White v Director of Military Prosecutions

[2006] HCATrans 566

[2006] HCATrans 566

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S312 of 2006

B e t w e e n -

ANNE MARGARET WHITE

Plaintiff

and

DIRECTOR OF MILITARY PROSECUTIONS

Defendant

Summons for directions

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 11 OCTOBER 2006, AT 10.45 AM

Copyright in the High Court of Australia

MR A.W. STREET, SC:   May it please the Court, I appear with my learned friend, MR J.A. HOGAN-DORAN, for the plaintiff.  (instructed by North & Badgery)

MR D.M.J. BENNETT, QC, Solicitor‑General for the Commonwealth of Australia:   If your Honour pleases, I appear with my learned friend, MR S.B. LLOYD, for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Street.

MR STREET:   If your Honour pleases, in that matter there is a summons that your Honour no doubt has seen and an affidavit in support.  The plaintiff is seeking to have the matter referred to the Full Court.  Could I indicate at the outset – and I understand that the question that Justice Gaudron had to address in Polyukhovich does not arise in this case – I understand there would be an undertaking given not to pursue any prosecution pending the determination of the matter by the Court that is referred.

The issue, as I understand it, that my learned friend has sought to develop and which I am happy to answer is the proposition that the matter is one where the door should be shut, that the law has become inflexible and rigid and that the Court should not entertain further a challenge in respect of the majority decisions in the trilogy of cases about 10 years ago.

HIS HONOUR:   He says you have all the law against you and most of the profits.

MR STREET:   Your Honour, we say that there are a number of matters that give rise to compelling circumstances warranting this matter being referred to the Full Court to review those authorities.  Perhaps the most significant, if I could indicate this, is the Senate Committee Report delivered last year that weighed, measured and found wanting the military justice system in relation to the military tribunals – could I hand up a copy to your Honour – and the exercise of military judicial power outside Chapter III.

HIS HONOUR:   Has there been any response to your notice under section 78B of the Judiciary Act?

MR STREET:   There had, your Honour.  I think the responses we have received are that the State of New South Wales did not seek to intervene.

HIS HONOUR:   By the way, Mr Street, just in terms of the parties, I notice that your opponents seek an order that the Commonwealth of Australia be added as a defendant.  Is there any reason why that order should not be made?

MR STREET:   No, your Honour, subject to a condition in relation to costs, my client does not oppose the making of such an order, but we would have said that it would be appropriate in respect of a certain member of the Defence Force for the Commonwealth to be joined but subject to a condition that it pay the costs of the plaintiff in respect of the matter if referred to the Full Court.

HIS HONOUR:   Will you seek an order that the Commonwealth be joined, Mr Solicitor?

MR BENNETT:   Certainly not subject to that condition.

HIS HONOUR:   No, I understand that, but without foreclosing the argument you want to put later about what should happen to this case.

MR BENNETT:   Yes.  It will not increase the costs or affect the costs in any way, your Honour.

HIS HONOUR:   All right, I will simply make an order that the Commonwealth of Australia be added as a defendant in the matter.

MR STREET:   If the Court pleases.

HIS HONOUR:   What is the precise order you want me to make, Mr Street, about the further progress of this matter?

MR STREET:   The precise order, your Honour, I think is that the summons be referred to the Full Court.  My learned friend, as I understand it, is willing to proffer an undertaking between the parties that no step will be taken to prosecute.  In those circumstances, I do not need your Honour to make an order.

HIS HONOUR:   Under what section would I refer this matter to the Full Court?  Implicit in that request that you are making is that there are no facts that are relevant to the decision on the constitutional issue.

MR STREET:   Yes, your Honour.  We do not advance any argument in relation to nexus.  This is not a nexus argument; it is pure argument in respect of the constitutional issues arising under Chapter III.  There is a provision in the Rules, your Honour, which I will just have located – and I apologise I do not have it at my fingertips because I was focusing perhaps

more on the substantive argument – that permits your Honour to refer to the Full Court the matter.  That is in essence what I was seeking to invite the Court to do given ‑ ‑ ‑

HIS HONOUR:   At some stage before you finish your argument I would like you to just direct me to the statutory provision under which you want me to do that.

MR STREET:   Yes, your Honour.  It is 25.03.3(b), “the application be referred for further hearing by a Full Court”.

HIS HONOUR:   This is rule 25?

MR STREET:   Yes, your Honour.

HIS HONOUR:   Let me hear what the Solicitor‑General has to say about this.

MR STREET:   If the Court pleases..

HIS HONOUR:   Yes, Mr Street.

