Vunilagi v The Queen & Anor
[2023] HCATrans 4
[2023] HCATrans 004
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Canberra No C13 of 2022
B e t w e e n -
SIMON VUNILAGI
Appellant
and
THE QUEEN
First Respondent
ATTORNEY‑GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 9 FEBRUARY 2023, AT 9.59 AM
(Continued from 8/2/23)
Copyright in the High Court of Australia
KIEFEL CJ: Yes, Mr Solicitor.
MR DONAGHUE: Your Honours, can I resume this morning at paragraph 6 of our oral outline, on what I have called the second pathway to resolve ground 2. That pathway is that, in our submission, Bernasconi, holds that a law that is supported by section 122 of the Constitution, whether enacted by the Commonwealth Parliament itself, or by subordinate legislature, is not a law of the Commonwealth for the purposes of section 80. We submit that that decision is not distinguishable, and should not be re-opened, and, therefore, that it provides a separate path to dismiss ground 2, if your Honours reach it.
Can I ask your Honours to go to Bernasconi 19 CLR 629, it is volume 3, tab 43 in the joint book, 1915. My submissions will focus just upon the Chief Justice’s reasons with whom Justices Gavan Duffy and Rich agreed. We place no reliance on the different path of reasoning of Justice Issacs, but nor do we need to do so; there is clear majority reasoning in the Chief Justice’s reasons. Your Honours will see the Chief Justice commences his judgment at 632. In the first paragraph, he notes that the accused had been tried without a jury in accordance with an Ordinance in the Territory, and that the first question raises whether he was entitled to a jury trial.
The offence in question, as you see over the page on 633, was an offence, the text of which was found in the Criminal Code (Qld), section 339 of that Code, “an indictable offence”; but it was not, of course, enforced as a Queensland law within the relevant area. It had originally. for our purposes – and you can see this in the first full paragraph on the page – been in force in the Territory by reason of an Ordinance of the previous Assembly of British New Guinea – the British possession of British New Guinea. But that situation changed, and you see that at about point 7 on page 633, when that former British possession was:
placed by the King under the authority of and accepted by the Commonwealth.
At which time it became the territory of Papua. And, as the Chief Justice points out, that was given effect by the Papua Act of 1905. I would ask your Honours to go to that Act very briefly – it is in volume 2, tab 19 of the materials that your Honours have – just to note the similarity between what had happened there and what occurred on the grant of self-government to the ACT. So, if your Honours have the Act, a couple of pages in, you will see section 5. Section 5 accepted:
The Possession of British New Guinea is hereby declared to be accepted by the Commonwealth as a Territory under the authority of the Commonwealth, by the name of the Territory of Papua.
And then, in section 6(1):
Subject to this Act, the laws in force in the Possession of British New Guinea at the commencement of this Act shall continue in force in the Territory until other provision is made.
The language is not the same, but the substantive effect is, in our submission, the same as what one sees in section 34(4) – the laws that were in place at the time it becomes a Territory continue until they are changed by the Legislative Assembly – that is created by this Act. Your Honours see that in section 29, the Legislative Council is created and it is given legislative power by section 36 in familiar terms; powers to make laws:
for the peace, order, and good government of the Territory.
So, Bernasconi is a case where the law enforced – the criminal law in question was a law made by one legislature, Queensland, given effect previously by the Territory Parliament of Papua, but continued in force in the Territory by a law of the Commonwealth – section 6(1) of the Papua Act. The question with which the court was grappling was whether that continued offence was or was not within the terms of section 80. That is the question that the court was asked to answer.
Your Honours will see the argument reported at relevantly from the bottom of the last line of 630 of the report of Bernasconi, over on to the top of 631, and it was quite similar to the argument that your Honours have heard here:
The words “any law of the Commonwealth” include laws made either directly by the Commonwealth Parliament itself or indirectly by an authority to which the Parliament has delegated the power of making laws. The Parliament can delegate only such powers as it has itself, and if section 80 applies to all laws which the Parliament makes, it also applies to all laws made by a delegated authority.
Skip over one sentence:
Sec. 339 of the Queensland Criminal Code of 1899, which creates the offence with which the accused was charged, derives its efficacy from the Papua Act 1905, and is therefore a law of the Commonwealth.
If your Honours then go back to the Chief Justice’s judgment at 634, you see, at about point 4 on the page, a passage that Mr Walker read to you yesterday, where the Chief Justice notes an interesting question raised and discussed with regard to the Ordinance as to whether a law passed by the Territory of a legislature under the authority of a law passed by the Parliament of the Commonwealth can properly be regarded as a law of the Commonwealth in any sense. And after reading that passage, your Honour Justice Gageler asked Mr Walker a question: why is it necessary to deal with Bernasconi if it did not decide the point? And Mr Walker’s response was, and I quote from line 1744 of the transcript:
if what your Honour put to me is so . . . the Court would not be deterred . . . by Bernasconi . . . because, we say, Bernasconi does not touch –
the argument. There is a lot of work done by the “if” in that response, because, in our submission, the appellant had to address Bernasconi, because while he can lose on ground 2 without your Honours getting to Bernasconi, he cannot win without getting to Bernasconi. He can lose because the answer to the interesting question not answered in Bernasconi, was subsequently provided by this Court in Capital Duplicators. The answer is no, a law passed by the self-governing Territory is not a law of the Commonwealth, relevantly, and if your Honours accept that, then he loses without getting to the wider proposition. But if your Honours do not accept pathway 1 as advanced yesterday, you immediately get to the next sentence in Chief Justice Griffith’s reasons in the middle of 634:
But there is a larger and more important question to be answered . . . namely, whether sec. 80 has any application to the local laws of a territory, whether enacted by the Commonwealth Parliament or by a subordinate legislature set up by it.
So, your Honours will note that question is formulated not as a general question about Chapter III, it is formulated as a question about section 80, and laws made in reliance on 122.
EDELMAN J: Although the words that you skipped over do suggest that this question is not the supplementary question, but it may indeed be an anterior question to whether one – before one turns to what the terms of section 80 themselves mean.
MR DONAGHUE: Your Honour, I accept that, and your Honour put something similar to me yesterday. I accept that on the answer to the wider question you would never get to the narrower question, but my submission is that either question is capable of being dispositive of the point. Your Honours have been asked to reopen Bernasconi, and, in my submission, your Honours should not embark upon that course if there is a path of resolving the appeal that does not require you to take that step. That is why I have ordered the – but I accept the logic of what your Honour puts to me.
The wider question was, rather than answer the interesting narrower question – and it is understandable why the Chief Justice did not do that because, arguably, that question did not actually arise on the facts of this case, because, as I have shown to your Honours, it was section 6(1) that was continuing the law and there had not been the kinds of arguments that your Honours heard yesterday about something happening that made the law in question a law of the Assembly.
So, there was not the amendment – there was not the same deeming language that you have in 34(4) upon which I fixed yesterday, and there was not something like the Status and Citation Act. So, one can see why the Chief Justice approached it as he did. But, having approached it in that way, his Honour’s dipositive reasoning then appears over the page at 635, and I will not read it all to your Honours, but in the middle of 635 you see while his Honour starts with a broad proposition about Chapter III, he then narrows in the middle of the page specifically referring to section 80 again:
Sec. 80, therefore, relates only to offences created by the Parliament by Statutes passed in the execution of those functions, which are aptly described as “laws of the Commonwealth.”
That then causes his Honour to conclude at the bottom of that page, about point 9:
In my opinion, the power conferred by sec. 122 is not restricted by the provisions of –
and his Honour there says “Chapter III”:
whether the power is exercised directly or through a subordinate legislature.
But in my submission, and consistently with the way the case has been read subsequently in this Court in cases to which I will come, that reference should be read as section 80. His Honour is answering the wider question that he posed in the middle of section 634. That is also, for what it is worth, how the headnote records what is decided in the case. It records the case as deciding that a law made under 122 does not intersection with section 80.
Your Honours will see nothing in that reasoning that attaches any significance whatsoever to the way that a Territory became a Territory, whether it was formerly part of a State or whether it was surrendered by the Crown, required in any of the three ways identified in section 122 itself, the opening words of 122 itself of the Constitution. Because there is no reasoning in the case that attaches any significance to that distinction, the case cannot properly be distinguished on that basis, as the appellant invites your Honours to do. The reason I say that is because – to draw on one of the leading texts on precedent, Cross and Harris, Precedent in English Law, 4th edition (1991) at 72. The ratio is any ruling on a point:
of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him –
And reasoning is ‑ ‑ ‑
EDELMAN J: In light of the points that are argued.
MR DONAGHUE: But your Honour has seen the points that were argued.
EDELMAN J: But there was not a point argued that there may be a difference between external and internal Territories.
MR DONAGHUE: Your Honour, in my submission, if an argument is put to the effect that laws passed under section 122 are subject to section 80, and the court addresses that argument and says, my reasoning is that that is wrong, laws passed under section 122 do not intersect with section 80, then that is part of the ratio of the case. The facts gave rise to that question, it was argued, and decided.
EDELMAN J: Undoubtedly, that is right, but the ratio is only binding to the extent that a point was argued. A decision can be given without any argument and have a ratio.
MR DONAGHUE: And that ratio – it might provide a basis on which your Honours are persuaded that the case was not correctly decided – that it needs to be qualified in some future way – but it does not mean it is not part of the ratio of the case, in my submission. So that one cannot just say, do not worry about Bernasconi because it involved an external Territory.
