XYN v Chief Examiner

[2016] HCATrans 3

[2016] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M254 of 2015

B e t w e e n -

XYN

Applicant

and

CHIEF EXAMINER

Respondent

Application for removal

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO MELBOURNE

ON MONDAY, 18 JANUARY 2016, AT 8.57 AM

Copyright in the High Court of Australia

MR L.J.D. HOWSON:   Your Honour, I appear for the applicant.  (instructed by Theo Magazis & Associates)

MS R.J. SHARP:   Your Honour, I appear on behalf of the respondent.  (instructed by Office of Chief Examiner)

HIS HONOUR:   Yes, Mr Howson.

MR HOWSON:   The constitutional proposition for which the applicant contends is a State legislature is incompetent to legislate so as to allow the Executive to commit an act which would otherwise be a contempt.  Now, I have two arguments towards that, the first of which I might call the Kirk argument, and that argument is that contempt is a defining characteristic of a State Supreme Court, that under Kirk it is beyond the power of the legislature to remove a defining characteristic of a State Supreme Court ‑ ‑ ‑

HIS HONOUR:   The proceedings in this case are not pending in the State Supreme Court, are they?  How does that work?

MR HOWSON:   No, they are not, your Honour, but the State Supreme Court has a general power of contempt which is available to protect interferences with the due administration of justice in other courts in that State.

HIS HONOUR:   Yes.

MR HOWSON: So then the argument proceeds that, putting aside section 29(2) of the Major Crime (Investigative Powers) Act, the Chief Examiner’s proposed examination would constitute a contempt.  Now, that is from X7 because it is a coercive examination of a charged person about the subject matter of his pending criminal trial. I argue that the practical and legal effect of section 29(2) is essentially saying it is no longer a contempt to coercively examine a charged person about the subject matter of a pending trial, and under Kirk that is not permitted.

HIS HONOUR:   I suppose the question becomes, in part, one of characterisation, does it not, that is to say, whether the contempt power extends to acts authorised by law?

MR HOWSON:   Yes.  Well, it could be put in two ways:  first of all, that it is a restriction on the contempt jurisdiction of the State Supreme Court; or, secondly, that it alters the law of contempt in that way in that it excuses what would otherwise be a contempt so that the law of contempt itself has been substantively changed.

HIS HONOUR:   Or has no application because of the subject matter being an authorised act.

MR HOWSON:   Yes, which would provide a legal excuse, so it would not stop one from commencing contempt proceedings, but one would come against a defence of “I am authorised by law to do this”.

HIS HONOUR:   Do you accept the respondent’s contention that to succeed on the substantive application you would have to have a reconsideration of earlier decisions of this Court?

MR HOWSON:   No, your Honour, but I do adopt the position that earlier decisions of this Court would need to be reconsidered in order for all of the matters to be considered.  Now, the Chief Examiner points to Sorby, which does say that there is no prohibition on altering the privilege against self‑incrimination, but that does not connect to the power of contempt.  Sorby is a case where there was no criminal charge so that ‑ ‑ ‑

HIS HONOUR:   Well, can I just say for a moment before you go much further, I just wanted to know your position rather than going into the merits of it; the respondent’s contention that the argument you put would require revisiting of earlier decisions of this Court is put in support of your application for removal.

MR HOWSON:   That is right, your Honour.

HIS HONOUR:   But you say it does not, in any event.

MR HOWSON:   No, but we do say that if the Chief Examiner were to argue that what is proposed here is not a contempt it would require the reconsideration of X7, so as a general principle it is agreed that the Victorian Supreme Court would have its hands tied with respect to ventilation of all issues.

HIS HONOUR:   Yes.

MR HOWSON:   Now, the second way the argument is put I may call the Kable argument, which is just the contention that the legislature cannot legislate so as to interfere with the due administration of justice, which is because it is incompatible with the function and role of the State Supreme Court as a repository of federal jurisdiction to have its power to punish or prevent a contempt to be hindered, limited or removed, which we say that section 29(2) does.

Now, there may well be a difference in outcome depending on which of those arguments is used because under the Kable argument it would appear that it would also extend to coercive examinations by courts, whereas the Kirk argument explicitly relies upon the contempt power which, although there are no authoritative decisions that I am aware of, it would appear that there are some arguments that courts cannot commit contempt.  So those are the basic arguments.

HIS HONOUR:   All right. Well, now, those arguments go to the question whether there is “a cause arising under . . . or involving” the interpretation of the Constitution. Section 40 of the Judiciary Act requires you to demonstrate “sufficient cause” for the removal.  What is the basis upon which you contend that there is sufficient cause for a removal order?

MR HOWSON:   Yes.  Well, in my submission, it raises constitutional issues that are ripe for the decision that are important ‑ ‑ ‑

HIS HONOUR:   Well, that is a necessary condition.

