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High Court of Australia Transcripts |
Perth No P47 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
Appellants
and
ANTONY GORDON OATES
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 17 JUNE 1999, AT 10.35 AM
Copyright in the High Court of Australia
MR G.A. FLICK, SC: If your Honours please, I appear with MR P.J. HANNAN for the respondent. (instructed by Michell Sillar)
GLEESON CJ: Yes, Mr Solicitor.
MR BURMESTER: If it please the Court. In this matter two issues arise: was consent of the relevant Minister required under section 1316 of the Corporations Law, and if so, what, if anything in the way of procedural fairness was required in the consideration whether to give that consent?
KIRBY J: Could I ask you in the light of the decision which was just handed down, this matter having at one stage been cross-vested to the Federal Court from the Supreme Court of Western Australia, how jurisdiction still attaches?
MR BURMESTER: Your Honour, we say this is a matter where the Federal Court quite clearly independently of the cross-vesting scheme had jurisdiction. It seeks judicial review of the actions of a Commonwealth officer, namely - - -
McHUGH J: Section 39B is - - -
MR BURMESTER: Section 39B and then section 75(v) of the Constitution - - -
GUMMOW J: The State court never had any jurisdiction.
MR BURMESTER: That may well be correct, your Honour, yes.
MR BURMESTER: So we do not see a jurisdictional - - -
GUMMOW J: They had nothing to cross-vest.
KIRBY J: Procedurally did the matter come to the Federal Court by way of the cross-vesting legislation? I know the Federal Court, if it involved a federal Minister, officer of the Commonwealth, would have jurisdiction, but is that affected in any way by the way in which jurisdiction was acquired and invoked?
MR BURMESTER: Your Honour, there was an order made by a justice of the Supreme Court of Western Australia transferring the matter, but we say that once the matter was in the Federal Court, and I think the application was amended to rely upon section 39B, in any event - - -
KIRBY J: Could you just make that clear at some stage so that that settles any concern that I have about that point. I imagine that even if that application was not made, if it is in the Federal Court and it claims and asserts jurisdiction, then you would look to whether it had jurisdiction, not the procedural means by which it came into the court.
MR BURMESTER: That is correct, your Honour. I notice on page 13 of the appeal book in the amended notice of an originating motion there was a reference to section 39B of the Judiciary Act 1914 .
McHUGH J: And the Full Court was plainly wrong at page 207 - - -
MR BURMESTER: That is correct, your Honour, where it said, "relied unnecessarily upon - - -
McHUGH J: - - -where it said, "The appellant unnecessarily relied upon s 39B"; you had to rely on it, particularly in the light of what we have just held.
KIRBY J: Their Honours were not to know what had just been held.
McHUGH J: But you had to rely on it, in any event, because the Supreme Court of Western Australia had no jurisdiction in the first place, independently of - - -
GUMMOW J: They had nothing to cross-vest.
MR BURMESTER: That is correct, your Honour.
GUMMOW J: State courts do not grant writs against officers of the Commonwealth.
KIRBY J: I expect that we will have many questions of this kind, some of them more difficult than the questions that arise apparently in this case.
GUMMOW J: Yes, this one is dead easy.
MR BURMESTER: On that basis, your Honour, let me proceed. These were offences under sections 229 and 570 of the Companies (WA) Code and, by virtue of section 91 with the Corporations (Western Australia) Act 1990, the Commonwealth Minister was the appropriate minister to give the consent, if that was necessary and, on the basis that consent may have been required, that consent was given.
Now, your Honours, in our submissions, we say that, in fact, for the offences in question here, which are indictable offences, there was, in fact, no need for consent to be given under section 1316. In our written submissions at paragraphs 13 and 14 we set out the competing interpretations of that section but, in our submission, when one examines the history of the provision, one sees that it originates in a provision dealing with extensions of time for the prosecution of summary offences and that it was never intended to put a time limitation on the bringing of indictable offences, so that it operates as a limitation provision.
KIRBY J: It is not very clear, though, is it? Would one not construe the section in a way favourable to the liberty of the citizen and, therefore, in the way the Federal Court has done?
MR BURMESTER: Your Honour, I concede that the section does not, in express terms, confine its operation to summary offences. However, in our submission, when one reads the actual language and the legislative history which has been set out in the annexure to our written submissions and the relevant material provided separately to the Court, we say there is a firm foundation for the conclusion that in relation to indictable offences consent was not needed.
McHUGH J: Well, the opening words would be irrelevant.
MR BURMESTER: That is correct, your Honour. We say that the words "Despite anything in any other law" point to the need for some other law which this section can itself operate on. The fact that indictable offences can be brought without any limitation of time is not something that depends on another statutory provision. Rather, what happens is that the statute makes express provision in relation to summary offences and poses a limitation but there is no equivalent provision saying that summary offences can be brought at any time. It is taken as the case in the absence of statutory provision.
GLEESON CJ: Do those opening words of section 1316 mean something different from "notwithstanding anything anywhere else provided" or "notwithstanding any other provision to the contrary"?
MR BURMESTER: Your Honour, no, if by "other provision" or "otherwise provided" means some express provision. If it means simply the common law rule that in the absence of any statutory provision indictable offence can be brought at any time.
GLEESON CJ: Where would we find the other laws being referred to in those opening words? Of course, some of them would be in the Corporations Law but - - -
McHUGH J: The Crimes Act would be the main problem, would it not?
MR BURMESTER: For the purposes of this provision, your Honour, that is right, it is the Crimes Act. It is 4G or 4H which deals with what is a summary offence. Section 4G of the Crimes Act says:
Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.
But, there is no - simply defining what is an indictable offence but it does not deal with the time within which indictable prosecutions must be brought.
GLEESON CJ: But we are dealing here with offences against the Companies Code of Western Australia, are we not?
MR BURMESTER: We are, your Honour. And what happens is that section 91 of the Western Australian Act provides that the powers under the cooperative scheme laws, the Code, are in respect of prosecutions treated as offences as against the national scheme law and then the national scheme law provides that the Commonwealth Minister and Commonwealth legislative provisions, such as the Crimes Act, apply to the determination of these matters.
McHUGH J: You referred to 4G, but is it not 4H in the Crimes Act the relevant provision? Is that not the one that says that - - -
MR BURMESTER: That defines what is a summary offence, your Honour.
McHUGH J: Yes. So, anything where the period of imprisonment does not exceed 12 months is a summary offence?
MR BURMESTER: Is a summary offences, that is right.
McHUGH J: Yes. And, without 1316 you would have to prosecute just about all these Corporations Law offences within that time, the summary time period around Australia?
MR BURMESTER: Within that time period, that is right.
HAYNE J: Where do we find the time period fixed, the time for bringing summary prosecutions?
MR BURMESTER: It is section 15B.
GUMMOW J: I think you had not quite finished perhaps tracking through the change, the question the Chief Justice invited you to take.
MR BURMESTER: No, your Honour, that is right.
GUMMOW J: In a way, that is the starting point. We heard Byrnes and Hopwood a few sittings ago.
MR BURMESTER: I will do that, your Honour. Your Honour Justice Hayne, yes, it is section 15B which is the time for commencement of prosecutions.
GUMMOW J: Somehow all this federal law is drawn into the South Australian law.
MR BURMESTER: Perhaps if I could hand to the Court a short note which tries to indicate how one gets from section 34 of the old Corporations Law to the Commonwealth Minister making this decision. What happens is that section 85 of the Corporations (Western Australia) Act ensures that, to the extent the new regime deals with the matter and is inconsistent with the earlier regime, that co-operative scheme law ceases to operate. So that, in our submission, section 34 of the Companies and Securities (Interpretation and Miscellaneous Provisions) Code, which would have been the operative provision at the time the offences were committed, is superseded on the grounds of inconsistency via the provisions in section 131(6).
GUMMOW J: What was the date of these alleged offences? Were they committed whilst the old scheme was in force?
MR BURMESTER: They were committed while the old scheme was in operation, your Honour, between August 1988 and May 1989.
HAYNE J: So what is he charged with? Is he charged with a breach of the Code?
MR BURMESTER: He is charged with a breach of sections 229 and section 570 of the Code.
McHUGH J: Relevantly for the purpose of this appeal.
MR BURMESTER: Relevantly.
McHUGH J: He is charged with other matters, is he?
MR BURMESTER: There is a separate offence under, I think, the Western Australian Crimes Act, yes or the Criminal Code.
McHUGH J: And conspiracy. Yes. But what part does section 29 of the Corporations Act apply because it provides that, "The Commonwealth laws apply as laws of Western Australia" and then section 51 of the Justices Act of Western Australia imposes a 12-months time limitation on summary provisions, do they not?
MR BURMESTER: Your Honour, we say it is section 29 that brings into play the Commonwealth Crimes Act provisions.
McHUGH J: Yes.
GUMMOW J: By way of a - - -
MR BURMESTER: So what happens is that State law deems them to be Commonwealth offences and the relevant Commonwealth regime governing those offences in terms of time limits or consents and so on to apply.
GUMMOW J: And there is an implied repeal of that section in the Western Australian Justices Act?
MR BURMESTER: Yes, your Honour, I guess by an inconsistent later State law.
GLEESON CJ: So that were it not for section 1316, by reason of section 15B of the Crimes Act, these proceedings would have had to be commenced within 12 months of their commission. Is that right?
McHUGH J: It is six months, I think, is it, under 15B?
MR BURMESTER: Six months if the term of imprisonment is - - -
HAYNE J: But is that right? Are not these indictable offences? How does 15B bite?
MR BURMESTER: These are indictable offences.
HAYNE J: How does 15B of the Crimes Act bite at all?
MR BURMESTER: If your Honour excuses me a minute. Your Honour, yes, under 15B(1)(a) you will see that:
if the maximum penalty which may be imposed.....includes, a term of imprisonment of more than 6 months -
or -
in the case of a first conviction - at any time -
so there is for these serious indictable offences no time limit under Commonwealth law and then paragraph (b) would apply to other cases such as summary offences where there is a one year time limit. So we are concerned here with indictable offences. They come within the definition of "indictable offences" in the section 4G and H and section 15B ensures there is no time limit in relation to their prosecution.
GLEESON CJ: Right. So you say there was no time limit in this case, but the opening words of section 1316 are there to deal with a different case in which there may have been a time limit.
MR BURMESTER: Yes, your Honour.
GLEESON CJ: And that would have been a time limit imposed under section 15B.
MR BURMESTER: Yes, your Honour, so that if there is no time limit in the relevant applicable law, whether it is State law or Commonwealth law, and we say it is the Commonwealth provisions, then there is nothing for section 1316 to operate on. Your Honours, if one goes back to the precursors of section 1316, one sees earlier formulations which are set out in the materials we have provided to the Court. Up until the 1980 Code referred to "Despite anything in any other Act" so they were clearly looking at a statutory provision that dealt expressly with the issue.
When the Code was adopted in 1980, the current formulation was picked up from the Victorian model, but even the Victorian model referred to the word "act". As the attachment to the written submissions makes clear, there were slightly different provisions in some of the States, which referred expressly to summary offences. When the amendment on which this provision was based was introduced into Victoria in 1955, there was no express reference to summary offences, but we say that a proper reading of it means that that is the only way in which it can operate.
GUMMOW J: This phrase, "Despite anything in any other law", rather than "in any other Act", may have been put into accommodate some vague unease as to how the joint scheme worked; "law" would accommodate the State law which, under these mechanisms, is impliedly repealed.
MR BURMESTER: Well I think your Honour clearly did not want to refer to an Act being confined to the jurisdiction, that is right.
GUMMOW J: The Commonwealth Act - or the Acts Interpretation Act would pick it up, and that is a Commonwealth Act.
MR BURMESTER: That is right.
HAYNE J: I am being even slower than normal, Mr Burmester. Can I go back, I am sorry, and can I trace it out just a moment. Relevantly he is charged with offences against the Western Australia Code. For reasons that we skip over for the moment, they are to be treated as if the Commonwealth criminal law applied. So far, so good?
MR BURMESTER: Yes, your Honour.
HAYNE J: Section 15B, if it applied, would say of this offence, it can be prosecuted at any time.
MR BURMESTER: That is correct.
HAYNE J: Because he is liable to more than the requisite specified length of imprisonment.
MR BURMESTER: Yes, your Honour.
HAYNE J: And then you say, section 1316 and the phrase, "Despite anything in any other law"does or does not impinge upon what the Crimes Act would provide, namely prosecutable at any time?
MR BURMESTER: We say, because it says "at any time", in other words, the Crimes Act does not itself impose a time limit, there is nothing for section 1316 to operate in terms of a variation of the time in which a prosecution can be brought.
GLEESON CJ: Why not? Why can it not vary the words "at any time"?
HAYNE J: And how does that work verbally, despite "anything in any other law", seems at first blush to me to bite on section 15B?
MR BURMESTER: Your Honour, we say when you look at the legislative history of this provision it was designed to deal with summary offences where there were express limitations and not the situation where there was no limitation.
GLEESON CJ: What if you read this as meaning, notwithstanding the provision in section 15B of the Crimes Act, that the prosecutions may be commenced at any time, proceedings for an offence against this law, and so forth?
MR BURMESTER: Well, your Honour, if you read it that way, then you would be against me on the construction argument.
McHUGH J: I suppose one of the strongest arguments in your favour is that it would be against all history for there to be a time limitation in respect of an indictable offence. Do you know of any instances where - - -
MR BURMESTER: No, your Honour, I do not know of any offence and, as I said, that, in our view, supported by the legislative history set out in submission materials, which shows that the concern was the short periods for bringing summary prosecutions and the fact that some of these corporations offences - - -
HAYNE J: But section 15B does not operate by reference to classification "indictable summary"; it operates by a classification of "maximum term", does it not?
MR BURMESTER: Yes, your Honour, I accept that but the periods reflect the distinction between "summary" and "indictable".
McHUGH J: What you have to say is that the words "despite anything" are really to be read as despite anything in any other law which would prevent a prosecution being instituted in a lesser period than five years, it can be instituted within five years and afterwards with the consent of the Minister.
MR BURMESTER: Yes, your Honour, that is the construction we are contending. We say its legislative history supports that. It also uses the word "may". It does not say "Consent shall be obtained", so at least in the use of the word "may", there is at least an argument that it was not envisaged as the only operative provision, that there were other bases on which you could bring a prosecution such as there not being any time limit.
McHUGH J: And most limitation-type statutes commence with the prohibition, "No proceedings shall be brought", for example..
MR BURMESTER: That is right, your Honour, and I think in footnote 2 we set out some examples where Commonwealth law requires consent in every case and they are framed in much more peremptory terms: "Consent shall be obtained before a prosecution is commenced". We say this section does not have that character.
HAYNE J: If attention is confined only to Commonwealth law without the interposition of a co-operative scheme, does not the definition in 4G and 4H of indictable and summary offences mean that there will inevitably be some indictable offences which must be brought within the time limited by 15B(1)? The criterion in 4G, 4H is 12 months. The criterion 15B is six months. I may have inverted the example.
MR BURMESTER: Yes, it is the other way round, your Honour, so there would be some summary offences that would be able to be brought at any time.
HAYNE J: Yes, I see.
MR BURMESTER: So there is not a direct correlation between the definitions and 15B; I accept that. Your Honours, all I can suggest is a close reading of attachment A and the relevant statutory materials which have been provided which track through the history of this provision and its purpose and mischief and we say that, despite the language which I acknowledge is not entirely clear, there is a good basis for the construction for which we contend.
Your Honours, understanding the purpose of this provision is not just relevant to whether there is a need for consent. In our submission, it is also important to have regard to the purpose served in terms of the second question, the sorts of procedural fairness, if any, that need to be accorded. The respondents argue strenuously, and the Full Federal Court adopted the view, that it was correctly characterised as a limitation provision that, as it were, gave rise to an absolute defence and that therefore to consent after five years was to take an immunity away from a person after the five year period had expired. In adopting that interpretation the court put considerable emphasis on its characterisation of it as a limitation provision.
Your Honours, we would say whatever the section means, it cannot properly be regarded as a limitation provision in the same way as you might regard a limitation provision applicable to someone who might have a civil action where you might say that that gives rise to some sort of bar which needs discretion in order to be lifted, but we say it serves an entirely different purpose and it is not correct to characterise it as a limitation provision.
Your Honour, in terms of what procedural fairness requires in this situation, we submit that there is no relevant right, interest or legitimate expectation, and as paragraph 26 of our submissions indicate, that is the test that has generally found favour with this Court. So, adopting that approach, one starts to look for a right, interest or legitimate expectation which could found some duty to provide procedural fairness. As I have indicated, the Federal Court, at appeal book 213, said there was a "right or immunity", but contrasted this right or immunity with the position that existed in relation to the commencement of prosecutions, and, your Honour, I think it is important to consider the position of the commencement of prosecutions, because we say there is essentially no difference in relation to a decision under this section and other decisions concerned with the commencement of prosecutions, and yet that is the critical issue where the Full Court disagreed and said there was a significant difference. So, your Honours, if I could take - - -
GUMMOW J: Would you say that again, Mr Solicitor.
MR BURMESTER: We say that a decision to consent to prosecution after a period of time is, in substance, no different from the decision that has to be made to consent per se, if there were absolute consent provisions, or a decision to commence a prosecution in the ordinary course of events; that the fact that consent has to be sought after a period of time does not fundamentally alter the nature of the decision that is being made. If there is no procedural fairness required in relation to the decision to commence a prosecution, which is widely accepted in the authorities, we say so there must be no similar obligation in relation to a consent provision like this.
KIRBY J: That might be correct and that is the question that is raised once you get past the interpretation, that a citizen would be entitled to say that they would expect that after a period of time they would not be troubled by a criminal prosecution, given the structure of the legislation if your interpretation fails; whereas the general question of prosecution is at large, you have no expectation at all.
MR BURMESTER: Your Honour, we say it is exactly the same situation. The fact there may be an extra procedural step in whether a prosecution commences cannot by itself create a right or an expectation in a member of the public. Everyone may have a hope or even, you might say, some form of expectation but not, we would say, a relevant legitimate expectation that they will not be prosecuted at any time. But we say that - - -
KIRBY J: "Right" is pitching it high, but "expectation", why would it not be that after the interval of time that is provided that you would have an expectation or a legitimate expectation that you are free from that cloud? It has passed unless a decision is taken, which presumably must be taken for the purposes of the legislation, and therefore is just another administrative decision which, on the face of things, attracts entitlements so that it be well made and made in accordance with the legislation to have a submission in relation to it, would be entitled to make submissions in relation to it.
MR BURMESTER: Your Honour, we will be submitting that when you look at the reasons why procedural fairness does not apply to a decision to prosecution, they apply equally to this situation. If your Honour is correct, it seems to mean that the clever criminal who can escape detection for five years is put in a better position than some other criminal - alleged criminal - who has no expectation in the first five years that they will not be prosecuted but if you are clever enough, then you do. Now, we submit that is not a logical way in which to approach the position. As I said, if one starts with the fact that the commencement of a prosecution in the normal course of events, where there is no consent, does not attract procedural fairness, then we say there is no good reason to apply it in these consent situations. Your Honour, if I can perhaps take you through some of the prosecution cases it may assist your Honour to understand why we put that proposition.