The Chief Justice’s reason – the actual steps in his reasoning have the conclusion that if the law – whether by the Commonwealth Parliament itself or by a subordinate legislature – is supported by 122, then section 80 is not relevant. The Chief Justice – Chief Justice Griffith, that is – was, in one of the very first decisions of this Court in Deakin v Webb – which is a case your Honours do not have before you, but I might just, if I may, read your Honours one passage from it. This is in the first volume of the Commonwealth Law Reports at page 585. His Honour was confronted with a case where the judges of the Supreme Court had said of this Court’s decision in D’Emden v Pedder, their Honours:
intimated that they did not consider themselves bound by the reasoning contained in the judgment of the Court in D’Emden v Peddler (supra), although they agreed in the conclusion.
And his Honour said:
This is, we think, a somewhat novel mode of dealing with a judgment of a Court –
when the judges express their reasons, they:
are accepted by other Courts upon whom the decision is binding, as an authoritative exposition of the law on the point under consideration. If reasons may be disregarded and treated as mere obiter dicta, because, in the opinion of the Court, the same conclusion might have been reached by another road, the value of judgments as expositions of the law would be sensibly diminished.
So, we submit that it is not open to our friends to say that this case, Bernasconi, could have been decided on a narrower basis specific to external Territories. It was not decided on that basis, so your Honours would have to re-open it and overrule it to accept our friends’ new and narrower case. Not only, in our submission, did the reasoning not attach any significance to the distinction that your Honours are asked to adopt, but it is not a distinction that finds any support in the text of the Constitution or indeed in subsequent authority. As to the text, your Honours will have noted in section 122 that there are three different kinds of Territories referred to in of that provision:
territory surrendered by any State to and accepted by the Commonwealth –
Territories:
placed by the Queen under the authority of and accepted by the Commonwealth –
and Territories:
otherwise acquired by the Commonwealth –
But in respect to all three categories, there is the same power in the opening words of 122, to:
make laws for the government of –
the Territory. And so, there is, nothing in the text that would support the idea that, depending on which kind of Territory you are, the resultant law passed under 122 might intersect with section 80 sometimes, but not intersect with it other times; there is no textual hook for that argument. And, as a matter of authority, it is likewise not an argument that has commended itself to the Court.
GAGELER J: Mr Solicitor, for my part, I have great difficulty in reading Chief Justice Griffith’s reference to Chapter III, repeated at page 635 several times as a reference only to section 80. He poses the question at page 634 but his reasoning in giving an answer to that question is one that looks at the relationship between section 122 and Chapter III as a whole. It is very difficult to read it any other way. I am not sure if it has ever been read differently in any of the cases that have criticised Bernasconi.
MR DONAGHUE: They criticised it because of the references to Chapter III other than just section 80 and in subsequent cases – I am going to come to Spratt v Hermes in a moment – that the Court has said, as to section 80, the decision should stand – should be allowed to stand. And what has then happened in Spratt and subsequent cases is that the why of reasoning in relation to Chapter III has been progressively ‑ not entirely disregarded, but progressively whittled away in various respects; and I am not seeking to defend ‑ ‑ ‑
GORDON J: So, you do not – to make good that argument, you do not need to read Chief Justice Griffiths in the way you contend for?
MR DONAGHUE: Your Honour, I certainly do accept that there are multiple references in the judgment to Chapter III, but there are also specific references to section 80, and the only point that his Honour actually had to decide was the section 80 question and the ‑ ‑ ‑
GORDON J: I thought that the subsequent analysis of this was threefold, was to that extent that it was no longer a correct statement of the law in relation to Chapter III and it was, in any event, possibly obiter. Is that not the way they have been dealt with in subsequent cases?
MR DONAGHUE: It has been explained – and I will take your Honours to the case in a moment – as going wider than the occasion demanded, I think was the language that Chief Justice Barwick used in describing it.
EDELMAN J: That sounds a lot like the vice that you were pointing out from Deakin v Webb – rewriting the reasons in order to reach the conclusion in a way that might be more palatable.
MR DONAGHUE: Your Honour, the proposition in relation to section 80 was his Honour seemed to read it – looking at middle of 635, he expressed a statement about Chapter III and then said:
Sec. 80, therefore, relates only to offences –
So, there are specific statements that his Honour made in his reasons as to the question he had to decide concerning section 80, that section 80 had this particular narrow operation. Part of the way that he got there, I accept, was by making wider statements about Chapter III than the Court would now accept.
But, in my submission, in terms of the point that was proffered for decision – does section 80 apply for a law; the answer given, no, it does not – the headnote accurately records that that is what he case decided and I do not need to, and I am not seeking to, support wider aspects of the reasons that, as I say, have already been narrowed in various respects. But on the particular question that fell for decision concerning the relationship between section 80 and 122, the Court has treated the case as an authority on that particular point and has refused to re‑open it.
KIEFEL CJ: Apart from Spratt v Hermes – and Chief Justice Barwick in particular adopts the headnote as correct.
MR DONAGHUE: He does.
KIEFEL CJ: There are cases following Spratt v Hermes which treat it to the same effect?
MR DONAGHUE: There are. So, in Capital TV v Falconer (1971) 125 CLR 591 – your Honours have it in volume 3, tab 34 – at page 606 Justice Menzies says Bernasconi:
goes no further than to establish that, as a matter of construction, the words “any law of the Commonwealth” in s. 80 should be read as if they were followed by the words “other than a law made under s. 122 –
and on that basis:
the decision in R. v. Bernasconi should be allowed to stand as establishing the construction to be accorded to s. 80 –
That quote that I have just read, your Honours, was quoted in full by Chief Justice Gleeson and Justice Gummow in GPAO at paragraphs 88 and 89, and their Honours expressly agreed with it. In Newcrest Mining v Commonwealth (1997) 190 CLR 513 at page 558 at the bottom of the page Justice Dawson says:
Of course, R v Bernasconi establishes that a law made under s 122 is not a law of the Commonwealth for the purposes of s 80.
At page 650 Justice Kirby says exactly the same thing. So, there is Spratt, there is Falconer and then more recently GPAO and Newcrest. Judges of the Court have all referred to Bernasconi as deciding the section 80 point, and I am not aware of any case where it has been suggested that it has not, that it did not decide that point. It is the wider ramifications of the proposition that the Chief Justice advanced that Chapter III does not intersect with 122 at all that has caused the Court to look again at Bernasconi from time to time and to say – so, for example, Spratt v Hermes was a good example.
That case was not about trial by jury. It was about whether or not an ACT court was a federal court or not. If it were the case that Chapter III did not relate at all to section 122, then there would have been nothing more for the Court decide, but the Court said, well, we are not going to reopen Bernasconi as it relates to section 80, but we are going to look more generally at whether it is right to say that there is no intersection between 122 and Chapter III, and that is the way that the cases have developed.
I have referred to Spratt v Hermes a little, your Honours; I should actually take your Honours to it. It is volume 3, tab 48, (1965) 114 CLR 226. Can I ask your Honours to start with Chief Justice Barwick’s judgment on page 243. At the bottom of that page his Honour discusses Bernasconi. In the last two lines, he says:
It was there decided that, and I quote the headnote to the report of the case which, in my opinion, accurately reflects . . . “the power of the Commonwealth Parliament by s. 122 . . . whether that power is exercised directly or through a subordinate legislature, is not restricted by the provision in s. 80 –
Then his Honour said:
Whatever doubts there may be as to that decision, in my opinion, what is actually decided, as thus expressed, ought not now to be disturbed. For one thing, it is a decision of long standing upon the basis of which legislation has frequently been passed –
So, this is about 50 years after Bernasconi, and 60 years ago, his Honour saying it is too late to look again at the correctness of that decision. His Honour then gives an account in the middle of page 244 as to a rationale for that analysis, for that result, based upon, in effect, the diversity of the Territories:
the unlikelihood that it could have been thought that juries would be found in such potential territories –
would be governed by section 122. But his Honour then says:
But, whatever reason . . . it is because of the construction of s. 80 itself, as distinct from . . . Chap. III as a whole –
and his Honour goes on to say that, over the page at 645 – and this is the passage your Honour Justice Gordon, I think, had in mind – the first full paragraph, about point 2:
these expressions went beyond the occasion, and were in their full extent unnecessary in order to support the conclusion that the offences to which s. 80 relates are only such as are created by the exercise of federal legislative powers.
So, his Honour goes on to explain why he thinks parts of Chapter III clearly are applicable to the Territories but does not regard that as touching upon the actual point decided by Bernasconi. Justice Kitto at page ‑ ‑ ‑
EDELMAN J: What does the Chief Justice mean by:
it is because of the construction of s 80 itself.
Is that making a point about the first submission that we are dealing with in this case; the construction of section 80 itself would mean that this is not a law of the Commonwealth?
MR DONAGHUE: That “law of the Commonwealth” in section 80 is to be read as meaning – this is the way Justice Menzies put it in Falconer as a matter of construction – as meaning any law of the Commonwealth other than a law made under section 122. That is how the words in section 80 are construed. That is how Justice Menzies has put it and, in my submission, Chief Justice Barwick is saying much the same thing. At 257 of the report, Justice Kitto says ‑ ‑ ‑
GLEESON J: Sorry, what page was that, Mr Solicitor?
MR DONAGHUE: Page 257, your Honour, at about point 3 or point 4. Having discussed some of the other authorities, he says:
as regards Porter –
it is:
simply a question whether Bernasconi stands or not –
and his Honour says:
it has stood so long and been acted upon by the Parliament so often that I cannot doubt we will best perform our proper service by accepting it as established law.
Aspects of his Honours reasons are then probably wider than would now be accepted. Justice Windeyer at 275, in the middle of the page:
The actual decision in Bernasconi’s Case was that s. 80 of the Constitution did not apply in cases arising under what Griffith C.J. there called “the local laws of a territory, whether enacted by the Commonwealth Parliament or by a subordinate legislature . . . Recognition of the decision does not necessarily involved acceptance of the statement that Chap. III as a whole has no application –
and then five or six lines down:
It may be thought unwise now to unsettle in any way the reasoning of the judgments in Bernasconi’s Case, and in Buchanan’s Case, which preceded it. Those cases have stood for over half a century, notwithstanding some judicial misgivings –
and then another few lines down:
I do not think that the conclusion that Chap. III, as a whole, can be put on one side as inapplicable to matters arising in the territories is warranted by its actual language.