MR BENNETT:   Your Honour, we ask that your Honour dismiss the application under 25.03.3(a).  Our fall‑back position is the one my learned friend selects which is (b), that the application be referred to the Full Court.  If your Honour goes ‑ ‑ ‑

HIS HONOUR:   What about the possibility that the matter be remitted to the Federal Court?

MR BENNETT:   Your Honour, we would submit that is unnecessary.  My learned friend does not raise any argument, as I understand what he just said, to the effect that this is not within either the service status test or the service connection test, so this case does not provide any case in which the Court has to choose between those two or analyse the facts to see if they are within a service connection.  My friend, as I understand it, accepts that, so that makes the detailed facts irrelevant.

HIS HONOUR:   Both sides agree there are no facts that are relevant other than the facts set out in the application to show cause.

MR BENNETT:   Yes.  There has been evidence put on but it only goes to the issue of service connection and the relationship between the persons ‑ ‑ ‑

HIS HONOUR:   That is what I am trying to understand.  Is that evidence evidence that would be before the Full Court?

MR BENNETT:   Your Honour, if the application were referred to it, yes, but in view of my friend’s concession, it would not be necessary to refer to it.

HIS HONOUR:   I am not going to refer a matter to a Full Court until the facts are settled, until I know that there are no outstanding facts.  If the matter gets to the Full Court and a disagreement erupts about the relevance or accuracy of some statement of facts, we have just wasted a day.

MR BENNETT:   Your Honour, the position is that in the light of the concession, we do not need to read our affidavit.

HIS HONOUR:   So the facts in the application to show cause are the whole of the facts on which either side would rely in proceedings before the Full Court?

MR BENNETT:   Yes, your Honour.

MR STREET:   Yes, your Honour.

MR BENNETT:   But the reason why we say it should be dismissed is the sheer volume of authority which confronts my learned friend at every one of the points in his argument.  That is most clearly shown by the notice under section 78B.  Does your Honour have that?

HIS HONOUR:   Yes.

MR BENNETT:   My friend’s first and major point is that Chapter III and Boilermakers do not have an exception in relation to military justice.  My friend concedes in paragraph 5 of that document that the decisions in Re Tracey, Re Nolan, Re Tyler, McWaters v Day, Groves and Re Aird, which are six cases, have to be overruled.  He also says in the next paragraph that the reasoning to the contrary in Bevan and Cox is inconsistent.  So on that point there is a wealth of authority, including very recent authority, against him.  He does not even, as I understand it, have a dissenting judgment to support him.  There are dicta in both Chu and Polyukhovich, which refer to the exception only for the purpose of saying it is one of the exceptions, that refer to it as being established.

HIS HONOUR:   I am not sure what you would achieve by persuading me to order that the application be dismissed because Mr Street would then be simply seeking to appeal against that, would he not?

MR BENNETT:   Well, your Honour, he might but there might be a question of a strike‑out in relation to that, as there would be if he were to commence proceedings initially in the Court in the original jurisdiction.

HIS HONOUR:   What is the time element involved in these proceedings against the plaintiff?

MR BENNETT:   The urgency from our point of view is not in bringing on the specific proceedings.  The urgency is our fear that every defendant in every court martial is going to say, “The validity of this court is under challenge in the High Court, therefore it should be adjourned”.  That is what concerns us.

HIS HONOUR:   She was charged on 30 June this year.

MR BENNETT:   Yes.  They are not the most serious charges ever brought in a court martial but the urgency arises out of what I have referred to and we would certainly seek, if it were possible, to get a date in December, but your Honour indicated a few minutes ago that ‑ ‑ ‑

HIS HONOUR:   No, that is not possible, I am afraid.  We are full for December, but certainly early next year is a possibility.

MR BENNETT:   Certainly we ask for whatever expedition your Honour can give us to assist in relation ‑ ‑ ‑

HIS HONOUR:   If I made an order referring the matter to the Full Court and indicating that I would arrange that it be included in the February list, is there anything else that needs to be done to put the matter in a condition for hearing by a Full Court?

MR BENNETT:   Other than submissions, no, your Honour.  There will need to be a book, I suppose.

HIS HONOUR:   Yes, but there would not be any special directions that would need to be made about written submissions, would there?

MR BENNETT:   No.  We press on your Honour this proposition, that the fact that there might be an appeal against an order of your Honour dismissing the matter under 25.03.03(a) is one which would operate whenever a single Justice of this Court is asked to make an order under that provision.  One asks rhetorically how many cases does one have to have in one’s favour before something becomes unarguable?  At every stage of my learned friend’s argument he faces a barrage of consistent authority in this Court without any real dissent from it and that applies at each level of the arguments he puts.  His argument under section 118, we would submit, is simply misconceived and should not be part of what is referred. 