HAYNE J: Just before you go to those cases, who would prefer an indictment in a case of this kind? Who would be the indicting authority or presenting authority?
MR BURMESTER: It is the Director of Public Prosecutions.
HAYNE J: Of which jurisdiction?
MR BURMESTER: Of the Commonwealth.
HAYNE J: And, could the Attorney present or indict under the Crimes Act provision?
MR BURMESTER: I think, your Honour - I am talking from recollection, I would need to check this - that the Director Public Prosecutions Act does not necessarily take away that right.
HAYNE J: That is my understanding of it but it leads to this further consideration that the circumstances may differ if what I will call loosely, the indicting authority, is different from the consenting authority, but, if it is possible that both the indicting or preferring party and the consenting party are the same, then the course you are about to take us on may perhaps be easier for you than otherwise, that the equation with the prosecution cases is closer.
MR BURMESTER: Yes, your Honour, I understand that. I had not been seeking to rely on that but I accept what your Honour puts, but, that is my understanding that it - - -
HAYNE J: That the premise is that the Commonwealth Attorney could present?
MR BURMESTER: The Commonwealth Attorney-General could, themselves, but I will check that. Your Honours, if I could therefore take you to Barton's Case (1980) 147 CLR which is seen as the leading authority on the commencement of a prosecution.
KIRBY J: Before we go to the cases, what do you say is the essential principle that has led to this restraint? Is it something historically to do with the prerogatives of the Crown? Is it something to do with the history of the Crown's entitlement and the relationship between the courts and the Crown in respect of prosecution, or is it, as you seem to say towards the end of your written submissions, more to do with the practicalities, that if you give notice it will have the possibility that people will be able to manipulate their affairs, flee, control their behaviour and so on in a way that will destroy the effectiveness of criminal prosecution, or is it all of these things? What is the principle that the cases you are going to read establish?
MR BURMESTER: The principle certainly starts in the first set of propositions, the prerogative nature, I suppose, of the power of the Crown to launch a prosecution. The more recent cases, given that so many prosecutorial discretions are now statutorily based, perhaps, pick up some of the inappropriateness and so on, but I guess underlying both of those grounds is this recognition that for courts to get involved in decisions about who and when and for what to prosecute a person, will involve them in, as it were, having to examine the criminal case itself, a matter which is properly dealt with before a jury at trial and not a matter that another judge on some preliminary attack should get involved in.
In other words, once one starts examining decisions to prosecute, one is inevitably drawn into the strength of the case: "Is there a prima facie case, what are the consequences to the accused?", the sorts of decisions that are, by virtue of their nature, not matters for a court but rather for the prosecuting authority to weigh up in deciding whether to bring a prosecution. The other important fact is that the courts accept that they can exercise safeguards through their ability to stay a trial, to take action to prevent abuse of process. So that the court is not left without any weapons to deal with a prosecution which they think is vexatious or is improperly brought.
GLEESON CJ: Was not this matter considered in Connelly v Director of Public Prosecutions by the House of Lords?
MR BURMESTER: Your Honour, I am not familiar with that case.
GLEESON CJ: That was in (1964) AC. I thought that was a case in which it was pointed out that it is an aspect of the separation of powers that courts do not involve themselves in decisions about whether to prosecute somebody.
MR BURMESTER: Certainly, your Honour, that is the message that comes out strongly in the Barton decision for that very reason, that it would draw the courts into - - -
McHUGH J: The courts would get into a hopeless situation if that was the situation. You would have to examine, among other things, the strength of the Crown case, for example, the weighing up against prejudice to the accused in terms of personal circumstances and so on. You would have a mini trial, in effect, on the question of consent.
MR BURMESTER: Yes, your Honour, and that is the sort of - - -
KIRBY J: I asked my question because I want to get in my mind from the outset the concept that lies behind the principle of restraint and because of the point that the principle of restraint in relation to the Crown may not be quite so applicable or applicable at all in respect of a federal offence and in respect of the activity of officers of the Commonwealth because, by reason of the Constitution, we have an inescapable obligation where jurisdiction is invoked to review the decisions of officers of the Commonwealth. Whether relief will be granted is another matter, but the habit of mind of total restraint is altered somewhat by our constitutional arrangements which submit to judicial review, constitutional review, the decisions which are made under the Constitution by officers of the Commonwealth.
MR BURMESTER: Yes, your Honour, and if, for instance, a prosecution was launched without consent in a situation where consent was needed, then we do not dispute that one would be entitled to come along and seek to restrain that prosecution. That would be clearly an unlawful prosecution because it was commenced without the statutory requirement of consent.
KIRBY J: I mean, you only have to pick up the Australian Law Reports and you see it may on a social basis be an undesirable development, but large numbers of applications are now made to review decisions which affect the criminal process down the line because you just cannot get out of section 75(v) of the Constitution.
MR BURMESTER: Yes, your Honour, but, in our submission, there may be a difference between an application to review a decision on the grounds of denial of natural justice or procedural fairness and a decision to challenge the validity of the prosecution, the validity of some warrant that is associated with the prosecution. In our submission, one needs to look at the particular right that is being asserted and there, I acknowledge, are certain rights that one can pursue through administrative law means to seek to put an end to a prosecution which one says has been brought unlawfully or there is unlawful evidence or something like that.
That, in our submission, is quite a different proposition from a duty on a decision maker, as in this case, to give notice to the person affected of their intention to consent to a prosecution. So, your Honour, while acknowledging there may be some instances where the courts do get involved prior to a criminal trial and separate from a criminal trial, we submit that natural justice in relation to a decision to commence is not one of those areas.
GLEESON CJ: I suppose it may be important to remember the sequence of events here. By hypothesis, the consent precedes the institution of the prosecution.
MR BURMESTER: Yes, your Honour, but normally there will have been a decision made by the relevant prosecuting authority that, subject to the consent, there is sufficient basis to go forward.
GLEESON CJ: Indeed, but if nobody suggests that you should have to give procedural fairness in relation to the decision to prosecute somebody - - -
MR BURMESTER: That is correct, your Honour.
GLEESON CJ: - - - what follows from the argument against you here is that procedural fairness, perhaps involving notice - we have not yet come to the question of what the content of the requirement would be - requires giving notice that you are contemplating consenting to something which, itself, would not have required notice.
MR BURMESTER: That is correct, your Honour. That is what is put against us, yes. We say that just highlights the inappropriateness of requiring natural justice to one part of the decision and not another.
McHUGH J: As I understand your argument, your argument is that after five years there is no legitimate expectation that you will not be prosecuted. The only legitimate expectation is that you will not be prosecuted without the consent of the Minister.
MR BURMESTER: That is correct.
McHUGH J: And that is the only the only - - -
MR BURMESTER: That is the only expectation you can possibly have.
KIRBY J: But that consent is given, in a sense, to lift what is otherwise a statutory bar on the alternative construction that there is one favour - - -
MR BURMESTER: Well, statutory bar - it is certainly a pre-condition to a prosecution going forward.
KIRBY J: And, therefore, the suggestion is that the consent is focused, not so much on, though not irrelevant to, the merits and strengths of the case but to the issue of any injustice that may be done by lifting the bar after that period of time. I mean, here the time is relatively short but you could get a case where it is down the track quite a while and witnesses may have died, people may have disappeared and so on and the suggestion is that the consent will be better made and the decision on the consent made better for the purposes for which the Parliament has given the power of consent if the decision maker is afforded all relevant material that may be pertinent to the proper making of the statutory decision.
MR BURMESTER: But, your Honour, inevitably what you are doing is saying that the person concerned is entitled to, as it were, put submissions about the decision to prosecute, because we say the decision to consent - - -
KIRBY J: It is not necessarily to prosecute, but to prosecute after this interval of time, in respect of which you have arguably a legitimate expectation that you will not be prosecuted. It is the focus on lifting the bar - I know that is not an exact description - but of the decision maker's decision addressed to whether the prima facie time barrier will be lifted to allow the prosecution to go forth at this time.
MR BURMESTER: Well yes, your Honour, the Full Federal Court's - one of its major rationales for saying there was natural justice, was that the considerations that had to be taken into account, in relation to the exercise of a power like this, were quite different, including things like the effect of delay, the prejudice that that might cause, those considerations were different and additional to the sorts of considerations that would have to be taken into account by any other prosecuting authority in relation to an ordinary prosecution where there was no time limit.
KIRBY J: They may be, but I do not think you have to convince the Court, by reference to Barton or any other case, that courts will not interfere in the decision to prosecute, but there is a new ingredient in this by reason of the law of the Commonwealth that provides a prima facie entitlement to expect that you will not be prosecuted after a certain interval and there is an obligation on a decision maker under a law of the Commonwealth to make a decision which focuses on whether, notwithstanding that expectation, the bar is lifted and the issue is whether that decision is better made for the purposes for which it is given if the decision maker has the opportunity of considering, as it were, the submissions of the party who will be adversely affected by it; seriously adversely affected.
MR BURMESTER: Yes, your Honour, I understand what you are saying. We contend that the fact that there may be this regime of administrative law out there does not have that consequence in this case. Can I hasten to add that this is not a decision which attracts the Administrative Decisions (Judicial Review) Act.
GUMMOW J: Is it excluded?
MR BURMESTER: It is, your Honour; all that is picked up by the Corporations Law Western Australia are the Commonwealth laws relating to the prosecution and commencement of prosecution. It does not pick up the Commonwealth administrative law, in relation to these types of decisions.
KIRBY J: I assumed that that was so, because we do not have any submissions to the contrary, but it might be as well if we have the statutory provisions that make that clear, so that we can put that out of account and therefore it is simply back to general principles, but in the general principles I would not think anybody - and I do not understand Dr Flick to be contesting that the general principle is that courts do not review prosecutorial decisions, and it would be a bad thing if they did, for the reason Justice McHugh said.
MR BURMESTER: Yes, your Honour, that is correct, and the correctness of Barton is conceded; the question is, can it be distinguished? In our submission, it cannot be properly distinguished.
KIRBY J: I am sorry, I interrupted you, so you might want to go back to where you were and refer us to the key passages in Barton.
MR BURMESTER: Yes, your Honour, if I could perhaps just briefly do that, without reading large slabs of them, but perhaps starting on page 90 in the joint judgment of Acting Chief Justice Gibbs and Justice Mason. Towards the bottom of the page they are acknowledging the difference between the court's role in staying a trial because of "an abuse of process" and examining "the exercise of a prerogative discretionary power" and certainly the original power was prerogative. Over on page 91 they then quote from some English authorities. If I could draw your attention in particular to the passage at about point 7, starting "Indeed, Lord Halsbury", this is from Professor Edwards' book "Law Officers of the Crown" and you will see halfway through that quotation he talks about:
the exercise of his authority in those areas of criminal prosecutions, for example, nolle prosequi, `consent' offences and ex officio informations -
where he says that:
the Attorney-General is accountable not to the courts but to the Parliament for the manner in which he discharges his discretionary authority."
So there is an express recognition by Professor Edwards that consent offences are in no different category to - - -
KIRBY J: All of this written in the English constitutional context, and not in ours. I just have to emphasise that, at least for my own part, I think we have got to look at some of these English decisions with a different view. For them, striking down legislation is invalid, is unthinkable, reviewing ministerial discretions until recently, unthinkable, but for us, for a century, it has been done, and therefore we have a different habit of mind, attitude and legal obligation, constitutional obligation. You have just got to be a bit careful about the English approach to these things; they just have a different relationship between the judiciary and Parliament and the Executive than we have, and must enforce.
MR BURMESTER: Yes, your Honour. If I could take you to page 94 then, at the middle of the page you will see they are referring to section 5, the relevant section under which this prosecution was brought. They say it:
is very different from an ordinary administrative discretion conferred by statute.....It imposes no duty on the Attorney-General.....does not limit or restrict the Attorney-General in any way in the consideration which he may give to a particular case.
All this indicates that Parliament intended to give the Attorney-General for the Colony the unexaminable discretion possessed by the Attorney-General -
and over on page 95, the end of the first paragraph, about point 2:
Finally, it cannot be said that the existence of judicial review of the Attorney's decision is essential to the administration of justice for, as we shall see, the court has other powers to ensure that a person charged with a crime is fairly dealt with.
KIRBY J: Is that addressed to the power to give review or to the exercise of that power and the restraint that will be observed in the exercise of it? It seems to me it is the latter. There can be no doubt, because of the Constitution, that the power exists in Australia.
MR BURMESTER: Your Honour, I have conceded that certain decisions could well be attacked such as if there was no consent, the clear ultra vires issue, so I am not saying there is no power whatsoever of judicial review. What our contention is - - -
McHUGH J: There is power in England for judicial review; there is power in Australia under the Constitution. The question is whether or not the conditions for it, either in England or in Australia, have been fulfilled. Otherwise, there is no power under section 79 of the Constitution or under the common law.
MR BURMESTER: That is correct, your Honour.
McHUGH J: The courts here in Australia are not out with some roving commission to examine ministerial acts. They can prohibit them or order them to be performed only in accordance with criteria laid down usually by federal statute.
MR BURMESTER: We say, your Honour, when you look at this particular one involving consent that it is not appropriate for review on procedural fairness grounds. The position with general consent provisions - - -
GUMMOW J: What is the force of this word "legitimate" in this phrase "legitimate expectation" that is repeated in various cases, something of a mantra? What makes it illegitimate?
MR BURMESTER: I think, perhaps the word "reasonable" is perhaps a better word that "legitimate" in the sense that there is some basis for the expectation. Now - - -
GLEESON CJ: Expectation of what?
MR BURMESTER: Here, your Honour, there seems to be argued that there is an expectation that the power of the Minister will be exercised in a lawful way. We say there is - - -
GLEESON CJ: The relevant expectation here cannot be an expectation that the Minister would not consent. It would have to be presumably an expectation that the Minister would not consent without giving Mr Oates an opportunity to say why he should not consent. Is that it, that is the expectation?
MR BURMESTER: That is the way it is put, your Honour, which seems to say no more than that the section itself, the statutory power itself contains an obligation to accord procedural fairness, in which case it is not really an expectation, it is something that arises out of the statutory power itself.
McHUGH J: The doctrine emanated - I mean, it was invented by Lord Devlin in Schmidt's Case and it was a rational development of the law in respect of licences. I have a licence renewable every 12 months, I have an expectation, which is quite legitimate, it will be renewed, and if it is going to be not renewed then I ought to be heard before - a proprietary of my property right. If I have a lease option or something which could be forfeited, I have to be heard, as was held long ago in this Court. But I have to say, speaking for myself, in recent years, particularly in Teoh, that it seemed to me that the matter has taken on a new dimension. It has now reached the stage of fiction, it has nothing to do with people's - - -
MR BURMESTER: Your Honour Justice McHugh, certainly in the Haoucher decision in 169 CLR at about pages 679 to 681, discussed legitimate expectation and it is quite clear there that the expectation attaches to some benefit or privilege that one has. Here the only benefit or privilege that is being alleged is the right that arises, it is said, from the statute itself - the immunity from prosecution after five years without consent. In our submission, that can be the only thing to which - - -
McHUGH J: What I said in Haoucher might have reflected the doctrine up to that time, but can it stand in the face of what three Justices of this Court said in Teoh's Case?
MR BURMESTER: Your Honour, we say that for present purposes Teoh does not lead to a different result. In Teoh there may have been a situation where the person was not personally aware of the basis for the expectation but there was still - - -
McHUGH J: In Teoh it was held to have a legitimate expectation even though they knew nothing at all about - - -
MR BURMESTER: But, your Honour, there was still a requirement that there be that public statement, the positive statement by the government that was treated as giving an undertaking to the people affected. So there was still a positive statement by the government in the Teoh decision which founded the legitimate expectation. The positive statement was the act of ratification. Now, you can argue about whether that is in fact properly characterised as a positive statement but, in our submission, what Teoh still recognised was necessary was some such positive act.
Here all that is being alleged is that there would be an expectation that a person "would not be prosecuted after the expiration of five years other than pursuant to an exercise of discretion in accordance with law", to read from para 48 of the respondent's submissions. So the Full Court at appeal book 209 tried to characterise the expectation as an expectation that the immunity from prosecution not be removed. So, if your Honours do not find there is an immunity in the first place so there is no right, then there is no additional basis for an expectation, in our submission.
McHUGH J: You in effect have to say that this section creates a power of prosecution which can be exercised if one or two conditions are fulfilled. You can prosecute at any time within five years and you can prosecute if the second condition is fulfilled, namely, that the Minister has consented after five years.
MR BURMESTER: But it is no more than a ministerial act that does not entail any duties or consequences in itself. It is a precursor to the prosecution itself proceeding, as Justice Meagher described it in Commissioner of Police v Reid (1989) 16 NSWLR 461. He says it is merely a ministerial step and:
the merely ministerial step of obtaining leave.....does not imperil any relevant right or interest.
McHUGH J: What if you look at the matter this way? You say in respect of certain offences it is the DPP who institutes the prosecution. He or she has to go to the relevant Minister and ask for consent. In that setting, why should you not read into the section that the Minister receiving a request from the DPP should also hear the person affected by the giving of the consent to get the other side of the case, so to speak?
MR BURMESTER: Well, your Honour, that begs the question of what factors are relevant to the decision of a Minister under this section. If it is directly related to the prosecution process, then clearly questions of frivolous or vexatious might be relevant.
KIRBY J: One that is obviously relevant is the amount of lapse of time and what might have happened in that lapse of time that makes it unfair, unreasonable at this stage to reopen what is on the face of things by law closed. That is a matter upon which an accused person would have peculiar knowledge in its camp to put up its propositions to the Minister which, on the other hand, the Crown through the DPP would be putting to the Minister as the donee of statutory power its arguments relating to the public interest in the prosecution, the strength of the case, the significance for other prosecutions and so on. So there are always two sides to these matters.
MR BURMESTER: Well, your Honour, that may be so. The Full Court at page 214 of the appeal book sought to indicate what it saw as the relevant considerations, the things that the Minister would need to consider. Certainly the reason the prosecution had not been commenced within five years was seen as relevant and I do not - - -
GLEESON CJ: Would you disagree with any of the things that would be relevant on page - - -
MR BURMESTER: Your Honour, the one I would, perhaps, take issue with is the question of prejudice to the accused. If this requires the Minister to, as it were, seek from the person affected information about the possible prejudice that would be caused to that person, in other words, to make inquiries which would, presumably, be one of the reasons why natural justice might be held to be required, in our submission that just opens up to the decision maker and to judicial review issues which are not normally seen as relevant to a prosecution decision.
GLEESON CJ: Nowadays, as I understand it, Directors of Public Prosecutions in most jurisdictions actually publish guidelines which they apply in making decisions as to whether or not to prosecute somebody.
MR BURMESTER: Yes, your Honour, and there are such Commonwealth guidelines.
GLEESON CJ: A power to prosecute is important. A power to make a decision not to prosecute is also a very important power and, nowadays, the public can have access to the grounds on which prosecuting authorities decide whether or not to prosecute for an offence.
MR BURMESTER: Yes, your Honour.
GLEESON CJ: Or an alleged offence. Would a person who received an opportunity to make submissions on the question whether the Minister should consent be entitled to put argument to the Minister about all the matters relevant to the Director of Public Prosecutions' guidelines on prosecutions?