So, again, like Chief Justice Barwick, the case should not be disturbed as to what it decides on section 80, but should not be regarded as deciding the question of whether Chapter III can have any wider application. And, more briefly but to similar effect, your Honours will see Justice Taylor at the bottom of 260 treating Bernasconi as the clearest authority, and Justice Menzies at the bottom of 269 saying his Honour is prepared to treat it as binding.
So, in our submission, what I am putting to your Honours as to the way you should regard the authority of Bernasconi is not a novel submission. It is a submission that has the direct foundation in the way the Court analysed the case in Spratt 60 years ago. That understanding of the ratio of Bernasconi is irreconcilable with ground 2 because whether having forces or law of the Commonwealth Parliament, as Mr Walker’s primary submission would have your Honours find it, or whether having forces or law of the Assembly as the secondary proposition would have it, it is clearly an offence having effect by reason of, directly or derivatively, section 122 of the Constitution. For that reason, your Honours cannot accept that ground, in our submission, without reopening the case.
As to the question of whether you should reopen it, there is a written application inviting your Honours to do undeveloped orally. In my submission that reflects a realistic appreciation of the height of the barrier in this case. Your Honour Justice Gageler in NAAJA – and I do not need to take your Honours to it, but it is paragraph 108 – explained in the context of another case concerning the relationship between 122 and Chapter III that – and if I can read one sentence:
What needs to be addressed is not how the question might best be answered if the historical slate were to be wiped clean and the Constitution were to be read anew, but whether there is sufficient justification for now reopening, and, if so, departing from the answer already given –
In our submission, there is no such sufficient justification in this case. Our friends have made little attempt to demonstrate how the four factors that the Court set out in John v Federal Commissioner of Taxation could be satisfied in this case. There is obviously no division in the reasoning of the majority of – being the single judgment of Chief Justice Griffith. While it is true that the case was a decision early in the life of the Court so it was not worked out in a significant succession of cases, there have been many cases since, as I have already noted to your Honours, that have accepted that the decision should stand for the narrow point it decides.
Perhaps most critically, the fourth factor, whether the decision has been independently acted on in a manner that militates against reconsideration is, as I said at the end of the day yesterday, very strongly present in this case. The Commonwealth and the Territories – pre‑self‑government, the Commonwealth was obviously passing its own laws, or ordinances, for the governments of the Territories. For a long time they have allowed for judge alone trials. We have collected various laws that have done so in footnotes 56 and 57 of our written submissions. Since self‑government, the ACT has permitted trials on indictment where the offence has consented to a trial by judge alone. All of those – any convictions in such trials would be invalidated by reason of a decision to reopen and overturn Bernasconi.
Our friends in writing – the appellant at paragraph 26 to 28 said your Honours should not assume that a decision in this case would have ramifications outside the ACT for the Northern Territory or Jervis Bay. But in response to a question your Honour Justice Gageler asked yesterday, your Honour said, well, what is the distinction? Is it the ACT or internal or external? The answer given at transcript 1511 was:
not a Territory made from a State –
So, if that is the case, then there is no basis for distinguishing between the ACT and the Northern Territory or Jervis Bay, and the argument that your Honours are confronting is an argument that involves the possibility not just of judge alone trials in the ACT being unlawful for the last almost 30 years, but similarly in the Northern Territory where such trials have long been permitted. The Northern Territory also allows majority verdicts and has done so since, as I understand it – or they are permitted now under a 1983 law, and I believe – though our friends may correct us – that it goes back to 1933. So, again, overruling Bernasconi means any majority verdict decisions would be jeopardised.
Parliament has, as the Court recognised in Spratt, acted repeatedly on the decision in Bernasconi, and in our respectful submission, your Honours have heard nothing that would make it appropriate to regard – to use your Honour Justice Gageler’s words – the historical slate as wiped clean and to just look at the question anew. It should be regarded as closed.
Having said all that, your Honours, our first and primary submission with which the ACT and the Northern Territory join is your Honours do not need to get to Bernasconi at all. This offence had effect as a law of the Territory. It can be answered by reference to the interesting question that Chief Justice Griffith did not need to answer in Bernasconi, that section 80 just does not apply to laws of the Territory. Capital Duplicators, Svikart v Stewart decide that, and so whatever be the position on pathway 2, ground 1 can be dismissed without your Honours needing to reach the reopening question. But if you do reach it, in our submission, ground 2 should be rejected, for the reasons I have just given.
Unless your Honours have any questions, those are our submissions.
KIEFEL CJ: Thank you, Mr Solicitor. Solicitor‑General for the Northern Territory.
MR CHRISTRUP: Thank you, your Honour. Your Honours, I propose to address you in relation to ground 2 only. I will start with the proposition or the argument that is set out in paragraphs 2 through to 7 of our outline of oral submissions.
Your Honours, ground 2 in its entirety can and should be dismissed for the reason that a law made by the Legislative Assembly in the exercise of its plenary power is not a law of the Commonwealth for the purpose of section 80 of the Constitution. The submission that we develop on that point assumes that this Court accepts the argument that was put by the second respondent and the Commonwealth to the effect that the law that creates the offences in sections 54 and 60 of the Crimes Act took effect as a law of the Assembly.
Once that point is reached, then the question becomes whether that law – a self‑governing Territory – is a law of the Commonwealth. The plurality in Re Colina; Ex parte Torney (1999) 200 CLR 386, at paragraph 25, held that a:
“law of the Commonwealth” –
for the purpose of section 80, means a law:
made under the legislative powers of the Commonwealth.
The natural import of those words are that the law involves an exercise of Commonwealth legislative power, either immediately; that is, by a statute of the Parliament, or mediately, through delegated legislation. That, we say, disposes of ground 2 because the appellant does not challenge the proposition established in Capital Duplicators, number 1, that the Assembly of the Australian Capital Territory does not exercise the legislative power of the Commonwealth and:
is not an agent or a delegate of the Commonwealth Parliament.
EDELMAN J: Much may depend upon what is meant by “delegate”. I mean, in Capital Duplicators, it looks like the phrase “agent or a delegate” was used as a composite phrase to talk about acting on behalf of another, or in the interests of another. That is not what delegate usually means.
Power can arise in three ways. It can either arise in circumstances where you exercise the power for the benefit of another, or you could exercise the power for your own benefit as a delegate, or you could exercise the power independently of any other, such that that power could never be revoked. It is a very large question – very large issue – and submission to say that self‑government provisions could never be repealed.
MR CHRISTRUP: I am not suggesting that the self‑government provisions cannot be repealed. If that is what the Commonwealth chooses to do, then it can do that. But, in our submission, the way in which the word “delegate” was used by the majority in Capital Duplicators was in the context, we say, of a delegated legislation or legislation or that kind, and it did not extend – it was not intended to extend to a plenary legislative power passed upon a separate body politic created under section 122. The relevant passage from the judgment is – her Honour said that:
The Legislative Assembly of the Australian Capital Territory has been erected to exercise not the Parliament’s powers but its own, being powers of the same nature as those vested in the Parliament.
Now, the appellant in his reply, at paragraph 8, submits that the phrase “laws of the Commonwealth” is not limited to a law in:
‘the exercise of federal legislative power’ –
but includes a law of the self‑governing Territory. He says this is so because the Assembly’s legislative powers have this ultimate source, a Commonwealth law under section 122.
There are, we say, three principal difficulties with that submission. The first one is that it is contrary to past observations by this Court in respect of section 80 of the Constitution. Going back to Re Colina, the authorities that the majority cited in support of the proposition that the Legislative Assembly had not exercised the power of the Commonwealth – sorry, in Re Colina, in support of its description that section 80 refers to the law made under the legislative powers of the Commonwealth – in support of that proposition, their Honours cited a number of cases in footnote 53. One was that of Bernasconi, at page 635 in the judgment of Chief Justice Griffith, and the second one is the case of Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 431.
The passage from the Chief Justice in Bernasconi is in the following terms. Section 80, therefore, relates only to offences created by the Parliament by statutes passed in the execution of those functions which . . . . . described as laws of the Commonwealth. Likewise, in the passage from Colonial Combing, Chief Justice Knox and Justice Gavan Duffy said that the phrase “the laws of the Commonwealth” is found both in covering clause 5 of the Constitution and also in various places in the Constitution itself, and that that phrase, in every case where it appears, it probably means Acts of the Parliament of the Commonwealth.
The appellant seems to be giving some other meaning to the word “Commonwealth” where it appears in section 80. In particular, if the word “Commonwealth” is read in section 80 in its geographic or its national sense – as was alluded to by counsel for the appellant yesterday – then it would apply with equal force at the trial on indictment of the law of a State. It is well‑established that section 80 has got no operation in respect of State offences. Plainly, it is not the sense in which law of the Commonwealth is used in section 109. To have a coherent operation, the word “Commonwealth” in section 80 and section 109 must refer to the Commonwealth as the federal government. As Capital Duplicators (No 1) establishes, this does not include the Australian Capital Territory as a separate body politic.
The second reason why the appellant’s construction must be rejected is that there are other provisions in the Constitution which uses the same or the similar phrases, and those provisions cannot be coherently extended to include the laws of a self‑governing Territory. My learned friend for the Commonwealth Attorney‑General has already referred to sections 61 and 109. The appellant yesterday, in all the submissions, referred to section 118. However, that phrase – sorry, that provision – does not contain the phrase “the laws of the Commonwealth”. It refers to “the Commonwealth” and to the laws “of every State”. The construction of section 80, therefore, does not control the meaning of section 118.
