Yougarla & Ors v State of Western Australia & Anor P64/1999 [2000] HCATrans 448 (4 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P64 of 1999

B e t w e e n -

CROW YOUGARLA, BILLY THOMAS, MONTY HALE, NORTON WILLIAMS and FRANK FRENCH

Applicants

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

ATTORNEY GENERAL OF WESTERN AUSTRALIA

Second Respondent

Application for special leave to appeal

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 AUGUST 2000, AT 10.44 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, DR S.C. CHURCHES, for the applicants in this matter. (instructed by Dwyer Durack)

MR R.J. MEADOWS, QC: May it please the Court, I appear with my learned friend, MR G.R. DONALDSON, for the respondent. (instructed by the Crown Solicitor for Western Australia)

GUMMOW J: Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. The issue which it is submitted merits the grant of special leave is whether section 70 of the Constitution Act 1889 Western Australia remains in force as a provision directing the legislature of Western Australia to exercise its legislative power in a particular way. Your Honours, the terms of section 70 appear in the supplementary volume at page 24 and your Honours will see that it provides that there should be payable to Her Majesty the sum of [sterling]5,000:

to be appropriated to the welfare of the aboriginal natives, and expended in providing them with food and clothing when they would otherwise be destitute, in promoting the education of aboriginal children (including half-castes), and in assisting generally to promote the preservation and well-being of the aborigines.

Your Honours will see that the sum is to be issued to the Aborigines Protection Board. There is a proviso in the last four or five lines of the first paragraph to the effect that once "the gross revenue of the colony" exceeds [sterling]500,000 in any year, the amount is to be 1 per cent instead of the [sterling]5,000. Schedule C is at page 33 and it really, in effect, adds nothing. That provision, of course, was capable of being amended but any such amending Bill was to be reserved for Royal Assent. That comes from section 73 at page 25. Your Honours will see the relevant words of it are these:

The Legislature of the colony shall have full power and authority from time to time by any Act to repeal or alter any of the provisions of this Act -

and then, your Honours, one goes to the proviso halfway through:

Provided also, that every Bill.....which shall interfere with the operation of sections -

and then a number of sections referred to, "seventy" or Schedule C:

or of this section, shall be reserved.....for the signification of Her Majesty's pleasure.

The issue which arises is whether either of two attempts made by Western Australia, one before, one after Federation, to repeal section 70 and 73, was effective. The Constitution Act 1890 in this regard - and may I deal first with the substance of the case and I will move on to the other aspects of it.

GUMMOW J: Well, it might assist you, Mr Jackson - I think we would be assisted if you did concentrate on the substantial matters.

MR JACKSON: Yes, thank you, your Honour.

GUMMOW J: It appears to us provisionally that questions of standing and the like are on one side for the moment.

MR JACKSON: Your Honour, may I do that immediately. The Constitution Act, your Honours, is a schedule to the Western Australia Constitution Act of the UK. It appears at page 10 of the supplementary volume. The issue arises because, in our submission, neither of the Bills purporting to repeal the two provisions to which I have adverted was assented to in the manner required by that Act. The relevant provision of that Act, your Honours, is section 2 at page 10 - - -

KIRBY J: Can I just ask, these questions that you are now arguing are the questions which Chief Justice Brennan for the majority of the Court said were important questions when it came before us on a previous occasion, is that right?

MR JACKSON: Your Honour, I think that is correct.

KIRBY J: They are exactly the same questions and it went back because it was considered to have gone off. Is that a correct understanding of the history of the matter in this Court?

MR JACKSON: The substantive issue, I think, had not been raised at the point, your Honour, I am sorry.

KIRBY J: I see.