The argument in relation to the jury is inconsistent not only with the line of cases on military justice but also with the clear proposition which this Court has laid down in at least two cases, one of them recent – that is Kingswell, and the earlier one is Li – in which the Court has said that it is open to the Commonwealth to prevent section 80 operating by making an offence not indictable, whereas what my learned friend submits is that the moment an offence has a certain level of seriousness, it is in some way deemed to be indictable for the purposes of section 80.

Your Honour may recall in the Convention Debates Mr Isaacs, as he then was, giving the whimsical example of the Commonwealth making murder a summary offence and saying that that could be done under the provision.  There was, as I recall, an amendment proposed on the basis that it ought to be limited in some way to prevent that, and that was defeated.  That has been relied on in this Court in, as I say, a number of cases.

HIS HONOUR: Is one of Mr Street’s arguments that an offence of the kind described in paragraph 3(a) of the grounds on which relief is claimed under the Constitution has to be tried by jury?

MR BENNETT:   Yes, your Honour, and there are a number of consequential arguments based on that.  We submit that is simply unarguable in the face of a line of authority in this Court.

HIS HONOUR:   It might be a good case to test the proposition.

MR BENNETT:   If the proposition were arguable, it might be, but the Court has tested the proposition and found it wanting on a number of occasions, and that is supported by very clear statements in the Convention Debates.  The argument under section 118 seems to us to be totally misconceived.  The argument is that one does not give full faith and credit if a Commonwealth law permits a prosecution on facts that would also give rise to an offence under State law.

How the Commonwealth can be in breach of section 118 in that situation in the face of section 109 defies all logic and, in my respectful submission, it is just a totally misconceived proposition.  It has nothing to do with section 118.  That section does not have a substantive effect in any event, but even if it did, it would not have the effect that the Commonwealth could not make an offence something which is also an offence under State law.  For example, under the lighthouses power the Commonwealth could make murder of a lighthouse keeper a Commonwealth offence, notwithstanding that murder is an offence under

State law.  There are numerous examples of matters in the Crimes Act (Cth) and numerous examples of cases in this Court where that has occurred.

If there is a problem with State law, there may be a section 109 issue or there may not be but it cannot be a breach of section 118.  It is not a breach of full faith and credit for the Commonwealth to prescribe consequences of something which happens to be an offence under State law.  So, your Honour, we submit that is just untenable.  There is no authority supporting it and nothing that would support it.

While of course this Court has power to overrule its own decisions, there must come a point where the line of authority is clear enough and strong enough and voluminous enough where the Court says this is a case where it is not arguable, where it dismisses the application under the rule or, if it were an appeal, would refuse special leave, if it were brought in original jurisdiction, might strike it out on General Steel grounds.  There must come a point where the volume of authority is such that it is appropriate for the Court to exercise that power.

That is even more so when, as here, there is specific power given to the Court under the rule.  One asks rhetorically, if not in these circumstances, when would one ever make an order under that rule?  This is simply for those reasons not arguable at any of the levels at which my friend wishes to put it.  For those reasons, we submit the application should be dismissed at this stage.

HIS HONOUR:   Mr Street, what response did you get, if any, to your notice of a constitutional matter?

MR STREET:   The responses have been I think either “Don’t wish to appear” or “Waiting to see what happens with this matter before your Honour”.  In response to my learned friend’s siren call for scotching at this stage these proceedings, we would respectfully submit ‑ ‑ ‑

HIS HONOUR:   Did you…..for yourself, Mr Street?

MR STREET: I did, your Honour, but to the extent relevant we would have said that that is flying in the face of the core values recently discussed by an erudite paper delivered in a symposium in Canberra in relation to both the rule of law and judicial independence. The issues thrown up by the application in this case are of considerable importance in relation to the application of Chapter III. They involve fundamental questions in relation to the guarantees and protections given to individuals by the Constitution. To the extent relevant, the plaintiff here is not rehearsing arguments earlier addressed. There were majority decisions in respect of which, your Honour will recall, in the recent trilogy Justice Gaudron was a powerful dissentient.

HIS HONOUR:   The Solicitor‑General says you do not have a feather to fly with.  Just tell me what is your best point.

MR STREET:   The Senate Committee Report which has weighed, measured and found wanting the military justice system and recommended, even though it has not been adopted, that Chapter III courts exercise military justice.  That was the recommendation.  It embraced the JAG’s proposition that that was the appropriate change to make.  The committee supported the criticism that this Court was likely, if a challenge was brought forward, to overrule the current decision in the trilogy ‑ ‑ ‑

HIS HONOUR:   Where do I find that?