Your Honour Justice Gleeson yesterday mentioned section 120. That provision, as your Honours are aware, concerns the obligations of the States, in respect of persons on remand or convicted of offences against the laws of the Commonwealth which, necessarily, includes those tried on indictment. If the appellant’s argument is accepted, and then an offence created by an Act of a Territory legislature or the Assembly of the Australian Capital Territory, or the Northern Territory for that matter, would engage the State’s obligations under that provision; to make provision for the detention in its prisons of persons accused or convicted of a Territory offence; and to make provision for the punishment of those convicted of that offence.
The third difficulty with the appellant’s submission is that, if that submission is accepted – that is, the law of the Commonwealth includes the law of a self-governing Territory, then that would call into question the validity of the self-government arrangements of the Territories. By section 1 of the Constitution, the legislative power of the Commonwealth, is exclusively vested in the Parliament. And, as what is recognised in Capital Duplicators (No 1), the Parliament may delegate that power, but it may not abdicate it; and that appears from the decision, or the reasons of the majority at page 283 and also at page 264 in the judgment of the Chief Justice, and Justices Dawson and McHugh in dissent.
Because the appellant does not challenge the correctness of Capital Duplicators (No 1), he must accept that Parliament does not delegate its powers to the Assembly, including because it has not retained the power to disallow any legislation made by the Assembly. It follows that if the Assembly makes laws under the legislative powers of the Commonwealth – to use the language of Re Colina, then the vesting of legislative power by section 22 of the Australian Capital Territory (Self-Government) Act may be unlawful, being contrary to the unchallenged reasoning in Capital Duplicators (No 1) that Parliament cannot abdicate its legislative power.
For those reasons and for the additional reasons we have put in writing in our written submissions, ground 2 should be dismissed. I was going to, this morning, also say something about the binding effect of Bernasconi as set out in paragraph 8 of our outline. My learned friend the Solicitor-General for the Commonwealth has already addressed the Court in relation to that decision this morning; I do not need to address your Honours on it – which takes me to my final point, and it arises, or it concerns the proper construction of section 80 in the event the Court decides to re-open Bernasconi and look at a ‑ ‑ ‑
GORDON J: Mr Solicitor, may I just ask one question of clarification on your outline: where you have “directly” or “indirectly”, is the reference to “indirectly” in the first line of proposition 9 a reference back to your paragraphs 4 and 5 of your outline?
MR CHRISTRUP: Yes, your Honour, it is a reference to ‑ ‑ ‑
GORDON J: Namely, delegation?
MR CHRISTRUP: Absolutely, your Honour. We are not suggesting it is, for example, an Act of the Assembly of a Territory.
GORDON J: Thank you.
EDELMAN J: Your submission, really, is that it has created power, not delegated power, is it not, that what makes the Assembly a body that is neither an agent nor a delegate is because new power has been created under 122.
MR CHRISTRUP: That is so, your Honour. So, my final submission, your Honour, concerns the proper construction of section 80 in the event the Court gets to that point. Fairly, the determination of that construction point
only arises for determination if the appellant can clear all the other hurdles that are in his way under ground 2. We have addressed the proper construction of section 80 in our written submissions at paragraphs 28 through to 37; and I do not intend to elaborate on those. The only point I wish to make orally concerns section 120 of the Constitution, and we did not refer to that provision in our written submissions. But there is an obvious connection between sections 80 and section 120.
Section 80, the former, concerns the trial on indictment of Federal offenders, and the latter concerns the obligations of the States in respect of persons that are either on remand or that have been convicted of those Federal offences, including those that have been tried on indictment. The majority in Lamshed v Lake made some observations in relation to section 80; and they are observed – sorry, 120, not section 80, it is at page 143 of the Chief Justice with Justices Webb, Kitto, and Taylor agreeing. The observation, there, is that there is:
no very strong reason –
that the laws of the Commonwealth, that is referred to in:
s 120 should not include offences created under s. 122.
If that observation is correct, your Honours, then it must follow, we say, that the reference in section 80 to any offence against the Commonwealth must include a reference to an offence created by a Commonwealth law under section 122.
I should note, for completeness that section 120 was also discussed in some of the judgments in the decision of The Queen v Turnbull; Ex parte Taylor (1968) 123 CLR 28, in terms which are consistent with the notion that laws of the Commonwealth in section 120 include a law made by the Parliament or its delegate under section 122. I do not need to take your Honours to those passages, but I can provide them if it is convenient. It is pages 33, 34 and 37 of the Chief Justice; page 39 of Justice McTiernan in dissent, page 46 of Justice Windeyer in dissent and at page 49 in the judgment of Justice Owen. However, as I say, ground 2 should be resolved without getting to the construction of section 80.
Unless there are any other questions, those are my submissions, your Honour.
KIEFEL CJ: Thank you, Mr Solicitor. Any reply, Mr Walker?
MR WALKER: May it please your Honours, yes. Your Honours, to make it crystal clear, no part of our argument is intended to cast the slightest adverse light on the validity and effectiveness of section 22 of the Self‑Government Act and like provisions elsewhere. However, in what might be called a sustaining sense, section 122 of the Constitution was not merely necessary, temporarily or instantaneously, to commit the enactment of section 22, but remains a source of power through the Self‑Government Act, which is an enactment of the Commonwealth for everything which follows by the exercise of the created legislative authority of the Assembly.
So much can be shown by the excursion from time to time historically having occurred, and potentially which may occur from time to time, by the Commonwealth Parliament directly to counter – that is, to render inoperative – legal creations, legislative decisions, of the Assembly, utterly uncontrolled by the Self‑Government Act itself.
As my friend for the Northern Territory makes clear, there is no question of the Commonwealth ceding in the sense of abdicating its power under section 122, but we would go further and say, neither does it matter whether or not the Self‑Government Act has any and, if so, which form of disallowance provisions in it. Notoriously, sometimes self‑government Acts do have disallowance provisions, but they do not have to be found in the Act which creates the new legislative authority in order for that capacity, legislatively, of the Commonwealth to be constantly, continuously available, to be exercised from time to time.
The only difference is whether it is done by the stroke of a pen in Executive Council or whether it is done by the legislative will expressed by the Parliament of the Commonwealth ad hoc.
For those reasons – we start in our reply to a number of our friends’ submission by drawing to attention, structurally, the provisions with respect to Territories and the laws governing Territories in such a way as to show that there is nothing bizarre or, we would submit, contrary to an authority constituted by a decision needing to decide the point, and for reasons which are acceptable nowadays, in the proposition that in its final form in our arguments – I make no bones about it, the most difficult part of our argument – and assuming these offences were offences against laws of the Territory, there should be no difficulty, structurally, in regarding those, for the purposes of section 80, indeed, probably for other purposes as well, as laws of the Commonwealth.
One may in a number of different ways, and your Honours have seen a variety of selected starting points in the argument, but may I introduce another variant in light of the way our friends have variously addressed the matter. You have the pair of sections 111 and 125 to explain the status of the Australian Capital Territory, which, as section 125 makes clear, comes from one of the original States. There cannot be any doubt that it comes from what might be called Commonwealth territory, Commonwealth in the sense of the Federation.
But equally under section 111 there cannot be any doubt by reason of the phrase “the exclusive jurisdiction of the Commonwealth” that what occurs thereafter and forever, and in every respect, is a demonstration, an exercise, of what is called “the exclusive jurisdiction of the Commonwealth”, and that surely cannot lend itself nowadays, if ever, to a reading of a kind which would say 111 ought to be understood as if these words followed at its end, otherwise than in the case of a Territory legislature.
Or, to put it another way, “the exclusive jurisdiction of the Commonwealth” is a phrase which naturally, for reasons which come from section 122 to which I will next turn, which naturally describe the juristic status of Territory – newly created – legislative authority. It is a result of, and everything it does thereafter is explained as a particular demonstration, manifestation, of the exclusive jurisdiction of the Commonwealth, which is the constitutional position of all territories accepted under section 111.
GAGELER J: Was not this argument flatly rejected in Capital Duplicators?
MR WALKER: No, your Honour. It is convenient if I turn to that, I will come back to other matters of the structure. Capital Duplicators does not decide anything adverse to what I have just said concerning the meaning juristically of “exclusive jurisdiction of the Commonwealth”. Capital Duplicators decided something which is on all fours with the way in which we put the argument, including just now, concerning the expression in section 90 about “the power of the” – capital “P”, that is Commonwealth – “Parliament” being exclusive to impose, relevantly, duties of excise, and answered the question, with great respect, in an entirely satisfying fashion by pointing out it could have been done with some tartness, one might think, that the newly created legislature created by the Parliament was certainly not the Parliament.
This is not a mini‑me exercise. The Parliament of the Commonwealth was not reproducing itself in some fashion when it created the Legislative Assembly of the Territory and, thus, for the Legislative Assembly of the Territory to purport to impose that which was an excise, as is resoundingly demonstrated by the reasons in Capital Duplicators, could not possibly be seen as an exercise of the power of the Parliament to create that excise.
GORDON J: Just so I am clear, that submission is put despite what is said at pages 281 to 283 which we were taken to yesterday? I.e. ‑ ‑ ‑
MR WALKER: No ‑ I am so sorry, your Honour.
GORDON J: I do not need to tell you what they are, you know what they are.
MR WALKER: Yes. No, it is not in the face of them. It is consistent with them.
GORDON J: Is it a layer on top of it? Is that the way it is put? I ask that for this question, because, at least as I read Justices Brennan, Deane and Toohey, they talk about the enactments of the Self‑Government Act not lacking independence, they are not delegates, they are plenary powers, and so one has a characterisation of what is being given by the Commonwealth to the Territory, and so is this a layer on top of that?
