us assume in your favour that he said these things and he had got it wrong.
MR PERKINS: Your Honour is referring to the comments about men’s groups?
McHUGH J: Yes, and he had got it wrong. You would not then say that every judge of the Family Court was barred from hearing an application for contempt against your client, would you, simply because of what the Chief Judge had said in a judgment reproducing these remarks or something to their effect?
MR PERKINS: With respect, the vice of what did happen, in our respectful submission, is that, given the way these remarks were made, they are not remarks that are subject to the normal processes of judicial reanalysis which may occur in the event that other judges have the remarks cited to them and can then consider judicially, dispassionately, the proper application of those remarks.
McHUGH J: But anybody that has had an experience of any contempt case would know that in a case like this, if you are going to mount an all‑out defence, there would be a welter of evidence. There would be a great deal of evidence from your clients setting out what their criticism is, what is the basis of their criticism, and so on. Matters such as this would be as far removed from the issues, the reality of the case, as it would be possible to imagine. I mean, this submission, really, it borders on the fanciful.
MR PERKINS: I think ‑ ‑ ‑
McHUGH J: I am talking about the notion that every judge of the Family Court would be disqualified by reason of these remarks. You might as well close the doors of the courts of justice, or at least the Family Court. If your argument is right, I do not see how these remarks would not disqualify every judge from dealing with property issues concerning husbands and wives. I do not know why you have to limit it to contempt.
MR PERKINS: We say that it is of more significance in the case of contempt because of the features of the contempt charge. The matters that are involved appear to have fallen from the learned Chief Judge in effect as a matter of judicial administration, as distinct from a matter of judgment.
Now, it is not, I accept, to be expected that other judges of the Family Court will in any sense slavishly follow what his Honour said. I say, and it is our contention, that in saying the things that his Honour did the learned Chief Judge was saying things which affect the administration of justice and which affect the appearances which are shown to litigants who come before that court and so it is submitted that whilst we do not have any evidence to suggest that other judges will follow what was said by the learned Chief Judge, there is an apprehension, and it is a reasonable one, and it is based on the position of the learned Chief Judge. It may well be that those who are familiar with the operation of groups of judges would tend to downplay the significance of the remarks.
McHUGH J: If your submission is right the public must have a very low opinion of federal judges. If they have a reasonable apprehension that by reason of these remarks other judges of the Family Court would be influenced so that your client could not get a fair hearing when he raises the various issues I put to you before lunch. Your client – I do not know whether he disputes the publication or not but assuming it is found that he made these remarks, he has made them in very strong terms, but it may be that they are perfectly consistent with his freedom of speech, and that is a matter that will have to be determined on all the facts of the case, but to say that every judge in the Family Court could be perceived to be biased by reason of some remarks that the Chief Justice made at a conference, this really seems to me to be pushing the limit.
I mean, this Court has to protect the efficiency of its business and that so far as I am concerned the time has passed when we should sit here and listen to arguments which to my mind border on offensive. I mean, you have put your submissions. As far as I am concerned, you have got a difficult case, you have put your arguments courageously, but there comes a time when, having put your argument, you have really got to step back and see whether you are really wasting this Court’s time.
MR PERKINS: If the Court pleases, may I adopt what, in some respects, is a different approach to what I have been putting? If, in my submission, the remarks which were made about “men’s groups” were made by somebody quite outside the administration of justice, for example, by a newspaper, those remarks would, or could, and in our submission would properly, be seen as impinging upon the ability to try fairly the allegation of contempt.
McHUGH J: What, at a trial heard, perhaps months after they were made?
GLEESON CJ: Without a jury?
MR PERKINS: The absence of a jury is accepted as being a matter of great significance. But, with respect, the legal rhetoric would have us believe that the exercise of putting things out of one’s mind is an exercise which, in reality, can occur. Some people may believe that it can, some people may not. It is an exercise which is fraught with difficulty and the embarking upon it is one which, in our submission, is one of danger, but ‑ ‑ ‑
McHUGH J: But it seems to me that if your argument is correct, that these remarks by the Chief Justice would prevent a jury from determining these issues of contempt.
MR PERKINS: In our submission they may well do so but we make nothing of that except that we wish to follow up its logical conclusion. It is submitted that these sorts of remarks are not merely addressing a problem, but are addressing litigants, and they come in the context of it being known, to at least the learned Chief Judge, that there is a pending charge of contempt. Whilst we cannot say that any actual bias occurs as a result of these remarks, we do say that there is a real risk of people who have to exercise discretions judicially, having these views about people involved in the case being unworthy, being less. Their stature is expressly diminished by the learned Chief Judge when he says, as he does, that they are not members of the real community.
I refer to page 142, lines 9, 10 and 11. The learned Chief Judge is giving his imprimatur to the notion that because these people engage in the behaviours he attributes to them, they are to be seen as disenfranchisable, and I mean in a legal sense particularly.
McHUGH J: I cannot see any basis for that submission. What the Chief Justice seems to be saying is that a criticism of the courts by these groups is misconceived. That is all he is saying.
MR PERKINS: May I say, with respect, that the learned Chief Judge is entitled to have that view if that is all he is saying. In our submission, that is to identify a problem. But, in our submission, he goes further than that and he is or is, in effect, making statements about the litigants, not the problem, and it is the statements that he makes about those litigants ‑ ‑ ‑
McHUGH J: He cannot be making about the litigants because he is talking about people who have been through the court system and are no longer litigants, and he is saying nothing at all about those who are coming into the court. If you are a litigant in the Family Court, this statement says nothing about you when you come in the door, it talks about people who have been in the Family Court who have not got a result in accordance with their expectations or demands, and then take the view that the Family Court is an unfair institution. Now, his criticism may be right or it may be wrong, but it does not seem to me to have anything to do with people who are potential litigants in the court.
MR PERKINS: The things that I have said about – some even stand for Parliament – the single lack of success, that ‑ ‑ ‑
McHUGH J: These are people who have failed in the court system.