MR STREET:   The first passage, your Honour, is 5.25.

MR BENNETT:   Do you have one for me?  I have never heard of this document before this moment.

MR STREET:   Your Honour, it was in the list of authorities we sent my learned friend.  I will show my learned friend my copy, but paragraph 5.25.  There the observation made in relation to Mr Griffin in respect of the High Court’s decision in Re Colonel Aird.  Your Honour will recall in that decision there were observations inviting a challenge in Re Aird to the Chapter III issue raised by Justices Kirby, McHugh and Gummow.  The passages where that was raised are on the list of authorities that we handed up to your Honour that should be with your Honour – if it is not before your Honour, could I hand up a copy – where each of those Justices invited the parties in those proceedings to raise a challenge under Chapter III or pointed out the problems with the decisions of the Court as they presently existed.  Your Honour will see the proposition there that the issue of the problem that arises in the present proceedings being touched on at 5.25.

More significantly, your Honour, one of the rationales in relation to the reasoning in the trilogy of cases that supports the military judicial power being not federal judicial power was in essence military necessity.  To the extent relevant, this committee report flies in the face of the proposition that military necessity dictates a court outside Chapter III.  The next paragraph I would seek to refer to your Honour is paragraph 5.82 where one has a reference to:

Modern trends in governance emphasise greater openness, accountability, independence and impartiality where matters affecting citizens rights are concerned.  The Defence Forces should not be exempt from this trend.

Then if I can take your Honour to paragraph 5.92, your Honour will see there the conclusion of this committee that it was courts within Chapter III that were appropriate for the exercise of such power.  When one goes to 5.95, your Honour will see the recommendation that it should be Chapter III courts that exercise military jurisdiction.

Your Honour, there is more than that in this report and I want to touch it, if I can, in this way.  The report also picks up the changes that have taken place elsewhere overseas, relevantly in Canada, which your Honour would be familiar with, where the Canadian Supreme Court – and it is in paragraph 5.49 – rejected the military tribunals outside the independence and impartiality of the court system.  More significantly than that, your Honour, one has then in the United Kingdom recently in – I should have added in 2003 a review of the Canadian military system reinforced the appropriateness of the approach that had been adopted there bringing the military tribunals back within the mainstream court system.

In the United Kingdom the European Court of Human Justice has touched upon the matter more recently than Findlay which was back some time ago by a decision in Grieves in 2003, where again in paragraph 5.58 your Honour will see that they have criticised the lack of impartiality and independence of the court system.  But the most significant matter, your Honour, and the one which we say is of considerable significance, is the exploding of the American jurisprudence which was the kernel of the decision in Bevan, followed in Cox, picked up in the trilogy of cases starting with Re Tracey as the foundation of justification for military judicial power lying outside Chapter III.  The American Judges Association in an article that is referred to in paragraph 5.66 of this paper emphasised the need for impartial and independent courts in relation to the exercise of military justice.  So the American jurisprudence has changed materially.

More significantly than that, we have the recent decision that was referred to in that erudite paper delivered in Canberra on core values picking up the decision of the Supreme Court of the United States in Hamdan v Rumsfeld where the observation ‑ ‑ ‑

HIS HONOUR:   You are spending too much time at the internet, Mr Street.

MR STREET: I may be, your Honour, yes. Nonetheless, the observation that was there made and picked up in that paper in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the rule of law that prevails in this jurisdiction. The rule of law in this jurisdiction is one dictated by the Constitution.

HIS HONOUR:   How long do you think argument would take in a Full Court?

MR STREET:   Your Honour, I anticipate the argument so far as the plaintiff is concerned should take no more than two hours.  If your Honour wishes me to continue I will, but can I indicate this.  In relation to that American jurisprudence, there was a proposition picked up by Justice Gummow in Alpert which was that Justice Starke in Bevan had failed to recognise the distinction between the American Constitution and the Australian Constitution in the context of the defence power given under the American Constitution.  In that case his Honour failed to recognise the significance of our provisions in section 51 which are “subject to this Constitution” – “subject to this Constitution” in respect of the fundamental protections and guarantees found in Chapter III, “subject to this Constitution” in respect of the rights conferred in respect of section 80, “subject to this Constitution” in respect of the work done by section 118.