MR WALKER: If it is the figure of speech, “layer”, in our submission it is entailed in that approach that, of course, when the Legislative Assembly of the Territory purports to impose an excise, that is not an exercise of the power of the Commonwealth Parliament. The Commonwealth Parliament exercises its powers by well‑known ways which does not include, by delegation or otherwise, the ACT Legislative Assembly making laws within the power of the Parliament. That is the first thing. It is not an exercise of the power of the Commonwealth Parliament when the Legislative Assembly, itself created by the power of the Commonwealth Parliament, enacts its own legislation. That is Capital Duplicators and there is nothing in our argument that contradicts that.
It is, I suppose, in the sense that Justice Gordon has asked me to consider, a layer above or an extension or implication that we would seek to draw from the provisions to which I have already referred. But it still remains the case – as, indeed, Capital Duplicators makes plain in the various statements about the nature of self‑government for a Territory – that it is entirely and completely – and remains – a creature of, and subject to, the exclusive jurisdiction of the Commonwealth.
GORDON J: The difficulty – sorry, Chief Justice, you go.
KIEFEL CJ: You continue.
GORDON J: The only point I seek to make is, there, that that conclusion, as I understand it was, that even though the Governor‑General could disallow in those circumstances, it was said it did not take away at all the fact that it was an exercise of power by the Legislative Assembly. So, this sort of Commonwealth intervention – to put it in sort of neutral terms for present purposes – does not get you where you need to go, does it?
MR WALKER: What Capital Duplicators held – and I accept – is that the fact that the Commonwealth can do what it likes under section 122 – indeed, under section 111 with respect to the Legislative Assembly of the ACT – there is no protection as in sections 106 and 107 for the States – did not mean that the product of the Territory Assembly could possibly be regarded as an exercise of the power of the Parliament to impose and excise which was exclusive to the Commonwealth Parliament under section 90.
That, in our submission, is an entirely satisfying explanation, bearing in mind that section 90 is designed to control what I will call “the policy and content” of taxation relevant to the making of a nation economically and that those policy choices are made by parliamentary process. If they were made by the Territory Assembly, they were not being made by the parliamentary process debating and deciding on policy and making law which is the exercise of the power of Parliament to impose an excise under section 90.
That is why nothing in our case cuts across Capital Duplicators because it was about the critical concept that it would be the power of the Commonwealth Parliament in its debate and enactment of legislation and the making of choices about taxation for the nation, subject to the limits with respect to those particular forms of tax imposed on the Commonwealth Parliament itself – section 99, for example. Those matters could not possibly be regarded as being within the grasp of a newly created section 122 self‑governing territorial Legislative Assembly.
GAGELER J: Mr Walker, I am sorry, the word used in section 111 is “exclusive”.
MR WALKER: Yes.
GAGELER J: The same word is used in section 90.
MR WALKER: Yes.
GAGELER J: In both cases, do they not simply mean “exclusive to the States”?
MR WALKER: Certainly, section 111 means that.
GAGELER J: Capital Duplicators held that that is what the word means in section 90, as I understand it.
MR WALKER: Capital Duplicators holds that it has got to be the Commonwealth Parliament that imposes the excise.
GAGELER J: Yes.
MR WALKER: That is not quite the same as what your Honour puts to me.
GAGELER J: No. Fair enough.
MR WALKER: It means that something else freshly created cannot do it.
GAGELER J: Yes.
MR WALKER: It has to be the Commonwealth Parliament. The whole of the Constitution is permeated with, if you like, contest – or cooperation, depending upon how optimistic one is feeling – between the newly created Commonwealth and the federating colonies, the States. But that is not the end of the story, it is scarcely a complete account of the beginning of it.
GORDON J: I suppose I will have one more go. It is really – the point was raised at 283 by Justices Brennan, Deane and Toohey, in which they draw a distinction to say, listen, the Commonwealth Parliament has not got power to disallow under the Self‑Government Act, it has a pass a law itself.
MR WALKER: That is right.
GORDON J: There is a distinction, is there not, between those two kinds of events?
MR WALKER: No, not at all. They both entirely depend upon choices made in the Self‑Government Act. You can have disallowance in the Self‑Government Act and also have a statute that comes in and says, you shall not have an euthanasia law.
KIEFEL CJ: Capital Duplicators recognises that the Commonwealth retains power under section 122.
MR WALKER: Yes, of course.
KIEFEL CJ: But you are saying more than that.
MR WALKER: Yes, I am. But that is part of what I am saying, yes, of course. It is a truism – I accept – but I seek to enlist it as being thereby a sturdy foundation for the proposition that everything that emanates from a Territory legislature is, and can only be, a manifestation of the continuing ‑ ‑ ‑
KIEFEL CJ: This is really – you are really taking up the point you were making yesterday – it is the source argument.
MR WALKER: Yes, it is.
KIEFEL CJ: Ultimately, it is sourced in the Commonwealth power and never goes away.
MR WALKER: It is not just sourced in what might be called an original sense, it is sourced and also continues to sustain – that is there is, there may be from time to time, ad hoc interventions – there is, in any event, whatever regime the Self‑Government Act says concerning limits of powers – section 22 does not impose much of a limit, but section 28 certainly does, in the Self‑Government Act – and, in our submission, it is of significance with respect to Territory enactments that they are at all times manifestations of the exclusive jurisdiction of the Commonwealth.
That does not mean that the Acts of the Assembly are Acts of the Parliament – that, after all, is the point about Capital Duplicators. Of course it does not mean that. The difficult task I have got, obviously – in my last proposition – is that, if these be offences against Acts of the Assembly, then I am trying to persuade your Honours that, properly understood, a guarantee of jury in section 80 ought to be regarded through the phrase “any law of the Commonwealth” as including offences which exist only because, as a manifestation of the exclusive jurisdiction of the Commonwealth and dependent constantly and completely on section 122 legislation enacted by the Commonwealth Parliament, the offence has been created.
By contradistinction – by complete contrast, constitutionally – was the state of an offence created by a State Parliament, about which none of that can ever be said. The only, if I might call it “Commonwealth element” for the State Parliament will be imported by (a), the guarantees in sections 106 and 107 – which plainly see Colina – have nothing to do with section 80, when picked up; and (b) of course, whatever effect section 109 does – but that will only affect, obviously enough, in areas of concurrent competence – the paramountcy given to a Commonwealth provision with respect to a purported State offence – again, to be put to one side, it is not informative of any of the issues in this argument.
But, in our submission, as arguments against us have fairly challenged us, as questions from your Honours both to me and to our friends have demonstrated, there are other aspects of the Constitution to which some reference needs to be made in order to evaluate the argument I am attempting. Obviously, at its heart is section 122, which is one of the provisions which demonstrates, as Sir Samuel Griffith makes plain by a couple of remarks in the course of judgment in Bernasconi, that of course the Constitution from the beginning had pregnant within it the possibility of the government of Territories via a measure of self‑government, not just directly under section 122. So, when one looks at the word “government” in section 122, it is plain enough that it includes measures of self‑government, including such qualifications or limits as may be imposed from time to time, whether by inbuilt disallowance or otherwise.
In our submission, it is equally plain from not just history but also the terms of section 122 that acceptance by the Commonwealth or acquisition by the Commonwealth – two states that are referred to in the three cases in section 122 – is intended to be a state of affairs which, not just in the case of section 125 from New South Wales but generally, whereby the people of those territories are people for which it may be appropriate as the Commonwealth Parliament sees fit from time to time to allow representation in the Parliament of the Commonwealth. It is for those reasons that section 122, with its concern for the means by which there will be this exclusive jurisdiction under section 111 exercised by legislative power under section 122, is to be seen as a continuation from time to time and throughout all the iterations and variants which are demonstrated on the statute book of the Commonwealth being in at all times complete control, either immediately or mediately, to adopt a phrase already used.
Your Honours, that obviously raises a number of questions. Let me address one already raised; section 61. Could it be that our argument commits the unthinkable solecism of giving – imposing, indeed – the power and duty to execute and maintain the laws of the ACT made by the Assembly on the federal Executive. First of all, if that were true, then either our argument is completely wrong or there has to be a different reading of matters. But it is not true ‑ ‑ ‑
EDELMAN J: On your argument, section 36 of the Self‑Government Act has to be new creation of power in the same way as there is a new creation of power by self‑government provisions.
MR WALKER: Yes, and your Honours can see where I am going because that, of course, is a law of the Commonwealth for whose execution and maintenance the Commonwealth Executive is responsible, and a good thing too, bearing in mind that by reason of the relation of the Territories to the Commonwealth, the Commonwealth is constantly in charge. Whether mediately or immediately does not matter – constantly.
So, of course, when you create that new executive power, just as when you create that new legislative power, you, the Commonwealth, have as your federal Executive, responsible under section 61, for executing and maintaining it. But you execute and maintain a law concerning legislative competence of the newly created Assembly by respecting it, and the same is true for the new executive power that you have created. You execute and maintain it, your law, for its creation by requiring, not just permitting; by expecting, not just suffering, the exercise of that Territory executive power by that newly created Executive. Just as you would do with respect, obviously, to the discipline of the armed forces, for which you will responsible under section 61, but by executing, maintaining the laws, by which professional soldiers do it rather than parliamentary committees.
EDELMAN J: That would make – the consistency between the two arguments would mean that section 36 is superintended as a law of the Commonwealth.
MR WALKER: Yes.
EDELMAN J: But not necessarily laws that are made under the Self-Government Act.
MR WALKER: I accept that there is a difference, yes, I do.
GORDON J: Especially by reference to 37(b).