MR HOWSON:   Yes, that are important and requires this Court’s urgent determination.

HIS HONOUR:   Well, why is it urgent?

MR HOWSON:   Well, we do have a timing issue, that the trial is to come on fairly shortly, and the Examiner has raised the issue that the coercive powers order itself will end in June.  Now, by the time this works its way through the courts it may well disappear.  Now, that obviously goes to whether this is an appropriate vehicle is quite apart from the urgency, but there is quite a difference there in that there is a rational basis for the applicant to continue proceedings in this Court simply because of costs consequences and that will not arise if the applicant is in the position of an appeal.

Now, there is also a legal issue of standing no one has really raised but, in my submission, there would remain a legal basis to hear this matter, even if the applicant is acquitted before 9 March, being that he has been summonsed under the Major Crime (Investigative Powers) Act.  The effect of that is much like an arrest.  It is by the Executive.  If he does not follow that order he is liable to be punished.  Now, if he succeeds on the declaration that will call into question the legality of that arrest, which I say provides him with sufficient legal standing.

HIS HONOUR:   Now, if the matter were removed into this Court, and on the basis that it could not be heard before 9 March, there is nothing to prevent the trial proceeding in the meantime.

MR HOWSON:   No.

HIS HONOUR:   If the trial proceeds, if there is an acquittal, the matter becomes moot.

MR HOWSON:   No, your Honour.  My submission is that standing would still exist to support the declaration.  Now, there is a prohibition remedy sought but, having spoken to my friend, it is intended that that be withdrawn if removal is ordered, in any event.

HIS HONOUR:   The reason I asked that question is if the question of the timing of the trial remains open what is the difference between bringing the matter in this Court and taking the matter ‑ proceeding in the Supreme Court of Victoria anyway ‑ ‑ ‑

MR HOWSON:   Well, there are good reasons why it ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑where that court could be asked whether or not – and perhaps the trial court could be asked whether or not there were matters going to discretion as to whether the trial should be listed for the date it is presently listed.  It seems to me that you are leaving open the scenario that the matter might be removed into this Court, heard in this Court and in the meantime a trial has proceeded.

MR HOWSON:   Yes.  But, in my submission, there is a rational basis for the applicant to proceed with this matter, being the cost consequences, and there is no ‑ ‑ ‑

HIS HONOUR:   That is a universal argument, is it not?  I mean, you can argue on any removal application that you are going to save the costs of primary and appellate proceedings in a lower court.

MR HOWSON:   That is correct, your Honour, but in terms of the legal effect of that, it would not remove the standing of the applicant to bring the matter.  So, both on a legal basis and on a practical basis, the matter would still be heard.

HIS HONOUR:   Yes.  Anything further?

MR HOWSON:   Yes, your Honour.  In terms of having the matters fully ventilated in the Supreme Court, I also note that the Attorneys‑General of South Australia and Queensland have indicated they will only consider intervention if removed to this Court.  The Victorian Attorney‑General has asked for the papers but has made no decision and no other intervener has responded.  So even putting aside the binding decisions upon the Supreme Court, the Supreme Court will not be given all the arguments towards it.

Now, apart from those matters, this case has very clean agreed facts.  We have the fact that there is an intention to examine prior to or during trial and that the subject matter does overlap with the subject matter of trial.  It was put in the written submissions that it is related to the case of R and M v IBAC but it is conceded that there will not be enough time for that matter to be joined at this point so that is no longer a consideration.

HIS HONOUR:   Yes.

MR HOWSON:   There are a couple of administrative issues, but those are my submissions on the removal.

HIS HONOUR:   All right.  Thank you.  Yes, Ms Sharp.

MS SHARP:   Thank you, your Honour.  As your Honour will have seen from the submissions filed by the respondent, the respondent does not oppose the removal application.  As has been highlighted, there is no real factual dispute in this case but, in the respondent’s submission, the applicant cannot succeed in a lower court.  For his argument to be accepted, reconsideration and, in our submission, some overturning of the principles in Sorby – the principle in Sorby which has recently been endorsed by this Court is required.

In terms of your Honour’s concern or questions about the timing of this issue, we have the Supreme Court matter listed on 28 January.  The County Court criminal trial is listed on 22 February.  Assuming the matter remains in the Supreme Court, and assuming the respondent is successful at a date prior to the criminal trial, we understand that the applicant for removal would then immediately file an appeal against that decision and probably seek injunctive relief.  So that even if the matter stays in the Supreme Court there is very little chance that an examination could take place prior to the trial.