MR BURMESTER: Well, in our submission, no, your Honour. When the Minister is asked for consent under this sort of provision the Minister is, in a sense, not being required to step into the shoes of the prosecuting authority and to consider all the things that would be considered by a prosecuting authority. The Minister may want to know that the prosecuting authority considers there is a proper basis in terms of evidence for bringing proceedings, in other words, that they are not vexatious. He may want an explanation as to the reason for the delay but, in our submission, it is not appropriate to require the Minister, in considering consent, to take into account the sorts of prejudice issues which are more properly the preserve of the prosecuting authority in deciding whether, in the circumstances, a prosecution is warranted.
HAYNE J: Well, you say those are the preserve of the prosecuting authority. Is that right? Are they not also the preserve of the trial court in that if an accused can demonstrate that fair trial cannot be had, is that a matter that is capable of agitation before a trial judge?
MR BURMESTER: Yes, your Honour, and we submit that the cases recognise that that is the appropriate way in which abuse of the decision to prosecute can be controlled, through the action at trial to allege an abuse of process. If there was inordinate delay in bringing a prosecution and prejudice could be demonstrated then Jago's Case 168 CLR recognises that in exceptional cases delay may be a ground for a stay of prosecution. So, we say, as I have indicated, that is the way and the proper way in which to control decisions like this, not through separate administrative review on procedural justice grounds, procedural - - -
HAYNE J: That leads to a question about whether, what I will shortly call Jago considerations, define the relevant field or whether there is some wider field of hardship, disadvantage, or other matters, that may be properly be taken into account by the Minister giving consent, and if the latter, that leads to an unusual and difficult tension, I would have thought, between Jago principles and the principles asserted against you in the present case.
MR BURMESTER: Yes, your Honour, I accept that, and in our contention it is the Jago principles that should be the governing considerations.
GLEESON CJ: In a sense, it suits your argument, does it not, to widen the range of considerations that the Minister might properly take into account in deciding whether to consent. Let me give you an example. If you look at the guidelines issued by most Directors of Public Prosecution, they include consideration of questions whether the public interest warrants that a particular type of offence should be subject to a prosecution at all. The offence might be trivial, it might be one that caused no harm to anybody. The law in question might be one that is not normally enforced by criminal sanction. Is that the sort of matter that the Minister would be entitled to take into account?
MR BURMESTER: Your Honour, I think there is a difference between saying the Minister can take something into account and in our submission he has an almost unlimited discretion as to what he or she takes into account. The argument that was put against us is there certain things which he must take into account and a failure to take them into account gives rise to an argument based on irrelevant considerations, or that because he must take them into account therefore there has to be notice given to the relevant person to see if they have anything to say on the matter. So, I think there needs to be a distinction. Yes, your Honour, the Minister may have a very broad discretion.
We say, on the other hand, you cannot read into that broad discretion a list of things that must always be taken into account and in particular the personal prejudice to the accused which may not be in the knowledge of the prosecuting authority or the Minister, and yet, if what the Federal Court says is correct then it would seem that there is this duty to search out facts on that issue, and, we say that is not an appropriate factor that instituting a consent provision like section 1316 was ever intended to pick up and to import into the law.
KIRBY J: But, why not? Why not, because steps can be taken at various stages. People are entitled to defend their interests. They can take the step at the stage it gets to a court and seek a Jago-type relief but it will not ever get to court. They will not have the cost, the burden, perhaps the public opprobrium and so on if the matter can be reviewed at an earlier stage or if they can have their say at an earlier stage and if you look at it as a matter of principles this is a donee of statutory power making a decision and though it is true it is a decision which will lead on to prosecution, the actual decision is one of lifting a time bar and matters relevant to that are in the knowledge of the person who would be adversely affected and you are saying that this independent constitutional and statutory office holder puts out or must put out of his or her mind the considerations which are relevant to time and that is something upon which the accused could add something to the quality of the decision.
MR BURMESTER: Your Honour, we are saying there is no obligation to go searching for information from the accused or anyone else relevant.
KIRBY J: It is not a matter of obligation to go searching. You make it sound like Livingston in the middle of darkest Africa. It is a matter of affording a person who has matters relevant to the specific statutory discretion the opportunity of putting those considerations into the mind of the decision maker. This is just another statutory discretion being exercised by an officer of the Commonwealth at the behest of a third party influencing a fourth party. In terms of principle, I just do not see why, because it would have in some cases a profound effect and because in some cases the person affected would have knowledge that would just not be in the possession of the prosecutor, the DPP, that that ought not to be available to the decision maker to ensure that that decision is made for the purposes for which the Parliament has given the discretion.
MR BURMESTER: Your Honour, where I take exception is your characterisation of it as just another ordinary administration power. If that is the case, then what you say may well follow. We say it is not just another statutory administrative discretion. It is a particular discretion conferred in the prosecution context and the proper way to approach it is to see it as merely one of the elements in the prosecution process and traditionally, and for good reason, that area has not been opened up to judicial review, at least on grounds of procedural fairness.
KIRBY J: So you say you just have to look at the context and look at this particular decision, and I think at the end of your argument you list a number of practical reasons why it would be extremely inconvenient and, in some cases, destructive of the purpose of the power to give notice. I do not think Dr Flick, in his written submissions, answers those points that you make at the end of it. Is there writing that suggests that what we are doing here is seeking to work out, the Parliament being silent on it, what the Parliament would have, or has provided, written between the lines, and that if you look at this particular power written between the lines, it is of the nature of this power that is very closely associated with prosecution and that has been traditionally and for good reasons, including practical reasons such as you mention at the end of the written submissions, not a matter opened up to judicial review.
MR BURMESTER: Your Honour, we say you can derive that from looking at the cases that have dealt with similar types of issues. If one were to approach it in broader terms than what does fairness in all the circumstances mean rather than asking is there no right, interest or legitimate expectation, we say he has reached the same result, given the special nature of this decision.
Your Honour, perhaps a useful case to refer your Honours to is the decision of Justice Heerey in Grech v Featherstone 33 FCR 63. This was a power to arrest. In that case, his Honour recognised that the nature of the power to arrest was not such that lent itself to administrative review and this is set out in paragraph 46 of the written submissions, but at page 67 of the judgment, he says, about the middle of the page:
It seems to me that any recognisable form of natural justice is totally inconsistent with a statutory power of arrest. No authority was cited to me in which such a power had been held to attract the rules of natural justice. This is hardly surprising. The whole point of arrest is that the person arrested is brought within the judicial system, there to be dealt with according to law. Statute and common law will then ensure the determination of the person's liberty by an impartial court with the arrested person being given the right to be heard.
In other words, it is inherent in the nature of arrest but, sure, it is going to be injurious, in one sense, to the person arrested but that does not mean there is a right to natural justice. That would be inconsistent with the nature of the power to arrest. Similarly, we say, a power to commence a prosecution.
KIRBY J: No, no, no. I think, with respect, that is obvious and arrest is a completely different consideration because it is the nature of arrest in that you have made a decision that you cannot safely proceed by way of summons which the law says you ought ordinarily to do where it is proper to do that instead of arresting and, therefore, the very nature and the purpose of arrest is that if you give notice you will undermine its purpose. But here the focus must be not upon the prosecution, which is the DPP's responsibility, but upon the decision of the statutory donee to extend time or to waive time and that is a much more limited discretion and that is the fact on which you have to focus. That is the only purpose of the Minister's power.
MR BURMESTER: Well, your Honour, you say it is a much more limited discretion but there is nothing on the face of the section which suggests there is any limit to the matters.
KIRBY J: But you have to look at the purpose of the section and the purpose of the section is to - the DPP is the one who makes the decision to prosecute. The purpose of the Minister's role is standing at the gateway, lifts the drawbridge or puts the drawbridge down and that therefore you have to focus on that particular decision and the purpose for which Parliament has given that decision and, obviously, it is to do - the decision must be made by reference to factors relevant to the decision which are matters relevant to the issue of time.
MR BURMESTER: Well, your Honour, even on that approach then the critical relevant factor is the reason for the delay and that is something that the Minister can consider and in relation to which there seems no necessity to inform the accused and to seek explanation. The reasons for the delay will be something within the knowledge of the prosecuting authorities and that can be put before the Minister without any duty or any requirement to give notice to the accused in order to allow the Minister to reach a decision. So, if that is the relevant factor, then, in our submission, it supports the conclusion there is no duty to give notice because it is a matter that does not require notice in order to get the facts.
KIRBY J: Well, I will not say any more, but that is in the Crown's camp but the Full Court at 214 line 10 pointed out that there is another consideration, namely, whether:
the grant of consent will unfairly prejudice the accused -
and that may not be in the Crown's knowledge. That may not be in the Commonwealth's camp, the DPP's camp or the Minister's knowledge and that is a matter upon which the accused can put considerations to the donee of statutory power to make the decision for the purpose for which the power has been given by the Parliament in the manner and for the purpose for which the power is given.
MR BURMESTER: And, your Honour, we say that is where the Federal Court, perhaps, went too far in suggesting that what was relevant and what had to be considered was prejudice to the accused in the sense of information dependent on being provided by the accused.
GLEESON CJ: If an accused person does have a right to put submissions on this issue of consent, why is not one of the matters the accused is entitled to address the strength of the case against him? Why is he not entitled to say, "Here are some facts that will demonstrate to you that these proceedings are bound to fail."
McHUGH J: Yes, the Full Court seems to want to avoid that issue. They say:
The Minister must consider the seriousness of the offence -
but they do not even have to consider whether there is a prima facie case. I would have thought that if the Minister has to hear the accused he would have to hear such matters and he would have to hear from the prosecution to see the strength of their case. "Is this a case that is going to be thrown out of court? Is somebody going to be brought from another country", and so on?
MR BURMESTER: That is right.
McHUGH J: Against a weak case they would all be matters that would have to be taken - - -
MR BURMESTER: Which is why, your Honour, we say that the discussion there on page 214 is not an accurate or proper portrayal of the factors that have to be considered by the Minister.
McHUGH J: It does not seem to be, with respect to the Full Court, that that is accurate. It is either all or nothing in effect, that you cannot limit it in the way it sought to do at page 214. Either you are right or, if Mr Flick is right, then you look at the whole - - -
MR BURMESTER: I think that may well be right, your Honour. I mean, certainly the fact that there was these wide range of considerations seen as relevant, no doubt influenced the Full Court in saying that natural justice was required but, in our submission, well, there is certainly no duty to do the things that the Full Court required. Interestingly, Justice Neaves in Buffier Case, I note, where he dealt with relevant considerations, certainly recognised prejudice was a factor, but it was only prejudice within the knowledge of the prosecuting authorities. He certainly did not extend it to making investigations about prejudice based on broader knowledge than that.
KIRBY J: It would have been open to the Commonwealth to provide upon this matter it is not necessary for the Minister to obtain any submissions from the person affected. I mean, that could be expressed; there would be no constitutional reason why a provision of that kind could not be enacted.
MR BURMESTER: No, your Honour, that is true.
KIRBY J: So, it would have been open to the Parliament to make it clear. What we are therefore doing is looking amongst the entrails to see what, if Parliament only turned its attention to this, it would, instead of being diverted into all the other amusing and interesting things, have said, but the common law has a strong bias in favour of saying, where people are adversely affected by the decisions of donees of statutory power, they are entitled to - - -
MR BURMESTER: I accept that is the general rule, your Honour, but we say this an exceptional area.
McHUGH J: You say it does not affect any right or interest, as such.
MR BURMESTER: It does not affect any right or interest. It is not proper to characterise what this person has as is an immunity from prosecution or - - -
KIRBY J: Not an immunity, but it is something quite close to - it is a contingent immunity. Unless the Minister makes the decision, you are immune, and therefore the issue is whether you are entitled to be heard in a decision which removes the contingency - - -
MR BURMESTER: Well, your Honour, we say that is no different from the position a person who is subject to one of the general consent provisions under the Banking Act, for instance, where you need the consent of the Attorney-General in every case, or the Treasurer in every case. We say well, if there is an immunity here, there must be immunity there. The cases such as Murchison v Keating, and so on, and Commissioner of Police v Reid, have recognised that is not the case; there is no right or interest in those general consent provisions. If there is to be said to be an immunity here then we say it must apply equally in those cases.
Your Honour, just before I leave prejudice, can I just refer you to the appeal book at page 178, which discloses there was an issue about prejudice dealt with in the trial judge hearing the matter, and some material was provided by the Commonwealth, as I understand it, and the issue was not pursued.
KIRBY J: I do not understand that submission.
MR BURMESTER: Your Honour, I am just drawing your attention to a page in the appeal book to indicate the discussion and the consideration of prejudice that his Honour Justice Moore, the trial judge, undertook at that stage.
Your Honours, one other issue that my friend has raised is the question of reputation as a possible right or interest. Normally the case is treated as an interest, and I do not dispute that cases like Ainsworth or Johns v Australian Security Commission recognise reputation as a relevant interest which might attract natural justice but, in our submission, there is no damage to reputation, in the necessary sense, to give rise to requirement of procedural fairness. Here there may be damage to reputation from the commencement of prosecution. That may be an inevitable part of any commencement of prosecutions. But the opportunity to vindicate that reputation occurs with the laying of the charges and the possible trial of the person.
We say this is significantly different from the situation in Ainsworth or Johns where there was to be disclosure of prejudicial material about a person which was not necessarily going to lead to any subsequent process such as a trial. So we say the situation here, the fact that a person's reputation may be affected, does not give rise to procedural fairness. If I could refer your Honours to Justice Deane in Jago v District Court 168 CLR at pages 55 to 56. Justice Deane was talking about the fact that a burden of criminal proceedings is:
an unavoidable concomitant of the presumption of innocence and the public administration of criminal justice by the courts.
There is a burden on an accused, a burden on an innocent person, and they may still suffer damage even once acquitted, but that is concomitant of the presumption of innocence and our criminal trial process. So we say the reputation - - -
HAYNE J: Justice Deane describes it as something that "the individual must accept as necessarily flowing from membership of society".
MR BURMESTER: That is correct, your Honour. I think I can move to the question of content which is dealt with in paragraphs 48 to 50 of our submission. The cases recognise that what is required is what is fair in all the circumstances of the case but, as your Honour Justice McHugh recognised in Johns' Case 178 CLR 472, it may in certain circumstances be nothing. Justice Deane in the Haoucher Case 169 CLR 653 at point 3 talked about the requirements, if any. So, your Honours, even if it were considered there was some obligation of procedural fairness, the content may in appropriate cases be very little or nothing at all.
In this particular case the respondents at para 11 of their submissions put the content this way. They say there must be at least an opportunity to put such submissions:
as he considered relevant to such matters as his own personal circumstances and prejudice, both personal and forensic.
Your Honours, that seems to be a suggestion that what is required here is not simply a notification but an invitation to make submissions on a broad range of circumstances, particularly matters personal to the individual. In our submission, that is not a minimal or small degree of natural justice; it seems to be an obligation that inevitably begs the question of what matters are relevant, the issue we have previously been discussing.
GUMMOW J: One matter that would be relevant in this case would be that the person in question may not be in the jurisdiction, may not be willing to return to the jurisdiction.
MR BURMESTER: Yes, your Honour, but that is not something that needs to be put to the person.
GUMMOW J: No, quite. I am just thinking about the content. Is there evidence as to whether this particular piece of litigation is connected to any extradition proceeding?
MR BURMESTER: Yes, your Honour, there have been undertakings given to - - -
GUMMOW J: But is there any evidence about it? Is it mentioned in the judgment?
MR BURMESTER: I will have to take some advice on that. Certainly, it is matter that the courts have been aware of and undertakings have been given and stays provided on the basis of the fact that this person is overseas and that extradition proceedings are afoot and the Commonwealth has undertaken in the light of the Full Court judgment not to progress those proceedings pending the judgment of this Court, but - - -
KIRBY J: But is this something we get involved in? I mean, you take an absolute position. You say in law, either for reasons of construction or reasons of the requirements of administrative law, you do not have to give notice and therefore you do not get to the detail.
MR BURMESTER: Yes, your Honour.
KIRBY J: Whereas, if the alternative view, either on - and construction and natural justice under administrative law requires that notice be given, then in a particular case because a person, say, is a foreign citizen and may flee the jurisdiction or is overseas or has some other reasons why you would not give notice, then there may be circumstances where a principle is established which would not apply in the particular case for these sorts of considerations?
MR BURMESTER: Yes.
KIRBY J: I see the respondent is a Polish citizen.
MR BURMESTER: I am not sure, your Honour, whether that is correct. He is certainly resident in Poland.
KIRBY J: They say that at the beginning.
MR BURMESTER: I know the Federal Court has said that. I am not sure it is necessarily correct but I will rely on my friend to - - -
McHUGH J: It is alleged in the grounds that he was a Polish citizen.
MR BURMESTER: Yes, alleged.
HAYNE J: And in the statement of claim.
MR BURMESTER: Justice Gummow, I cannot offhand find any particular discussion or evidence on this point but I will see if I can find that and deal with it in reply.
GUMMOW J: Well, I think page 11 of the amended statement of claim, paragraph 9.
McHUGH J: Yes.
MR BURMESTER: Yes, you are correct, your Honour.
GUMMOW J: And 8.
MR BURMESTER: 8 and 9 on page 11, that is right.
HAYNE J: And they are admitted in the defence on page 14, paragraph 2.
MR BURMESTER: Yes.
GUMMOW J: I mean, if we are going to get down to content we have got to get ourselves connected to the real world, or your opponent has to get himself connected to the real world.
MR BURMESTER: Yes, your Honour, and we say that is one of the reasons that we give at the end of submissions as to why the content cannot - - -
KIRBY J: May I say, again, that that is a question of whether in the particular case the Minister would have to give notice, but the issue of fundamental principle which we are examining is whether or not there is any obligation at any time to any person. An Australian person who has lived for seven generations in Woolgoolga has to be considered as well as this particular respondent.
MR BURMESTER: No, I accept that, your Honour, but this argument is only on the assumption that there is a duty to accord procedural fairness..
GUMMOW J: You have moved on to paragraph 48.
MR BURMESTER: Then we say, well, the obligation is nil in terms of duty to inform the person concerned.
KIRBY J: Can we judge that? We do not have all the details of the case.
McHUGH J: We have to decide the case. This applicant says he has been denied natural justice.
MR BURMESTER: That is right, your Honour. We say if you look at the circumstances of this particular case one can reach the clear conclusion that it was not necessary to inform the person in advance that consent was going to be provided.
KIRBY J: How did the Full Court deal with this particular issue, that is to say, the obligation to give notice if the obligation existed.
MR BURMESTER: Your Honour, I think because the Full Court said there was a duty which had not been undertaken they did not get into the content, particularly, of what that duty was.
KIRBY J: Why is not that the correct approach? You are saying that the Full Court failed to take this third step, statutory interpretation, obligation by administrative law, obligation in a particular case? Now, do you say that we have to consider the third matter where the Full Court did not?
MR BURMESTER: Your Honour, what I say is that if you were to conclude there was a duty to accord procedural fairness, you have sufficient material to conclude that in the circumstances it did not require notice to be given to the accused.
GUMMOW J: The Full Court has just been contemplating another round of litigation. They suggest there was a duty to afford procedural fairness. "No we are not going to tell you what the content is. Have a go, and if the other party is upset with it, we then come back and then we will tell whether what was done measures up to what we now say is the content".
