Williams & Anor v Oates

[1998] HCATrans 361

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P33 of 1998

B e t w e e n -

THE HONOURABLE DARYL WILLIAMS QC in his capacity as THE ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA and SENATOR, THE HONOURABLE AMANDA VANSTONE in her capacity as THE MINISTER FOR JUSTICE FOR THE COMMONWEALTH OF AUSTRALIA

Applicants

and

ANTONY GORDON OATES

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 OCTOBER 1998, AT 9.33 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth:   May it please the Court, I appear with my learned friend, MR P.R. MALIVER, for the applicants.  (instructed by the Australian Government Solicitor)

MR G.A. FLICK, SC:   If your Honours please, I appear with MR P.J. HANNAN  for the respondent.  (instructed by Zilkens & Co)

GLEESON CJ:   Yes, Dr Flick, we will hear you.

MR FLICK:   Your Honours, the application involves two issues which have to be approached separately.  The first issue, of course, is the question of construction of 1316 and the second issue is procedural fairness.  As to the former issue, your Honour, we say that that question should not attract special leave for the reasons given by the Full Court, namely the question of construction is one supported by authority, supported by the natural meaning of the word “employed” in 1316, supported by text writers and there is nothing in the legislative history to deny the conclusion reached by the Full Court.  Indeed, we would go so far as to say that the legislative history supports rather than denies our proposition.

In so far as the second question is concerned, namely whether or not a decision to extend time attracts procedural fairness, central to our proposition is the notion that a decision to commence a prosecution or a decision to consent to a prosecution is fundamentally different to a decision to extend time.

GLEESON CJ:   In New South Wales there are some offences which I think can only be prosecuted with the consent of the Attorney‑General.  I think perhaps criminal libel might be one of them.  Does that attract natural justice?

MR FLICK:   No, your Honour.  The reason we say they are different is this, that a decision to institute a prosecution or a decision to consent to a prosecution, whether it is ministerial or the Attorney‑General, involves a consideration of facts which, to a very large extent, are the very same set of facts which would be involved in the criminal proceeding if it proceeds, such that if the decision to institute the proceedings is based upon a view that there is a prima facie case, and if that view is ultimately found to be wrong, the person will be acquitted.  If it is found to be correct, then the person will be convicted.  A decision to extend time, however, involves an examination of facts different to – or substantially different to those facts which would be examined in the criminal proceedings.

If the Crown’s case is right, a decision to extend time would be a decision which could never be examined in any court.  It could not be examined in the criminal proceedings because it would not be relevant to the question of guilt.  If the Crown is right, the decision by the Minister to extend time would be an unexaminable or unreviewable decision.  If we are right in that proposition, your Honour, we say that any decision should be examinable.  The reason why the Chief Justice’s comment does not stand in our way is that a decision to consent to a prosecution is examinable, it is examinable as part of the criminal proceeding itself.  A decision to extend time is different.

If we are right about that, then the Crown is in the position where it cannot commence a prosecution against us unless consent is granting.  The granting of consent inevitably affects our interests and that is what attracts procedural fairness.  The decision of the Full Court in Nicol, we say, is a decision in which this point was not argued.

GLEESON CJ:   What is the practical content of the requirement to observe natural justice in a case such as the present?

MR FLICK:   In a case such as the present, your Honour, it would involve the disclosure to Mr Oates of what-, it would involve the disclosure to Mr Oates of what ‑ ‑ ‑

GUMMOW J:   How?  Disclosure by what means?

MR FLICK:   Probably written, your Honour.  It would not attract, necessarily, an oral hearing but it would require a disclosure as to why the prosecution was not commenced within the five year period.  It would involve an opportunity being given to Mr Oates to expose to the Minister reasons why he would be prejudiced if the consent was granted.  The issues as to prejudice may be issues falling short of an abuse of process ground.

GUMMOW J:   One of the questions is why do we need all this law that you are urging when you have already got the abuse of process body of authority, once the prosecution has been started.

MR FLICK:   Your Honour, we would say that the factors relevant to 1316 consent may well fall short of ‑ ‑ ‑

GUMMOW J:   In other words, you have already got, within the structure of the law dealing with prosecutions, as it were, a safety mechanism.  Why do you need to add another through an administrative review system which never sits happily with the criminal process anyway?

MR FLICK:   Because the two principles serve different objectives.  The principle of the abuse of process, of course, is the court control over the proceedings itself.  The questions under 1316 serve a different objective, namely the necessity for the Minister to look at the outset of the proceedings not to the question as to whether or not the proceedings would be an abuse of process, not to the question as to whether they would be vexatious, but rather to different principles entirely, namely Parliament has said that normally these proceedings should be commenced within five years, why was it not done within five years?  If there is a reason why the prosecution could not be commenced within five years, it is up to the person seeking the consent to make out that case and, equally, it is, we say, incumbent upon the Minister to request or give Mr Oates the opportunity to explain why the granting of consent could affect him.  Those considerations ‑ ‑ ‑

GLEESON CJ:   Is the corollary of that that it would be improper for the Minister to take into account any consideration which he was not prepared to disclose to Mr Oates and invite comment upon?