MR JACKSON: So, your Honour, I do not think, really, I can get much out of what has happened here before. Your Honours, one sees, if I could take your Honours to the structure of this Act for just one moment, at page 12 the Constitution is the schedule to the Imperial Act. Your Honours, the relevant provision is section 2 and your Honours will see it provides that:

From the day of the proclamation of this Act -

various acts are repealed subject to the proviso. Proviso (a) contains these relevant references. Your Honours will see a reference to two Acts which I will call the 1842 and the 1850 Acts. I will come to them in a moment, your Honours. It says:

(a) The provision of -

those two Acts, and then the fifth line:

which relate to the giving or withholding of Her Majesty's assent to Bills, and the reservation of Bills for the signification of Her Majesty's pleasure thereon -

and, your Honours, if I go down a few lines -

shall apply to Bills to be passed by the Legislative Council and Assembly constituted under the scheduled Bill and this Act, and -

in effect, substituted legislative bodies. Now, your Honours, the two enactments are contained - the 1842 and 1850 Acts of the Australian Colonies Constitution Acts, they appear at pages 1 and 4 respectively of that enactment. The 1842 Act in section XXXIII, which is at page 3 - your Honours will appreciate these are enactments nearly 50 years, in effect, before the 1898 Act - your Honours will see that section XXXIII at page 3 provided, and if I could take your Honours to the relevant words of it in the opening part of it:

That no Bill which shall be so reserved.....shall have any Force or Authority within the Colony of New South Wales -

of course, it was applied over -

until the Governor of the said Colony shall signify -

and then several ways are set out -

that such Bill has been laid before Her Majesty in Council, and that Her Majesty has been pleased to assent to the same -

and then if one goes to the last five or six lines -

and that no Bill which shall be so reserved as aforesaid shall have any Force or Authority in the said Colony unless Her Majesty's Assent thereto shall have been so signified as aforesaid within the Space of Two Years from the Day on which such Bill shall have been presented -

Now, your Honours, this did not occur in relation to the first of the two enactments in question, that was the Aboriginal Act 1897 - it appears at page 95 - and, your Honours, what did not take place was any proclamation of the Bill in Western Australia. It was the subject, your Honours, of an advice by the United Kingdom law officers of the day and they took the view that the Bill had not passed into law in the manner provided for by the Act. Your Honours will see that in the supplementary volume at page 179, and your Honours will see, if I could go to page 180, the report in the last two paragraphs at the bottom of page 180, in particular where they said:

2. We do not think the Aborigines Act 1898 , 1897, is legally valid.....has not been signified -

and so on. Your Honours will see that that report was given in 1905 and, of course, the two years within which it might have been proclaimed had gone.

Now, your Honours, that is the first enactment. The second amending Bill was the Aboriginal Act 1905. It is at page 114. The relevant parts of it are at pages 129 and 130 of the supplementary volume. At the bottom of page 129, your Honours will see:

The Act and parts of Acts mentioned in the First Schedule shall be deemed to have been repealed -

and in the next part of the next page, one sees, in effect, that the earlier Act is deemed to be in force from the date on which it might otherwise have been passed. If one goes to page 130A, the repealed enactments in the first schedule include section 70 of The Constitution Act.

The potential difficulty which that Bill encounters, in our submission, is that it was not laid before the Houses of Parliament in the United Kingdom before the Royal assent was given. The requirement that it be so laid derives from the second of the two enactments referred to in section 2(a), and that is the provision of section XXXII of the 1850 Act. It is contained at page 6 of the supplementary volume. Your Honours will see at page 6, section XXXII set out. Could I invite your Honours to note two things about it. The first is that in the last seven or eight lines there is to be found the proviso, which is the proviso which, in our submission, is germane to the present case. That is the first thing. I will come to its terms in just a moment.

The other feature about section XXXII is that the opening parts of it refer to laws which, to put it shortly, affect the operation in the:

Colonies of Victoria, Van Diemen's Land, South Australia, and Western Australia -

and New South Wales, in relation to the position of a legislative council. The issue which arises is whether, in the terms of section 2(a) of the United Kingdom Act, in picking up section XXXIII of the 1850 Act, whether it applies to all cases in which Bills are required to be reserved, or applies only to those of a kind referred to in the part of section XXXII preceding the proviso.