Your Honour, the distinction with the American Constitution was real, significant and not picked up by Justice Starke.  That was the start, if I can put it this way, of the foundation for the line of country that there could be military judicial power outside Chapter III.  It flies in the face, as your Honour would appreciate, with the concept of the exclusivity of federal jurisdiction emphasised originally in In re Navigation Act and flies in the face of the separation of powers picked up by Boilermakers.  To have military judicial power outside Chapter III gives rise to these inconsistencies, if I could identify them.  Again, in that learned paper there was focus upon the significance of sentencing and the importance in our application of the rule of law in sentencing.

HIS HONOUR:   What do you say happens in a context of war being waged?  Is there no room for a military justice system there?

MR STREET:   Your Honour, the notion that there should be military tribunals outside Chapter III executing people for cowardice or executing people for being spies not in discharge of the rules of combat but as an exercise of a power over liberty or life are powers that must be exercised in accordance with the rule of law.  Our Constitution prevails in that regard by creating a separation of powers.  It may be that there will be periods where enemy will be detained in accordance with the Geneva Conventions but not detained in an exercise of executive power, detained to the extent relevant once appropriate before a Chapter III court.  There may be circumstances where in wartime there are exceptions, but that on any view does not fall within the legislation that is here created.

HIS HONOUR:   If your argument is right, what is the relevance of the fact that at the time of the alleged offences your client was not in uniform and was not on duty?

MR STREET:   Irrelevant.  They were only matters that were put in in the context of informing the Court of her background.  I concede, as I said at the outset, there is no issue here raised of nexus.  The sole issue is Chapter III.

HIS HONOUR:   So your argument would be exactly the same if at the time of the alleged services offences the plaintiff was in uniform and was proceeding to battle?

MR STREET:   In saying they would be exactly the same, not quite, your Honour, because there may be a distinction in respect of the section 118 argument.  The section 118 argument really applies in this way – and that is what I was about to develop.  There should be one unitary legal system applicable in relation to a set of facts.  In the present case the consequence of a military judicial power through these tribunals is that one has a departure from the fundamental area of the law of sentencing which I was seeking to focus on because there is in fact no right of appeal, with leave or otherwise, against sentence. 

So in that regard – and we obviously deny this – assuming that there was a conviction, the Defence Force Discipline Act gives rise only to a right of appeal in respect of conviction, no right of appeal or with leave to the Defence Force Discipline Appeal Tribunal in respect of sentence.  That is a fundamental inconsistency with the legal system that applies in terms of the application of the rule of law to someone committing an offence in Victoria, but we say more than that, your Honour.  To the extent relevant, if there was an offence in accordance with a Commonwealth law that was committed, then the application of section 80 is available and has application and is an important protection able to apply.  This system seeks to take the offences which are clearly an exercise of judicial power, and we say clearly an exercise of federal judicial power, outside the protections and guarantees involved in section 80.  So, your Honour, there are a number of arguments in that regard.

To the extent that your Honour raises a question of what happens in wartime, we do say that the approach that was adopted of shooting people for cowardice or summary execution of spies and the like are ones which would not now be acceptable in respect of our democracy and our core values.

HIS HONOUR:   What about dealing with people for stealing?

MR STREET:   To the extent relevant, there is no reason why a Chapter III court will not deal with that issue.  There is no impediment.  Your Honour, there were two issues that in essence supported the notion, in our respectful submission, that you could have military judicial power outside Chapter III.  The first was military necessity.  That is an artificial and unsatisfactory foundation.  Its unsatisfactory and artificial nature is highlighted by the Senate Committee Report.

The second foundation was the suggestion that there were different purposes for which the Defence Force discipline‑type offences were created.  In that core values paper one of the matters touched upon was how the criminal system was in essence to protect the public.  So too are disciplinary offences in respect of the military judicial system.  Ultimately it is the same purpose, not different purposes, as was embraced in the trilogy of cases that supported the existence of a judicial power outside Chapter III.

So that, your Honour, we say that the fundamental foundation for the reasoning in those cases is flawed.  It is flawed and, as Justice Gaudron said in Re Nolan, times change.  Those times have changed to a point at this time where this Court must give, in our respectful submission, the precedence to the Constitution of applying correct principles of construction and interpretation to the guarantees and protections that Chapter III is intended to provide.

To at this point summarily dismiss the matter would give rise to all the hallmarks of rigidity and inflexibility that are contrary to a legal system that is governed by the rule of law.  There are clearly arguable issues.  The arguable issues are summarised in the Senate Committee Report.  In our respectful submission, the issues we would seek here to raise do throw up fundamental and important questions in relation to constitutional guarantees and protections that it is appropriate that this Court should entertain.

Your Honour, in relation to what I said in respect of the Defence Force Discipline Appeals Act not providing any right of appeal against sentence, can I just hand up an extract from the relevant section in that regard so that your Honour understands the inconsistency argument in that limb.  Your Honour will see it deals simply with conviction in respect of section 20.