KIRBY J: They must therefore have not felt that they had all the relevant information. I think in your written submissions you offer to give us a lot of information, but do you say that we have all the information that is relevant? I mean, all I know is that what is in the pleading and what is admitted. Is there any other consideration that would be relevant in this particular case not to give the respondent, if it is the lawful obligation, notice that he can make submissions relevant to the unfair prejudice that he suffers.
MR BURMESTER: Your Honour, the considerations we have set out in paragraph 50 are general considerations.
KIRBY J: They are general, but particular for this case.
MR BURMESTER: I have not any particular considerations peculiar to this case other than what is in the material and one of those facts, as your Honour Justice Gummow has pointed out, is that the person is overseas.
GLEESON CJ: In relation to that, the sequence of events, as I understand it, is that the Minister gave his consent on 5 January 1995.
MR BURMESTER: Yes, your Honour.
GLEESON CJ: The prosecution was commenced on 12 January 1995. That seems to appear on page 10 of appeal book.
MR BURMESTER: Yes.
GLEESON CJ: And then about 18 months or more later, extradition proceedings were commenced in Poland and then a few months later the respondent was arrested in Poland. That is the sequence of events, is that right?
MR BURMESTER: That is my understanding, yes, your Honour.
GLEESON CJ: Now, the Full Court said it was the decision made on 5 January 1995 that was void.
MR BURMESTER: Yes, your Honour.
GLEESON CJ: And what do you put to be the relevance of the events that occurred 18 months or two years after that decisions was made?
MR BURMESTER: Your Honour, if there were not valid proceedings commenced in the Australian courts, there may be no basis for the extradition proceedings to be brought or to succeed in Poland. In other words, the commencement of a valid prosecution would be critical to any extradition proceedings being pursued.
GLEESON CJ: But what bearing do you say the events of late 1996 and early 1997 had upon the validity of the decision of January 1995?
MR BURMESTER: None, your Honour, in the sense they are things that occurred afterwards, if you are talking about those events.
GLEESON CJ: That is probably why the Full Court did not mention them.
MR BURMESTER: Yes. I mean, I do not know whether there is a statement as to when the respondent in this case went to Poland and so on, but - - -
GLEESON CJ: There was apparently one.
MR BURMESTER: It says yes in paragraph 12A on page 12 of the appeal book:
(1) .....the applicant has been firmly established in Poland since 1990 -
GUMMOW J: But these offences are allegedly committed in 1988.
MR BURMESTER: These were committed in 1988 or 1989, so at the time the Minister was making his decision, this particular respondent was in Poland.
GLEESON CJ: There was an argument about delay at one stage in these proceedings.
MR BURMESTER: There was, your Honour. There was a - - -
GLEESON CJ: Are we concerned with that?
MR BURMESTER: Your Honour, the Full Federal Court considered that in all the circumstances the delay did not, as a matter of discretion, lead them to refuse the relief that they were otherwise - - -
GLEESON CJ: And you are not urging us to differ from the Full Federal Court on that?
MR BURMESTER: Your Honour, we have not made submissions on it.
GLEESON CJ: That was what prompted my question.
MR BURMESTER: We accept that it may be difficult for this Court to take a different view on that issue.
GLEESON CJ: So we need not concern ourselves with that.
MR BURMESTER: But we say you do not get to that issue anyway.
GLEESON CJ: But if we do, we do not need to concern ourselves with it? You do not put an argument to us to the effect that if all other arguments that you advance fail, we should uphold this appeal on a ground related to the delay issue.
MR BURMESTER: Your Honour, let me formally put an argument to you that if all other considerations fail, then it ought to be upheld on the question of delay. In putting - - -
GLEESON CJ: We cannot help noticing that this is not a case where there has been a great rush.
MR BURMESTER: That is correct, your Honour, there has been a series, as the chronology indicates, a series of related legal proceedings that have been commenced and then terminated and so on before these particular proceedings were brought.
KIRBY J: But you would have rights to move courts to deal with expedition and to deal with cases in a way that would cure the delay or at least mitigate it. Why should we be getting into this consideration when you did not appear to put it in your written submissions and you now only put it to us formally?
MR BURMESTER: Your Honour, we say - - -
KIRBY J: There are matters of substance to be dealt with as - - -
MR BURMESTER: Looking on the face of the chronology, one can see that there was considerable delay, we - - -
KIRBY J: How do we explore whether you used all the powers of the Commonwealth to move courts to deal with the issue as quickly and to reduce or mitigate the delay?
MR BURMESTER: Your Honour, in support of our submission, we say the facts as set out by the Federal Court are sufficient, that they then counter those facts with these other considerations which they saw as relevant. But we acknowledge that this Court may find it a little difficult to revisit.
GLEESON CJ: We may need to be a little more particular than that, Mr Solicitor. Your notice of appeal is on page 229, which is the ground of appeal that covers this argument.
MR BURMESTER: Yes, your Honour. We appeal from the whole of the judgment. We do not particularise the ground.
GLEESON CJ: Do you seek leave to amend your notice of appeal to include a ground relating to delay?
MR BURMESTER: If you will excuse me. No, your Honour. I am instructed I do not.
KIRBY J: So that it comes down on this last point to the fact that if the court were to hold against you on the construction point, and hold against you on the obligation to give procedural fairness, you therefore get to the content of that obligation in this particular case, you say to us that it is enough to take into account that this was a person who was already established overseas. He was said to be a citizen of a foreign country and that in the particular case, giving him the entitlement to put his submissions, was not required by the content of the obligations of procedural fairness.
MR BURMESTER: Yes, your Honour.
KIRBY J: Is there any other factor, save for his absence overseas and his citizenship of another country, that is relevant in this particular case that we would have to take into account in taking a view about what the content of the obligation apply?
MR BURMESTER: Only the broad consideration set out in paragraph 50 of the submissions dealing with the criminal process or generally. The opportunity applies to anyone to flee to rearrange - - -
KIRBY J: Well, he has already gone. It may not be flight but he has already gone.
MR BURMESTER: So it is only those broader considerations which we say in any case, not just this case, but in any case, any comparable case, dealing with consent, the content of natural justice - - -
KIRBY J: I repeat again, there may be cases where there is absolutely no possibility of a person who is a local grandee who has huge investments, would never dream of leaving Coonabarabran.
MR BURMESTER: No, your Honour, I am not saying that is an essential element. I am saying that it is just one of the elements, one of the reasons, one of the many reasons why you do not have to tell someone in advance that you had decided to consent to their prosecution.
McHUGH J: But you never know. I had a client once named Jack Green. He is still overseas. They are still looking for him.
KIRBY J: He still has not paid Justice McHugh's fees.
McHUGH J: He left a home in Dover Heights and a big business.
MR BURMESTER: Yes.
KIRBY J: And fees.
MR BURMESTER: Your Honour, unless the Court needs further assistance - - -
GLEESON CJ: Yes, thank you, Mr Solicitor. Yes, Dr Flick.
MR FLICK: Your Honours, we see the issues as a little more complicated than the two as originally formulated by the learned Solicitor but if we can take them in turn. The first question is one as to the correct construction of section 1316. We contend that the reasons given by the Full Court for the construction of that provision at 210 of the appeal book are persuasive and should be adopted. Any contrary construction necessarily has to construe the word "offence" in some way different to what would otherwise be a term embracing both summary and indictable offences.
McHUGH J: Mr Flick, the point that I would like you to deal with and which the Full Court judgment does not deal with, I do not think, is that if your argument is right then the words "Despite anything in any other law" are superfluous.
MR FLICK: I think the only thing which can be said is that what those words make abundantly clear is the fact that if there is a law which says you can commence a prosecution in a period of 12 months or a period of no fixed time it is now five years, so the phrase "Despite anything in any other law" is a phrase which embraces both a more confined limitation as to time or a period such as 15B which says "at any time". That is the work that that phrase does.
GUMMOW J: Well, is this a case - I never quite know what is meant by it but is this a case for a construction where one says these words are at the best difficult, one looks at the Interpretation Act to see what was the purpose of all this and if one does that, does not looking outside the immediate text assist the Solicitor-General?
MR FLICK: I think the answer is no and no. Our primary position is that the opening words - - -
GUMMOW J: It is clear enough as it is.
MR FLICK: It is clear enough as it is, namely the phrase, "Despite anything in any other law' is a phrase which means exactly what it says. If you can find any other law - - -
GUMMOW J: Just stop for a minute. Other law of what polity?
MR FLICK: Commonwealth or State, if the State laws are picked up, and then you have got to look at the - - -
GUMMOW J: By definition it is only State law.
MR FLICK: Yes.
GUMMOW J: Nothing else. Some Commonwealth laws are read into the law of Western Australia.
MR FLICK: Yes, by section 29, but the proposition would have to be - - -
GUMMOW J: That itself requires some quite astute footwork to realise that.
MR FLICK: Well, your Honour has put two propositions, namely, is there any ambiguity and, secondly, if there is, who does it help by looking at the extrinsic material?
GUMMOW J: You cannot make sense of this section without looking into the interstices of the co-operative scheme, can you? That is why I was anxious to have the Solicitor start at the beginning.
MR FLICK: Your Honour is right in saying that the starting point are the provisions of the State legislation.
GUMMOW J: And the end too.
MR FLICK: And the end, but that does not necessarily mean that there is any ambiguity in the opening words of page 1316. To mean that you have to identify the laws, does not mean that there is any ambiguity.
GUMMOW J: What does the word "despite" mean? I must say I have never seen that in a Commonwealth law before. I may be wrong, maybe it is part of the new informal English that is being used, but what does it mean "Despite anything in any other law"?
MR FLICK: Notwithstanding.
HAYNE J: What Justice Callaway has recently described as the drafting style of the pop song.
MR FLICK: It is a foreign concept, your Honour. But, to go back to the words which are used, "Despite" would mean, no matter what any other law says, notwithstanding the content of any other law, when are you empowered to bring proceedings, and the answer is "5 years".
McHUGH J: But it is a strange use of the word "despite", is it not, to really just saying, despite anything in any other law that says a prosecution can be commenced at any time, proceedings for an offence may be instituted within the period of 5 years. It is a view that is open, but it does not seem to me to be the natural reading of the section, prima facie. The word "despite" seems that there is some obstacle which has to be overcome.
GUMMOW J: Overcoming somthing
MR FLICK: Well there may not be that much difference between the word "despite" and "notwithstanding". Notwithstanding has the same connotation, namely that there is an obstacle and you have got to overcome the obstacle.
GLEESON CJ: You seem to be contending for a slightly different meaning, which treats the introductory words of section 1316 as a kind of announcement. That is to say, look nowhere else for information on the subject of the time for instituting criminal proceedings; it will be found here.
MR FLICK: I think that is probably right, your Honour. So that if the question is, "When can you commence proceedings and for what proceedings do you need a consent?", the answer is to be found in that division of the Corporations Law.
GUMMOW J: But does "other law" include common law?
MR FLICK: There would be no reason why it would not, your Honour.
GLEESON CJ: Are the words "time for instituting criminal proceedings", which in the material we were given are shown as the heading of the section, part of the statute?
MR FLICK: Your Honour, I think the introductory words and that heading can be used as an aid to construe the section.
GUMMOW J: You have to get in through section 15 though, do you not?
MR FLICK: That is when you get into the interpretations.
GUMMOW J: So you have to get a difficulty or an ambiguity, do you not?
MR FLICK: If your Honours form the - if we can go back a step. The opening proposition is that, "Despite anything in any other law", is not a phrase of ambiguity, that the fact that you may have to go to provisions of different laws to find out what is their content does not make it ambiguous, and that the word "Despite" is not inelegant but apposite.
McHUGH J: Do we go to the Commonwealth Interpretation Act for this or do we have to go to the Interpretation Act of Western Australia? We are really dealing with the Corporations Law of Western Australia, are we not?
MR FLICK: Yes.
KIRBY J: Was there not a special Interpretation Act for that legislation?
MR FLICK: Yes, there is.
KIRBY J: Is that relevant? Does it contain any relevant provision?
MR FLICK: Not on this, your Honour, but we will come to that because the learned Solicitor of course says that the legislative history of this, picking up section 34 of the Interpretation Act, is some indication that it is restricted to summary offences rather than indictable offences. Of course, that suits his objective of saying that these are indictable offences and 1316 has no work to do.
GUMMOW J: But one has to attend to what Justice McHugh asked you. Is there not an interpretation piece of legislation in this scheme?
McHUGH J: We have section 29 of course. It might seem to direct you back to the Commonwealth legislation, I suppose.
HAYNE J: Does not the Interpretation and Miscellaneous Provisions Act or Code, whichever it was, start to bite? I have not looked at this for a long, long time.
McHUGH J: Under section 29 Commonwealth laws apply as laws of Western Australia and then under subsection (2):
For the purposes of a law of Western Australia, an offence against the applicable provisions of Western Australia -
(a) is taken to be an offence against the laws of the Commonwealth.....and
(b) is taken not to be an offence against the laws of Western Australia.
MR FLICK: To answer your Honour Justice McHugh but also to go back to what Justice Gummow was saying, the starting point seems to be the State legislation, and the answer to Justice McHugh may be section 10 of the Corporations (Western Australia) Act which expressly provides that subject to Part 1.2 of the Corporations Law of Western Australia, the Acts Interpretation Act of the Commonwealth applies.
Whilst I am on this point, your Honour, may I say this, that one, as an aside but, secondly, as a matter of substance, there is an underlying irony in the approach of the Crown, namely, they seem to contend that a consent is totally unnecessary. If that is correct on their construction of 1316 of the Corporations Law, then it should be withdrawn. If it is truly of no effect, then they give up nothing by withdrawing it. To keep it has some presumed forensic advantage.
McHUGH J: Well, that is a debating point really, is it not?
MR FLICK: That is why I characterised it as an aside. But whilst we - - -
KIRBY J: We spend most of our time listening to debating points here.
MR FLICK: At least we will not go to Babylon, your Honour. Whilst we are dealing with the Corporations Act, however, section 35 should be noted, because it expressly provides that the Commonwealth administrative laws apply as laws of Western Australia. Commonwealth administrative law is itself defined by section 3 as including the Judicial Review Act. The other provision which fills in the chain that Justices Hayne and Gummow were inquiring of, it is section - - -
GUMMOW J: Just a minute. This is section 34 of which statute?
MR FLICK: It is section 35 of the Corporations (Western Australia) Act.
GUMMOW J: Section 35.
MR FLICK: The Corporations (Western Australia) Act of Western Australia. This goes to the question, of course, that the offences were under the Western Australia Act, 229, what is the relevant Western Australian law and how can it be reviewed? You have section 35 of the Western Australian statute picking up and making applicable to the relevant decisions the Commonwealth administrative laws which are defined in section 3 as including the Judicial Review Act.
GUMMOW J: Yes, now how does that work? How does that give federal jurisdiction to the Federal Court in matters arising under the AD(JR) Act? What are they doing? This is a law of Western Australia.
MR FLICK: Yes. Your Honour I think is - - -
GUMMOW J: It does not arise in this case because this was a section 75(v) case - - -
MR FLICK: And 39B.
GUMMOW J: Well, a 39B case which Justice Moore pointed out at 167.
MR FLICK: Yes, but it would not be correct to conclude that these decisions under 1316 were insusceptible to judicial review under the Judicial Review Act.
GUMMOW J: Because they were under an enactment of the Commonwealth?
MR FLICK: Under an enactment of the Commonwealth.
GUMMOW J: Which one?
MR FLICK: Section 1316. Section 91(3) of the Corporations (Western Australia) Act clothed the relevant Commonwealth Minister with power.
GUMMOW J: I understand how it works for 75(v). That is what Cram's Case decided with the joint coal authority. I am just worried about the AD(JR) Act, that is all.
MR FLICK: This is not an answer to your Honour's question, but the decision under 1316, exercised because of 91(3) by the Commonwealth Minister, would nevertheless remain a decision under a Commonwealth enactment.
GUMMOW J: Under?
MR FLICK: Under 1316.
GUMMOW J: Under?
MR FLICK: Yes.
GUMMOW J: There is a lot of law about that, is there not?
MR FLICK: Sorry, yes, your Honour.
GUMMOW J: Under the Corporations Law of the ACT? That is the only relevant law of the Commonwealth, is it not?
MR FLICK: Yes.
GUMMOW J: Anyhow, perhaps we do not have to solve the problem.
MR FLICK: No, you do not have to. I have got myself into more difficulty than I needed to, your Honour.
GUMMOW J: No, you are not in a difficulty, it is the legislature that has everyone in a difficulty.
MR FLICK: I am grateful for that, your Honour, but - - -
GUMMOW J: It does suggest, though, that when one reads 1316 it still is not we are free standing.
MR FLICK: What is evident from 35 and 1316 and Schedule 1 of the Judicial Review Act is that there is no readily apparent reason why decisions of this category are un-reviewable under the Judicial Review Act, so long as you can satisfy the other requirement of "under an enactment". The intent, obviously, was to make them reviewable.
KIRBY J: Mr Burmester said that they were not reviewable. I think he was given leave or he said he would give some additional material to support that. It may be that if that is sent in in writing you will have to reply in writing.
MR FLICK: Yes.
KIRBY J: Is this critical to our determination?
MR FLICK: No, your Honour. The starting point of this debate was the opening phrase of 1316, "Despite anything in any other law", whether there was a question of ambiguity in that, and whilst we had the Western Australian Act in front of us I took the liberty of taking your Honours to section 35.
GUMMOW J: Yes.
MR FLICK: But to go back to 1316, the primary position has been put, and that primary position is of course that the phrase itself lacks the ambiguity which gets you into 15AB and it is 15AB of the Commonwealth Act which applies by virtue of section 10 of the Western Australia Act. That construction, if we can leave aside where the ambiguity, if there is one, who it helps, for one moment, that construction of 1316 is necessarily a construction on the part of the Crown which means that the word "offence" is to be confined to summary offences and not indictable offences and that is a construction which we say runs contrary to the definition of the word "offence" in the Corporations Law as it is set out in section 9.
It is a construction which runs contrary to the fact that, if it be correct, one would have thought that the word "offence" is to be given the same meaning wherever it appears in the law or at least at that part of the law, but that cannot be right because of provisions such as section 1310A, the double jeopardy position. If the Crown is right, 1310A would mean that if you are convicted of an indictable offence under a State law you are not protected from double jeopardy under the Commonwealth law. It is only the summary offences because the word "offence" is to be confined to summary offences, and it runs contrary to the fact that when the Parliament wants to confine what is meant by the word "offence" it expressly does so as it does, for example, in this very part, 1313(8).
GLEESON CJ: The argument against you, as I understand it, is that this a facultative provision, not a limiting provision as is indicated by the use of the word "despite".
MR FLICK: Yes, but even if that is right, it is a facultative provision which bites upon offences and it leaves open - - -
HAYNE J: Offences are a defined term in the dictionary.
MR FLICK: Yes, section 9.
HAYNE J: Yes, as an offence against a law of the Commonwealth or a State or a Territory.
MR FLICK: And unconfined by reference to either tag such as indictable or summary or unconfined by reference to, for example, the term or the penalty attached to it. If section 1316 was to be confined to some particular offences, there would be a need to amend the definition in section 9, there would be a need for the purposes of section 1316 - - -
GUMMOW J: Just explain that one again. There would be a need to do what with section 9?