That is the core issue. The argument in favour of the respondent, as it were, is to say, your Honours will see in the words of the proviso that:

every Bill which shall be passed by the Council in any of the said Colonies for any of such Purposes -

that being, presumably, in its original form are referenced back to the purposes in the preceding part of section XXXII, or whether it applies to all Bills which are required to be reserved.

Our submission is that it has the larger operation and the view that it has the narrower operation is unlikely for, if I could give your Honours at least two reasons. The first of them is that the part of section XXXII which precedes the proviso deals with a situation obtaining prior to the Constitution Act, but the matters that are the subject of the earlier part of section XXXII are themselves dealt with by the Constitution Act itself. In that regard, your Honours will see, if I could go back to page 25 of the supplementary volume, that section 73 has defined the circumstances in which there is to be a reservation of Bills for the pleasure of Her Majesty. Your Honours will see in the part of section 73 which precedes the proviso that some of the same matters, or same subject matters, as are contained in the opening parts of section XXXII are themselves dealt with by section 73.

One sees, too, that the operation of the Constitution Act was itself to do things that were otherwise contemplated by the opening part of section XXXII of the 1850 Act, namely, the derivation from a legislative governor, a legislative council, of there being a legislative assembly and a form of responsible government.

HAYNE J: Does that not elide or obscure the fact that one was imperial legislation, and the other kind of legislation under contemplation was colonial legislation? You refer to 73, relevantly, it is imperial legislation.

MR JACKSON: I am sorry, your Honour. Perhaps I am misunderstanding what your Honour is putting to me, but could I just say that section 73 is legislation of the colony, but what it is, your Honour, is a law that was passed as a Bill by the colony. Assent was given to it by Her Majesty and it is then scheduled to the enactment of the United Kingdom Parliament.

HAYNE J: And thus has the authority, does it not, of imperial legislation to support it in its form?

MR JACKSON: Yes, it does, your Honour.

HAYNE J: And thus the subject matter that you seek to compare from 73 with the subject matter dealt with in XXXII at page 6, may be of a different kind, may it not?

MR JACKSON: It may be, your Honour. Yes, it may.

HAYNE J: And XXXII is concerned with colonial legislation, and only colonial legislation?

MR JACKSON: Yes, but, your Honour, so too is 73, because 73 is dealing with powers of the legislature of the Colony. The point that I am seeking to make about it is that both section XXXII and section XXXIII - it is not a complete overlap, of course - but they deal with similar subject matters. And when the proviso or when section 2(a) of the Constitution Act, when it says the provisions of section XXXIII, in effect, apply, what it is speaking of, your Honours, is they apply in relation to the matters dealing with the manner in which the various provisions referred to in the concluding part of section 73 have to be dealt with in order to obtain Royal Assent to colonial legislation, are dealing with those particular identified subjects. And, your Honour, that is the point we would seek to make about it, in the sense that the two provisions are dealing with the same subject matter. It is unlikely that the application, or the bringing over of the provision, is intended to make it apply simply to the things already dealt with and identified specifically in section 73.

HAYNE J: So, when 2(a) speaks of "the provisions of the Acts", it is speaking of only some of the provisions of the Acts? The manner and form provisions.

MR JACKSON: Yes, your Honour, because your Honours will see the provisions have been repealed, except for those provisions.

HAYNE J: But 2(a), at page 10, when it speaks of "the provisions" of the 13 & 14 Victoria shall apply, it is referring to only some of those provisions, namely, the manner and form provisions, it is not referring to all of the provisions of XXXII of 13 & 14 Victoria. It is referring simply to the manner and form element, not its subject.

MR JACKSON: Yes, your Honour, that is our submission and we submit that derives first from the words "the provisions which relate to the giving and withholding" in section 2(a). The second thing, your Honours, is that, in fact, section XXXIII was later repealed in toto in relation to Western Australia, but leaving intact the extent to which it had been adopted. That occurred by the Statute Law Revision Act No 2 1893, which is at page 34. Your Honours, I see that my time has expired. May I have half a - - -

HAYNE J: No, yellow light.