MR WALKER: I may not have understood your Honours comment with respect to Justice Edelman’s observation to me. The whole of – all of those provisions is a Commonwealth enactment for which executive responsibility is section 61, and there is nothing wrong about that. Section 61 is not ceded or surrendered any more than section 1 would be. So, there is no awkwardness about seeing a Self‑Government Act as one of the many laws of the Commonwealth for which section 61 allocates executive responsibility. It is just that you do it according to the subject matter. And you ‑ ‑ ‑
EDELMAN J: Except, on your argument, the laws of the Commonwealth would also include laws made under the Self‑Government Act.
MR WALKER: Not in the sense that the section 61 Executive substitutes for or cancels out the section 36 Executive. No. Because it is a whole fabric, the Self‑Government Act, and the whole of it is taken up as (a), the will of the Parliament under section 122 and (b), something which the federal Executive is bound to execute and maintain, but it does so by, as I say, respecting, in the sense I have tried to explain, both the new legislative authority and the new executive authority and responsibility. It does not insert the federal Executive in any way, as if it were a proxy for or, more to the point, an incubous of the section 36 Executive. That is my point.
STEWARD J: Mr Walker, why does acceptance of the continuing retention of exclusive power and dominion necessarily defeat the characterisation of the law that was the subject of indictment as a law of the ACT? I mean, I can accept that the Commonwealth retains ultimate dominion, but I am not sure why it follows from that you would defeat the correct characterisation of the law here as an ACT law in contradistinction as law passed by the federal Parliament or under its authority.
MR WALKER: Your Honour, with great respect, the couching of the question shows that the nature of the task we set ourselves in our last proposition. It is only in our last proposition – the last way you put the argument – that embracing that they are, in fact, Acts of the Assembly – that is, that they are offences against Acts of the Assembly – we go on to say, for the reasons we have tried to develop, that that means – there is no notwithstanding or despite – that that actually means that they are offences against laws of the Commonwealth, because the whole of the Territory law‑making creation, has its source, depends upon, is subject to constant checking by the Parliament, which makes laws under section 122; that is, the Commonwealth.
GORDON J: So, just so I am clear that is really just 9(b)(i), put in different terms, in your outline of oral argument that:
they are enacted indirectly under the ultimate authority of the Commonwealth Parliament –
MR WALKER: Yes, your Honour. Yes. That even if these are offences against Acts of the Assembly, that is how we put it.
GORDON J: And “indirectly”, not in the way in which the Northern Territory put it by delegation.
MR WALKER: No, is not a delegation question, and we do not challenge in the slightest degree the rejection of those various descriptions that Capital Duplicators renders canonical. We accept all of that entirely. On the other hand, the epithet “subordinate” should not be so easily discarded; of course, it is subordinate. That is only to say that it will be, at any given time, subject to what the Commonwealth Parliament decides. But, being subordinate does not add anything to the analysis that I have already advanced concerning sections 122, 125, 111.
I have tried to answer the challenge raised with respect to section 61; with respect to two other provisions, I should say something. One is section 118. Section 118 is one of the nation-building provisions with respect, although it has a black letter element to it – it is, in a sense, lawyers’ law – but certainly nation-building; but it is confined to the federating States. There is not some gap. As I say, the Constitution was pregnant from day 1 with the possibility of self-governing Territory. And it is not to be supposed that some terrible gap concerning full faith and credit appears because Territories do not appear in 118. That is because, plainly enough, laws of the Commonwealth under section 122 are not merely to be understood as subject of full faith and credit; they bind as laws of the Commonwealth and throughout the Commonwealth. You do not even need to go to covering clause 5, but you can.
With respect, that also is the answer, however boldly on our part – it has never been raised yet as a distinct question for determination – that answers the question of what happens in the case of conflicts, inconsistencies or contradictions, by which I intend to include not only the state of affairs that private international law addresses – choice of law, so‑called – at common law as it may be or not modified by statutes which may or may not be Commonwealth or State, but also those matters which are directly addressed under section 109.
Obviously, an area where enhancement of the appreciation of extraterritoriality as an aspect of legislative competence in what used to be called inferior legislatures has altered constitutional thinking. But seeking to adjust to the awkwardness that, for example, Sweedman in this Court is an example of addressing – seeking to address in light of the fact that extraterritoriality means that it is no longer law school hypothetical for there to be a New South Wales law which impacts upon observance of a Queensland law we, in our submission, do have the solution with respect to Territory law supplied by section 109 by an understanding of the role of section 122.
A State legislature simply cannot, by its enactments, detract from the operation of a law under section 122 creating and regulating the law‑making authority of a self-governing Territory. That is, absolutely, not the business of the States, and the Commonwealth is, with respect, empowered under section 122 to grant legislative authority which may, from time to time, produce conflict in the sense I have described with the laws of a State.
Now, there may be an expectation that no Territory could ever have, in any sense, a superior standing over and above a State in the federation, but that is, what I would respectfully submit, a generalised bromide of no analytical function at all. The question, from time to time, will be: what is the effect to be given to Commonwealth enactment bestowing, say, legislative competence on a self-governing Territory? A matter that no State can prevent. They have the State’s House to vote on that. Once it has been voted on, once it has been enacted, that is a law paramountcy of which is given by section 109.
Of course there are anterior questions – Sweedman demonstrates this. Of course there are anterior questions in any such supposed conflict. First of all, what does the common law say about the applicable law? Second – perhaps it really should be first – properly understood as a matter of statutory interpretation including presumptions or otherwise about territoriality or connection, what do the two punitively clashing laws actually provide?
When one has done that analysis, if there still remained – and I cannot think of any example that is on the books – if there still remained a conflict between a law apparently regularly enacted by a self-governing territorial legislature and a law apparently regularly enacted by the Parliament of a State, then, in our submission, the Commonwealth imprimatur – source, if you like, but sponsorship of the Territory in all its governmental functions, including its legislative function – means that to the extent that the State law would purport to subvert the operation according to its tenor of enacted territorial legislation, then the State law would need to yield.
EDELMAN J: If you were wrong, how would it work if there were a conflict between an independent State law and a law of the Territory which is not to be treated as a law of the Commonwealth?
MR WALKER: Rhetorically, of course, my intention is to suggest there is no possibility without constructing wildly inappropriate unwritten provisions of the Constitution, such as in 122 with respect to the government of the Territories, but the Commonwealth can never endow them with legislative authority which in any way, however it might arise, would prevail over a contrary State law. I mean, it would be difficult enough to get a conflicts seminar to agree on the wording of such a thing.
The notion of reading into the Constitution by judicial creativity is, in our submission, just unthinkable. So, it has to be sorted out on way or the other, and it means that if there are three forms of legislation in this country, they really collapse to two – that is where I am headed, obviously – because the Territory one is really a manifestation of the Commonwealth one. It is in that sense that, far from being an appalling prospect, the difficulties our most extreme argument presents, supposedly under section 109, it is a very neat and utterly satisfying prospect. It really is no business of the States as to how the Commonwealth determines it will govern the Territories.
It is for those reasons, in our submission, that even our extreme form of argument is one which is entirely consistent with a structural understanding of the role of Territories and the Commonwealth stipulation for their government, including by self‑governing legislative competence. Can I then come – I should say by way, as it were, of reference, extra‑curially, of course, Justice Leeming has written about this and has drawn attention to both the extra‑curial and professional publication of Professor Lindell and Sir Anthony Mason, making various suggestions concerning matters including those to which I have most recently given reference.
The submission we put is our submission and is not on all fours with what either Justice Leeming or Sir Anthony and Professor Lindell have written. It is closer to Justice Leeming than it is to the suggestions by Professor Lindell and Sir Anthony that there is a basal federal origin notion which would prevent Territories being able, legislatively, to trump a State. And I have been intent on challenging that as a notion which does not in fact assist proper analysis, bearing in mind, as I say, the obvious proposition that the Constitution contemplated legislative self‑government for Territories.
Could I then come to Bernasconi. Elaboration, or whatever other activity I neglected to engage in according to the Commonwealth Solicitor‑General, is not necessary for the propositions that we have advanced completely in writing as to why the case should be opened up. But I do wish to respond to the spirited defence of Bernasconi, including in the need to preserve it, regardless of its merit, that we submit is really the position of the Commonwealth about Bernasconi.
The first thing is, it is hardly for the first time today that in this Court critical – as we would argue it – aspects of Bernasconi’s has been opened up in the sense of reviewed for their merit, regardless of their supposed authority. That, in our submission, is plain to demonstration from the all the cases that have been pressed upon you by all of us at the Bar table, including in writing.
Your Honours, I am so sorry, I have just noticed the time.
KIEFEL CJ: How much longer will you be? I am not, of course, curtailing you; it is just a question of whether we need to have a break.
MR WALKER: Yes, I am really sorry. I am not about to finish, but that does not mean I am threatening that candlelight will be needed, your Honours. I think I need about another half an hour.
KIEFEL CJ: All right. We might take a break. The Court will adjourn for 15 minutes.
AT 11.31 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.44 AM:
MR WALKER: Your Honours, before I move to Bernasconi itself, and apropos my last comment concerning matters in it having been the subject of real inquiry by and in this Court before today, could I just add to the copious references your Honours already have from all of us, there are the evocative but entirely inconclusive statements with implications for Bernasconi in Breavington v Godleman – if I can raise a case from now‑legal pre‑history – that is 169 CLR 41 – I do not want to take you to it at all, it is simply to add to a catalogue of previous thoughts expressed in this Court – albeit not so as to have the force of stare decisis that your Honours ought to take into account in considering whether or not to consider our arguments which are contrary to Bernasconi.
In particular, and certainly not any element of stare decisis, there are the evocative – or, for our purposes, enticing considerations recorded in argument from the Chief Justice, at 59 of 169 CLR – the relevant matter raised, but only raised, by Justices Wilson and Gaudron at 84 – a consideration by Justice Deane at 138, couched in terms of the conflict of laws approach or territorial nexus approach – then, interestingly, an out and out statement at 148 to 149 by Justice Dawson concerning the identity, relevantly, an Act of the Northern Territory as a law of the Commonwealth.