MR FLICK: There would be a need - - -
GUMMOW J: This is section 9 of the law?
MR FLICK: Yes - which defines "offence" as meaning, as Justice Hayne has said - - -
GUMMOW J: In broad terms, without any distinction between summary or indictable.
MR FLICK: Yes. There would be a need, as we would have it, whether or not the opening - - -
GUMMOW J: Now why would there be that need?
MR FLICK: Because you would have to confine offence for the purposes of section 1316 to summary offences. Offence for the purpose of section 1316 so the provision would read, "is to be a summary offence or an offence punishable by imprisonment of less than 12 months", and we support that approach.
GUMMOW J: Well there may be a contrary intention, I suppose.
MR FLICK: Yes, and that, as I understood, is what the Chief Justice is putting in terms of, is a contrary intent indicated by the opening words.
GUMMOW J: Yes.
MR FLICK: And, it is in that context that we also point to section 1313(8), namely a section in the same part of the Act, which expressly defines the offences to which the section applies.
GUMMOW J: Sorry. Section 1313(8)?
MR FLICK: Yes.
GUMMOW J: That has got a number of definitions.
MR FLICK: Sorry. If your Honour looks at section 1313(8), the definition of "prescribed offence".
GUMMOW J: That is in that section.
MR FLICK: Oh yes, but the point is if - the question could be put rhetorically: do the opening words of 1316 indicate a contrary intent and do they indicate that for the purposes of that section, "offence" is to be read not in the broad meaning of section 9, but in some more confined manner? What we say is the easiest way to resolve any such ambiguity, if there is any, is to do what they have done in another section in the same division of the Act, namely to define it when they want to define it in a different way.
The final point on the construction point, your Honour, is this, that the submissions by the learned Solicitor, at the footnote on the bottom of page 7, refers to the provisions of section 34 of the Interpretation Act, and he sets it out. We say two things about that. One is that the provisions of section 34, if there is some historical origin of 1316, are equally unclear, as is 1316 itself and 34 does not take you any further. The second thing that we say is that if one looks at Part III of the Interpretation Act that the learned Solicitor is looking at, you find not only section 34, but section 35 which goes on to deal with indictable and summary offences, so that there can be no inference drawn in section 34 that it is restricted to summary offences, but the inference moreover is that it encompasses all offences and - - -
McHUGH J: Yes, I am not quite following this, the effect of what you are putting. Accepting the Commonwealth's submissions, it is the words "Despite anything in any other law", is it not? On the Commonwealth's view it says irrespective of whether it is a summary offence or an indictable offence, despite anything in any other law that seeks to limit a prosecution for such an offence, it "may be instituted within the period of 5 years".
MR FLICK: And if one pauses there, your Honour, it is simply a question of construction of 1316 in the opening words. What the Solicitor does, however, is to seek to bolster that process of construction by looking at the origin of 1316. He says that if there is some ambiguity contrary to his construction, if there is a real ambiguity about it, look at the terms of section 34 which was the forefather of 1316 and he seeks to get from section 34 as set forth in the footnote some assistance in his construction and it is on that limited basis that we say 34 has the same evils in it as are apparent in section 1316 and you should not confine attention exclusively to section 34. If you are going to look at the forefathers of 1316 you should also look at 34 and 35 and if you look at in that context - - -
McHUGH J: As far as I am concerned the Acts Interpretation Act is basically irrelevant and the proper methods of statutory construction require you to look at all these things. In any event, the idea that you can just look at words in an Act and can have a meaning without looking at context and without looking at history seems to me to be quite contrary to the common law principles of interpretation as they have been developed by the courts. I do not think those statutes add anything, really, either in New South Wales, the Commonwealth or elsewhere.
GUMMOW J: They were, after all, only an attempt to write out the common law in England in 1889 or whenever it was.
MR FLICK: And, as we understand, it was an attempt to make express what judges were doing in any event, to put it bluntly.
McHUGH J: Yes. So you look at the lot.
MR FLICK: So that on this construction point, your Honours, we say that there is no ambiguity. The opening words are simply words which reduce a time which is otherwise set at large, eg section 15B "at any time" down to five years and, as Justice McHugh would observe, contrary to a long history in relation to indictable offences and it increases the time within which summary offences or other offences can be brought from 12 months to five years.
McHUGH J: Could you give me any policy reason, Mr Flick, why the legislature would want to impose that limitation for a statutory offence as such which was indictable but would not do it in respect of a conspiracy to breach the very same section which was an indictable offence?
MR FLICK: Whatever legislative policy is embraced in section 1316, it is a policy directed to offences, all offences, not more serious or less serious, but a policy which picks up the words of section 9 and says, for all of these offences, notwithstanding anything in any other law, or, we are perfectly happy to use the words used in section 1316:
Despite anything in any other law -
you have to do it -
within the period of 5 years -
It injects certainty, it injects a time within which the prosecutorial authorities are to act and if there is a reason why things were not done with the promptitude that the policy of section 1316 embraces, the safety net was there to extend the time.
McHUGH J: Yes, I understand.
MR FLICK: I think that misses some of your Honour's question, but answers it as best we can. Your Honours, that is all that we would wish to say about section 1316 and the construction of it. The next issue to be addressed is the correct characterisation of the power conferred by section 1316.
We respectfully contend that it is not akin to any prosecutorial discretion. It is truly a limitation period. But if we are wrong about that, and that if it be concluded that there is a sufficient analogy between 1316 and a prosecutorial discretion, then prosecutorial discretions are reviewable. The question is not power but a question as to the discretion of the Court and the circumstances in which it is prepared to intervene, and - - -
HAYNE J: Relevantly, the prosecutorial discretion in issue is the discretion of whether to charge or not. Perhaps it may be with what to charge, but at its core it is whether to charge or not. Do you say that that discretion is reviewable?
MR FLICK: It is always difficult to give yes or no answers. I think the answer that we give your Honour is whether any particular discretion is reviewable, it is always open to the Court to review it. The power always remains there. Whether or not the Court exercises its discretion and does so depends upon the reasons why the courts in the past have abstained from entertaining the application.
GUMMOW J: Well, we would look at that through the prism of section 75(v). Where does there become a jurisdictional error?
MR FLICK: Does your Honour mean jurisdictional power?
GUMMOW J: Error. Where is that line crossed so as to engage section 75(v)?
MR FLICK: Whenever the discretion is exercised in a manner not in accordance with law or in a procedurally unfair way assuming the obligation procedural fairness attaches to the particular discretion.
GUMMOW J: So there are two elements to it then?
MR FLICK: Yes, your Honour.
GUMMOW J: What is the content of the first element?
MR FLICK: The content of the first element - - -
GUMMOW J: Beyond the matters of construction that have been looked at and the Solicitor, as I understand it, concedes that if there is a trespass beyond the limit of the content of the section, well, of course, 75(v) would apply. What else do you add in there, if anything? Are you not simply natural justice, that is to say, the second element?
MR FLICK: It all depends what is incorporated within the approach that a decision contrary to law is embraced within 75(v).
McHUGH J: I thought in paragraph 12 of your statement of claim you were relying on matters that were not taken into account as such.
MR FLICK: That is why I am being cautious with it, your Honour.
McHUGH J: Yes.
MR FLICK: What 75(v) does is, where there is a discretion, whether it is a discretion to prosecute, whether it is a discretion to consent to a prosecution and, for present purposes, restrict the discretions to matters inherently akin to prosecutorial discretions, to present an ex officio indictment and the like.
GUMMOW J: Well, wait a moment, where do you get the discretion? It just says, "with the Minister's consent", it does not say the Minister may consent. It is a precondition, is it not?
MR FLICK: Yes, your Honour.
GUMMOW J: It is a jurisdictional fact, actually, that the Minister has consented, is it? I just do not know.
McHUGH J: That is what I put to the Solicitor-General this morning, that it is a power subject to fulfilment of one or two conditions.
GUMMOW J: People jump immediately and start talking about discretions all the time in administrative law and I, for one, are getting rather fed up with it rather than construing the provision.
McHUGH J: We had the same thing yesterday in the case; we had about discharging - carrying on with a jury. I think in the end everybody seemed to agree that it was a power subject to conditions, although it started off people talking about discretions.
MR FLICK: Your Honours are right, by construing section 1316 as containing both a discretion may prosecute for an offence within five years and, more relevantly for present purposes, a condition which has to be satisfied, which is not expressed, as Justice Gummow correctly points out, in terms of the Minister may consent. It is a - - -
GUMMOW J: The fact of the existence of his consent. It has to exist.
MR FLICK: It confers a power upon the Minister to consent. That power must, we say, be exercised for the objects and purposes for which it was conferred. So to answer Justice Gummow's question as to the reach of section 75(5), we would contend that section 1316 reposes in the Commonwealth Minister a power to grant or withhold consent. The exercise of that statutory power is one which must be exercised for the objects and purposes for which the consent was given.
McHUGH J: You can only get this notion of power in the Minister by necessary implication.
KIRBY J: That is right.
McHUGH J: But, according to received doctrine, you do not necessarily imply anything when you could do it lawfully without the statutory power; and why cannot the Minister just simply give his consent? Why does he need any statutory power to give his consent? It is the fact he gives his consent and the existence of that consent is a jurisdictional fact to the exercise of the power under section 1316, but why do you read into the section any implication that it confers power on the Minister to give consent? Why does not his power exist outside it? He does not need power under a statute to consent to a prosecution.
MR FLICK: With great respect, your Honour, I think we draw issue - 1316 does two things: one, it says to the prosecuting authorities, "If you are going to prosecute, free of any condition, you are to do so within five years". The second thing that it does is to say that if you go beyond that five-year period, you can only proceed if the Minister does something; gives the consent.
McHUGH J: That is right. So, it confers power on the prosecuting authority, but what I was putting to you is that the section, unless you get it by necessary implication, does not confer power on the Minister.
HAYNE J: Indeed, the Minister's power to consent might have to be sourced ultimately to section 31 of the Corporations (Western Australia) Act because the Commonwealth Minister is giving consent to prosecution under Western Australian law, is he not?
MR FLICK: Yes.
HAYNE J: And section 31 is that which empowers the Commonwealth Minister in respect of what otherwise would be a State prosecution.
MR FLICK: But, your Honours, whether it is framed in terms of power or a jurisdictional fact, the absence of consent is inevitably a bar to a prosecution proceeding.
GLEESON CJ: Now, you might like to develop this at 2.15 pm, Dr Flick.
MR FLICK: If that is convenient to your Honours.
GLEESON CJ: We will adjourn now until 2.15 pm.
AT 12.50 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
GLEESON CJ: Yes, Dr Flick.
MR FLICK: Your Honours, before the luncheon adjournment we were considering section 1316 in the context as to whether the provisions as to ministerial consent were - - -
KIRBY J: You have dropped your voice, Dr Flick, I am not hearing all of it. I do not know if this is to make us concentrate more.
MR FLICK: It was not intended that way, your Honour. Before the luncheon adjournment we were considering 1316 in the context of whether the ministerial consent provisions were akin to a prosecutorial-type discretion and we said they were not, but if they were akin to it, then we were putting the proposition that prosecutorial discretions were not unreviewable; and if that is correct, there is no reason why the ministerial consent was unreviewable either. The provisions of 1316, as we said before lunch, impose a condition which must be satisfied before the prosecution may proceed outside of the five-year period. There is self-evidently no express conferral of either a discretion upon the Minister to consent and, equally, there is no conferral expressly of a power to consent.
GUMMOW J: That comes down to Mayer's Case, does it not?
MR FLICK: Yes, your Honour. We - - -
GUMMOW J: In [1985] HCA 70; 157 CLR 290.
MR FLICK: In that context, we have to contend, as we do, that there is to be necessarily implied in 1316 a power for a discretion. There is no other statutory source of power or discretion in any other enactment that we can find. So that to give effect to 1316, it goes back as Justice McHugh was tentatively putting, that if there is to be any force in the submission, a necessary implication, which is what we put.
McHUGH J: You only imply a power when it is necessary to do so. You really do not need statutory authority to do it. If you can do it under the common law, then you do not have to imply the power.
MR FLICK: That is correct. That, of course, may go back to what is meant by:
Despite anything in any other law -
section 1316 in other words is contemplating sources of power or constraints other than those expressly conferred by statute. But we put it both ways. We say that there is an implication and that the source of power is statutory. The object and purpose of 1316, of course, is to impose a barrier or a condition, whichever word one wants to choose.
McHUGH J: Yes, but I am talking about the power of the Minister and the relevant principle is stated by Justice Kitto in Ardouin's Case 109 CLR and the passage is at 118, where he says:
There is no difficulty in finding in the creation of a duty an implied grant of power. But the implication, arising as it does from necessity, must be limited by the extent of the need. There can be no implication of a grant of power to do, in the performance of the duty, what is in any case lawful.
And in that particular case, he said to drive a vehicle on the highway did not require any special grant of statutory power.
Now, what I was putting to you is that this is not a case where the Minister's act intrudes, in a sense, of interfering with some person's rights so that it needs statutory backing; all the Minister is asked to do is to give consent. Then why cannot the Minister, by virtue of his office, do that? Why does it have to arise under this particular section?
MR FLICK: It depends on the starting point. We would say that section 1316 is expressly making lawful that which was otherwise unlawful. It is unlawful, you cannot proceed, statutorily, with a prosecution; the DPP just cannot do it because of the statutory prohibition against it, unless - and we would interpose the words "the Minister consents necessarily to be implied - - -
McHUGH J: But that is a fact; it is a condition; once that fact is given - it itself changes nothing. The Minister gives his consent, nothing happens just by the Minister giving him his consent. There is to be a further step taken.
MR FLICK: Yes, with great respect, your Honour, a great deal changes. The status of Mr Oates changes dramatically by the Minister signing the piece of paper.
McHUGH J: No, it does not. He is still there. This talk about a conditional immunity just makes no sense to me, I do not understand it. There is no such thing as a conditional immunity. I mean, one either has an immunity or one does not. It is like being pregnant; you cannot be conditionally pregnant.
MR FLICK: I will address the law rather than genetics, your Honour.
KIRBY J: That is a process of nature. We are talking here about the activities of Ministers. They may not be the same thing.
MR FLICK: I will resist the temptation to be diverted.
McHUGH J: My brother Kirby sometimes speaks without thinking.
GLEESON CJ: I do not think we should pursue the analogy.
MR FLICK: No, I agree, your Honour. The reason we would take issue with the view tentatively expressed by Justice McHugh as to whether or not the grant of consent changes something dramatically or not is this, that these facts are undisputable, namely, that five years has passed since the expiration of the alleged offences. It is indisputable that, unless there is a piece of paper with the word "consent" on it, the prosecution cannot proceed. There is a statutory prohibition upon the prosecuting authorities proceeding one step further unless they have that piece of paper in their hand.
McHUGH J: Yes, I know, but it is a prohibition on the exercise of power. It does not have anything to say about status.
HAYNE J: It is like saying that the prosecuting authority cannot proceed without charging him, without serving him an information or ex officio indictment or, again, a piece of paper.
MR FLICK: Your Honours, the reason we have put these two propositions together, namely, is it akin to a prosecutorial discretion - and, even if it is, what are the true principles - is because of the reason just raised by Justice Hayne, namely, that the purpose of a consent to a prosecution is different to the purpose served by an extension of time. The reasons why courts refrain from entertaining applications seeking to review prosecutorial discretions or, to use the example of Justice Hayne, a consent to a prosecution are not applicable to decisions to grant an extension of time.
What I mean by that is this. The reasons why courts refrain - and we would say in the exercise of discretion and not power - from entertaining applications reviewing prosecutorial-type discretions are fivefold or sixfold and if you get those criteria right, or if you get those reasons right, it dictates why the courts refrain from looking at some discretions and it indicates why they look at others.
GUMMOW J: What discretion?
MR FLICK: Power.
McHUGH J: But you also talk about extending time. That is not really what the section does. The section enables you to give your consent to a prosecution which has gone past the five years. It is not the same sort of case as an extension of time for bringing an action for damages. It is a different scheme. Section 1316 does not say no prosecution shall be brought after five years unless the Minister extends the time. It says a prosecution can be brought if you get the consent of the Minister.
MR FLICK: If your Honour were to be in the unfortunate position of Mr Oates, there would not be much difference as a matter of substance between those two provisions. Within the five year period Mr Oates can be prosecuted. There is no bar, no condition, no statutory impediment to the action being brought against him. Outside of that five year period he is totally free of any risk of prosecution subject only to an act happening, and that is the grant of the consent. There is no difference, we would respectfully contend, between a statutory provision such as in 1316 and one that your Honour formulated.
McHUGH J: Well, it depends how you read it. You break it up into two forms. You say the first limb is a limitation and the second limb is facultative. It seems to me the whole section is facultative. It says a prosecution can be brought if it is brought within five years or if the Minister consents.
MR FLICK: The inevitable consequence of what your Honour is putting, as your Honour would recognise, is that if that is correct, the Minister may arbitrarily grant consent.
GUMMOW J: What do you mean by "arbitrarily"?
MR FLICK: For all sorts of reasons which would be totally - - -
GUMMOW J: You mean mala fide?
MR FLICK: Yes, bad faith, improper purposes.
McHUGH J: I do not think you can. I think some of the licensing cases would indicate to the contrary.
MR FLICK: Assume there is the necessary implication that we make. If there is to be that necessary implication the power is either confined in the sense that this Court can look at it in an appropriate case or it is totally arbitrary, totally beyond the purview of this Court.
GUMMOW J: That is not the right way to look at it, either. The question is, when does the Minister act according to law and when does he not act according to law, that is the question.
MR FLICK: Yes.
GUMMOW J: Unless you could draw that line, it is no good, for my part, trying to get me excited about the notion that he is not subject to control by this Court.
MR FLICK: I was not trying to get your Honour excited. What I was trying to put to your Honour, and I do apologise for this, was the proposition that the Minister when taking the step or engaging in the act of granting consent must act according to law and that means that it - - -
GUMMOW J: The question is, what is the content of the law?
MR FLICK: Precisely.
GUMMOW J: We just seem to be going around in circles.
MR FLICK: As we understand the case against us, it is that this power is so akin to the Barton-type prosecutorial powers that the courts - I think it is now conceded - have the power to intervene but in the exercise of their discretion or, for good reason, refrain from entertaining the application.
GUMMOW J: I do not think for a minute the solicitor would resist the suggestion that the Court would interfere if there was mala fides, et cetera. That is not this case.
MR FLICK: But, your Honour, by putting it that way what your Honour is implicitly putting is the proposition that "according to law" is to be confined to mala fides and that is the proposition that we reject. We say "according to law" - if there is the implication that we contend for - means precisely what administrative law traditionally knows it to mean, namely, ultra vires and procedural fairness, so that - - -
GUMMOW J: I know but we are back where we were before lunchtime, the two elements, but what I still want to know is when it becomes ultra vires.
MR FLICK: It becomes ultra vires, your Honour, if - putting it in shorthand but sufficiently for present purposes - if the Minister when granting consents fails to take into account relevant considerations or takes into account irrelevant considerations and that area of law, and - - -
GUMMOW J: That may inform discretions. They inform discretions, do they not?