KIRBY J: It is not like you to mistake the colours.

MR JACKSON: Your Honour, a second light came on. I thought a new system had come into being. However, your Honours, in that case may I take your Honours to page 34. Your Honours will see in section 1, at the bottom of the page:

The enactments described in the First Schedule to this Act are hereby repealed, subject to the provisions of this Act and subject to the exceptions and qualifications -

On the next page, page 35, near line 10, there is part of the proviso which your Honours will see commencing at the top of the page says that:

the repeal by this Act of any enactment or schedule shall not affect any enactment in which such enactment or schedule has been applied, incorporated, or referred to -

Then, if one goes to page 40, at the bottom of the page, one sees the reference to "Section thirty-two". It is the last paragraph on page 40. It says:

Section thirty-two -

in so far as it relates to Western Australia -

the whole section so far as it relates to Victoria and Western Australia -

is repealed, which takes away, one would think, that part which could have applied in the earlier parts of the provision but the proviso leaves in being the manner and form provision to which we have adverted. Your Honours, that is the substance of the argument. It is a short point, in our submission. Its importance, we would submit, is manifest. If we are correct, it is a limitation on the manner in which legislative power may be exercised in Western Australia.

KIRBY J: There is no inhibition in courts inquiring into these matters, given the fact that in a sense they are condition precedent to the validity of the legislation.

MR JACKSON: In our submission not, your Honour, not at all. It is an area commonly - the ambit of legislative power of the States is a matter commonly investigated in the Court. It advises, for example, in a section 90 case.

KIRBY J: And, I think, the joint sitting case the Court looked into the procedures to ensure that they were complied with.

MR JACKSON: Yes, indeed, your Honour. Yes, it did.

GUMMOW J: Now, what do you say, Mr Jackson, as to the State's reliance upon its legislative activity after the Australia Act? Where they say, "Well, whatever is in all of this it has been fixed up".

MR JACKSON: They have not yet persuaded more than one member. They did not persuade two members of the Full Court and have not persuaded one. The problem is this that it encounters two problems. The way in which the enactment is framed is to pick up a provision of the Australia Act and then apply it backwards to an earlier point. A significant problem with that, your Honours, is found in the Commonwealth Constitution in relation to the provisions dealing with the maintenance of the State Constitutions because what it provides, of course, is that the Constitutions of the States, unless amended, as provided for by the Constitutions of the States, remain in force.

What that means is an issue akin to that in one of the Metwally Cases arises, namely whether one can go back in time and change the Constitution consistently with section 106 and 107 in a manner not provided for by the Constitution at that time.

KIRBY J: That might present very acutely the power of the United Kingdom Parliament to enact the Australia Acts, any way, which has always been a matter that has concerned me.

MR JACKSON: It does, your Honour, and there is, if I may say so, with respect, a second aspect. Your Honour, I see the time has expired.

GUMMOW J: No, continue, Mr Jackson.

MR JACKSON: A second aspect, which is this, that what the Australia Act has not taken into account is that the particular provisions of the Constitution Act are ones which cannot be changed without there being a referendum in the State. That is because of some amendments that were made to the Constitution at a time between the Federation and the enactment of the Australia Acts and that provision seems to have alluded those responsible for the enactment of the Australia Acts. So that, there is a real question whether the provisions could be applied but, no doubt, if this matter were to come before the Court those issues would be raised by our learned friends by notice of contention or an application for special leave at the time, if that were required.

KIRBY J: Putting aside the standing question, on the limitation question your argument is that it is an amount that falls due from year to year?

MR JACKSON: Yes, your Honour. We would say two things about it. The first is that if one looks at the terms of section 70 the obligation is one that arises in each year and from year to year. Maybe. There could be no recover, if that be the right word, in respect of past years, but the second question is this, that this is not a case in which one is speaking about just the "recovery" - and I use the term very much in inverted commas. One is not speaking just about the obligation to make provision in prior years but declaring for the future the existence of the obligation to do so every year.