They frequently engage in the grossest form of harassment of their former partners and their children.
“their former partners”.
MR PERKINS: It is known that the prosecutor is an unsuccessful candidate. Now, when that is seen ‑ ‑ ‑
KIRBY J: Is that proved by evidence, that your client is an unsuccessful candidate for election to Parliament?
MR PERKINS: Could I have a moment, your Honour, to answer that?
KIRBY J: Do we have to ignore or should we ignore the fact that the pamphlet of the kind that appears on page 48 with the very large heading “Killers” and makes accusations about child killing abuse, which it brings home to the Family Court, appears in the context of a court which, quite exceptionally for Australia, has, in fact, suffered the loss of some of its judges and their families by killing? I mean, do we put that out of our mind, that the Chief Justice may have conceived that he had an obligation to respond to statements of this kind which, on one view, might be inflaming people to do what, sadly, in fact, occurred in Australian in respect of this court.
MR PERKINS: In our respectful submission, that headline on page ‑ ‑ ‑
KIRBY J: “Killers” exclamation mark.
MR PERKINS: Yes.
KIRBY J: Why would it not be arguably the proper function of a Chief Justice to respond on behalf of the court to accusations of that kind against the background of the history of this particular court?
MR PERKINS: The workings of a social institution may be said by various people to have various effects. So far as the word “Killers” with ‑ ‑ ‑
GUMMOW J: And what is in the square box at the bottom of page 49, “very likely, violent action towards judges of this court”.
MR PERKINS: I accept that I must deal with that too. May I, initially, as to what is on page 48, say this? That it is quite plain that the judges are not killers in a factual sense. That is beyond possible questioning. One calls to mind the case of the The People v Larry Flynt, where things were said by a magazine which were quite outrageous ‑ ‑ ‑
GUMMOW J: That is in another country.
MR PERKINS: It is, with respect, but nobody would believe or think for a moment that the killing involved is an act of killing on the part of judges. That, with respect, is pure hyperbole and it is part of what, in my submission, is the rhetoric which one cannot avoid expecting to see in political discourse.
GLEESON CJ: Would you say this is an exercise of robust free speech?
MR PERKINS: Yes.
GLEESON CJ: But perhaps this institution is like one of those wicked animals of whom the French speak. When attacked they defend themselves.
MR PERKINS: With respect, I offer no reason as to why an appropriate defence should not be made but if I may say so with respect, the whole of these remarks – I mean to say the remarks of the learned Chief Judge include the proposition that the Family Court is in crisis and in crisis, I might say, for reasons not connected with men’s groups or these matters and that is a very serious matter from the point of view of the administration of justice and, with great respect, the learned Chief Judge deserves every sympathy if what he says about that is correct.
GLEESON CJ: But your proposition seems to be that he cannot defend the court against a charge of institutionalised bias without thereby disqualifying all other members of the court from dealing with cases of scandalising contempt because he is dealing with the merits of what might arise as an issue in such a prosecution.
MR PERKINS: In our submission, his reference to and talk about men’s groups is of a different kind. That is something which, objectively, one can only see as exhibiting a bias whether it is called for or not. It may be called for if it is there. It may be called for as a result of what the learned Chief Judge has seen but it is bias nonetheless.
GLEESON CJ: But the logic of your argument would be exactly the same if, by using the most dispassionate language and the most carefully reasoned analysis, he had addressed these allegations of systemic bias and sought to demonstrate that they were without foundation. You would still be making the same argument, would you not?
MR PERKINS: It is submitted, with respect, that the things that the learned Chief Justice has been heard to say about this includes a reference to a 40/60 per cent statistic, being percentages of males as against females who obtained custody after disputed hearings, and the assertion that that demonstrates that everything is all right. Now, the fact of the matter, it is submitted, is that it demonstrates the reverse and so it is that it is contended that the learned Chief Judge in getting into the question whether the statistics demonstrate bias, but in failing to address what arises as a plain result of statistical analysis, shows that the approach being taken by the learned Chief Judge is not a rational and dispassionate – I mean that with respect – but it is not a rational and dispassionate and logically thought out position. Now ‑ ‑ ‑
HAYNE J: Assume, purely for the purposes of argument, that I were to accept that contention, and I express no view on it, so what? What follows from that, Mr Perkins? Until you address what follows, the argument begins to take on the character of a political polemic rather than a legal argument.
MR PERKINS: May I say, with respect, that I recognise and I accept that these questions involve value judgments and as I have sought to put it in the submissions, rhetoric. But what follows is this, in my respectful submission, that ‑ ‑ ‑
McHUGH J: But the one thing you have not done is to attempt to analyse what the right thinking person’s mental processes would be in respect of Justice Burton on the assumption that these remarks had been read or heard by Justice Burton, and that is the critical issue.
MR PERKINS: I think, if I may say so, my attempt to do that will stand or fall on the basis of ‑ ‑ ‑
McHUGH J: No, so far your submissions seem to me to be an attack on the Chief Justice, or at all events, an attack on his reasoning.
KIRBY J: This is why Justice Hayne says you have to show what follows.
MR PERKINS: Yes.
KIRBY J: You essentially have to say this is a case where this is a Chief Justice who has expressed himself in extremely strong terms that an ordinary right-thinking member of the public, looking at that, would infer that this was an institutional view spoken of for the whole institution that was bound to influence the view of Justice Burton that he was bound either to share it or to feel himself under some sort of obligation to reflect it in the way in which he approached the case of your client, that is what you have to say.
MR PERKINS: We would contend, with respect, that we would have to show a tangible risk that that might occur.
KIRBY J: Is that the test – “might”?
MR PERKINS: A tangible risk as distinct ‑ ‑ ‑
GUMMOW J: Tangible is something you can touch. Do you mean perceptible?
MR PERKINS: Thank you, your Honour.
GUMMOW J: It must be more than perceptible, must it not?
