UD v The Queen

[2020] HCATrans 59

[2020] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Canberra  No C6 of 2020

B e t w e e n -

UD

Applicant

and

THE QUEEN

Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 29 APRIL 2020, AT 8.44 AM

Copyright in the High Court of Australia

MR J.S. STELLIOS:   May it please the Court, I appear with MS A.E. MORRISROE for the applicant.  (instructed by Legal Aid ACT)

MR N.S. DRUMGOLD, SC:   May it please the Court, I appear with MS K.L. McCANN for the respondent.  (instructed by ACT Director of Public Prosecutions)

MR P.J.F. GARRISSON, SC, Solicitor‑General for the Australian Capital Territory:   May it please, your Honour, I appear for the Attorney‑General for the Australian Capital Territory.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.  I might chat to you, Mr Solicitor, just to make sure that I am clear about what I have read, if that is all right.

MR GARRISSON:   Certainly, your Honour.

HER HONOUR:   As I understand it from the papers that are filed – and this might help Mr Stellios and Mr Drumgold as well - it seems as though you have the carriage of the validity of this section.

MR GARRISSON:   That would appear to be the case, your Honour.

HER HONOUR:   Then can I just make sure that I understand the position.  The way I read the submissions it seems as though the applicant, putting aside the first question of whether or not it was in the interests of justice for the judge to order that there be a judge alone trial – so put that to one side - the question of the constitutional invalidity so far as the applicant was concerned seemed to raise three questions.  One was contravention of the Kable principle. The second was whether or not it was beyond the legislative power vested in the Legislative Assembly by section 22 of the Australian Capital Territory (Self‑Government) Act and the third was an issue about the application of section 80 of the Constitution.  That seemed to be the three issues raised by the applicant.

Can I just then say, the DPP, although not making a definitive submission, seemed to raise questions about the constitutional validity of section 68BA and also raised the question of section 80. Do you understand that to be a complete summary of where the issues are?

MR GARRISSON:   Yes, your Honour, to the extent, however, that the questions that are posed in the application for removal, whilst concise, do not quite reflect the matters that were put below and the only – by all means, the question about the legislative power of the Assembly can raise a number of matters that have been before this Court before, particularly in relation to – the section 80 point really is a subset of the determination as to whether the Legislative Assembly is in fact a subordinate legislature to the Commonwealth. So for the section 80 argument to get up that may well be one of the issues that needs to be ventilated in this Court. The Attorney‑General has no difficulty with that issue being ventilated.

HER HONOUR:   I am a bit lost then, Mr Solicitor.  Is your complaint then about the form of the referral or are you saying it needs expanding?  I just want to make sure that the Court is clear about the issues that are going to be addressed for this reason.  Not only does the Court need to know but the interveners need to know, I think, having regard to the relevant notice what the issues are that are going to be raised.

MR GARRISSON:   That, with respect, your Honour, is one of the matters I was going to raise this morning and whether that can be cured by the applicant’s submissions that are filed and, indeed, the 78 - - -

HER HONOUR:   No, I think it is a bit more important than that.  It is about whether or not the attachment B, being the questions stated, is complete and secondly, whether or not the new 78B notice is required, I think.

MR GARRISSON:   Your Honour, if the arguments that the applicant is going to put at hearing reflect the matters that were raised below and in their written submissions below, then the second issue, the section 22 issue, with respect, does need to more clearly identify what the Court is going to be asked to say.

HER HONOUR:   Okay, I am a bit lost. Is that only because it does not refer expressly to section 80?

MR GARRISSON:   Your Honour, section 80 I think only becomes relevant if this Court is asked to find that section 80 binds the Territory. Section 80 can only bind the Territory if the legislature is bound by the same constitutional restrictions as the Commonwealth Parliament. That issue has not been expressly reflected in the question and was touched on, at least to the extent that Bernasconi has been referred to, but there are of course a number of other authorities, as your Honour will be aware.

HER HONOUR:   I know that, Mr Solicitor.  What I am trying to work out is whether or not you object to the form of the questions or whether you think they need expansion.  Maybe I had better have a chat to the applicant.  I understand, that is why I am raising them with you.

MR GARRISSON:   Yes.

HER HONOUR:   I have raised the three issues that seem to be raised by the applicant.  Have you raised this question about the form of the questions with Mr Stellios?

MR GARRISSON:   We have not had an opportunity to really this morning, your Honour.  I have touched on the fact that there are broader issues that the second question seems to engage.

HER HONOUR:   All right.  I will have a chat to Mr Stellios and see whether the three are continuing to be run and then we might have a chat about the form of the questions stated.

MR GARRISSON:   Thank you, your Honour.

MR STELLIOS:   Your Honour, in the court below there were the three strands of the argument on validity.  The way in which the questions have been drafted for the case stated, the first question of course is the Kable question which stands alone.

HER HONOUR:   Yes.

MR STELLIOS:   The second question is wide enough to encompass a question of whether or not section 68BA contravenes section 80. However, we are very conscious that this Court’s decision in Bernasconi is a large obstacle in the pathway of running that argument successfully.  If the Court were minded to hear our submissions on whether or not Bernasconi should continue to be followed, the applicant would seek leave to have Bernasconi reconsidered.

