Wake & Anor v The Northern Territory

[1996] HCATrans 352

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D10 of 1996

B e t w e e n -

CHRISTOPHER JOHN WAKE and DJINIYINI GONDARRA

Applicants

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

THE HON. KEITH JOHN AUSTIN ASCHE  AC  QC, THE ADMINISTRATOR OF THE NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1996, AT 10.24 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR M.P. HARDIE, for the applicants.  (instructed by Ward Keller)

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory:   If the Court pleases, I appear with MS R.J. WEBB, for the respondents.  (instructed by the Solicitor for the Northern Territory)

BRENNAN CJ:   Mr Jackson.

MR JACKSON:   Your Honours, this application is concerned with two aspects of the validity of the Rights of the Terminally Act 1995, the euthanasia legislation of the Northern Territory.  Your Honours, the first aspect is whether it is a law at all, namely, whether it has been enacted in the manner required by the Northern Territory (Self-Government) Act, and the second is whether there was legislative power to enact the legislation, assuming the first aspect decided in favour of the Territory.

BRENNAN CJ:   Mr Jackson, we are aware, of course, that there is a Bill before the Parliament.  Is there not a preliminary question for this Court to consider, namely, whether it is desirable that this matter should be considered by this Court, that is, your application should be considered by this Court at this stage and, if granted, that an appeal should proceed at a time when the Bill is before the Parliament and when that Bill might be debated to a conclusion?

MR JACKSON:   Your Honour, the position, of course, in relation to the Bill that is before the Federal Parliament is that it has not yet passed through the House of Representatives and, no doubt, may or may not; it has not yet been dealt with by the Senate and there is a Senate Committee to look at the subject matter of the Bill.  One really cannot predict, of course, when, assuming matters, if I could put it broadly, in our favour in relation to the passage of the Bill the Houses of Parliament might come to a conclusion on the matter.  Nor can one say, of course, precisely what the result might be if the Parliament were to do that.

So, in our submission, it is appropriate for the Court to deal with the application for special leave.  I suppose, your Honours, there are some other ways of dealing with the matter.  One would be to adjourn the hearing of the application for special leave.  Another would be, if the Court were of the view that special leave should be granted, not to deal with the substantive appeal until the passage of the matter through the Parliament was better known.  The third, of course, is the one for which we would contend, and

that is to deal with the application now and proceed with the case in, with respect, the ordinary way.

BRENNAN CJ:   I think we will hear what the Solicitor has to say before proceeding further with the application.  Mr Solicitor.

MR PAULING:   Your Honours, we are not asked to urge the Court to not consider the matter at this stage by reason of the fact that it is in the Parliament, although, on the substantive issues in relation to special leave, the conclusion we come to, as our written submissions make plain, is that these are matters for the Parliament, not for the Court.  But we are instructed to put that in the context of opposing the grant of special leave rather than saying that it ought now be adjourned or otherwise not considered.  So, my instructions in being here are to meet head-on the application that Mr Jackson makes, rather than the preliminary issue that your Honour has identified.

BRENNAN CJ:   But your opposition head-on is based on the proposition that the Parliament should be given priority of consideration?

MR PAULING:   Our proposition, your Honour, is that the Parliament which passed the law that is now impugned was the proper place for the so‑called real issues to be debated.

BRENNAN CJ:   That may be so but, I mean - - -

MR PAULING:   What is before the Court are three identified, as I understand it, questions of law, none of which are really capable of exciting public interest, if they are analysed as questions of law.  But, your Honour, I am not instructed to say that the Court should not consider Mr Jackson’s application.  So I am unable to assist your Honour.

BRENNAN CJ:   Yes.  Do you want to say anything further, Mr Jackson?

MR JACKSON:   No, your Honour, not on that aspect of the case.

BRENNAN CJ:   We will be standing this matter over.  This application for special leave to appeal raises some questions of law.  The first is whether the provisions of the Rights of the Terminally Ill Act 1995 (NT), as amended, exceptionally falls outside the legislative power conferred by the traditional formula of a grant of power to make laws for the peace, order and good government of the Territory. That formula is to be found in section 6 of the Northern Territory (Self-Government) Act 1978. The next question is the extent of the authority conferred on the Administrator of the Northern Territory to assent to a proposed law making provision only for or in relation to a matter specified in section 35 of the Self‑Government Act. The matters specified under section 35 are found in Regulation 4 of the Northern Territory (Self-Government) Regulations. There are various matters therein specified and at least the following are relied on, it seems, to support the validity of the Northern Territory Act: “maintenance of law and order and the administration of justice”, “private law”, and “the regulation of business and professions”.

The Northern Territory Act is presently the subject of a Bill in the Parliament of the Commonwealth - the Euthanasia Laws Bill 1996 - which, if enacted, will deny the Northern Territory Legislative Assembly power to enact legislation having the effect of the Northern Territory Act and will deny that Act any force or effect. 

The preliminary issue for our decision is whether this Court should entertain an application to consider a challenge to the Northern Territory Act on constitutional grounds before the Parliament has completed its deliberations on the Bill and, if special leave be granted, to list that challenge for hearing contemporaneously with the debate in the Parliament, or whether the application should be adjourned until after the Parliament’s deliberations are completed.  The latter course is preferable.  It avoids any possibility of embarrassing or complicating the political process without prejudicing the merits or demerits of the constitutional challenge.  For that reason the matter will stand adjourned with liberty to either party to restore the matter to the list, but on the understanding that it be at a time when the processes of the Parliament are complete.

MR PAULING:   If the Court pleases.

AT 10.31 AM THE MATTER WAS ADJOURNED