MR FLICK: Yes, your Honour. And also - - -
GUMMOW J: Well that is not this.
MR FLICK: - - - and also according to law requires procedural fairness.
GUMMOW J: That is the second element, and that is disputed.
MR FLICK: That is the second. The content of - - -
GUMMOW J: It seems to me you have to get yourself into the second element or you do not get airborne.
MR FLICK: Undoubtedly, undoubtedly, but - - -
GUMMOW J: You have to show that the second element is an element here.
MR FLICK: Yes.
GUMMOW J: It is suggested it is not because it is so close, amongst other things, to the prosecutorial type function.
MR FLICK: Yes, and we can address that - - -
GUMMOW J: That can be right or wrong, but that is where we have to get.
MR FLICK: Yes. On the analogy to prosecutorial powers and the reasons why the court refrained from entertaining them, and in the context that because the courts refrained from entertaining procedural fairness is necessary excluded, may we contend that the five or six reasons which dictate that approach of the court in prosecutorial discretions are not present in the present case, and this goes back to what the Chief Justice and Justice Kirby were putting to the Solicitor before lunch.
The five or six reasons why courts refrain from interfering or reviewing prosecutorial type discretions are these, as we would discern them from the cases: First of all, there is a real and justifiable concern that if you review a decision to prosecute or to consent to a prosecution, the court is at the outset becoming involved in a preliminary determination of guilt or innocence.
GLEESON CJ: Even worse, it is giving the appearance itself of approving the prosecution.
MR FLICK: Yes, and the second reason, as your Honour pointed out to my friend, stems from that, mainly the separation of powers in Connelly's Case.
There is a further concern of fragmentation of the criminal process, that where is the best forum to resolve these questions. The courts may have the power to do it at the outset, but should they do it now? It has been suggested more in academic articles than in decisions but it is, I think, correct,there is a policy element involved, namely should the courts become too involved in, for example, resource allocation within the prosecuting offices, what do they prosecute and what they do not prosecute, and that is explored in the article by Wheeler in 14 Sydney Law Review.
There is also an element raised by Justice Kirby and others in Ousley's Case 192 CLR, of practical difficulties of courts intervening when they do and there is an element of the ability of the courts to control its own processes by, for example, abuse of process or staying proceedings.
KIRBY J: Some of these seem to overlap.
MR FLICK: They do.
KIRBY J: That, for example, would seem to be a consideration relevant to the second of the items that you mentioned.
MR FLICK: Yes.
KIRBY J: And maybe the third, but what worries me is, Justice McHugh made the point that if you can make a submission to the Minister on how he exercises his power, I would not have too much difficulty if that were focused on the issue of the, what I would call very loosely, extension of time, the provision of the consent to prosecute although otherwise out of time. But, can you confine it that way, or would you not then be, in effect, obliged to look at the strengths and weaknesses of the case, whether the matter was a good prosecution otherwise, whether - all the other considerations, and then you really embarked upon the fragmentation of the criminal process and the doing by the court of the review at the outset, when necessarily it has only limited information and be appearing to be interfering in what is traditionally an Executive Government function, when that really is a matter proper to the Executive Government and not the courts. Now, can it be confined? I rather think it may not be able to be confined. But, can I add one other thing?
MR FLICK: Yes.
KIRBY J: You mentioned the practical considerations. You have to think of the fact that these things start off in the single judge of the Federal Court, if they do not go to the AAT, and then they go up one level and then they go to a Full Court and then they come to us, and a lot of public money is expended and a lot of time is taken up, before ever any of the merits are got to, so, that is really the fragmentation and the practical considerations and it is very much mentioned at the end of the Acting Solicitor-General's submissions, and you do not really answer them in your submissions. Presumably you will today.
MR FLICK: Hopefully, your Honour. Your Honour's questions raise a number of issues: one is the ambit of the considerations relevant to section 1316 as opposed to the prosecution discretion. That raises again a question put by Justice Hayne to my friend as to who prosecutes and who decides to extend time, if I can put it that way, and it also raises, with respect, questions as to what is the object and purpose sought to be achieved by seeking review of reviewable decisions, by way of judicial review, as opposed to the purpose of abuse of process?
On that last one it is very easy to raise and summarily deal with, namely, if we are entitled to procedural fairness there may well be a denial of procedural fairness which falls well short of an abuse of process, and an abuse of process and the power of the court to control oppressive, vexatious or proceedings which are an abuse are directed to something which we say is entirely different to this case. This case is concerned, not with controlling court proceedings, not with controlling the way in which the prosecution conducts its case before the court; it is concerned with controlling and confining administrative action.
The question as to who prosecutes and who decides as to whether or not an extension of time or whether the consent within the meaning of 1316 should be given, to answer Justice Hayne's question this morning, also goes to identifying what considerations are relevant to each power. I think the answer to Justice Hayne as to who prosecutes and who decides to extend time is to be answered by section 91 of the Corporations (Western Australian) Act of 1990. Section 91(1) entrusts to the Commonwealth Director of Public Prosecutions the "enforcement powers".
KIRBY J: To the exclusion of the Attorney-General for the Commonwealth?
MR FLICK: If I may come to that, your Honour. The power to enforce, recognised by 91(1), consistently with what the Solicitor put, is a power which will be exercised and has been exercised in this case by the Commonwealth Director of Public Prosecutions. Section 91(3) is a provision that your Honours have looked at, that is the provision which clothes the Commonwealth Minister, namely the Minister administering the Corporations Law, with the powers and functions that, we say, are implicit in 1316.
If the matter stopped there, it would be exclusively the Commonwealth Director of Public Prosecutions who had the function and no others. The only way in which we can see the Attorney-General having a role is not by reason of any provision of the Corporations Law either - - -
GUMMOW J: What is wrong with 91(3)?
HAYNE J: Plus 69 Judiciary Act.
MR FLICK: If there is an overlap of portfolios then there is no problem. If the Commonwealth Minister and the Attorney are the same person, then what your Honour said to my friend is correct, namely, that there would be a merging of the functions.
KIRBY J: Is that quite right or the Attorney-General has traditional functions as Attorney-General which are distinct from those which descend upon an ordinary Minister.
MR FLICK: The ambit of considerations is different in terms of whether it is one and the same person. The other provision that your Honours should not ignore is section 10 of the Director of Public Prosecutions Act which allows the Attorney to take over proceedings.
KIRBY J: But until he takes that statutory step, he is - - -
MR FLICK: But that would not be sufficient. Section 10 I do not think would be sufficient to allow the Attorney in these proceedings to take over the role of the DPP. That role is entrusted by 91(1).
HAYNE J: Section 69 of the Judiciary Act provides that:
Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General -
et cetera. Section 91(3) gives to the Commonwealth Minister, who in this case happens to be the Attorney - and it is not necessary that it be so. Would it enable the Commonwealth Attorney to present your client on ex officio indictment?
MR FLICK: We would say no. This remains an offence under 229 of the Western Australia Code.
HAYNE J: Section 91(3) you say would not relevantly pick up 69?
MR FLICK: No.
McHUGH J: Why does not section 29 of the Western Australian Act pick it up? Section 29 says:
The Commonwealth laws apply as laws of Western Australia in relation to an offence against the applicable provisions.....as if those provisions were laws of the Commonwealth and were not laws of Western Australia.
MR FLICK: But the offence forever remains an offence under 229 of the Western Australian Act. Section 69 refers to a law of the Commonwealth.
GUMMOW J: Wait a minute. It was an offence against the Code, was it not?
MR FLICK: Yes, your Honour.
GUMMOW J: It was an offence against the Code. Does section 29 say anything about offences against the Code?
MR FLICK: I think your Honour is probably right.
GUMMOW J: I am not sure about it but I think we went through this track with Byrnes and Hopwood.
HAYNE J: Are not offences against the Code picked up by the law, treated as offences against the law, which gets you into 29, which in turn gets you into what are defined Commonwealth laws, which include the written and unwritten laws of the Commonwealth, including various things, which would seem on its face at least arguably to get you into 69 of the Judiciary Act and ex officio indictment?
MR FLICK: Yes, that may be right. I do apologise, your Honour. We were starting from a proposition which was convenient but not conclusive.
GUMMOW J: No, no one will start at the beginning. I keep saying - it is too late now, but what is it that transmuted these Code offences into scheme offences?
MR FLICK: Your Honour, we put in shorthand in our submissions the relevant chain.
GUMMOW J: I know but I am not sure it is long enough. Just take us to the sections. What section in the Western Australian law transmuted these contraventions of the old repealed Act so that they could be prosecuted notwithstanding that repeal?
MR FLICK: Section 85(1) answers one of your Honour's questions as to the matters arising before 1990 and - - -
GUMMOW J: That affects the repeal, does it not?
MR FLICK: Yes.
GUMMOW J: These are repealing sections. What do you want to say about - - -
MR FLICK: Yes, but 85(1):
provides for the national scheme laws of this jurisdiction to supersede -
but -
the co-operative scheme laws, which are to continue to operate of their own force only in relation to - (a) matters arising before the commencement of this section -
So, I think that is the starting point. So, we have got Acts before 1990 are preserved. Then 91(1) refers to "co-operative scheme laws" and 91(3) uses the same expression and co-operative scheme laws is defined - - -
GUMMOW J: That is the old scheme, is it not?
MR FLICK: Yes.
GUMMOW J: Is that right?
MR FLICK: I think that is right, yes.
HAYNE J: It is 91(4) then, is it, which takes offences against the co-operative scheme law, the old Code system, to be an offence against the national scheme law of this jurisdiction, namely, Western Australia.
MR FLICK: Yes, Western Australia, that is the - - -
HAYNE J: They are absolutely inimitable, a chain form of drafting that courts have to wrestle with with the Corporations Law.
GUMMOW J: And citizens, too.
KIRBY J: Yes, and a few directors have to do so, occasionally.
GUMMOW J: Now, why do you say 91(3) is not sufficient to draw in the Attorney under 1316 - translate him into, in effect, an actor necessary to exercise a power to enliven this Western Australian Act, 1316?
MR FLICK: Only the difference between 91(1) and 91(3). Is 91(1) the exclusive conferral of authority? If the question is who can prosecute, that is answered by 91(1), if the question is who has other functions and powers other than prosecution, it is the Commonwealth Minister.
HAYNE J: What words in 91(1) make it an exclusive conferral?
MR FLICK: None.
GUMMOW J: Now, why do not the words in 91(3), "in respect of the prosecution", why are they not they good enough to harness the Commonwealth Attorney to exercise his powers under 1316?
MR FLICK: It all depends what 91, as a whole, is intended to do.
GUMMOW J: It is pretty clear what they were trying to do, I think.
MR FLICK: We would say the answer to that is "yes". We would say in 91(3) it is clear that what they are doing is conferring powers and functions, other than the one that they have expressly dealt with in 91(1), upon the Commonwealth Minister.
GUMMOW J: That is right.
MR FLICK: The 91(1) - when they address the question as to prosecution and who is to prosecute and who is to enforce - - -
GUMMOW J: I am not talking about prosecution at the moment. I am talking about this power under 1316. Why is not 91(3) good enough for that?
MR FLICK: To consent?
GUMMOW J: Yes.
MR FLICK: It is. Sorry, your Honour, I was addressing a different question and the start of this was, is the exercise of power to consent analogous to prosecutorial discretions?
GUMMOW J: Then the question is, who has the prosecutorial discretion here?
MR FLICK: What I was putting and what Justice Hayne was saying may appear to be, at least first blush, a division may not be right. I was putting the proposition that it was the DPP that had exclusive power and the Minister had a different purpose, and it appears that that may need a bit more work on it, but it appears that there may not be that provision, but - - -
GUMMOW J: If this were entirely federal law and the Commonwealth exercised its power under the Corporations Law to perform and not been intimidated by a particular decision of 10 years ago to deal with these offences in respect of trading corporations, which is what was certainly going on here by the look of it. Now, if this was all federal law, the prosecuting authority would be the Commonwealth DPP, would it not? And the Attorney would still be there to give the consent.
MR FLICK: Yes.
GUMMOW J: But why would not that involvement of the Attorney still be sufficiently close to the prosecutorial function to meet the point that is put?
MR FLICK: That is what I was trying to get to, your Honour, with respect. As Justice Hayne voiced this morning, that if the decision to prosecute and if the consent functions were conferred upon one and the same person, it may be an easier route to the conclusion that the consideration is relevant to each of the same. If the functions to prosecute and to consent are different and discrete, one from the other, the route home may be not as easy. We say that the considerations relevant to prosecutions, or to consent to prosecutions, are the issues which have been canvassed, strength or weakness of the case and the like, and the reasons why the courts traditionally refrained from exercising their unquestioned power are the reasons we have given.
GLEESON CJ: Their unquestioned power to do what?
MR FLICK: To review it if the decision to prosecute is not in accordance with law.
GLEESON CJ: The expression that is used in Barton's Case is "unexaminable".
MR FLICK: Yes.
GLEESON CJ: The prosecutorial decision, the decision of the Attorney-General for example to issue an ex officio indictment, is said to be "unexaminable".
MR FLICK: And Justices Gummow and Gaudron in Maxwell's Case have taken it one step further by listing a series of prosecutorial-type discretions which are said to be - I think the expression is - "insusceptible to review". Bartons Case, Maxwell's Case, Connelly's Case, we say, have to be construed and applied in the context that all of these discretions, if they are statutory, if they are confined by statute - leave aside prerogative powers for the moment - if they are statutorily conferred they must all be exercised in accordance with the objects and purposes of the statute which confers them.
KIRBY J: Does that mean that word "unexaminable" is a metaphor for although we have the power to examine, we do not condescend to do so, or although we have the power to examine, we do the examination with the greatest of care and not interfere in all but the most exceptional and clear case where it is called out for?
MR FLICK: On the special leave application, the question was put as to whether we conceded Barton's Case was correctly decided and we do. In the context of Barton's Case which was a discretion at large, a discretion which merely conferred upon the Attorney the powers which previously had been exercised by the Attorney-General in the United Kingdom, it may be appropriate to say that those discretions are unexaminable.
McHUGH J: But it was still a statutory power, was it not, in Barton's Case?
MR FLICK: At large.
McHUGH J: It was section 5 and it was directed to a prosecution against the Crimes Act.
MR FLICK: Yes.
KIRBY J: If it is under a statute, how can it possibly be unexaminable? How can it possibly, consistent with our Constitution, be unexaminable? The Court is duty bound to examine if the Constitution is invoked. It may not give relief, but it is bound to examine.
MR FLICK: Your Honour has put two questions, namely whether the discretion is unexaminable and, secondly, how can it be unexaminable. In the context of a prerogative power, in the context of Barton's Case where the discretion was at large, it may be appropriate to say it is unexaminable. But in the context of the present case and with respect to the observations of Justices Gummow and Gaudron in Maxwell's Case, what we respectfully contend is when expressions are used such as "unexaminable" or "insusceptible to review", what that necessarily means is the court can review it, it has the power to do so, but there may be very powerful reasons which render a particular exercise of discretion insusceptible or unexaminable.
GLEESON CJ: This just shows the ambiguity of the word "review".
MR FLICK: Certainly.
GLEESON CJ: Suppose, for example, it appeared that a decision to prosecute was taken in bad faith. The court may have a capacity to stay the proceedings. That might be described as a form of review of the decision to prosecute, but it is really something quite different.
MR FLICK: Yes.
GLEESON CJ: But once you accept that there is a decision to prosecute which could turn upon any one of a number of various considerations - sometimes referred to as discretionary - and again that word may involve an ambiguity - and then there is a capacity in a Minister to either grant or withhold consent to the prosecution, it is difficult to see why the exercise of the capacity to grant or withhold consent cannot take into account any of the considerations that were taken into account by the prosecutor.
MR FLICK: That may be correct.
GLEESON CJ: So the matter is at large, to use the expression you used a moment ago.
MR FLICK: But there are a number of difficulties with what your Honour puts. The power of the court to control its own proceedings by way of an abuse or a stay is a power exercisable, as we would have it, for an entirely different purpose to the one we are seeking to invoke.
GLEESON CJ: Exactly. Indeed, it is regarded as characteristic of our system of the administration of criminal justice that the investigation and prosecution of crime is for the executive branch of government and that is why, when courts stay proceedings, they insist that what they are doing is protecting themselves, not interfering in the decision to prosecute.
MR FLICK: Yes. And if one looks at the decisions which deal with reviewability of prosecutorial discretions, there is a lack of attention to principle, in some respects, in that, when they say something is unreviewable because we can protect it by way of an abuse of process, it is mixing up two concepts which should be kept discrete. The abuse of process is the court protecting itself, distancing itself - - -
GLEESON CJ: Protecting the integrity of its own process.
MR FLICK: Yes. Maintaining the separation of powers, protecting the accused with oppressive and vexatious proceedings, there is no necessary dichotomy, but the object and purpose of that consideration is different. The object and purpose of what we are seeking to achieve and the reason why we try to distance ourselves as far as possible from any review or reconsideration as to whether or not we should be prosecuted, is because we want to focus attention upon, not the court's power to control its own processes, but the court's power to control the executive, and to control administrative acts, and that is why you have to identify, with some degree of precision, what is relevant to one decision as opposed to the other.
GLEESON CJ: But, as was pointed out to you this morning, the courts exercise that power of control subject to principle and this is a basic principle, that courts do not interfere in the investigation and prosecution of crime.
MR FLICK: Yes. If the act of granting a consent within the meaning of 1316 is the handmaiden of the decision to prosecute, what your Honour the presiding judge says is correct. If the object and purpose of 1316 and imposing the barrier or the bar or the prohibition, by imposing that requirement for a consent is different, then the courts are not looking at all with whether Mr Oates should have been prosecuted or not.
In this case, if one looks at it, a decision has been taken, rightly or wrongly, to prosecute Mr Oates. Complaints have been lodged and they are in the appeal book. Those who decide to prosecute then go to the Minister and say, "We cannot proceed further unless we get an extension of time." The extension of time or the decision as to whether or not to consent assumes the correctness of the prosecutorial decision.
GLEESON CJ: Dr Flick, if your client is entitled to a hearing on the question of whether there should be consent, does it follow that he is entitled to a hearing on anything that the Minister regards as relevant to whether there should be a consent?
MR FLICK: As a matter of construction of 1316, he would be entitled to be heard on matters relevant to that decision.
GLEESON CJ: Now suppose the Minister thought that matters relevant to that decision included the strength of the prosecution case, does that mean your client would be entitled to be informed of the identity of and the substance of the evidence to be given by witnesses against him?
MR FLICK: No.
GLEESON CJ: Why not? That would be a very relevant matter or might be a very relevant matter, might it not, to the Minister's decision as to whether he would consent to this prosecution going ahead.
MR FLICK: Your Honour, the moment one gets to the position that the considerations or factors relevant to consent are comparable to or include the factors or considerations relevant to the discretion to prosecute, then the dichotomy and the distinction that we are maintaining becomes a very slippery slope.
McHUGH J: Well, exactly. But supposing, for example, the Minister said, "I am not going to give my consent to this prosecution. I have read the statements of the witnesses and I regard them as weak." Could the DPP then obtain a mandamus against the Minister requiring him to reconsider the question of consent on the grounds that he had taken into account something he should not have taken into account?
MR FLICK: Yes.