HER HONOUR:   It is not for me to make that determination. The question is whether you seek it. As I said, when I read the submissions that were attached to the affidavit of Kelliher, I think it is, I saw that in a sense there were the three separate streams, as you describe them. I do not know that the question stated in paragraph 2 was sufficiently clear on my reading to realise that it picked up or sought to raise the section 80 question. If it is to be raised and to be run, then I think it should be shelled out.

MR STELLIOS:   Yes, your Honour, and in that light I think it is sensible for that second question to be expanded to make express reference - - -

HER HONOUR:   It may be a third question.  It may be, given the way it works, preferable to raise a third question so there can be no doubt about it.

MR STELLIOS:   Yes, your Honour.

HER HONOUR:   Did anyone oppose that course?  All right.  What I propose to do, I think, Mr Stellios, is this.  I assume the Solicitor has no objection to that course.  How long will you take before you – can you amend that today and provide it to the Court and to the other parties for their consideration?

MR STELLIOS:   Yes, your Honour.

HER HONOUR:   Is it something that can be done relatively quickly?

MR STELLIOS:   It can, your Honour.  We can provide it to the other parties by midday, early afternoon, your Honour.

HER HONOUR:   All right.  What I will do is I will wait to see that before I make the order in formal terms, but subject to me looking at it and the parties agreeing that it is appropriate then that will be the case stated.  I understand that the Senior Registrar may have circulated to both the parties and to the Solicitor some proposed orders or short minutes of order that would deal with the matter and its preparation.  Have the parties received those and looked at them?

MR STELLIOS:   Yes, your Honour.  Can I flag that we have no difficulty with the short minutes of order as they were provided to us?  We do have a minor quibble about two or three of the dates for the submission of written submissions.  I understand that the Solicitor‑General has some concerns about the compressed timeline.  We are comfortable with the compressed timeline but would seek to have a couple of those dates adjusted, your Honour. 

If I can expand on that, as we understand it, the respondent will not play an active part in the proceeding and it will be the Attorney‑General for the Australian Capital Territory who will agitate the question of validity.  As the dates are currently put, the Attorney‑General will have two weeks to respond to the case put by the applicant and the applicant will have a slightly less period to do that. 

So, your Honour, we would suggest that a couple of those dates be adjusted and our preference would be, perhaps, for the first of those dates in proposed order 3(d)(i) to be 13 May.  The second date in proposed order 3(d)(ii) to be 20 May and then the third date in proposed order 3(d)(iii) to be 27 May, with the other dates to remain unchanged.

HER HONOUR:   Have you had a discussion with the Solicitor about these dates?

MR STELLIOS:   No, your Honour, I have not had a chance to do that.

HER HONOUR:   All right.  I will deal first with the respondent.  I will speak, if I may, to Mr Drumgold.  Mr Drumgold, is that the position that you will not take an active part in this matter?

MR DRUMGOLD:   That is the position, your Honour.

HER HONOUR:   Do you seek to have provision made for you for filing submissions at all?

MR DRUMGOLD:   No, your Honour.

HER HONOUR:   All right, I will delete you from the proposed orders.

MR DRUMGOLD:   May it please the Court.

HER HONOUR:   Thank you very much.  Mr Solicitor.

MR GARRISSON:   Thank you, your Honour.  The only change that we would request is that the Attorney‑General and, indeed, the interveners be provided respectively with another week in order to respond.  In so suggesting - - -

HER HONOUR:   I am so sorry; I do not understand that.  Which order do you seek and what dates do you seek?

MR GARRISSON:   Order 3(d)(iii) has another week added to it which would now make that 7 June.

HER HONOUR:   My problem with that, Mr Solicitor, is that this matter is proposed to be heard in June and, as I understand it, has some urgency about it.  The application for expedition was the subject of consent and even on the current timetable we are pushing it – it is very tight for it to be heard at the end of June.

MR GARRISSON:   Your Honour, if I might observe that contrary to the suggestion that was made in the application for removal, there are and will be no jury trials in the ACT for some little time independently of the operation of the challenged provision. 

HER HONOUR:   I do not understand that.  Could you explain that to me, please?

MR GARRISSON:   Yes, your Honour.  There is a practice direction by the Supreme Court that says that there will be no jury trials until further notice.  That remains the case during the course, as I understand it, of the COVID emergency.  The basis for the making of that practice direction was the difficulty in conducting jury trials and abiding by the movement and distancing limitations that are imposed.  Whilst the Attorney has no difficulty with the timely and effective disposition of the matter and, hence, is agreeable to expediting the matter, the proposition that as soon as this Court considers the matter then, if favourable to the applicant, that a trial by jury will commence, is not in fact the case - - -

HER HONOUR:   But it would have wider ramifications, would it not, generally for the administration of justice?

MR GARRISSON:   It will, your Honour, and in respect of a much broader range of issues affecting both the Australian Capital Territory and the Northern Territory.

HER HONOUR:   Yes.