In relation to the ultimate argument, there is a passage by Justice Windeyer in Illawarra District County Council v Wickham 101 CLR 467 at 503 that I would seek to refer to where he referred to the power to make laws to enable the military defence system:

against the rule, that is, that in time of peace members of the services should enjoy, as far as their duties permit, the ordinary rights of

citizens; but that (with some limited exceptions) they should be subject to the same general law as are other subjects of the Crown –

That echoes the same sentiments of the majority in the Hamdan decision.  In that regard it is one where, in our respectful submission, the rule of law gives rise to the application of the principles identified in Boilermakers and In re Navigation Act so far as concerns the protections and guarantees found in Chapter III and found in section 80.

Your Honour, the issue in relation to section 80 is one that we say is of significance.  The primary argument is the Chapter III argument in respect of courts or tribunals exercising a military judicial power said to lie outside Chapter III.  In relation to the section 80 arguments, in our respectful submission, section 80 cannot be a toothless provision.  It must be the case that there is an ability to identify indictable offences in respect of that constitutional guarantee.  Whether this case gives rise to it is a matter that can be determined but, for the reasons we have respectfully submitted, it is a case where the time has arisen for the Court to set the matter right.  If the Court pleases.

MR BENNETT: Would your Honour hear me briefly on one matter? In relation to the Senate Committee Report which my learned friend referred to in answer to your Honour’s question about what his best point was, it is hard to imagine anything less relevant, even if it is admissible notwithstanding parliamentary privilege legislation. Your Honour, that was a report which recommended legislative change. It was partially adopted by subsequent legislation which indeed created the position held by my client, the Director of Military Prosecutions. It did not adopt the matters my learned friend contends for. What he can get from that as supporting a constitutional argument is impossible to imagine. That someone in the Senate either (a) had a view about the Constitution, or (b) had a view about what legislation ought to be passed which Parliament decided not to pass just cannot possibly assist him.

In relation to Hamdan, that of course was a completely different situation.  That did not concern military personnel; that concerned the treatment of alleged enemy combatants and there are totally different principles involved there.  When my learned friend talks about high principle, he is simply ignoring the fact that there is a line of cases which have said there is an exception to that principle.  Indeed, there are a number of exceptions, as your Honour will recall from Chu and from cases like Al Kateb. 

There are an enormous number of exceptions to the rule that the Executive cannot imprison, ranging from jury service to quarantine, to various other – and, of course, parliamentary incarceration as in Fitzpatrick

and Browne.  There are a string of exceptions and everyone who ever refers to this says, “And of course military tribunals are an exception”.  So to talk about the greatness of the principle is simply to ignore the greatness of the exception, which has been accepted by this Court on numerous occasions.

My friend’s reference to the absence of appeal against sentence does not get him anywhere.  There is in fact on my instructions a right to petition in relation to sentence.  It is not a right of appeal in the sense that exists in the civilian area but, your Honour, that cannot affect the substance of it, whether or not there is a right to appeal against sentence.  In my respectful submission, nothing my friend has put answers the basic hurdle he has to deal with.  If the Court pleases.

HIS HONOUR:   Mr Street, I am wondering whether it is possible to deal differentially with your arguments.  Could I take you to page 6 of the application for an order to show cause.  What I understand to be your principal argument, that is your Chapter III argument, ends, as it were, at paragraph 12, does it not?  As I understand it, paragraphs 13, 14 and 15 deal with your section 118 argument?

MR STREET:   Yes, your Honour.

HIS HONOUR:   Then paragraph 16 deals with your section 80 argument; is that right?

MR STREET:   Yes, your Honour.

HIS HONOUR:   I am not suggesting any concluded view on any of these matters at this stage, but suppose that upon consideration I were to come to the conclusion that the Solicitor‑General is right and that there is nothing in the section 118 argument or the section 80 argument but that the Chapter III point were one that I would be minded to refer for consideration by a Full Court.  Just suppose on further consideration I came to that conclusion rather than deal with it as an all or nothing matter, as both you and the Solicitor‑General at the moment seek to have me do.  How could that be accommodated?

MR STREET:   If it be the case that your Honour were of the view that those issues were unarguable, the matter could still be referred with the limitation that it is simply the issue raised under Chapter III.  Your Honour has the power simply to refer the Chapter III issue.

HIS HONOUR:   Let me hear what the Solicitor has to say about that.  Mr Solicitor, do you see what I am getting at?