McHUGH J: They could. So, if the Minister, by that concession, can examine the strength of the case in determining whether he should give consent, why cannot your client then be given access to those matters?
MR FLICK: I think I may have misunderstood your Honour.
GLEESON CJ: Suppose the Minister says to himself, "The reason I'm going to consent to this prosecution is that I reckon it's a cast iron case". Does he have to let Mr Oates know that and does he have to let him know why he thinks it is a cast iron case and give him an opportunity to talk him out of it?
MR FLICK: It is none of the Minister's business to consider those matters. What, on the correct construction of 1316, we contend is this, that the DPP or the Attorney, but the prosecuting authorities, look at the matters that your Honour the Chief Justice and Justice McHugh are considering, the strength and weakness of the case, whether it is cast iron, or any other factor they take into account, the length of time which has elapsed and so on, the availability of witnesses, the importance of the case to the public, the amount of money at stake and the like.
McHUGH J: But surely they are matters also that the Minister must compare. Whether the Minister is answerable only to Parliament or to the courts, as you would argue, surely he is bound to consider whether or not, in a case such as your client's, he should be brought back to face a pathetically weak case at perhaps great expense and so on. Why are not all those matters open to the Minister?
MR FLICK: May we approach it this way and at two levels. One level is to completely segregate prosecution from consent. If that distinction is maintained, the role of the Minister when exercising the consent function under 1316 says, "It's not my job to look at the strength or weakness of a case. It's not my job to look at whether or not somebody should or should not be prosecuted. That decision's been made".
KIRBY J: This is all a bit unreal, is it not? If we are speaking of the real world where a Minister is sitting in his office and an application is made by a functionary for him to give his consent, it is just utterly unreal to think that the Minister must bifurcate his mind to take out of consideration the strength or weakness of the case.
GLEESON CJ: Especially when he has a political responsibility. The Minister is answerable to Parliament.
McHUGH J: And what about things like money lost? Why is not the Minister entitled to say, "There have been hundreds of millions of dollars lost in this. It is necessary in the public interest that this prosecution proceed even though it's 20 years old"? If the Minister is entitled to take that into account and, as you say, he is answerable to the courts, then surely on that basis your client is entitled to say, "Look, it's a mistake. Money wasn't lost in this alleged fraud".
MR FLICK: The two levels of approaching the answer are first of all to divorce them if you can. We say you can and considerations relevant to time are totally discrete. The Minister's job, as we would have it, if I could put it shortly, is simply to say, "You should have done this within five years. Why didn't you get on with it and do it within the five years?", and that is the proper characterisation of considerations relevant to 1316. The Minister is simply there to say, "It's your job to decide whether or not to prosecute. It's your job to investigate. My job is to say you should do it within five years. That's what Parliament has said and, if you want an extension of time, justify it". That is the first basis.
McHUGH J: Then on that basis - why then is the accused entitled to be heard and what is the accused entitled to be heard on in respect of these issues?
MR FLICK: If I can just defer that for a moment, your Honour.
McHUGH J: Yes, certainly.
MR FLICK: The first way of approaching what is the relevant identification of considerations is the one that I have just put, and that, of course, dictates what you are entitled to be heard in relation to. If it is as confined as we say it is, then all that is entitled to be heard on, to answer the Chief Justice's question, would be, not what the Minister considered, but what are the considerations relevant to the power being exercised.
KIRBY J: Yes, but if those considerations include, as I think it inescapably must, the strength of the case, then you really are into the dilemma, or what you called a slippery slope, because you have got a pre-trial of the strengths and weaknesses of the case which is the very thing that the common law has set its face against.
MR FLICK: The second way of approaching it is to say that, if the camp of considerations for section 1316 are not confined in the way in which we have just put, and they are at large, what started this was the question of the Chief Justice as to what it was that were entitled to be heard in relation to. Did it require disclosure by the prosecutors of the weaknesses of their case, the strengths of their case? Did they have to show their hand, at the outset? We do not shrink from a proposition which says that, if the considerations relevant to section 1316 are at large, in the way in which Justice McHugh is exploring, then there is no difficulty with that, as a proposition, and we can stop ourself sliding too far, because what the content of natural justice would be, would be the disclosure to us, for example - but to answer Justice Gummow this morning - of the submission to the Minister, and the attachments to it. Your Honours will recall that Justice Gummow put this morning that all the Full Federal Court potentially were doing was inviting a second bout of litigation by leaving open what the content of natural justice was. There is no uncertainty about that.
GUMMOW J: Well I do not know, myself.
McHUGH J: Does the submission to the Minister include the Minister's own inquiries - answers to his own inquiries?
MR FLICK: What I was going to put was this, that the content of natural justice to some extent mirrors the considerations relevant to the power. You are not entitled to be heard on something irrelevant to the power.
GLEESON CJ: Do you adopt the reasoning at page 214, line 29, of the Full Court? The paragraph at page 214 beginning "However notwithstanding".
MR FLICK: But that is the primary position that we have just put.
HAYNE J: The primary position being, as I understand it, that the relevant inquiry from the Minister is, why were the prosecutions so late? What is the relevant input, to use that vogue word, that the accused would have about why the prosecutor was late in doing his or her task?
MR FLICK: It would be both sides of the coin, namely, Parliament has said, as we would put it, "You are to do this within five years, or if you do not, explain yourself".
HAYNE J: That is, do you say that the inquiry is not only why was the prosecution so late, but what effect does lateness have on the accused?
MR FLICK: Precisely.
HAYNE J: And does that not then require the Minister, if that is an accepted, to give consideration, for example, to the effect of the passage of time on the memory of witnesses, the availability of evidence and matters of that kind, common matters considered in the other relevant field of dismissal for want of prosecution, for example? All those considerations.
MR FLICK: It may, it may, but - - -
HAYNE J: And does that not at once lead the Minister into, "Well, is this case going to get up or not"?
MR FLICK: No, with respect, no. To go back to Justice Gummow, we embrace the paragraph at the bottom of 214 and we say, on a proper approach to 1316, it is confined and confined in the way there set out. But if we are wrong about that, and this is what answers in part Justice Hayne's question, that natural justice may either be disclosure and/or disclosure plus the opportunity to make submissions. Whatever is involved, so it is said, is infinitely flexible, it depends on the circumstances of the case.
GLEESON CJ: But it must be the opportunity to make submissions about something that is affecting the decision of the decision maker.
MR FLICK: Yes, and that is why we put it in both ways, that if it is confined and simply limited to "You did not do it within five years, why did you not and what effect does it have on you?", it may be that we are not in a very good position at all to comment upon the former, namely what the prosecution were doing for the first five years, but we may be in a very good position to say what effect their delay, whether it is justifiable or not, what the effect of their delay is upon us.
KIRBY J: It is all a question of whether you can bifurcate the decision for consent in that way, because I just think it is very difficult to do that, because a Minister has to act responsibly and for the purpose of the power and I just do not think he can focus his attention only on the time issue. If you could, then I see point in your client informing the decision and making it a better decision relevant to the power by any submission he makes as to loss of witnesses and so on. But once you are looking at the broad issue as to whether the prosecution should go ahead, you really are very close to the prosecutorial decisions and that the courts have set their face against reviewing.
McHUGH J: I am not quite sure if I have understood your answer on the first point, but in one sense it would seem to be limited to reasons for delay, but does that mean that the Minister cannot take into account matters which I would have thought would be the first things you would be inquiring about: how long will this prosecution last; how much is it going to cost; what are the consequences for other cases of this; what moneys have been lost in this alleged fraud or whatever it might be? Are they not matters that he would be entitled to take into account in determining whether or not to give consent?
MR FLICK: That is why we have put, but we do not shrink from the proposition that if 1316 is more open than our primary position, then those matters would be relevant. We would be entitled to be heard in relation to them. If that is correct, we have then to say, "Well, how is that to be effected and why it does not offend the principles which dictate courts refraining from interfering with prosecutorial discretions".
GLEESON CJ: Would not a person facing a risk of prosecution be entitled to write a letter, or have his lawyer write a letter, to the Minister and say, "I just want to draw your attention to the fact, before you decide whether to consent or not, that the source of these allegations against me is somebody who is motivated by a bias and who is notoriously unreliable for reasons that may not be apparent to you, and here are the reasons".
MR FLICK: Yes.
GLEESON CJ: Would the Minister be entitled to take that into account?
MR FLICK: On the broader approach to 1316, the answer to that is yes. The way in which natural justice, or procedural fairness, would be extended would be to disclose to the person concerned, in this case Mr Oates, the submission which went to the Minister together with the attachments, and in this case there was a submission, subject to this. If there is any reason for confidentiality, then that would be claimed and that would not be necessarily disclosed to the accused. But things which could be disclosed to the accused without prejudicing a prosecution, investigation or function, we say, should be disclosed. In this case - - -
KIRBY J: But can I ask you about the practicalities there, because that takes you right into the last part of the Minister's submissions. This is before any proceedings have commenced. You have to disclose the submission which may well attach some evidentiary material in respect of a non-citizen who might, getting this information, be alarmed and flee. And here there is no proceedings, there would be no basis on which, except perhaps by some extraordinary injunction, if you happen to get wind of the fact that he was leaving, to get him to surrender his passport. It is really getting into impossible territory that seems very unlikely to be the purpose of the legislation.
MR FLICK: With respect, your Honour, one can create problems to dictate an answer but to raise fears of evasion, to raise fears of flight - - -
KIRBY J: It is not entirely unknown in this field of endeavour.
MR FLICK: No. But that only dictates what is applicable in the circumstances of the case. To use the example, we say a very bad example, but to use the example relied upon by the Solicitor of arrest. He says there is an analogy between an arrest and what we are presently looking at here. We say there is not. But assume there is for present purposes. For an arrest, as your Honours would know, an arrest is unlawful if the reasons for the arrest, or the grounds for the arrest, are not stated at the time of the arrest. That is Christie v Leachinsky. But that, of course, is always subject, as the authorities have held, to a proposition which said the arrest is nevertheless lawful if the accused by fleeing in a very hot-footed fashion, makes it very difficult to explain to him what it is that he is being arrested for. Our proposition here is, there is no suggestion of evasion. There is no suggestion here of flight.
KIRBY J: No, but we have to test your proposition by what happens when there is a risk of flight.
MR FLICK: That goes to content, with respect, your Honour, that if there is a risk of flight or evasion, it may be that what is appropriately disclosed to an affected person is dramatically reduced.
GUMMOW J: But how do you know if - - -
KIRBY J: Yes, but the merest whiff of it, the merest whiff of the possibility of the prosecution is contemplated will, in some cases, lead to flight.
MR FLICK: Your Honour, in the circumstances of this case, he, according to the pleadings, was well entrenched in Poland by - - -
GUMMOW J: He cannot have been that well entrenched because he was here committing these alleged offences in 1988 and 1989. He cannot have been that well entrenched by 1990.
MR FLICK: I recounted what was in the pleadings, your Honour, and it should also be noted - and I think those instructing my friend - - -
GUMMOW J: He may have acquired a new domicile of choice.
MR FLICK: Those instructing the Solicitor want it communicated to the Court, and we do not resist this, although the pleadings say that Mr Oates is "a citizen.....of Poland" that is not the case. He is not a citizen of Poland but the point is - - -
HAYNE J: All he swears to at 90 and 91 of the appeal book is that:
Since March 1991 I have resided and worked in Poland on a full-time basis.
MR FLICK: I do not think anything turns on it but there was a question as to citizenship and that statement in the statement of claim is factually wrong. But to test - - -
GUMMOW J: Well, you withdraw that statement in the statement of claim. Is that how we are to approach it?
MR FLICK: We would withdraw the phrase, "that the applicant is a Polish citizen" where it appears in the appeal book at lines 4 to 5 of page 12.
GUMMOW J: What about page 9?
MR FLICK: Sorry. We would ask for that to read "a resident" and if there are other like passages, your Honour, they should be picked up for the sake of precision. The question we were addressing was Justice Kirby's question as to what - you test the proposition by reference not to the facts of this case necessarily, but to the way in which it would operate. We say that that is the wrong approach, with respect. You look at it in the context of whether procedural fairness applies and, if it does, what is their content and the risk of flight and the like go to the content and not the duty.
In the facts of this case, and what started this was my comment that he was entrenched in Poland, he was in Poland in 1990, as Justice Gummow would have it quite correctly, some short time after the commission of the alleged offences. He returned to Australia during the course of the investigations, participated in - - -
GUMMOW J: Now, where do we see that?
MR FLICK: That is - I will give your Honour the reference to it, and what this goes to is a question as to risk of flight. We say it is a question which need not be addressed but if it is going to be addressed it should be resolved. The propositions that we are putting, whilst that is being found, of approaching the way in which powers are exercised is, of course, consistent with what the Chief Justice and Justice McHugh were putting before lunch, namely, that prosecuting powers now are the subject of guidelines which are publicly available.
In the present case those guidelines embrace the broad standard, so it is said, of fairness, openness and accountability and efficiency and those phrases are set forth in the appeal book at pages 105 and 107 and I think it was Justice McHugh who was putting that the guidelines have descended, not only to embracing principle but itemising criteria, and those criteria are set out at 108.
KIRBY J: Are you submitting that these create a new ballpark and that they render the so-called unexaminable discretions of the past, examinable by the criteria that are now pronounced?
MR FLICK: Yes.
KIRBY J: My impression, and I think this was mentioned in a case in South Australia last year, is that in England there has been a move towards examination of prosecutorial discretions tested against the prosecution policies that are published and that this is a growing practice in England. Is that correct, or not?
MR FLICK: Yes, your Honour. As we understand it, yes. Your Honour dealt with that, of course, in DPP v B.
KIRBY J: If you could put the citation on the record?
MR FLICK: Yes, your Honour. 155 ALR 568 to 569. In short, your Honour, our points are these, that if 1316 and the consent function is truly discrete from the prosecuting function then the reasons which dictate to courts in refraining from exercising power do not apply. It is simply an administrative act, the same as any other act of a Commonwealth Minister and should be treated in the same way. If we are wrong about that and the considerations or factors relevant to the consent power are overlapping with, or even contemporaneous with, the prosecuting functions, then that dictates the reason for reservation or caution on the part of the courts but not abdication. It dictates that what may be disclosed to Mr Oates may only be that material which does not prejudice a criminal investigation which is ongoing or may not involve the disclosure if there is a risk of flight or evasion.
GUMMOW J: Now, could a term be imposed that your client attend and make these representations in person?
MR FLICK: How he avails himself of an opportunity would be for him. I think the answer to your Honour's question is "no".
McHUGH J: If you look at page 113, guideline 2.28 which was tabled in the Federal Parliament, I think, the prosecution policy of the Commonwealth, you see that where a Minister is involved that it is stated it is:
desirable that there be prior consultation with the DPP where there appear to be difficult questions of fact or law involved.
This does throw up the point that, in practice, the Minister giving consent looks at these difficult questions of fact and law as well as questions of public policy, whether the matter is trivial, all these matters. So, if your argument is right it seems to me that your client is entitled to be heard in respect of all these issues.
MR FLICK: Your Honour, it would be a mistake to treat a decision to consent to a prosecution as the counterpart of a decision to grant consent under 1316. A decision to consent to a prosecution is the parliamentary insistence upon an identifiable person assuming responsibility for the prosecution. So, if the Attorney has to consent to a prosecution, what Parliament is saying is, "Whoever makes the decision to prosecute, you are the person who is to assume responsibility for that decision". The consent under 1316 serves - whether it serves that purpose as well is a different matter, but it serves a different purpose, primarily.
McHUGH J: I would have thought it would impose an even greater burden on the Minister because it has a twofold function, that is to say, the question of whether he should consent to a prosecution at all or whether he should consent to a prosecution which is more than five years old which, on your argument is, in effect, a limitation which is going to be extended. So, surely, it is a case for the Minister looking at all the merits of the case is even stronger than if it is just a requirement of a consent to a bare prosecution.
MR FLICK: If that is right, your Honour, what would be the content of the review of a decision to consent may include a number of things, but it may include two areas of dispute. If it came before the Court, one area of dispute may be strengths and weaknesses of the prosecution case. The prosecutor presumably would be saying - - -
GUMMOW J: Well, this is not going to come before any court unless extradition proceedings are successful.
MR FLICK: Yes, but to test the proposition as to what goes into what bag of considerations, part of the Minister's deliberative process and what would be reviewable if we are right would potentially be one camp as to strengths and weaknesses of the case. The prosecutor would be saying it is a strong case, the defence would be saying it is an overwhelmingly weak case, all the witnesses have died and things inherently mixed up with the prosecution process. The second - - -
GUMMOW J: But would it be appropriate for the Minister to take into account the likely prospects of extradition?
MR FLICK: If I may come to that, your Honour. The second area of dispute before the Minister may be - there may be a line under those considerations.
GUMMOW J: But does the Minister disclose these extradition risks?
MR FLICK: If I may come to that, your Honour.
GUMMOW J: Well, I think it is rather important to get down to reality in all this. It is half past three.
MR FLICK: Yes, I am trying to do so as quickly as I can, your Honour. The second area of dispute may be prejudice to the accused, reasons for the delay, lack of co-operation, for example, on the part of the accused and prejudice to the accused. To answer Justice Gummow's question as quickly as I can, it may be that those reasons which dictate the courts refraining from interfering with prosecutorial discretions would dictate the court saying, "We've got the power to do it but we're not going to entertain any review of the first area, but what we will look at is the second. We will look at the fact that the Minister refused to consider prejudice to the accused".
GLEESON CJ: But we are asking a different question. That is: what is Mr Oates entitled to be heard on?
MR FLICK: He would be entitled to be heard on the entirety of the submission to the Minister subject to what would be deleted.
McHUGH J: Forensically you say the Minister has not looked at the matter of prejudice at all, but supposing he had looked at the matter of prejudice but it was a question of his evaluation of it and he had not given it sufficient weight or he did not fully understand it. Is your client entitled to say, "Look, in the balancing process you have not given enough weight for the prejudice to me by reason of this and that, and when you do it overpowers the strength of the reasons for prosecuting me"? I do not see how you can divorce one from the other.
MR FLICK: But the answer to your Honour is that he should be given the opportunity to say what he wants to say on prejudice. The area of factual dispute should not be stripped from him and vested exclusively in others. He should be given the opportunity to, at least, put to the Minister what he wants to put on considerations relevant to prejudice and, he would be entitled before a court, to say that the Minister's function in granting consent miscarried for either of two reasons: one, she did not listen to him on prejudice - denied him the opportunity to put a submission in - or to put a contention that the Minister, when exercising the function, failed to give those sorts of matters appropriate weight, and it would be dealt with in the normal way.
GUMMOW J: Now, who are these Ministers for whom the Solicitor appears? Is one or other of them responsible for the extradition matter? Is the Minister for Justice in charge of that, I mean, her portfolio?
MR FLICK: I think it is.
GUMMOW J: Well, is she under some obligation to perform procedural fairness before proceeding to launch an extradition application?
MR FLICK: Your Honour, with greatest respect - - -
GUMMOW J: I just wonder where all this stops.
MR FLICK: Well, where it stops, your Honour, is with the facts of this case and not with the facts of other cases, which may dictate different results. It is very easy, with great respect to your Honour Justice Gummow, to colour this case by reference to fears, what follows from it. If we are correct - - -
GUMMOW J: I am just wondering what the ambit of the law is, that is all?