KIRBY J: Are there any provisions like this in other States?

MR JACKSON: No, your Honour, no.

GUMMOW J: This is the only one, I think.

MR JACKSON: Yes. There is a referendum requirement but not dealing with the same subject matter in South Australia. Your Honours, those are our submissions.

GUMMOW J: Thank you. Mr Solicitor.

MR MEADOWS: If it please the Court, as we pointed out in our written submissions, the application of section 32 of the 1850 Act to this case is at the heart of the applicants' contentions and, to put it shortly, if the applicants are unable to satisfy your Honours that section 32 is applicable in so far as it required the tabling of the legislation in both Houses of the United Kingdom Parliament, then the application has to be refused.

GUMMOW J: The difficulty is, Mr Solicitor, you may well ultimately be right. They are difficult provisions.

MR MEADOWS: I do not deny that, your Honour, and it does take a little bit of doing to get one's mind around it, but we would submit that if you analyse the judgments of the Full Court, each of the justices of the Full Court addressed this issue separately and arrived at the same conclusion and we would submit that their reasoning is unassailable in this regard. Perhaps it could best be exemplified by what his Honour Justice Anderson had to say at page 272 of the application book in paragraph 118 of his Honour's judgment. If I could just take your Honours to line 18 where his Honour said:

The tabling requirement, as it is expressed in s 32 of the 1850 UK Act, is not a requirement in respect to Bills which are not for one of the purposes enumerated in s 32 unless, by some process of construction, the words in the section "for any such purposes" can be deleted and unless other modifications are implied so as to make the tabling requirement a substantive requirement not confined to Bills for one of the enumerated purposes. I am not persuaded that this can be done by any legitimate process of construction. Section 2 proviso (a) of the 1890 UK Act applies the "provisions" of the 1842 UK Act and the 1850 UK Act which "relate to" the giving or withholding of the royal assent and the reservation of Bills for the signification of the royal assent. It applies those provisions to Bills to be passed by the colonial legislature pursuant to the authority conferred on it by the Constitution and it does so without modification. The relevant provisions which are thus applied must surely apply with all their limitations and qualifications. That must mean that the provisions requiring tabling, which are sought to be applied, must be taken as a whole. Taken as a whole, they apply only in respect to Bills which are sought to be passed for the purposes enumerated, as to which the repeal of s 70 of the Constitution is not one. There is nothing in s 73 of the Constitution which requires Bills for the purposes mentioned in the first proviso to that section (including a Bill for the purpose of interfering with s 70 of the Constitution) to be tabled.

HAYNE J: What is it, do you say, that engages section 2(a)? Is it the reservation of a Bill? Is it the passing of the Bill? What is it that triggers 2(a) to bite? It says "certain provisions will apply" - that invites the question, apply when? Presumably, you find the answer to "when" in 2(a), but what is it in 2(a) that tells you when?

MR MEADOWS: You have to identify a Bill which is one which would require the Royal Assent, that is being reserved for the Royal Assent, and once you get to that point, you then find that section - 1850 would come into play. I should say, your Honour, that our primary submission before the Full Court and at first instance was that the effect of the covering Act was, when read with section 73 of the Constitution, no more than that the legislature and the executive in Western Australia had to comply with the requirements of section 73, and that neither the 1842 or the 1850 Act were engaged.

But, as I see it, what I am being asked at the moment is on the assumption that the 1850 Act is engaged and we would say the only basis upon which it could be engaged is because it was a Bill which you could identify as one which required the Royal Assent and to be reserved for that purpose. Once you got to that point, then you would have to look at its character and determine whether it was one which required compliance with the manner and form requirements in the 1842 and 1850 Acts.

HAYNE J: Your argument turns, does it not, on the proposition, on this limb of the argument, that reservation triggers resort to the two manner and form provisions? Once you resort to them, knowing that a Bill is reserved, the particular manner and form requirements that are engaged turn upon the nature of the subject matter of the Bill, assent to which has been reserved.