MR BENNETT:   I do, your Honour.  The neater way of doing it might be to make it a condition of referral that the plaintiff’s case be limited to the matters raised in paragraphs 9 to 12 or it could amend by deleting the others.  In either case that could be a condition of the matter being referred.

HIS HONOUR:   Mr Street, that is a possible intermediate course that I could take but I could not force that on you.  If you indicated that you desire to persist with the section 118 and section 80 arguments, then I will have to decide the arguments that have been raised by the Solicitor‑General this morning.  As at present advised, my tentative inclination is that I would be prepared to refer to the Full Court the Chapter III argument that you want to raise but not the section 118 or section 80 argument, but that is only a tentative point of view.  You might like to have a think about that.

MR STREET:   Your Honour, I think our response would be that we would seek to keep both strings but if we lose one string, so be it.  To that extent the argument I would develop is that I would still press for all arguments, and if I can develop the reason why, but if I am successful in persuading your Honour that it is appropriate to refer all issues, then we would succumb obviously to the alternative, which is simply the issue in respect of Chapter III.

Your Honour, there are powerful reasons why in looking at the work done by Chapter III that one should not excise the section 118 issue or the section 80 issue because the two issues do intervene in relation to the exercise of the defence power under section 51.  Section 51 says “subject to this Constitution”.  The structure and text of Chapter III that gives rise to the implications that are of significance in this case includes section 80.  It includes in that regard a provision in respect of which the work that is done by that provision should not be lightly discarded.

Even be it that the arguments may be ones in respect of which your Honour is of a view are tenuous, they are nonetheless arguable.  If arguable, given the Chapter III issue on its own, we would have said it is appropriate for the Court to be in a position to deal with both the section 80 issue, “subject to this Constitution” under section 51 and section 118. 

Can I just develop slightly, your Honour, the reason for that arguability.  It is clear, if Chapter III does apply to judicial power, section 80 has work to do.  What that work to do has been frozen from Kingswell and Bernasconi in an approach which has been the subject of earlier challenges but those challenges are all ones in respect of which ultimately the issue thrown up did not perhaps give rise to the clearest indication of why the guarantee found in section 80 has work to do beyond the matter of form.  Effectively what the Solicitor‑General is putting to the Court is that section 80 is a formal requirement.  That is not a matter which is unarguable.

HIS HONOUR:   Your argument is that if somebody is charged with licking somebody else’s face, they have a right to a trial by jury?

MR STREET:   If they are to be charged with an offence that gives rise to a potential loss of liberty for a period in excess of two years, yes, if they are charged with such an offence.  If they are charged with an offence that gives rise to a potential penalty less than two years, so be it.  There may be a circumstance in respect of which there is a scope to determine whether a matter is capable of being dealt with other than by indictable offence where the consequence of the summary jurisdiction is that no penalty beyond two years can be imposed. 

HIS HONOUR:   What, in your submission, are the circumstances in which people can be dealt with summarily for offences against the law of the Commonwealth?

MR STREET:   Where the summary authority cannot impose a deprivation of liberty beyond two years or where the offence does not involve a deprivation of liberty as a punishment beyond two years.

HIS HONOUR:   Where does that two years come from?

MR STREET:   Your Honour, I think there is discussion in relation to the period of time in respect of which an offence may be indictable and I think there is some authority suggesting maybe 12 months.  But, your Honour, what I am seeking to do is to identify a period in respect of which the provision of section 80 is given more than a role of form.  To the extent that this case throws up such an issue, we say it is one where it is appropriate for it to be entertained in the argument and it is not an argument that is going to add unduly to the High Court’s determination of the matter.  So in that sense it is convenient. 

The second issue in relation to section 118, can I just indicate this, your Honour, that the importance of the rule of law in respect of a single legal system and inconsistencies in respect of that legal system is best highlighted by section 118 and the argument developed by my learned friend that there can be no role for section 118 because there is a power to legislate in section 119 covers the field ignores the clear intention that laws of a State will be given full faith and credit in respect of criminal offences.  The effect of this legislation is to pick up the Jervis Bay Territory Crimes Act through the Crimes Act (ACT) and apply it in Victoria.

HIS HONOUR:   I think it was pointed out in Re Aird; Ex parte Alpert that that is just a drafting convenience.  It just saves them having to type 500 pages of statute.

MR STREET:   But, your Honour, there is a set of laws made by the place where the offence occurred, namely, Victoria.  There is an application to the facts of that law on any view.  To have a system that gives rise to an inconsistent application of legal system is the very type of problem that throws up the rule of law issues that we seek to raise under Chapter III and there is no reason, in our respectful submission, to excise the 118 argument.  Again it will not occupy much further time.  Whether your Honour is of the view of it being tenuous, it is clearly arguable.  We have identified how we seek to advance it. 