None of it is authoritative but it is enough to show that there is extremely respectable antecedent for this Court to consider the questions upon which the continued authority – if any – of Bernasconi depend.
Again, before I come to Bernasconi itself, could I address the matter strongly relied upon by our learned friend for the Commonwealth concerning legislatures acting upon the strength of an understanding of something regarded as a holding in Bernasconi. And we recognise that, I hope, in my address in‑chief. We certainly accept that it is so. One need only refer to the Northern Territory’s laws concerning juries for that to be obvious.
Now, of course, it cuts both ways. Juries are important. And for some people, unanimity is important. But they are important issues, whether you contemplate majority verdicts or not. Certainly, juries are important issues, they are not mere procedural detail.
GORDON J: That argument – you put a form of that argument below, which you have not run here again.
MR WALKER: I am sorry?
GORDON J: About the role of a jury and, in effect, the position of a jury, is that ‑ ‑ ‑
MR WALKER: No, I am not putting that as an independent argument. I am putting it for the purposes of saying that if there has been long acceptance of something which concerns an important matter and the Court is persuaded it is wrong, then in fact that constitutes a reason to reopen and reconsider.
Now, it is not as if that is without precedent in the Federation. Matters concerning the exercise of powers that might be characterised as judicial and, at the Commonwealth level, something in the nature of strict separation, explains, of course, Boilermakers’ – if I could put it this way – exploding a long‑established course of legislated institution for settling industrial disputes, and long‑held understandings about the competence and activities of the Inter‑State Commission were, of course, also collapsed in this Court.
They are both important matters, obviously, concerning judicial power and the need for what I will summarise as an institutional separation as to bodies exercising it and the qualities that then would follow from Chapter III. We submit that what we are arguing in the face of Bernasconi is in a similar category, and thus long acceptance of an aspect of a decision does not necessarily mean that it should continue any longer.
EDELMAN J: Well, in a sense, the John factors are all really second‑order considerations, because the starting point is the force of the precedent itself.
MR WALKER: Yes. Yes, I do accept that entirely. Now, I was criticised for, as it were, dodging into distinction rather than directly addressing John. Well, we have directly addressed John in writing, and I do not need to add anything to that apart from what I have just said. But we will make no apology for saying, if you can distinguish it, well and good.
One of the most obvious ways of distinguishing a case, which, of course, is an exercise of understanding and applying stare decisis in relation to it, is, of course, to examine (a), what was argued, but (b), what was in issue. One hopes, ordinarily, there is some relation between those two. There simply was not an issue – and I do not want to repeat what I said in‑chief – matters that we say are germane to this case, in Bernasconi.
Can I now come back to Bernasconi, in 19 CLR, in order to answer – seek to rebut some of what my learned friend for the Commonwealth has put this morning. The nub of the matter – as my friend, correctly concentrating on the Chief Justice’s reasons, has put it – comes on pages 634 and 635 and one sees there that it starts with stating the issue with respect to laws enacted by the Papua Act, that is, a Commonwealth enactment, examining whether they have a certain effect with respect to jury – it was uncontested that they did – and then the issue being what, if any, invalidity flowed from that proposition. One sees that there is a reference to “the Ordinance”, not just the Papua Act, as being caught up in that invalidity.
If one simply goes to the way in which Sir Samuel states and answers the question, there emerges, in our submission, fairly clearly, a form of syllogism that refutes the way in which the Commonwealth Solicitor‑General has put the matter as to the holding – that is, the decision for which there is binding ratio – in this case. Your Honours know all these passages already, but the second paragraph on 634 certainly raises the large question which we have grappled with – namely, the identity as a law of the Commonwealth for the purposes, as we know, of section 80 of a territorial enactment – be it directly by section 122 or indirectly.
Immediately, his Honour then moves to what he calls the larger and more important question and it appears its greater importance lies in the fact that, if answered in a particular way it would be the end of the matter. And it is true that when first stated it is whether section 80 has any application to laws depending upon section 122, but made locally. But his Honour is intent on abolishing any difference between direct or indirect. Hence the phrase at the end of that paragraph:
whether enacted by the Commonwealth Parliament or by a subordinate legislature –
to it. His Honour moves to what might be called structural political considerations in the paragraph at the foot of 634, the top of 635, and explains, concisely, an explanation, or gives an explanation, for the presence of section 80 guarantee. It had to do, perhaps historically, now strikingly with a perceived consistency of practice among the former colonies. Strikingly, because ever since the Constitution has been made, the former colonies, now States, have been regarded as entirely free to dispense with juries. Then his Honour moves, against that background, including important statement about the significance of the jury, he moves to the beginning of the way, in his reasoning, the matter falls out. Chapter III – it is not section 80:
Chapter III. is limited in its application –
and I have already, in‑chief, said what I want to say about the perhaps Delphic expression that follows in that sentence – and then you will recall, in the preceding paragraph, section 80 had been stated as forming part of Chapter III.
So, the section 80 – according to Sir Samuel – naturally found place in Chapter III dealing with the judicature of which section 80 forms part – that is, forms part of Chapter III. So, then the syllogism proceeds. Chapter III is limited in its application. Section 80 is part of Chapter III, therefore – and you find that word five lines down in that paragraph:
Sec. 80, therefore, relates only to –
The major premise is Chapter III, the minor premise is section 80 being part of Chapter III, and the conclusion, entirely syllogistically, is that section 80 therefore does not apply. It is nothing peculiar to section 80, it is it forming part of Chapter III concerning the judicature that, according to Sir Samuel, in a brief but not fully elaborated explanation, provides for the outcome. There is, I need to draw to attention – it has not, I think, been the subject of remarks by any of us so far – there is, his Honour goes out of his way to refer to other parts of the Constitution, but he is covering clause 5 and also sections 41, 61 and 109. In 109:
it is used in contradistinction to the law of a State.
I have already addressed what flows from that, if anything, but it is the next sentence I wanted to draw to attention:
I do not think that in this respect the law of a territory can be put on any different footing from that of a law of a State.
And fairly plainly – I do not think that this has been taken up in any succeeding case in this Court – fairly plainly, that is a statement about section 109; that is “the last mentioned section”.
GORDON J: Is that right, or is it about the phrase that appears in each of those sections consistently?
MR WALKER: It might be that, yes, your Honour, but it certainly includes 109. I do not pretend to know – I do not suggest that “in this respect” is a phrase that plainly means either the laws of the Commonwealth phrase which his Honour had quoted, or whether it means section 109 being the last mentioned section; but, certainly on any view of it, it includes 109. There is an expression of opinion by his Honour, probably not part of the reasoning to the outcome, but in any event his opinion that the law of the Territory – presumably meaning, not direct 122, but indirect 122 – it cannot be “put on any different footing”; and that, presumably, includes, with respect to Commonwealth paramountcy under 109.
There are germs of puzzles in that which His Honour plainly, and understandably, did not consider necessary to pursue. But it contains this odd idea that the Commonwealth, as it were, detracts from the Commonwealth nature of a 122 enactment; either by making it – that is, by it being a 122 enactment, which is absurd – or, is able to do so in some respect totally unexplained by his Honour.
All of that apparently flows from the meaning of the phrase as used in section 109 and other places, and none of that is explained. In our submission, that is not a state of affairs, jurisprudentially, that this Court should regard as to any degree satisfactory concerning such an important question of the relation of the Commonwealth and Territories, particularly with respect to the States. His Honour, for good measure – one is tempted to say, for more abundant caution, perhaps – makes it crystal clear in the next paragraph commencing:
The power conferred by sec. 122 –
That in his holding, his reasoning, it is because the provisions of Chapter III, not just section 80, the provisions – plural – of Chapter III do not restrict the power conferred by section 122, whether “directly or through a subordinate legislature”. Whatever one may say about the succeeding considerations of this case, it is really impossible, with respect, to regard that as anything other than simply wrong, in light of what has happened.
His Honour was not making that as some by the way, for what it is worth, supplementary observation. It is a reinforcement by repetition of the whole of his reasoning, because the whole of his reasoning is Chapter III does not apply, section 80 is part of Chapter III, therefore. So, when one looks at the starkness of the proposition to be found at the foot of page 635, it is not something which in light of the history that everyone has pressed upon you in writing in an address subsequently could possibly be regarded as a satisfactory basis for an understanding of section 80 and section 122.
Or to put it another way, the fact that section 80 finds its place structurally within Chapter III has surely now been exploded as a reason – and it is given by his Honour as the only reason – for it not affecting laws made under section 122. It is for those reasons, in our submission, that as a matter of an orthodox approach to a reopening, the entire framework, the entire foundation of the outcome of the reasoning in Bernasconi is exploded by the later decisions and reasoning of this Court.
It requires, in our submission, revisiting by this Court so as there is an understanding of what Bernasconi means by way of authority, and one is reminded – if I may say so in relation to the statements to which attention has fairly been drawn concerning, as it were, a proposition for which Bernasconi should be regarded as still good – one is reminded about that – I might call it intellectually transitional phase with respect to excise in this Court where some decisions simply, as it were, stood as decisions for the outcome without authoritative force being given to dispositive reasoning in the Court so as to produce, as it were, doctrine. That was of course, and proved to be, entirely unsatisfactory with respect to section 90. In our submission, the same is true with respect to sections 122 and 80.
Next, could I come, please, to the matters argued against us by reference to the critical wording of the Self‑Government Act – that is a Commonwealth enactment – section 34, in particular – and the Crimes Legislation (Status and Citation) Act 1992 of the ACT itself.
GORDON J: Is this directed at the first way you put your argument?
MR WALKER: Not ground 1, about which I am saying nothing. The first way I put the constitutional point, yes, your Honour – or the non‑Kable point. Yes, your Honour.