MR PERKINS: I say an identifiable concern that one that is ‑ ‑ ‑
KIRBY J: Where is that formula found? Is that found in the cases? This is an almost unique case that we have not had a single judicial authority read to us today. I am not saying that is not novel and sometimes attractive but, for example, do the Canadian cases that are referred to in the written submissions come to the point that there are some statements which are so strongly expressed or violently expressed that you attribute it to a whole institution?
MR PERKINS: No, I do not think I can say that they do.
McHUGH J: But even if you could, you would then have to face up to the question of waiver.
MR PERKINS: If there is a question of waiver ‑ ‑ ‑
McHUGH J: Sorry, not waiver, of necessity I meant.
MR PERKINS: The question of necessity would not ‑ ‑ ‑
McHUGH J: Judges are given a jurisdiction to try contempt. You say they all have a perception of bias, so what is the result in these cases? Is it, as Chief Judge Cardozo once said, because the constable has blundered the criminal must go free?
MR PERKINS: That is not at all the way that we put it. The way we put it is this, that there are two ways of dealing with contempts but, where one is dealing with scandalising the court, the appropriate way of dealing with that charge is by trial on indictment ‑ ‑ ‑
McHUGH J: I do not think that is an answer to what I put to you. You have lost the first argument. This is a jurisdiction given to the Family Court to be exercised. Why should it not be exercised? The assumption is that you have lost the argument about the Constitution.
MR PERKINS: Yes. I am not sure, with respect, how far back to go on the assumption that I have lost the argument but, if I can ‑ ‑ ‑
McHUGH J: I suppose you say if they are all biased, then in the exercise of their discretion they should not exercise the summary jurisdiction. I suppose that is what your argument comes to.
MR PERKINS: Yes, we do put that, but we say that there are other courts which are constitutionally and as a matter of jurisdiction able to exercise the judicial power of the Commonwealth. They are general criminal courts within sections 68 and so on of the Judiciary Act and it is contended that it is open to proceed with the trial in one or other of those courts.
McHUGH J: You need to persuade me of that. This jurisdiction seems to be given to the Family Court. I cannot recollect anything which would indicate that any other court, federal or State, could determine a prosecution.
MR PERKINS: When your Honour says “this jurisdiction seems to be given to the Family Court” ‑ ‑ ‑
McHUGH J: I am talking about the 135 jurisdiction.
MR PERKINS: 35 or 112 AP. I may have ‑ ‑ ‑
McHUGH J: It is 35:
Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court –
Now, who else can exercise that 35 jurisdiction, apart from the Family Court?
MR PERKINS: It is contended that the jurisdiction to try an indictable offence of scandalising is given to State courts by the provisions of the Judiciary Act to which I have generally referred.
McHUGH J: You have made that statement. What is the authority for it? I mean, where does the Constitution provide for contempts? It does not.
MR PERKINS: There is no constitutional provision that we put concerning contempts of a statutorily created Federal Court.
McHUGH J: It is the Family Court or nothing, is it not?
MR PERKINS: In our submission, it is not. In our submission, it is open to a State court to exercise federal jurisdiction.
McHUGH J: If you can trace for me the steps? The Supreme Court of Victoria, where would it get its jurisdiction?
MR PERKINS: The State court would obtain its jurisdiction under the provisions of the Judiciary Act, section 68 and the succeeding sections. It is submitted that those section provide a scheme which has been used and recognised for the trial by State courts, which are courts, by and large, of general jurisdiction, to try offences against the laws of the Commonwealth. There is no suggestion that those provisions are not constitutional.
GUMMOW J: But, there is authority to the effect - and Reg v Ward is one of them - in the bankruptcy sphere, that general provisions like section 39 and section 68 are subjected to any specific provision that is made, and the specific provision is made here in the Family Law Act.
MR PERKINS: Only, it is contended, as far as procedure is concerned. It is contended that the offence is not defined by those sections, but rather picked up, perhaps, by section 4 of the Crimes Act and it remains an offence as defined by the common law, and that being ‑ ‑ ‑
GUMMOW J: We had all this this morning, Mr Perkins. It is now quarter past 3.
McHUGH J: There is no common law that deals with this. I mean, section 35 says:
the Family Court has the same power to punish contempts of –
it. Now, surely, that is the beginning and the end of it. What other court has power? The statute says the Family Court has. It does not say the Supreme Courts of the States have it.
KIRBY J: I think we are back to your argument this morning, that the provision merely gives the power to punish and that that implies, you say, that somebody else has the power to try, and has the jurisdiction to try.
MR PERKINS: Yes, and if I may add that our contention about section 35 is that it is a summary power as distinct from the power which has been embarked on, or the exercise of which has been embarked on here, which is not a summary power except arguably as to the mode of trial. Just to add one thing in relation to what I just put, the material shows that there may have been an intention and, with respect, an attempt to invoke the summary jurisdiction as demonstrated by the issue of a warrant by Justice Mushin of the Family Court. That attempt was abandoned.
GLEESON CJ: How long do you expect to require for the completion of your argument?
MR PERKINS: The matters that I wished to put are dealt with in my written submissions. I would be content, if I may take those submissions as read, just to be a very few more minutes. I would want to refer to a couple of things within them, but save for that, I should indicate that, as far as the written submissions - and I am referring particularly to 1.8.2 and the submissions after that - consist in part of references directly taken from the text of the authorities cited and on the column on the left is contained what is said to be the pith of the parts referred to. If I may say that, I will not thereafter read out the submissions that we make. May I refer, though, to what is found at footnote 71 which is a reference to Justice Thomas’s book on “Judicial Ethics”.
It is submitted, with respect, that what is said by Justice Thomas in his book is appropriate and it is submitted that there are limits, and I refer to the second‑last paragraph of the second quote from Justice Thomas’s book, to quote him, he said:
It may be that we should tolerate a divergence in this areas and be tolerant of personal choices. But there must be limits. Unrestrained publicity‑seeking may cause distrust of a judge’s judicial work and it may bring the judiciary into disrepute.
McHUGH J: That seems to be out of date these days.