MR GARRISSON:   The indulgence - - -

HER HONOUR:   It seems to me that when you look at the timetable it is not as if you are not aware of the issues raised and as you pointed out to me earlier in the submissions they were the subject of at least reference before the trial judge below and on the basis that the applicant files and serves their submissions by 11 May and you are given two weeks to respond to that it seems to me that that is in the circumstances of - 25 May, it is over four weeks away, having had, as I said, prior notice not only of the issues but the arguments put below.  So given the hearing and given the timetable for the end of June, which is what we are aiming for, I am reluctant to grant you another week, I must say.

MR GARRISSON:   I am in your Honour’s hands.  The preference of the Attorney and, indeed, to afford opportunity to other Attorneys‑General who may wish to be heard at the hearing - - -

HER HONOUR:   They have until 5 June on this current timetable.

MR GARRISSON:   They have the extra week, your Honour.  I really cannot take it very much further than that.

HER HONOUR:   Yes.

MR GARRISSON:   We would prefer to have some additional time.  If your Honour is against us on that then - - -

HER HONOUR:   The problem for me is at the other end.  It is the hearing dates and working backwards.

MR GARRISSON:   Yes, your Honour.

HER HONOUR:   With a hearing date and the book being provided by 15 June it is just getting into the end of June and in the circumstances it is very difficult to provide an extra week.

MR GARRISSON:   I appreciate that.  I was not aware of what the Court’s timetable for recommencing hearings was.

HER HONOUR:   At the moment I think it is hoped that we would be looking to hear this matter at the end of June.  The way in which this matter is heard is of course not yet resolved.  It may be, for example, that the applicant’s and your submissions are heard one day with the interveners heard the next day with them having an opportunity to think overnight whether or not they wish to make additional submissions on the assumption that there are the interveners that you anticipate.  As I said, that is a matter to be resolved once things become clearer.  But given the nature of the matter I think we should – the present intention is to try and list it at the end of June.

MR GARRISSON:   Thank you, your Honour.  In those circumstances it is difficult for me to take that issue very much further.

HER HONOUR:   Thank you.  Mr Stellios, on the assumption that you will provide a new form of case stated and I think also possibly an amended form of notice of constitutional issue, it would seem to me – can they both be done today as is proposed?

MR STELLIOS:   Yes, your Honour.

HER HONOUR:   I am not minded to give you the extra time given the time constraints that have been discussed with the Solicitor.  I will make the orders that are proposed in the short minutes of order in accordance with that timetable.  As I said I will formally make those orders once I have had a chance to see both the case stated and the new section 78B notice.

What I propose is that you provide them to the Solicitor and then inform the Senior Registrar if they are the subject of agreement, in the sense that there is no opposition to at least the case stated, and then I will formally make those orders and the timetable this afternoon in chambers, unless anyone has any objection.

MR STELLIOS:   Your Honour, can I raise one small matter?  Given the current situation with the restrictions in personal contact, perhaps it might be sensible to have an order included that the 78B notices be served by email.

HER HONOUR:   They can be served by email, can they not, under the rules?

MR STELLIOS:   Your Honour, that may well be right.  We thought that there was no scope for substituted service for the 78B notice, but I am happy to be corrected.

HER HONOUR:   I do not know; I will have to check that.  Just one moment and I will check the rules.  Under 5.02.1 the service is service in accordance with the rules.

MR STELLIOS:   Your Honour, my apologies.  It is in rule 9.04 - - -

HER HONOUR:   I think it is 9.04(e).

MR STELLIOS:   That is correct, your Honour.  Yes, my apologies.

HER HONOUR:   I do not think you need a separate order.

MR STELLIOS:   No, thank you, your Honour.

HER HONOUR:   If I am wrong about that – I will have another look at it when I go off the Bench but I think that is the position.

MR STELLIOS:   Thank you, your Honour.

HER HONOUR:   As I said, unless anyone has any objection, I will wait to receive both the amended stated case for the opinion of the Full Court as well as the amended section 78B notice.  You will let the Senior Registrar know when you provide that whether you have spoken to the Solicitor‑General and have his view on both those documents – or at least the case stated question.

MR STELLIOS:   Yes, your Honour.

HER HONOUR:   Then I will make those orders in chambers.

MR STELLIOS:   Thank you, your Honour.  May it please the Court.

A

HER HONOUR:   Mr Solicitor, do you have any objection to that course?

MR GARRISSON:   No objection at all, your Honour.  If I may, in relation to the proposed orders, my learned friend, Mr Stellios, suggested the removal of the respondent within the timeframe of the making of submissions.  I take it that that change will be made.

HER HONOUR:   I have made that – with the consent, as I understand, of the Crown.  I asked him directly and he said he would not, so I have removed him as being obliged to file submissions. 

MR GARRISSON:   Thank you, your Honour.

HER HONOUR:   I have assumed that in the usual course the DPP will submit to the order made by the Court and that you will have the carriage of the matter.

MR GARRISSON:   Indeed, your Honour.  Thank you.

HER HONOUR:   Thank you very much.  Thank you for your assistance.

Adjourn the Court.

AT 9.07 AM THE MATTER WAS ADJOURNED