I do not want to add anything to what has already been written and said concerning what I will call the chronology – the sequence of history – none of which, in our submission, is critical. What matters, however, is the nature of the law enacted in section 34. It is, after all, a Commonwealth enactment providing for the Territory self-government, including for the Territory self‑government to have a legislative competence which will produce what this statute calls enactments.
Enactments, as you know, are defined – if I may paraphrase as to effect – by being legislation of the Assembly – the primary class, so to speak – or other texts which are taken by section 34 to be enactments – a clumsy use of the defined term in the definition, but clearly meaning they are taken to be Acts of the Assembly, thought they are not, and never were.
So, in section 34 one starts relatively straightforwardly in subsection (2) which, as we know with respect to Schedule 2, is dealing with the heading to Schedule 2 describes as Commonwealth Acts and provisions to become enactments. Now, becoming an enactment does not mean that they were made by the Assembly. It rather means that they are to be taken to be enactments – and that is where the definition of “enactment” is clumsy, to put it mildly, because an enactment is defined as being either something made by the Assembly or to be taken to be, by reason of section 34.
That circularity aside – and does it matter – the real effect that mattered for 34(2) – this is a charter for the self-government, including legislative competence for the Territory – is that thereafter those are texts having force of law by reason of section 122 previously in the Territory which, hereafter may be affected, completely abolished, repealed or modified – amendment – by an Act of the Assembly. That is what “accordingly” means with respect to an enactment, because that is within the legislative competence of the Acts of Assembly, to amend or repeal its Acts. They are not made Acts of the Parliament, they are taken to be so that they may be amended or repealed, an entirely unexceptionable and, with respect, deft way of continuing a regime supplied by previously applicable laws pursuant to 122 which now, also by section 122, may be altered as to their binding text, their force of law given to them.
So far, so good with Commonwealth laws. Subsection (4), which is at the heart of our case, starts with a rather puzzling parenthesis:
A law (other than a law of the Commonwealth) that, immediately before the commencing day:
(a)was in force in the Territory –
I will just pause at that point. That which is “other than a law of the Commonwealth” would appear to be a phrase that presumably leaves out account section 122 laws, or at least some of them, because, as we know from paragraph (b) of subsection (4):
an Act of the Parliament of New South Wales –
relevantly, the Crimes Act – was in force but only in the adopted or picked‑up sense – that is, the choosing of a text – to which force of law was given by a section 122 law. So long as one understands that the usage in subsection (4) contemplates that the Crimes Act (NSW) was picked up by section 122 enactment to be in force in the Territory, then section 34 works, as everybody in this argument has understood – according to their arguments, it does work.
But, again, all that happens to that applied text through a section 122 law of something which was not, in its textual origin a law of the Commonwealth, but was rather a law of New South Wales – all that happens is that it is taken to be an enactment; that is, either an Act of the Assembly or to be taken to be by reason of section 34, the circularity of the definition – and, what really matters, may be amended or repealed accordingly. So, within the grasp completely – modification or abolition – of the Assembly, the grant of self‑government legislative competence in question. That is all that is happening.
One thing for sure is not happening is that Parliament – that is, the Commonwealth Parliament – is not legislating for a constitutional conclusion contrary to the facts. The Communist Party Case makes that impossible. Common sense and policy should as well. It is simply saying, for perfectly sensible reasons of self‑government in terms of continuity of the operation of laws and the handing over of democratic lawmaking to the Assembly from the Commonwealth Parliament for the Territory, that these texts which are already binding by reason of Commonwealth enactment are now going to be within the legislative competence of the Assembly.
That does not and could not change their identity as laws which were given effect by section 122 enactments and could not, obviously, surrender one wit the power under section 122 in the future for the Commonwealth to revisit or repent of that in any respect, general or specific.
It is for those reasons that the transitional or interim state of affairs – to which your Honours attention has already been drawn – whereby at first, under subsection (5) and Schedule 3, Part 2, the Crimes Act (NSW), described as being in force in the Territory, was not within subsection (4) but did become so later, really only emphasises that this is all completely an exercise of 122 power to bring within the legislative competence by so-called amendment or repeal texts which, having had force given to them within the Territory by section 122, would continue, as amended in the case of amendment, to have that force of law still by reason of section 122, but including by the indirect or mediate operation of the independent new legislature of the ACT. “Independent” in the sense that it is not a delegate, which we accept.
Now, your Honours, none of that, as I say, could possibly – even if one might read some of the wording thus – alter the Commonwealth character of the enactments – 1909 and 1910 – which made the relevant provisions of the Crimes Act (NSW) provisions for the creation of offences against which my client has infringed. Could I next turn, please, and finally, to the Crimes Legislation (Status and Citation) Act of the Assembly itself. Not too much, if anything, should be made for the purposes of critical arguments in this case, of its long title, which is an entirely unremarkable description that has to be read, of course, against the background of constitutional allocation of power. This is the ACT Assembly speaking, and in its long title the Act is described as one to:
provide for the Crimes Act, 1900 of the State of New South Wales in its application in the Territory to be treated as an Act passed by the Legislative Assembly and to be cited accordingly, and for related purposes –
We know that that, of course, was in fact a course as to application which is possible only pursuant to section 122. The Constitution gives that power to the Commonwealth. The power includes the power to create a legislature which will then make laws for the Territory. This is not a statute which is making a law, or at least so we urge, not only from its long title but from its operative provisions.
Interestingly, and significantly – and the travaux do not throw any light on this in terms of any constitutional significance seen one way or the other – the handy definition applied of the Crimes Act (NSW) is the “applied State Act”, and the definition which refers to:
in its application in the Territory as amended and in force immediately before the commencement of this Act.
must, and must only, refer to that colocation of section 122 legislation which start in 1909 and include the Self‑Government Act. We can leave aside, as of no possible constitutional significance, sections 4 and 5. We agree that section 3 is in a different position. This is the Act the Assembly is speaking:
The applied State Act –
which, as defined, of course, is something the force of which did not depend upon any Act of the Assembly. It:
shall be taken to be, for all purposes –
and I interpolate, but not for the purposes of applying the provisions of the Commonwealth Constitution to it or to anything that follows from it. The Assembly, plainly, does not have that power any more than the Commonwealth Parliament does. It:
shall be taken to be, for all purposes, a law made by the Legislative Assembly as if –
and those are like the expression “taken to be”, familiar and appropriate words of modesty – that is, accepting that you can create a fiction but it only goes so far as the legislative confidence permits; as if the provisions of the applied State Act – that is, the Act that was enforced immediately before this by dent of section 122 laws:
had been re‑enacted in an Act . . . taking effect on the commencement of this Act.
I accept that we have to confront the question, well, maybe that is the provision, not the incremental some material, some not‑so‑material so‑called substantive amendments to which attentions have been drawn for these criminal offences. Maybe it is section 3 of this Act that we have to attend to in order to maintain the first of our arguments, which is that, of course, these offences are offences against the law of the Commonwealth because they are only offences because of section 122 laws. That is first way we put the argument.
Our simple answer is no Act of the Assembly is able to legislate away the fact which this Court for itself determines concerning the legal operation of those statutes before the commencement this Act. And it had – it is, of course, for this Court to determine on the actual facts – not presumed, recited, or supposedly enacted facts – what in fact was the source of that force of law, and it was the three statutes I referred to, 1909 ‑ ‑ ‑
GORDON J: Sorry, I am getting lost, Mr Walker. Are you contending that section 3 is dealing retrospective operations? Is it not just saying – this is saying nothing about the past at all. All it is saying that from this moment forward, rather than us going to the trouble of ‑ ‑ ‑
MR WALKER: Amending of and/or repealing.
GORDON J: Well, no. Other than going to the trouble of writing out the whole Act again and passing it as a separate Act, we are going re‑enact it.
MR WALKER: My point is this: they had the power of amendment or repeal, which they have exercised in other respects for other statutes, but they had that power and all they passed under the curious heading “status” – and, plainly enough, the Assembly does not get to determine by legislation the constitutional character of matters.
GORDON J: But you do not challenge that what they passed was within the legislative power?
MR WALKER: I am sorry, your Honour?
GORDON J: You do not challenge that what was passed was within legislative power?
MR WALKER: Properly understood, but it has to be read so as to be within power – section 3. Section 3 – they never had power to alter the
constitutional character of the Crimes Act (NSW) as it applied in the Territory. They can amend or repeal it.
GORDON J: But that is a retrospective matter, is it not? This is dealing with prospect of it saying, we, as the Legislative Assembly, have decided to take a step and enact an Act.
MR WALKER: Your Honour, I do not want to quibble but there is surely significance in the fact that the words “amend and repeal” do not appear. It is “as if it had been re‑enacted”, which is the opposite of “by way of re‑enactment”.
KIEFEL CJ: No, it means – as if we had all gone into Parliament, there was a draft Bill, and we passed it.
MR WALKER: Yes. And, your Honours ‑ ‑ ‑
KIEFEL CJ: It means you can take that as done.
MR WALKER: But making a statement that something may be taken to have been done is different from doing it, is my point. And, in our submission, section 34 made it clear that they may be amended or repealed accordingly. Now, there could have been so-called re-enactment upon repeal, but this is not doing that.
STEWARD J: But the source of power for this Act is not 34, it is section 22, is it not?
MR WALKER: Yes, the source of this power is section 22, subject to section 28. In other words, you cannot be inconsistent with section 34. It is for those reasons that the arguments raised in particular by some of your Honours concerning this statute do not render the whole of the Crimes Act by that stroke, that which it was not.
May it please your Honours.
KIEFEL CJ: Thank you, Mr Walker. The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.
AT 12.23 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
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Statutory Interpretation
Legal Concepts
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Appeal
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Charge
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Jurisdiction
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Sentencing
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Statutory Construction
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