MR FLICK: The ambit for the law is - - -
GUMMOW J: As to this doctrine of procedural fairness in relation to the discharge and, as I understand it, after one of the Barton Cases, the executive capacity of the Minister for Justice to pursue extradition proceedings in a foreign country, regardless of whether we do or do not have a treaty with that foreign country.
MR FLICK: Yes. Well, your Honour, the ambit of this case, and where it starts and finishes, as far as we are concerned, is that you have a Minister, you have a decision being taken, or an act being taken, to grant consent that is administrative. We say, it exposes us to a risk which we otherwise were not exposed to. If the decision was not taken, we would be free of any risk of prosecution. It changes our status from somebody who could not be prosecuted to somebody who could be prosecuted. We say, the reasons that we put in our written submissions, and I will not repeat them, but that is either effecting a right or a legitimate expectation, but, for the reasons which were canvassed this morning, namely, what is the right or what is the legitimate expectation, we have formulated that in the submissions, but if we are wrong about that, we then have the fall-back position of saying that the conceptually more satisfying position is that all exercises of power attract the rules of procedural fairness, irrespective of rights or legitimate expectations, and that is what entitles us to the right. The final matter, your Honour Justice Gummow will note that I am speeding - - -
GUMMOW J: Yes, well, just stay a minute. Is there any requirement for the Minister or anybody else in the executive branch to seek out this prospective chargee to afford them an opportunity? Does it depend on the chance that the prospective chargee finds out that something is in the wind?
MR FLICK: There may be exceptional circumstances in which the Minister may be forced to make inquiries beyond what is being submitted to them in the content of a submission, but that is not this case. This case is you have a submission going to the Minister, absolutely no reason why that submission in its entirely, or at least part of it, could not be disclosed, no reason for - - -
GUMMOW J: Is there anything in the record that tells us when the extradition proceedings will commence?
MR FLICK: No, but that would be potentially relevant and I am sure and we should prepare for your Honours an outline of steps which are being taken.
GUMMOW J: If it is not in the evidence, it is going to need permits, I suppose?
MR FLICK: The strict position is it is not in the evidence and that - - -
GLEESON CJ: But I thought that the problem that was being raised for your comment was this: if your argument is right, it is not that there was an obligation to give Mr Oates procedural fairness, it is there is an obligation to give anybody procedural fairness.
MR FLICK: It is, to use the expression of Justice Gibbs, an obligation to extend an opportunity to be heard to somebody who is differentially treated.
GLEESON CJ: To anybody who is differentially treated. It would follow from that, would it not, that in any case when the Minister was contemplating giving this consent the Minister would be obliged to seek out the person against whom proceedings are contemplated and give that person an opportunity to be heard.
MR FLICK: And we would say, "So what is wrong with that?". You can - - -
GLEESON CJ: The answer to that rhetorical question is that - - -
MR FLICK: I am sorry, I should not have put it that way, your Honour.
GLEESON CJ: No, I am happy to answer it. It is unusual for prosecuting authorities to tap people on the shoulder and apart from saying, "Hello, hello, hello", to say, "Would you like to be heard on why you should not be prosecuted?".
MR FLICK: That assumes the proposition we are constantly resisting, namely that this is a prosecution. That decision has been taken.
GUMMOW J: And it also assumes that the person is sufficiently in the vicinity to be able to be tapped on the shoulder.
MR FLICK: It may be that an opportunity to be heard does not extend to somebody who does not want to be heard. It does not extend to somebody who puts themselves in a position where they cannot be heard, the same as a person who flees arrest cannot complain of a failure to state the grounds for the arrest. But in those circumstances, and one could imagine circumstances where the corporations people are investigating complex facts and some of the people their locality is currently known, some they just do not know where they are. Those sorts of examples can be provided, but that is not this case.
GLEESON CJ: No, but the sting in this decision of the Full Court of the Federal Court, I should have thought, for the prosecuting authorities is that as a matter of routine, subject to problems of the kind that you have just mentioned - - -
MR FLICK: They should.
GLEESON CJ: - - - the Minister will have to notify the prospective defendant that consideration is being given to a prosecution.
MR FLICK: No, not the decision being given to the consideration of prosecution. The Minister would have to say, "A decision has now been taken to prosecute you. I am being asked to consent to an extension of time."
GLEESON CJ: Yes, "Would you care to advance any reasons as to why I should not?".
MR FLICK: Yes, that - - -
GLEESON CJ: And, "In addition to these other matters that I am presently minded to take into consideration, subject to anything you have to say in deciding whether to consent".
MR FLICK: Subject to which Justice Gummow was putting, if the duty extends, as we would have it, to the disclosure of the submission, subject to confidentiality matters and subject to things which would prejudice investigations and the like, if it extends to that, your Honour is right, that the Minister would say, "A decision has been taken to prosecute you. I am being asked to grant a consent. Here is the submission. Please comment", or, at the minimum, it would be, "I am being asked to grant consent, what do you have to say?" That involves no disclosure other than the fact that that step is about to be taken.
GUMMOW J: And you write to the last known place of address, I suppose.
HAYNE J: And what will soon become the last known place of address.
MR FLICK: Cynicism, your Honour, with respect, does not displace the facts, in this case. If that is the case, and if they are the facts, then what your Honour puts would be right. It would be a reason why this content may be reduced to nothing. But if that is not the case, if there is a person sitting in Ms Vanstone's office and she is saying - - -
GUMMOW J: Senator Vanstone - - -
MR FLICK: They lock the door. But if somebody is sitting there, why should they not be heard?
KIRBY J: She is a Senator of the Commonwealth, and should be described as such.
MR FLICK: I am sorry, your Honour, I do apologise. But if somebody can be heard, and can readily be heard, and there is no risk of flight, no risk of evasion, no risk of prejudice to an investigation, it is hornbook law that if your status is being affected in the way in which we contend - but that is a separate question - but if we are right about that, it is hornbook law that you are entitled to be heard.
KIRBY J: What was that judgment of Justice Gibbs in which he referred to differentially treating, which case was that?
MR FLICK: Quin, your Honour.
KIRBY J: Thank you. Quin was the case about the magistrates.
MR FLICK: Wait there, it could not be.
KIRBY J: I do not think Chief Justice Gibbs was still on the Court when Quin was decided.
MR FLICK: No, I do not think he was around.
KIRBY J: Anyway, if it is in your written submissions, I can find it. Do not worry about it, Dr Flick.
MR FLICK: It is in the written submissions, your Honour. I do apologise, your Honour. The last matter, your Honour, which, with great respect, can be taken as read is the question as to whether or not this ground that we are now contending for is appropriately raised in the criminal case and this raises the question as to the ambit of collateral review. The Crown, of course, says the appropriate way to raise these issues is not by way of judicial review but to leave it to a collateral challenge in the criminal proceedings.
There is, as we would have it, absolutely no certainty whatsoever that procedural fairness falling short of an abuse of process can be raised in the criminal proceedings and the dispute on that as an issue is adequately canvassed in the dispute between Lord Justice Woolf in Bugg v Director of Public Prosecutions, and these cases are in footnote 78, and the House of Lords in R v Wicks. That so, your Honour, we would say that - - -
KIRBY J: It is not quite the last matter because there was, as I understood conceptually, there is the construction point, there is the administrative law point and if the administrative law point gets up, you get through the construction point, there is still the suggestion that this is futile. You would be denied relief because, in this case, this is a case that would clearly fall within the exception, your client having taken himself off to Poland and, therefore, even if the Minister has a general obligation to give the opportunity to be heard in the circumstances of this case it would not have arisen in the case of your client. That was the third point. The Full Court did not answer that point, apparently. What is your submission to us in relation to that point?
MR FLICK: The submission, quite simply, your Honour, is it is not futile, that the notice should have been given. Whether or not the Minister would have made the same decision or not is a different matter but procedural fairness is not dictated at necessarily changing the decision. It is not necessarily predicated upon the fact that the decision would have been different. It is predicated upon extending to an affected person the opportunity to be heard. Now, your Honours, I have taken his Honour - - -
KIRBY J: But why would one not infer in this case that here is a person - and I do not want to fall into any errors here - with the un-Polish name of Oates who has gone to Poland in 1990 and apparently has not returned to Australia and who has therefore left the jurisdiction and that in these circumstances, even if there were a general obligation to give notice to respond specifically to the time issue, as I will call it somewhat misleadingly, that in this case that would not arise. You would not give it to Mr Oates because he has just left Australia and if he chooses to do that, the Minister's obligation does not arise.
GLEESON CJ: I do not think there is any suggestion, is there, that there is anything necessarily sinister about Mr Oates going to Poland?
MR FLICK: That is right.
GLEESON CJ: Is the nature and extent of the brewery business referred to in these proceedings?
MR FLICK: I do not think the brewery business is, but your Honour is right. There is nothing sinister about going to Poland. The contrary has never been contended. The references to - - -
KIRBY J: The Pope comes from Poland, so there is nothing sinister in going to Poland, but what is suggested is that he is - - -
MR FLICK: Fled and never returned.
KIRBY J: - - - an Australian who has gone and never returned and that therefore the Minister ought not to be obliged, even if generally there is an obligation to give the opportunity that in this case he has either waived it or there is no obligation to give it to him.
GLEESON CJ: I did not understand the Solicitor-General to seek to put on the facts the complexion that what was involved here was flight.
MR FLICK: No, and that is our primary contention.
GUMMOW J: What is involved is a failure to return and the need for extradition proceedings, as I understand it, seeking communication of any materials here about extradition proceedings.
MR FLICK: Your Honour, what is being urged upon me is page 20 of the appeal book where the applicant returns to Australia in March 1991.
GUMMOW J: Where do we see that?
MR FLICK: Page 20.
GUMMOW J: I ask for - - -
MR FLICK: Yes, and that is what I am now giving to your Honour. I think there are a few references.
KIRBY J: The Solicitor left it at a very high level of generality. He just said, "Well, there's enough material there and he's left the country. He hasn't come back and we've got to go to all this trouble to get him back and therefore it's futile to have given him opportunities to be heard on whether the consent should be given".
MR FLICK: And what I am now doing is giving the Court the references to where he does return. At page 19 the applicant gave oral evidence before Inspector Sulan in 1990. At page 20 he returns in March 1991 to be further examined, then the Sulan report.
GUMMOW J: Where are you reading from, Mr Flick?
MR FLICK: Page 20, line 26:
I am informed.....that the Applicant returned.....to be further examined -
Does your Honour have that?
GUMMOW J: Yes.
MR FLICK: And the previous reference that I gave your Honour was the previous page, paragraph 2, lines 36, 37. That is the 1990 date. Then page 40 is a letter from Mr Oates in which he says he returned in March of 1991.
HAYNE J: Just before you leave those paragraphs, were they not rejected by the trial judge at page 171, line 15?
MR FLICK: I was just about to check that, your Honour. I knew some paragraphs had been rejected and I was just trying to work out which had been rejected and which had not.
HAYNE J: "2, 3, 4 and 7".
GUMMOW J: The one thing your client will not be doing, I imagine, is making too many affidavits.
GLEESON CJ: I am looking at the bottom of page 167 and the top of 168 in the judgment of Justice Moore. He referred to a paragraph in the statement of claim, referring:
to the fact that the applicant has been firmly established in Poland since 1990 -
Then there is this reference to the allegation that he was:
a Polish citizen.....with a Polish step-son -
I do not recollect reading in either of the judgments in the courts below any conclusion which would suggest that the fact that he was in Poland was part of an attempt to avoid Australian justice.
MR FLICK: Yes, and we - - -
KIRBY J: Your submission would be he did return once and he has solicitors here. If the Minister gives him notice he will have the opportunity either to return or to give instructions, submissions can be put to the Minister just as easily by fax from Poland as by fax from Sydney.
MR FLICK: Precisely, your Honour.
KIRBY J: If he is entitled in law to that opportunity he is entitled to it notwithstanding the fact that he is resident in Poland, and lots of Australians are connected with overseas countries and you cannot just take away their rights under Australian law because they happen to be overseas.
MR FLICK: Yes. The obligation is an obligation, if we are right, imposed upon a Commonwealth officer and that obligation extends to whatever the reach is.
KIRBY J: Is that the way the Full Court dealt with it? Did they just assume that it was enough that they answered the first and the second question and that the third was not something that should trouble them?
MR FLICK: Yes.
KIRBY J: It seems to be.
MR FLICK: They have approached it on the basis that, if we overcame those first two obstacles, then it was self-evidently correct that we had been denied procedural fairness because we were not given any advance notice whatsoever and given no opportunity to comment and we read about it in the newspaper.
GUMMOW J: You were not given any notice to do what?
MR FLICK: We were not given any notice that an application had been made to the Minister for consent.
GUMMOW J: Now, how would that have been done?
MR FLICK: Simply the Minister could have written to either the applicant or those representing him to say, here is the application which is being made.
GUMMOW J: Written to your client in Poland?
MR FLICK: Yes, or to his Australian solicitors.
GUMMOW J: Well he would not know to do that, unless he knew they had a retainer.
MR FLICK: I understand what your Honour says. To answer Justice Kirby, that is the way in which - - -
KIRBY J: This would be a highly confidential communication, from your client's point of view.
MR FLICK: In fairness it should be said, your Honour - - -
GUMMOW J: You would not want it spitting out of some fax machine at some unsupervised place.
MR FLICK: Your Honour, we sought, from the outset, the submission, and it was resisted both under freedom of information and resisted under the notice to produce - - -
GLEESON CJ: What do you mean by the expression "from the outset"?
MR FLICK: We had lodged a Freedom of Information Act application, once we knew that this decision had been taken for access to documents.
GLEESON CJ: But we are talking about the content of the obligations of the Minister in January 1995, when the consent was given.
MR FLICK: Yes.
GLEESON CJ: That is what was declared to be void. Now, your proposition, as I understand it, is that before he took that decision in January 1995 - was it he or she that took the decision; was it Mr Williams or Senator Vanstone?
MR FLICK: I think it was Mr Kerr.
GLEESON CJ: Mr Kerr. Before he took the decision he should have told Mr Oates, or Mr Oates' legal representatives, that he contemplated taking the decision and given him an opportunity to be heard. But what, if any, previous contact had there been between the prosecuting authorities or the Minister on the one hand and Mr Oates on the other?
MR FLICK: I think the only evidence of that is, as Justice Hayne has pointed out, the evidence which was rejected, so that - - -
GUMMOW J: Yes, but there is not any evidence.
MR FLICK: As I was about to put - - -
GUMMOW J: There is no evidence that you client returned to Australia. Some hearsay material was put on and it was rejected.
MR FLICK: What I was about to put to the Chief Justice, if I may, was that that being the position, there is no evidence, so I do apologise, but I was halfway through putting a proposition.
GLEESON CJ: Neither of the judgments in the courts below turned in any respect upon any suggestion that there was any flight on the part of Mr Oates. On the other hand, if it comes to the question of the content of the duty to afford procedural fairness, then (a) in its application particular to your client, but perhaps more significantly in its application to people generally, considerations of the kind that have just been discussed need to be borne in mind.
MR FLICK: They do, and I do apologise to Justice Gummow. What I was about to put was the proposition we have been putting without qualification the concept that it is easy to disclose the submission which has been made to the Minister for consideration. When your Honour put the question - - -
GUMMOW J: What I am putting to you is these matters and those solicitors who prepared this should have struck out those paragraphs and they should not be in the appeal book.
MR FLICK: Yes. Sorry, I am addressing a different point, your Honour. Your Honour was also addressing a question as to confidentiality and what I was trying to put was that the submission which we have said can easily be disclosed as being the notice subject to deletion of relevant material, query whether that is correct is something which is easily discloseable or whether it is something to which degree of confidence attaches - - -
KIRBY J: Why does the material have to go? Why is it not enough to discharge the obligation, if it exists, simply to say, "I have received a submission that I should give consent under the section and I am considering that. Is there anything that you wish to put to me in relation to the exercise of that power?"
MR FLICK: That is one of the two propositions we put on content. One proposition is disclose the submission, subject to deletions, if they are appropriate, or if we are not entitled to that, at least notice that the application is being made, "What do you wish to say?". Now, your Honours, subject to anything that I can be of further assistance to the Court on - I was about to say subject to that, I have nothing further to add, but Mr Hannan is pointing out I think Justice Gummow asked a question as to when the extradition proceedings were commenced and timing - - -
GUMMOW J: Yes.
MR FLICK: - - - and if your Honour looks at page 11 of the appeal book, you have:
In or about mid 1996 the Commonwealth Director of Public Prosecutions, on behalf of the ASC -
So I think that probably answers your Honour's question. Subject to that, your Honour, they are the submissions.
McHUGH J: I thought I saw some statement somewhere that extradition proceedings were afoot in 1995. Am I wrong about that?
MR FLICK: That reference has escaped me, your Honour. I am aware of the 1996 one, but nothing earlier.
HAYNE J: Appeal book, 64, reveals that the respondent was arrested and imprisoned in Poland on 22 October 1996.
MR FLICK: Which fits in with the last paragraph.
HAYNE J: Yes.
MR FLICK: If there is another paragraph, your Honour, it should be drawn to your attention. They are the submissions for the - - -
KIRBY J: Meanwhile, I assume that the extradition proceedings are in abeyance whilst the rights of your client are exhausted in the Australian courts.
MR FLICK: Yes.
KIRBY J: And the prosecution, therefore, has not got off the ground at all.
MR FLICK: It should be said, your Honour, at each of the relevant stages of these proceedings, including the application for special leave, undertakings were sought as to what was happening with the extradition proceedings and the Commonwealth, in shorthand form, has stayed is hand pending the resolution of it and the order made by the Chief Justice on the application of the special leave was that those undertakings were to continue until the determination of the appeal. So there is no necessity to do anything today on that.
GLEESON CJ: Thank you. Yes, Mr Solicitor.
MR BURMESTER: Your Honour, only two things. There was some discussion, at some stage, about the application of the Commonwealth administrative law statutes. I think I contended that there was no basis for an AD(JR) application, for instance, in relation to this matter. My friend might have conveyed the impression he had a different view. To explain the basis of our position, we say that because this is a decision sourced in section 91(3) of the State Act which picks up section 1316, there is no Commonwealth enactment. What one has here is a decision that, ultimately, is a decision under a State enactment. Whatever the position might be for - - -
GUMMOW J: It is like Glasson's Case [1984] HCA 49; 155 CLR 234.
MR BURMESTER: Your Honour, I was also going to give you a reference to Bond v Minister for Justice, Justice Jenkinson, 72 FCR 505, where he said that the Administrative Appeals Tribunal had no jurisdiction in relation to these sorts of matters.
In relation to the discussion with Justice Hayne about the power of Attorney-General, we would support the proposition that the Attorney-General could exercise his powers under section 69 of the Judiciary Act. The only other section I draw your Honours' attention to is section 1315 in Corporations Law and we say that does not affect or take away from, any power the Attorney-General might otherwise have. It is headed "Proceedings How Taken".
GLEESON CJ: Thank you.
MR BURMESTER: There is nothing else, your Honour, I think I need trouble the Court with.
GLEESON CJ: Thank you. We will reserve our decision in this matter.
AT 4.08 PM THE MATTER WAS ADJOURNED
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