MR MEADOWS: Precisely, and that is what we say - and we are talking here about the 1850 Act - requires, that you are required to look to see whether it was legislation for one of those purposes. As Justice Anderson points out in paragraph 122 of his judgment, which is at page 274 of the application book - and this is at line 25 - we gave to the Court actual examples of legislation which was tabled in both Houses of the United Kingdom Parliament - and they are set out there - because they were Bills which were for the purposes to which section 32 referred.

HAYNE J: But the difficulty in the argument you propound, at least to my mind at the moment, is to identify within 2(a) the words upon which you would depend for the proposition that it is reservation that is the critical step. Now, if you take that step, I can understand what follows but where in 2(a) do I find the taking of that step?

MR MEADOWS: If reservation did not trigger the need to comply with either the 1842 or the 1850 Act, then there would be no need to comply. That was our primary argument; that all that section 73 of the Constitution required was reservation for the signification of Her Majesty's pleasure.

HAYNE J: Could I point out the difficulty I am having so that you can address it if possible? Section 2(a) is concerned with more than reservation; it is concerned with instructions - instructions to governors about, in effect, whether to reserve. So that at least at first blush section 2(a) seems not to have as its sole trigger of point fact of reservation. Once you have taken that step, it seems to me that Mr Jackson's argument, which may or may not ultimately be right, has at least a toehold.

MR MEADOWS: First of all, section 73 would require a Bill which sought to repeal section 70 to be reserved.

HAYNE J: Yes.

MR MEADOWS: So, the Governor is in a position where, confronted with that, was required to reserve.

HAYNE J: Yes.

MR MEADOWS: So, we would say that then section 2(a) would cut in to require compliance with the 1842 and the 1850 Act, on that limb of our argument, at least. Our primary limb, as I say, would be that all that had to be done was compliance with section 73.

GUMMOW J: Mr Solicitor, can I ask you if there was a grant of leave, would you, by notice of contention, be relying on the post-Australia Act legislation?

MR MEADOWS: Yes, that would be our last resort.

KIRBY J: I thought standing might be your last resort.

MR MEADOWS: Oh, no, I would have thought standing was probably our first resort, your Honour.

KIRBY J: Do you?

GUMMOW J: After what you said in Bateman's Bay, you may have a bit of a problem with standing, I think.

MR MEADOWS: We would say that the principles which were applied in Bateman's Bay are well established. There is no attempt here to challenge the principles that are to be found in that and the preceding cases in this Court.

KIRBY J: That may be itself an important question as to whether a member of the Aboriginal community in Western Australia has standing to agitate the issues of the validity and force of the protective provisions of the Constitution of the State.

GUMMOW J: Bateman's Bay is the first case which actually says in Australia, Attorneys-General are in a different position to the English Attorney-General in other times. It is developed by former Chief Justice King in a recent article. He, himself, had not been a law officer.

MR MEADOWS: Which I have read, your Honour. But the point that we would make is that it does not deny the need for a litigant to demonstrate that they have a sufficient interest to warrant the claim to standing. We would say that in this case, on the evidence that has been presented to the Court, by no measure could it be said that the applicants could demonstrate standing.

KIRBY J: That would be part of your counterattack.

MR MEADOWS: Well, it would, and one of many, as I think you could see from the defence that we have mounted to this application. The point that I sought to make at the outset was that my learned friends have to get over this initial hurdle about section XXXII of the 1850 Act and its construction. We would submit, for the reasons that we have advanced, that that is a hurdle which they cannot get over - - -

KIRBY J: If they do not get over that, all the other very interesting questions do not arise.

MR MEADOWS: They disappear, your Honour.

GUMMOW J: That is right.

MR MEADOWS: In our submission, the Full Court and each of the members of the Full Court clearly demonstrated that, on its proper application, section XXXII did not apply to this particular Bill. I am not sure I could advance our submission any further.

GUMMOW J: Yes, thank you, Mr Solicitor. Yes, Mr Jackson, anything in reply?