MR PERKINS: If I may say so, with respect, I am conscious of the papers of Judges of this Court which appear conveniently on the High Court’s web site. If I may say so, with respect, the papers which are published and accordingly, I would say, it appears that the speech is given, are speeches which do not descend into the actual disputation of matters before the Court. There is, of course, a difference between those matters which are pending and those which have been completed but I would submit, with respect, that if one takes up the comment of Justice Thomas that if a comment made by a member of the judiciary goes to a point of commenting upon the case or commenting on a group of litigants, in my submission, it has gone too far.
CALLINAN J: Mr Perkins, there is an article in the latest part of the Australian Law Journal by Justice Lindgren about the possible meanings of some new sections of the Income Tax Assessment Act.
MR PERKINS: Yes.
CALLINAN J: You would not suggest that his Honour would be precluded from hearing a case on that, or would you?
MR PERKINS: No, I do not believe so. I would say that if I could refer to the middle of the first quotation from Thomas’ book which is in my submissions, it is perfectly appropriate for judges to make comments about matters of law or legal matters but, in our submission ‑ ‑ ‑
CALLINAN J: His Honour deals with matters that may come up before the Federal Court and indeed, I suspect, inevitably will at some stage, without expressing any concluded view about them I hasten to say.
MR PERKINS: Yes. With respect, it is frequently said that one is not expressing a concluded view. One does not, for example, offer opinions about the litigants and this is a case in which the opinions offered by the learned Chief Judge have been about the litigants themselves, or classes of the litigants.
KIRBY J: So we keep going round in circles but it does come down to what you would suggest is the passion of the expression, the reference to “sinister” and matters of that kind.
MR PERKINS: Yes.
KIRBY J: And the contentions directed specifically at people such as your client and that then you have to take the leap and say, to answer the “so what” question, that it really must be read as an institutional view or, at least, that is a view which an ordinary, well‑reasoning citizen would think might be the view of the whole court. That really was what it comes down to.
MR PERKINS: Yes.
KIRBY J: I mean, we have spent an awful lot of time but basically that is what you have to say and it is either good or it is bad.
MR PERKINS: Yes, I accept that, with respect. If the Court pleases.
KIRBY J: There was a question concerning the question of whether your client was to be identified as a person who had stood for Parliament but had had little success.
MR PERKINS: I am not in a position to urge that.
GLEESON CJ: Thank you. Yes, Mr Redlich.
MR REDLICH: It would be convenient if we deal first with grounds 1 to 4 of the notice of motion. Part XIIIA of the Family Law Act makes provision for sanctions for failure to comply with orders and contempt of court. As the court noted in discussion this morning, the Family Court has the same powers to punish contempt as the High Court, that power deriving from section 24 of the Judiciary Act requiring some assessment of the powers that existed in the Supreme Court of the judicature in England as at the commencement of Federation.
We do not take issue with the argument raised by our learned friend that at the time of Federation, the Supreme Court of the judicature in England had the power to punish for the contempt of scandalising the court by summary process.
KIRBY J: But what about by indictment, trial by indictment? Do you agree that seems to be the case in that decision of Tibbit, is it?
MR REDLICH: It was clearly a process that was still open. The locus classicus Reg v Gray (1900) 2 QB 36, which is referred to in our submission, was a case that proceeded by way of summary process and it appears, as best researches can reveal, that that is the process that, apart from the case our learned friend has referred to, that is the case that has been invariably followed both in the United Kingdom and here.
GUMMOW J: Part XIIIA is about contraventions of orders, is it not?
MR REDLICH: I am sorry.
GUMMOW J: Part XIIIA is dealing with that portion of contempt which is concerned with contravention of orders?
MR REDLICH: Yes.
GUMMOW J: That is not this case, is it? This is Division 3 of Part XIIIA.
MR REDLICH: It is. That is part of the same chapter and 112AP, of course, deals not only with the offence scandalising the court, but breaches of a court order which are regarded as flagrant in their nature. As we apprehend, that distinction is made from other contempts because those two types of contempts have long been regarded as criminal contempts.
GUMMOW J: And then jurisdiction is conferred by 35, that is how it works.
MR REDLICH: That is so, your Honour.
CALLINAN J: Do you say that proceedings could, in fact, today, be instituted by indictment? Is there any reason why they could not be if the Commonwealth chose?
MR REDLICH: Section 35, we would respectfully submit, now covers the field. Parliament has now spoken as to how the process of criminal contempt should be heard.
CALLINAN J: But it says “has the same power to punish contempts”. It does not say anything about the trial and it does not seem to say, expressly or by implication, that the proceedings could not be instituted by indictment. I just want to know what your position on that is. It may be that nobody would want to, but is it a possibility?
MR REDLICH: The concept of punishing without trying in our ‑ ‑ ‑
CALLINAN J: No, that is not what I am asking you, I am asking you about an indictment. Is there any reason why, and if there is, what is the reason, that the proceedings could not be instituted by indictment? Perhaps not in the Family Court – it might have to be instituted elsewhere.
MR REDLICH: I am sorry, we have been speaking at cross-purposes. I mean, obviously the Family Court has no power to so take proceedings. The appropriate law officer, so long as the common law procedure has not been abolished, the appropriate law officer may be able to do that.
HAYNE J: That assumes that answer, Mr Redlich, that section 69 of the Judiciary Act would warrant such an indictment. Now, is that right? Section 69 is the, at least I think it is the general indictment provision and it is then supplemented by the Director of Public Prosecutions Act, but does 69 permit filing or presentment of an indictment in these circumstances?
MR REDLICH: There seems nothing on the face of the section, your Honour, that would preclude it.
McHUGH J: No, but is there? You have to find a relevant law of the Commonwealth.
HAYNE J: It is the law of the Commonwealth provision which is the nip in the section, is it not, and that is where the narrowing is.
McHUGH J: Yes, and the only relevant law of the Commonwealth is section 35 which in terms is directed to the Federal Court or the Family Court.