There is a material difference between a legal system in respect of which Commonwealth laws are creating offences determined by courts under Chapter III either vested with federal jurisdiction or Chapter III courts.  They will have a court system that is either the State court system or the Chapter III court.  Here we have some different type of creature and the consequence of that is it is a different type of legal system that is applied to that set of facts, a legal system that does not pick up the important sentencing principles touched upon in that core values paper that would apply in respect of either a Commonwealth offence being heard before a State court or a Chapter III court and in respect of which it is an inconsistency that throws up starkly the reason why a single legal system was intended to operate with section 118. 

If your Honour pleases, for those reasons we would respectfully submit that the more appropriate course is for all issues to be referred.  In the alternative, your Honour, I submit to the issue of only Chapter III being referred if the Court so determines.

MR BENNETT:   Your Honour, might I just have leave to say one thing in answer to the question your Honour asked me earlier.  In relation to the rule, there is no reason why one could not give it a distributive construction so that where an order nisi raises two issues, one deals with one issue under (a) and one issue under (b).

HIS HONOUR:   Do you agree with that, Mr Street?

MR STREET:   Yes, your Honour.

HIS HONOUR:   That seems to be correct. 

The plaintiff submits that the whole of this application should be referred for further hearing by a Full Court.  The first and second defendants submit that the whole of the application should be dismissed.  The plaintiff and the first and second defendants agree that the application for the purpose of rule 25.03.3 is divisible and that it would be open to me to make an order referring for further hearing by a Full Court so much of the application as is contained in paragraphs 1 to 12 of the application for an order to show cause and dismissing so much of the application as is contained in paragraphs 13, 14, 15 and 16.  I should add that, as I understand it, paragraphs 17, 18 and 19 are formal.

The parties have made written and oral submissions concerning the merits of the plaintiff’s proposed arguments, in particular, the Solicitor‑General for the Commonwealth has made written submissions dated 9 October 2006. For the reasons appearing in paragraphs 9 to 23 inclusive of those written submissions, I consider that the application insofar as it is expressed in or based on paragraphs 13, 14, 15 and 16, that is to say, the application insofar as it is based on sections 118 and 80 of the Constitution, should be dismissed. No arguable basis for a grant of final relief appears in those parts of the application.

On the other hand, I am prepared to accede to the plaintiff’s submission that what I might shortly describe as the application based on Chapter III of the Constitution should be referred to a Full Court. Since I propose to sit on that Full Court, it would not be appropriate for me to express any further views on the merits of the argument based on Chapter III.

Accordingly, the order that I will make is that the application, to the extent that it appears in paragraphs 1 to 12 of the application for an order to show cause, is referred to a Full Court.

Mr Street, it may be convenient, as a matter of mechanics, if you were to file an amended application stopping at the end of paragraph 12.

MR STREET:   And joining, as your Honour has ordered, the Commonwealth?

HIS HONOUR:   Yes, and joining the Commonwealth as a defendant.

MR STREET:   Yes, your Honour, we will do so.

HIS HONOUR:   Thank you.

MR BENNETT:   Your Honour, there are two very minor procedural matters arising out of that.  One is paragraphs 5 and 6 of the relief claimed should be eliminated also for the same reason.

HIS HONOUR:   Yes.  Do you accept that, Mr Street?

MR STREET:   I do, your Honour.

HIS HONOUR:   Yes.

MR BENNETT:   I think your Honour has assumed this in your judgment, but I retrospectively announce my appearance with my learned friend, Mr Lloyd, for the Commonwealth as the second defendant, retrospectively to the joining of it.

HIS HONOUR:   I will note that the plaintiff intends to file and serve an amended application for an order to show to cause which will join the Commonwealth of Australia as a second defendant which will delete paragraphs 5 and 6 of the relief claimed and which will delete paragraphs 13 to 19 inclusive of the grounds on which the relief is claimed. 

MR STREET:   Would your Honour also note that, as I understand it, the defendants have given an undertaking between the parties not to pursue the prosecution pending the determination by this Court.

HIS HONOUR:   Yes, I will note that.  I will order that the application as thus amended be referred to a Full Court.  I will indicate to the parties that it is expected that the matter will probably come on for hearing during the February sittings.  I note that the parties have indicated to me that argument can be completed within a day.  On that basis, I will expect the parties and any interveners to divide the available time between themselves. 

Costs of today’s proceedings will be costs in the proceedings before the Full Court.

AT 11.50 AM THE MATTER WAS CONCLUDED