MR JACKSON: Your Honours, may I say one thing in relation to this question of section XXXII and that is that our argument, of course, was accepted by the primary judge in this case. Your Honours will see that at page 140 in the passage commencing at about line 14, going to the top of the next page, and your Honours will see in the first new paragraph on page 140 his Honour adverted to the question and then said at about line 25:

the second proposition correctly states the position on the proper construction of the statutory scheme. Proviso (a).....preserved the operation of so much of the provisions of the 1850 UK Act as related to the giving and withholding of the Royal Assent -

and so on. Now, your Honours, so the argument has achieved some acceptance below. That is the first thing. The second thing we would seek to say, your Honours, is that on the issue of standing, the provision in question is one which is expressly for the benefit of a small but identifiable group of persons in Western Australia. It is a limitation on the legislative power for the benefit of those persons and, your Honours, in our submission, people who are members of that group have standing to ensure the legislature does not exceed its powers by not making the provision which the Constitution requires.

GUMMOW J: We will take a short adjournment.

AT 11.23 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

GUMMOW J: In the matter of Yougarla v The State of Western Australia there will be a grant of special leave. Would we be correct in approaching it on the footing of a two day appeal, gentlemen?

MR JACKSON: Your Honour, I would have thought about one and a half, really.

MR MEADOWS: I think two days would be safe, your Honour.

GUMMOW J: Yes.

MR MEADOWS: Could I just raise one matter, given that there is to be a grant of special leave, and that is with regard to the draft notice of appeal which refers in paragraphs 2.2(e) and 2.2.1(e) to an argument - - -

GUMMOW J: I am sorry, which page, Mr Solicitor?

MR MEADOWS: I am sorry. It is at pages 318, top of the page - - -

GUMMOW J: Yes, I have it.

MR MEADOWS: - - - and 319. It is the third paragraph on that page. It raises issues relating to section 64 and 79 of the Judiciary Act. As we pointed out in our submissions, those arguments were abandoned before the Full Court - - -

GUMMOW J: Well, there is a debate about that, I think, and, Mr Solicitor, if federal jurisdiction was being exercised, it cannot be brushed over, it seems to me, and it is a pure question of law.

MR MEADOWS: Clearly it is a question of law. I accept that. But it is one which was abandoned, we would submit, before the Full Court and that they should not be allowed to - - -

GUMMOW J: But the court has to know whether it is or is not exercising federal jurisdiction.

MR MEADOWS: Well, I accept that, of course, your Honour.

GUMMOW J: Many times in the Federal Court I have had parties say, "Do not you worry about that", but I have worried about it because I think the Constitution requires me to worry about it.

MR MEADOWS: I understand what your Honour says but I make the point that this was an issue which was abandoned before the Full Court and we would rely on those cases which say that where an issue has been abandoned, an opportunity should not be given to ventilate that issue before this Court.

GUMMOW J: All I am saying to you is those cases are not about issues of this sort.

MR MEADOWS: I have made my submission, your Honour.

KIRBY J: May there be a need to give a notice under the Judiciary Act in light of the discussion of - - -

GUMMOW J: There is no question of invalidity, is there?

KIRBY J: But we have had a point argued this morning on section 106 - - -

GUMMOW J: Yes, that is true.

KIRBY J: - - - and we have had a point argued relating to the Australia Acts, so it may be wise.

MR MEADOWS: There may be a point which would require a notice, your Honours, and that is that we would contend that if section 64 and 79 have the effect contended for, that then they may well be beyond power of the Commonwealth Parliament.

KIRBY J: Yes.

GUMMOW J: That is a point raised, to some extent, in Maguire v Simpson.

MR MEADOWS: Yes, your Honour.

GUMMOW J: But whatever the answer to that is, there certainly seems a need for notices in respect of the matters Justice Kirby has just referred to.

MR MEADOWS: Yes, well, we have actually, in fact, given notices in respect of this application.

GUMMOW J: Yes, thank you, gentlemen.

AT 11.31 AM THE MATTER WAS CONCLUDED