MR REDLICH: Your Honour is quite correct. It is our submission that the common law offence of criminal contempt is not within the meaning of section 80 of the Constitution or within the meaning of section 69 of the Judiciary Act a law of Commonwealth.
GLEESON CJ: Section 35 of the Family Court Act does not look like a section against which it is possible to offend.
MR REDLICH: No, it is meant to deal with offences against laws of the Commonwealth, your Honour.
HAYNE J: And that then may have like consequence for section 9 of the Director of Public Prosecutions Act 1983 which also speaks of prosecuting “by indictment”, et cetera, “indictable offences against the laws of the Commonwealth” which may then lead to the consequence or at least to the question, who is empowered to present an indictment?
CALLINAN J: Why is it not a law of the Commonwealth not to interfere with the processes of the Family Court, in other words, contempt of the Family Court? I think what their Honours are putting to you is that “law” means statutory law. I am just trying to understand whether you agree with that or whether there is any possibility of laws of the Commonwealth such as a law or an obligation, perhaps, which can be formulated as a law not to interfere with the Family Court process, which is not a matter of statute.
MR REDLICH: No, it is our submission, as we have set out in our submissions delivered to the Court, that “law of the Commonwealth” is a law as enacted by Parliament pursuant to its powers.
KIRBY J: Is there authority on that point?
MR REDLICH: Yes, your Honour, if we ‑ ‑ ‑
GUMMOW J: Sankey v Whitlam.
McHUGH J: Sankey v Whitlam is a good starting point.
GUMMOW J: We were looking at that a couple sittings ago.
MR REDLICH: We have set out at paragraph 13 of our written submission the argument as to the meaning of the term “law of the Commonwealth” as early ‑ ‑ ‑
HAYNE J: Relevantly, a distinction may well have to be drawn between contempt and the sorts of offences concerning the administration of justice that are dealt with in Part III of the Crimes Act. I mean you have a whole part of the Act directed to interference with administration.
MR REDLICH: Indeed, and “law of the Commonwealth” is defined for the purposes of the Commonwealth Crimes Act. In addition to those cases that we have listed in paragraph 13(a), we have included a reference to the case of Spratt v Hermes and in particular the judgment of Chief Justice Barwick at pages 244 to 245. The issue has more recently been considered by this Court in State of Western Australia v Commonwealth in which a judgment of the whole of this Court, in dealing with section 12 of the Native Title Act, reviewed the meaning of that phrase. We would submit that it now seems tolerably clear that the phrase is to be treated as referable only to enactments of the Commonwealth Parliament. There is some question as to what, when we speak of laws other than Commonwealth, are laws enacted by Parliament, what is meant by the common law.
That question still remains an unresolved one as recently as the case of Commonwealth v Mewett (1997) 191 CLR 471 at pages 492 and 521. In the judgment first of Chief Justice Brennan and the judgment of Justice Gaudron, there is some difference of opinion as to whether there is a common law of the Commonwealth or whether it is a common law of Australia or something else. So the matter as to the precise nature and definition of the common law seems yet unresolved. Whatever it is, we submit that the common law which is relevant for the purposes of a criminal contempt is not included in the concept of a law of the Commonwealth.
If I could just mention, in the written submission of the prosecutor there is a reference at paragraph 1.1.2.3 to the contention that:
A criminal action between the State and an individual is not within the jurisdiction of the Family Court -
and a reference to the marriage power not supporting a law governing such a subject. I did not understand our learned friend to put the argument that way this morning but rather to advance an argument that section 35 should be read down so as not to include contempts of the nature before this Court. We would say that ‑ ‑ ‑
KIRBY J: Is the source of the power to punish for contempt the marriage power or the establishment of a court within Chapter III which of its nature has the power to punish for contempt?
MR REDLICH: Your Honour, we would submit that the incidental power is directly applicable to the power of Parliament to create the court and the source of the power is to be found in section 71. If I could just say something briefly about the ground that has now been abandoned and that is that the offence of scandalising the court is obsolete. While we understand that has been abandoned, we understand that in some sense the second sentence of the ground still remains, namely, the contention that summary procedure is obsolete. In any event, it seems to us that the issues raised by that ground will bear perhaps tangentially upon the resolution of the questions raised by grounds 1 to 4. We would make these submissions. We refer to paragraph 5 of our written submission and the proposition that jurisdiction to try an offence summarily normally depends upon the identification of some statutory authority. That is not so and has not been so at least since the time of the writings of Blackstone’s Commentaries on the Laws of England, that in relation to contempt proceedings there has always been a recognised summary power.
We have set out in paragraph 7 that contempt, at least since Federation, has been a proceeding which has been tried summarily and has been brought in the interests of the protection of the administration of justice rather than only as a punishment of a crime, and that the summary procedure is now firmly established and in so far as it can be said that anything has become obsolete, it would be our submission that charges on indictment with a jury have become obsolete. We refer to the cases set out at the foot of paragraph 7 and also the cases that we have cited in paragraph 8, including the case referred to by his Honour Justice Hayne of the DDP v Australian Broadcasting Commission and at page 955 the section which dealt with, historically, the history or procedure by way of indictment or summary process.
KIRBY J: If you pause just there and ask the question as to the nature of contempt and its punishment, it is completely open-ended, is it not?
MR REDLICH: Yes, it is.
KIRBY J: You would probably agree that whipping is now obsolete and therefore it is open-ended punishment of imprisonment which, at least theoretically, subject to review in this Court, could go on for years and years?
MR REDLICH: Theoretically.
KIRBY J: So, you could then get a person being punished in terms of imprisonment which goes far beyond the normal criterion of indictment accepted in the Commonwealth Statutes which is, I think, one year or two years.
MR REDLICH: Yes.
KIRBY J: So, one can see the germ of an argument that because of its open-ended nature and the risk that it submits people to potentially extremely long periods of imprisonment and loss of liberty, that therefore either section 80 or on some other basis, perhaps under the Crimes Act, the offence will be treated as one which attracts the indictment.