MR FLICK:   Not necessarily, your Honour.  The applicant, of course, says one reason why natural justice does not apply is because of the risk of flight and because the content of the opportunity should be reduced to zero.  That is not necessarily the case.  News Corporation, Johns v Australian Securities Commission all contemplate that the content of procedural fairness is dictated by the circumstances of the particular case.  If there is some reason why there were factors peculiar to an applicant which would prejudice the prosecution, for example, if disclosed to Mr Oates, that may well be a good reason why that information should not be disclosed.

GLEESON CJ:   You began, I think, by saying that it is common ground that the question whether a Minister consents to a prosecution, as distinct from the question whether the Minister agrees with the prosecution being commenced out of time, does not attract the requirements of natural justice.

MR FLICK:   Yes, your Honour.

GLEESON CJ:   Could you just explain why it does not.

MR FLICK:   Your Honour, as we would have it, the decision to institute the prosecution has the historical background discussed in Barton’s Case.  A decision to consent to a prosecution is slightly different in that the Minister has to look at questions such as whether or not the prosecution would be vexatious or oppressive if it were now to be instituted, but a decision to extent time involves a consideration of factors different to those which would be involved in the criminal proceeding itself.  It would involve a consideration of factors which would be totally irrelevant to the guilt or innocence of the person, if consent was granted.

GLEESON CJ:   So that you could not resist an application to extend time by saying, look, I am innocent?

MR FLICK:   No.  The question which the Minister would be asked to direct attention to in an extension of time case would be, Parliament has said five years.  Why was it not done within five years?  Was it a case of sufficient complexity that more than five years was necessary?  Is it a question simply of other prosecutions attracting greater priority?  It would be a question as to why the prosecution did not institute proceedings within the time mandated by statute.  It would involve a consideration of the way in which an extension of time would impact upon the accused himself. 

Picking up the comments of Justice Gummow, what 1316 adds to an abuse of process and why it is different from the procedural mechanisms inherent in the criminal process is that questions of prejudice, question of delay, may well fall short of an abuse of process ground.  There may well be circumstances where prejudice to an accused or delay on the part of the Crown in prosecuting a case would be a reason why a Minister could properly refuse to extend time, even though a court would say those facts and other facts do not constitute an abuse of process. but if are right in our proposition that the area of consideration for extension of time is different to the factual issues to be examined in a consent to a prosecution, then we would say we are sufficiently advanced in support of concluding that all that this case involves is the application of established principles to a specific statutory context.

The only reason why the Court, if it reached that view, would be inclined to grant special leave would be because of an apparent consistency between of an apparent consistency between Nicol’s Case in the Full Court of Victoria and the Full Court here and we say that is not a sufficient reason simply because this present point was not argued.  Indeed, in Nicol’s Case, the court proceeded upon the basis that a consent to a prosecution was the same as a decision to extent time.

GUMMOW J:   Now, if pressed, you would fall back on legitimate expectation doctrine, to use that, would you not?

MR FLICK:   Yes.  That is ‑ ‑ ‑

GUMMOW J:   What is the content of the word “legitimate” in that phrase?  It is hardly likely that the courts would look favourably on illegitimate expectation.

MR FLICK:   Precisely, your Honour.

GUMMOW J:   What is the force of the word “legitimate”?

MR FLICK:   The force of the word “legitimate” is simply to emphasise that an interest which can be protected by procedural fairness is something other than a right or a property or reputation or liberty.  But your Honour is right in that the judgment of – I think it is Chief Justice Mason, Deane and McHugh in Annetts’ Case would tend to suggest that what your Honour Justice Gummow is saying is correct.  But our primary position, your Honour, is that in the absence of an extension of time by the Minister, the Crown cannot proceed against us.  The granting of the consent to the extension of time exposes Mr Oates to a risk which otherwise he would not be exposed to.  We say that is the affection of a right or an interest.

Your Honour, they are the reasons why we would say that the two issues deserve different attention, the question of construction as opposed to the question of the procedural fairness, but they are the reasons we would advance.

GLEESON CJ:   Thank you, Dr Flick.  How long would you expect the appeal to require for hearing if special leave were granted?

MR FLICK:   Half a day, your Honour.

GLEESON CJ:   We do not need to hear you, Mr Solicitor.

           In this case there will be an order for special leave to appeal.

MR BENNETT:   Your Honour, there is a stay which has been ordered.  I would ask that that continue until the appeal on the continuation of the existing undertaking.

GLEESON CJ:   What do you want to say about that?

MR FLICK:   Your Honour, we neither consent nor oppose it.

GLEESON CJ:   Then on the continuation of the existing undertaking, the existing stay will be continued until the determination of the appeal.

MR BENNETT:   If the Court pleases.

AT 9.49 AM THE MATTER WAS CONCLUDED