There is necessarily a race, in effect, between these proceedings and the criminal proceedings, and although they are listed in February, as I am sure your Honour is well aware, there are any number of reasons why the trial might not resolve before 9 March which supports the utility in a proceeding in this Court.  If it remains in the Supreme Court ‑ ‑ ‑

HIS HONOUR:   Well, I am not sure.  It seems to me it makes the utility pretty marginal, does it not?  I mean, the respondent might succeed in the Supreme Court on a constructional question.  I notice the applicant is in fact running – opening up the question of construction and part of its argument rests upon the proposition that 29(2) cannot be construed so as not to apply in a case which would otherwise be a contempt.  I have no doubt that your side would be arguing that 29(2) properly construed does not interfere with ‑ and I think you have mentioned this in your submissions – the various powers and discretions of the Supreme Court in relation to criminal proceedings where there might be a prejudice.

MS SHARP:   Yes, that is so.

HIS HONOUR:   In other words, there may be some non‑constitutional issues to be determined, quite apart from the constitutional question which is debated - because he says that subject to X7, one limb of their argument may be affected by a previous decision of this Court and others not.  I express no view on that, obviously.  But what I am concerned about is that, in the end, if the matter comes to this Court it is difficult to see what practical advantage there is given that there is nothing to say that the trial will not proceed in any event.  Why not just go into the Supreme Court of Victoria and have the matter heard and determined initially there with perhaps the benefit of appropriate orders, if any are necessary or thought desirable, in relation to the conduct of the trial?

MS SHARP:   Your Honour, the real practical benefit is having the matter finally determined in the shortest possible time.

HIS HONOUR:   Yes.

MS SHARP:   That is really the driving factor for the respondent and, as your Honour may recall, on the first mention of this matter the Solicitor‑General indicated that his primary concern is to have the matter dealt with as expeditiously as possible.  If that is before this Court, then that is before this Court.  We will not stand in this Court’s way, if it is proposed to remove the proceeding.  If it is in the Supreme Court, then it is in the Supreme Court, and that is a matter that the respondent will participate in and argue as fully as in this Court.

HIS HONOUR:   I suppose what I am looking at is no matter how – the most expeditiously that we can do it is ‑ in terms of a hearing of a removed application, would be on 9 March.

MS SHARP:   Yes, your Honour.

HIS HONOUR:   By that stage, under present arrangements, the trial has commenced.

MS SHARP:   May well have commenced, yes.

HIS HONOUR:   Well, it is listed.

MS SHARP:   It is listed.  That is so, your Honour.  But it is in a circuit listing, so I am not sure that that is necessarily a fixed date.

HIS HONOUR:   Yes, all right.  Thank you, Ms Sharp.

MS SHARP:   Thank you, your Honour.  Those are the matters on the substantive point.

HIS HONOUR:   Mr Howson, is there anything else you want to say?

MR HOWSON:   No, your Honour.

HIS HONOUR:   All right.  Let me just retire for a moment to consider what I should do.  I will adjourn briefly.

AT 9.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.28 AM:

HIS HONOUR:   The applicant is the subject of criminal charges in respect of which he has been committed for trial in the County Court of Victoria.  He has also been served with a witness summons pursuant to the Major Crime (Investigative Powers) Act 2004 (Vic) under a power enlivened by a coercive powers order made under that Act by a justice of the Supreme Court of Victoria in relation to the investigation of certain organised crime offences.

The summons was issued by an Examiner appointed under the Act and required the applicant to give evidence before the Chief Examiner in relation to the subject matter of the coercive powers order.  Part of that examination related to, or is otherwise concerned with, the subject matter of the pending charges.

On 16 December 2015, the applicant filed an originating motion in the Supreme Court of Victoria naming the Chief Examiner as defendant and seeking orders in the following terms: 1. The declaration that section 29(2) of the Major Crime (Investigative Powers) Act 2004 (Vic) is beyond the legislative power of the Victorian Parliament and of no effect. 2. An order that the Chief Examiner be prohibited from examining the applicant until the determination of his trial and any subsequent appeals, retrials or further order of this court. 3. Costs.

Section 29(2) of the Major Crime (Investigative Powers) Act 2004 (Vic) provides that:

The Chief Examiner may commence or continue to conduct an examination of a person despite the fact that any proceedings (whether civil or criminal) are on foot, or are instituted, in any court or tribunal that relate to or are otherwise connected with the subject‑matter of the examination, including criminal proceedings against the person in respect of that subject‑matter.

This must be read with subsection (3) which provides that:

If the Chief Examiner is or becomes aware that proceedings referred to in subsection (2) are on foot or have been instituted, the Chief Examiner must take all reasonable steps to ensure that the conduct of the examination does not prejudice those proceedings.

On 24 December 2015, the applicant filed an application for removal into this Court of the whole of the cause instituted by his originating motion in the Supreme Court of Victoria.  On 12 January 2016, I made an order listing the hearing of that removal application for today and required the parties to agree on a timetable for filing submissions and any other relevant material. 