MR REDLICH: Your Honour, if one were to take the view that the reasoning of his Honour Justice Deane, in his dissenting judgment in Kingswell were correct, one could hardly argue with the proposition that the species of offence of scandalising the court should not be characterised as serious, when it carries with it that potential. Of course our submission is, for a number of reasons, that his Honour’s reasoning is not correct and ought not to be adopted by this Court.
KIRBY J: You are going to come to that a little later, are you?
MR REDLICH: I will in a moment, your Honour. In cases such as the Registrar of the Court of Appeal v Willisee (1984) 2 NSWLR 378, Fraser v The Queen (1984) 3 NSWLR 212 at 218, in both of those cases are cases in which some members of this Court participated. There was consideration given to the summary process of hearing charges or offences such as this, and discussion about the procedure of trial by way of indictment as being either not followed or obsolete. It is no doubt correct, that is to say as we have set out in paragraph 8, that the courts have emphasised that the power to convict and punish for criminal contempt by summary procedures should be sparingly used and should only be necessary where it is to protect the administration of justice. This recognises a necessity in some circumstances for a court to take immediate steps to repress and prevent repetition of conduct which impairs the administration of justice. Gallagher v Durack is one of the most oft-cited illustrations in support of that proposition. R v Taylor (1951) 82 CLR 587, Dunbabin’s Case which is regularly referred to and the other cases are set out at the foot of proposition 8.
KIRBY J: All of these were written first before the recent elaboration of the Constitution in the cases leading to Lange.
MR REDLICH: No doubt, your Honour.
KIRBY J: And secondly, one could perhaps say in an earlier time in which there was much greater inclination than perhaps there would be now, leave aside Lange, to enforce opinions on citizens and to prevent them saying things critical of judges and of courts.
MR REDLICH: Indeed.
KIRBY J: I think it is probably true that the whole common law world may be influenced by the American jurisprudence that such punishments are extremely rare today, except in cases such as Malaysia and particular pockets of the common law. In most other countries of the common law it is extremely rare that people are subjected to punishment for criticism of judges and courts.
MR REDLICH: Certainly ‑ ‑ ‑
KIRBY J: I think we have to read some of the earlier cases with a lot of care now.
MR REDLICH: Certainly that is so, your Honour, in relation to criticism that could, in any sense, be described as fair and legitimate. I am not conscious, your Honour, of there being a view prevailing other than in the United States which approaches the matter differently because of its constitutional differences, of a view being accepted that, regardless of the level of criticism and the degree to which the court, as an institution or individual judges are attacked, that the criticism must, under any circumstances, be regarded as something that has to be accepted and tolerated because of the concept of freedom of speech.
GLEESON CJ: The criticism that appears on page 23 of the appeal book, or the application book, is fairly strong.
MR REDLICH: It is, as we would submit, the criticism on the next page, your Honour, 24, and the point that we would make in relation to, without dwelling on the substance of the criticism that has been levelled by the prosecutor at the court, is that it is criticism that is levelled at the court, that in conformity with the notions that this type of contempt is concerned not with the reputations of individuals but the authority of the court, the particular criticisms that have been raised by the prosecutor are indeed criticisms which go directly to the authority and standing of the court as a whole.
If I could just draw the Court’s attention to the chronology, which I assume the Court has been given by the prosecutor, that shows that prior to the contempt proceedings instituted on 13 August 1998 that there had obviously been a process followed by the prosecutor, commencing with a letter which was written to him concerning previous conduct, and further activity on 22 July 1998 which appears at the appeal book page 18, comments made by the prosecutor which appear at appeal book 19 and then the conduct of 6 August which appears at the appeal book page 44 and then page 46. It is conduct which is occurring in the context of the court process being conducted within a building, the conduct taking place outside the building in relation to, so the material and the evidence would suggest, those who are entering and leaving the building for the purpose of business concerned with the court.
We would simply submit that in so far as this type of contempt is intended to be directed towards activity which undermines the authority of the court it was, as the evidence suggests, of a continuous nature directed to the court as an institution and it was the sort of conduct which we would respectfully submit required the court, or the Marshal in this case, to take some action.
KIRBY J: I do not want to get into the free speech issue which is not before the Court, but is Gallagher the last case to come to this Court, being in 1983, relating to scandalising?
MR REDLICH: Just bear with me a moment, your Honour.
KIRBY J: That itself might be significant because there has been an awful lot of criticism of courts and judges since 1983 and yet no prosecutions have been launched.
McHUGH J: Nationwide News v Wills was a scandalising ‑ ‑ ‑
MR REDLICH: Without being able to definitively answer that question, if the answer were yes, my instinctive submission would be to say to your Honour that that would hardly be because in any sense there has been a withdrawal of this type of process; that we would respectfully submit, if one looks at the cases that have come before the superior courts in the various States there has clearly been an ongoing need for this type of course to be taken when the circumstances justify it and in Nationwide, although the Court, of course, was not directly and immediately concerned with the contempt of scandalising the Court, I think all but one of the Justices of this Court, in delivering their judgments, specifically focused on the offence of scandalising the Court and specifically identified that as a category of offence that would probably have to be viewed as outside the implied freedom of speech.
KIRBY J: Is there anywhere in your submissions where you collect recent State cases of scandalising or, say, Canadian or New Zealand or English cases? I…..to you an impression that there has been a much lesser inclination to prosecute cases of scandalising in recent years in all of those jurisdictions. This is the way the common law sometimes develops as a reflection of changing social attitudes to robust criticism, including the courts.
MR REDLICH: We have collected in paragraphs 7 and 8, your Honour, of the submission dealing with the allegation that the type of procedure is obsolete most of the major cases that have taken place either in this Court or in the State courts, but I would not want to suggest that that is an exhaustive list by any means. If your Honour would be assisted by that, we would certainly do that.
KIRBY J: I am not conscious of any recent English cases, for example, or Canadian or New Zealand cases. I just have an impression that it is now relatively rare and that that is itself in a sense a reflection of a developing view of the common law which may be walking in step with the implied constitutional freedoms found in Lange and other earlier cases.
MR REDLICH: I appreciate that we will not address argument to the question raised by ground 7, the abuse of process, freedom of speech ground. We have set out in that part of our submission references to the cases decided in this Court in recent years, some of which do not decide in terms that the implied freedom of speech must be balanced against the need in various circumstances for an intrusion into that implied freedom.
GUMMOW J: It is not a question of implied freedom; it is a question of restraint on parliamentary power. That is what…..decides.
MR REDLICH: Yes, and the circumstances in which the exercise of power ought not to be restrained.
GUMMOW J: Well, the question will be whether there is similar restraint upon judicial power. That will be a new question.
MR REDLICH: We have set out at page 40 of our – sorry, it is not page 40 in your Honours’ document. We have made a reference to Nationwide News v Wills and we have set out the ‑ ‑ ‑
GUMMOW J: All those cases have to be – you have to start with Lange. That is what you have to start with. That is where it all ended up.
MR REDLICH: Yes, but we would submit that ‑ ‑ ‑
GUMMOW J: And Levy.
MR REDLICH: Yes, but those cases, your Honour, do not purport to reassess the propositions that were expressed by all of the members of this Court in Nationwide of the circumstances in which that legislative power could be exercised because it served the public interest. Areas such as the common law rights in respect to defamation in the area of contempt, in our respectful submission, those judgments are still good law, notwithstanding the development of the law in the cases that your Honour has mentioned.
If I could return to section 80, we then submit that contempt proceedings, whilst they are criminal in nature, are not a criminal prosecution. We refer to Witham v Holloway, a very recent decision of this Court in Pelechowski v The Registrar Court of Appeal. In paragraph 11, that the contempt by scandalising the court may be committed by conduct directed either to the court as a whole or to individual judges, and we refer to the observations of his Honour Justice McHugh in Pelechowski that the common characteristic of all criminal contempts involving an interference with the due administration of justice is that it is part of the continuing process of upholding the administration of justice.
We note at paragraph 12 that the use of summary process has now been so firmly established that Parliament alone could effect an alteration if it be necessary. That was the view expressed by this Court in James v Robinson (1963) 109 CLR 593, at 600 to 602 and 612 to 614. The same views were expressed in Gallagher v Durack and we would respectfully submit similar views can be found in the judgments in Nationwide and the passages that we have referred to at paragraph 12.
KIRBY J: Does that not beg the constitutional question that is raised by the submission that we should revisit Lowenstein and that line of authority because then it is not the Parliament to express the procedure, it is expressed by the Constitution and the Court must give meaning to the constitutional requirement?
MR REDLICH: Well, there are a number of questions, your Honour. If one goes back to the issue of the application of section 80, the first question is whether section 80 applies to the common law. If the answer to that is, no, then the procedure which has long been followed as summary process is the appropriate procedure and section 35 should be given full effect. If the answer is that section 80 does apply to the common law, then the question arises as to whether or not this is an offence against a law of the Commonwealth, and we would submit it is not. Whilst it has some of the characteristics of a crime, it is not, for the reasons we just referred to a few moments ago, by reference to the authorities of this Court, one which carries with it the criminal trial process.
Next, we would submit that if the common law does apply and if the view contrary to our submissions were taken that it is an offence against a law of the Commonwealth, we submit that it is a matter for Parliament to determine how such an offence should be dealt with. Parliament has spoken in relation to this type of offence, so that it is really only at the end of that process that one would need to deal with the issue of whether the well‑settled line of cases of this Court should be reconsidered. I will take the Court now, if that is convenient, to those cases.
GUMMOW J: What do they show us if they are well settled? We do not have to go through them. What do they show us?
MR REDLICH: Well, could I just say this, your Honour: from the argument this morning, the number of cases that have repeatedly made the same observation ‑ ‑ ‑
GUMMOW J: What is it?
MR REDLICH: That it is for Parliament to determine whether an offence should be heard summarily and that where Parliament does so, section 80 has no scope for operation.
KIRBY J: That does seem a curious result and does seem to suggest that Parliament can mock the Constitution because the section is there for a purpose. There are very few sections like it. It does appear on its face to be for a purpose of protecting a very important and ancient institution of trial by jury, and yet you say Parliament can just rewrite it out of the Constitution by abolishing indictment altogether.
McHUGH J: That is what the founders seemed to intend, did they not, because they changed the wording in the drafts? They changed it from “the trial of all indictable offences” to “trial on indictment of any offence against any law of the Commonwealth”.
MR REDLICH: If I could be so bold – I am sorry, your Honour ‑ ‑ ‑
KIRBY J: Are we hostage to the founders? Are we hostage to the intentions of the founders? I am not.
MR REDLICH: Justice Dawson obviously took the view that there are limits to the extent to which one should simply disregard the circumstances and the intention of the makers of the Constitution.
GLEESON CJ: But if we looked at this provision now through modern eyes one of the things our modern eyes would show us is that it is frequently regarded as being for the benefit and to the advantage of the citizen to be able to adopt for trial other than by a jury and in New South Wales, for example, many people accused of homicide elect for trial without a jury in cases where issues of diminished responsibility are raised. The idea of a compulsory trial by a jury as necessarily of benefit for the citizen is not one that would necessarily be found attractive to modern eyes.
McHUGH J: No. On Friday we had a special leave application from South Australia where in a large conspiracy to defraud the accused elected to a trial by a judge alone rather than by a jury. We have had a number of that sort of case.
MR REDLICH: Yes, which all rather points to the proposition that if one’s starting point is an application of one’s personal values as to the benefits of the jury system one can come to conclusions at either end of the spectrum.
GUMMOW J: But Parliament has spoken, any way, in 4G.
MR REDLICH: Indeed it has.
GUMMOW J: And, I would have thought that section 4G of the Crimes Act probably conform with what Justices Dixon and Evatt would require. I may be wrong about that, but that is a fair effort, so, the whole of this debate has an artificial air about it.