The application for removal is made pursuant to section 40(1) of the Judiciary Act 1903 which relevantly provides:

Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending . . . in a court of a State . . . may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit, and shall be made as of course upon application by or on behalf of the Attorney‑General of the Commonwealth, the Attorney‑General of a State, the Attorney‑General of the Australian Capital Territory or the Attorney‑General of the Northern Territory.

The constitutional questions said to arise in this case are not defined with precision in the applicant’s written submissions. The argument seems to be that the proposed examination would constitute a contempt of court if it were not for the operation of section 29(2). Then it is said section 29(2) cannot be construed so as to render it inapplicable to an examination which would otherwise constitute a contempt of court. On that basis, it is said section 29(2) purports to deprive the Supreme Court of a defining characteristic of that court, namely, its power to punish for contempt. It is, therefore, said to be beyond the power of the legislature of Victoria to deprive the court of that power and that section 29(2) is accordingly invalid.

The application for removal is supported by the respondent who would advance the following points on the substantive question.  Namely, (1), the conduct of the examination would not constitute a contempt of court because of the statutory obligations on the Chief Examiner in conducting examinations and the oversight powers of the Supreme Court in relation to examinations conducted pursuant to coercive powers orders made by that court; (2), the Supreme Court retains supervisory powers in relation to any coercive powers order once issued, including a power of revocation under section 12, variation under section 10 on the application of a police officer, and the power to grant relief on judicial review of any decision to issue a summons and/or conduct an examination.

Moreover, it is submitted the court can issue an order subject to any conditions which it determines are required. If section 29(2) went beyond the power of the State Parliament it would mean that the State Parliament could not abrogate the privilege against self‑incrimination of a person charged with an offence which would constitutionalise the privilege to that extent.

It is not necessary for present purposes to reflect upon the merits or otherwise of those contentions.  The respondent submits that the applicant’s argument is inconsistent with existing authority of this Court to the contrary.  That argument will be deployed against the applicant’s contentions at the hearing of the substantive application.  On that basis, the respondent argues that the applicant could not succeed in the proceedings in the Supreme Court and could only succeed in this Court if it were to reconsider earlier decisions.

It is apparent that the proceedings taken by the applicant in the Supreme Court of Victoria constitute a cause arising out of the Constitution or involving its interpretation within the meaning of section 40. To say that, however, is not to say anything about the merits of the applicant’s contentions and, accepting that he has an arguable case, that is not sufficient cause for removal of proceedings into this Court. In this case, that involves some practical considerations.

It may be said that this is not a case in which the applicant brings into question any interlocutory decision made in connection with pending criminal proceedings.  Rather, it concerns the exercise of investigative powers distinct from the criminal process which may touch upon aspects of the subject matter of the criminal trial.  The criminal trial is listed for hearing at the end of February.  The proposed proceedings in this Court would not ipso facto result in a deferral of that trial.  Indeed, it might be thought an odd result that a pending trial be deferred in order to enable the determination of the question whether an investigation under the Act could validly proceed during the pendency of the trial.

In my opinion, there is an air of unreality about some of the submissions in support of the removal application. The powers of the Supreme Court to avoid the kind of interference with the criminal process that is said to arise from the proposed examination and absent section 29(2) to constitute a contempt have a bearing on this case. Those matters and the timing of the trial and the proceedings which are pending in the Supreme Court are best determined by that court and by the trial court. In my opinion, no sufficient cause has been shown for the removal application, which will be dismissed.

The orders I propose to make are:

1.        The application for removal is dismissed.

Now, I would also propose to make an order varying Order 4 of the Order which I made on 12 January 2016.  That was an interim order in respect of the documents filed in the proceedings.  The variation will be in the following terms:

2.Order 4 of the Order made on 12 January 2016 be varied so as to delete the words “Pursuant to section 77RH of the Judiciary Act 1903 (Cth)” and so as not to apply to the following documents:

(i)The application for removal filed on 24 December 2016;

(ii)The order of Riordan J dated 22 December 2015 and exhibited as SP‑3 to the affidavit of Steven Parker sworn 23 December 2015;

(iii)The applicant’s affidavit of service filed 4 January 2016;

(iv)The applicant’s summons filed 4 January 2016;

(v)The order of French CJ dated 12 January 2016; and

(vi)This order and all subsequent documents filed in these proceedings which do not make reference to any of the following information:

(a)the applicant’s name;

(b)the charges laid against the applicant, including the nature and date of the alleged offences and the identity of the victim or victims and the co‑accused;

(c)the location of the pending criminal trial;

(d)any witnesses to the alleged offences;

(e)the organised crime offences.

Now, is there anything arising out of that, Mr Howson?

MR HOWSON:   No, your Honour.

HIS HONOUR:   Ms Sharp?

MS SHARP:   I do not believe so, your Honour; no.

HIS HONOUR:   All right, thank you.  The Court will now adjourn.

AT 9.37 AM THE MATTER WAS CONCLUDED