MR REDLICH: We would submit section 4G has no application to ‑ ‑ ‑
GUMMOW J: Of course you do, for other reasons.
MR REDLICH: Yes.
GUMMOW J: But in so far as one is in the heartland of the section 80 debate I think it has been bypassed.
MR REDLICH: Yes.
GUMMOW J: Section 4G, was that there at the time of the offence in the 1930s in Lowenstein?
MR REDLICH: No, your Honour. There were provisions in the Acts Interpretation Act 1901 and my recollection is that sections 4G and 4H replicate those provisions. I think they were sections 42 and 43 of the Acts Interpretation Act 1901.
GUMMOW J: Sorry, what sections were they?
MR REDLICH: Sections 42 and 43. It may be convenient, seeing your Honour has mentioned section 4G, if we just indicate what our position is in relation to that section. We would submit it has got no application with respect to section 112AP of the Family Law Act. Firstly, that is the view that was taken by the Full Court of Family Court in Schwartzkopf’s Case which we referred to in our submissions. Proceedings under Part XIIIA are not concerned with an offence against a law of the Commonwealth within the meaning of section 4G. A law of the Commonwealth as referred to in section 4 does not, we would submit, include the common law. If one looks at section 4, it can be seen that a clear distinction is drawn between a law of the Commonwealth and the common law.
GUMMOW J: You keep talking about the common law. It is not the common law. It comes out of Chapter III. Sure enough Chapter III accommodates and absorbs the common law…..but it comes out of the nature of the judicial power of the Commonwealth. It is as simple as that, it seems to me.
MR REDLICH: Your Honour, I do not take issue with that but, in so far as the prosecutor submits that we are dealing here with a common law offence and therefore it is part of the laws of the Commonwealth and section 4G applies, we simply say if one looks at the structure of section 4, that argument cannot be right.
GUMMOW J: I understand your submission about that.
MR REDLICH: We also submit that section 35 and section 112AP do not create an offence for the purposes of section 80 of the Constitution. Section 35 does no more than confer upon the court the power to deal with the offence of criminal contempt.
KIRBY J: Where is the power to try as distinct from to punish?
MR REDLICH: The power comes, we would submit, from section 35.
KIRBY J: Was does it not say, “try and punish, and if found guilty, punish”? You say it is all rapped up in the notion, you cannot punish without a trial in the finding of guilty.
MR REDLICH: Indeed. We adopt your Honour’s earlier remarks, and the procedures that were then established, Order 35, contemplates the process of a Family Court trying the criminal contempt, sets out the procedure that shall be followed, the nature of the application that should be used, the mode of hearing and so on. Parliament obviously contemplated that it was setting up a total process for the initiation, hearing and determination of such a matter.
KIRBY J: All of that is crammed into those little words in 35, nowhere else, there is no other source?
MR REDLICH: No, that is the ‑ ‑ ‑
McHUGH J: It is the sort of section that Sir Owen Dixon spoke about in Ex Parte Barrett; Re Opitz 70 CLR that you get this end result, in effect. But that confers jurisdiction, confers everything.
HAYNE J: There is a history of which Sir Victor Windeyer looked at in James v Robinson, which you earlier mentioned, particularly 109 CLR 612 and following, the history of the powers of the superior courts to punish for contempt as it was described, seeming to come originally from Star Chamber. It is a suitable progenitor.
MR REDLICH: And brief though the provisions are, your Honour, there cannot be any doubting Parliament’s intent that it was intending to confer on the Family Court the full process from beginning to end in relation to the commencement hearing and determination of such a matter as a criminal contempt.
KIRBY J: There is nothing relevant in that opening phrase “Subject to this any other Act”?
GUMMOW J: One has to read section 35 with section 15C of the Acts Interpretation Act which says that:
Where a provision of an Act…..authorizes a civil or criminal proceeding to be instituted…..:
(a) that provision shall be deemed to vest that court with jurisdiction -
et cetera. That sort of implements the Barrett-type thinking.
MR REDLICH: Indeed, your Honour.
GUMMOW J: Now, the courts referred to in Part XIIIA Division 3 are not limited to the Family Court, are they? They are “small c” courts. I think that is part of the reason for the enactment of Part XIIIA Division 3. Many courts exercise jurisdiction of the Family Law Act in addition to the Family Court.
MR REDLICH: Yes, I am not sure, your Honour, whether that would assist, though, in how section 35 is to be construed.
GUMMOW J: No.
MR REDLICH: In the case of ‑ ‑ ‑
HAYNE J: It may mean that you would look to the constituting Act of that other court to find its source of contempt powers, may it not, but 35 is concerned and concerned only with contempt of the Family Court.
MR REDLICH: Yes, there is no doubt of that, your Honour.
GUMMOW J: Then they are all supplemented as need be by Division 3 of Part XIIIA.
MR REDLICH: Indeed. In Schwarzkopff’s Case (1992) 106 FLR 274 at 283 the Court in dealing with such a contempt came to a view that proceedings under XIIIA do not relate to matters which:
constitute a contravention of the law of the Commonwealth –
and hence all of the panoply of procedures which would arise under the Commonwealth Crimes Act in terms of sentencing procedure, remissions and the like have no application and we would submit that the reasoning of the court in that case is correct. Nothing in section 112AP or order 35 suggests that it was intended to depart from the common law position and require that proceedings under the section be brought on indictment. That
can be contrasted with section 121(5) of the Family Law Act which specifically provides that:
An offence against this section is an indictable offence.
My attention has been drawn to the time, your Honour.
GLEESON CJ: How long do you think you will need to finish your argument?
MR REDLICH: I have not made any submissions in relation to the bias argument, your Honour. I would expect perhaps another 10 minutes if I do that.
GLEESON CJ: How long do you think you will be, Mr Solicitor.About 10 minutes. We will adjourn until 10.15 tomorrow morning.
AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 16 JUNE 1999
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