Price v Fitzgerald & Anor S19/2000 [2000] HCATrans 87 (10 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S18 and S20 of 2000

B e t w e e n -

JOHN JAMES PRICE

Applicant

and

WENDY ELDER

First Respondent

DOUGLAS SEYMOUR

Second Respondent

ISABEL JIRASEK

Third Respondent

CHRISTIAN PHELAN

Fourth Respondent

MARK KNOTH

Fifth Respondent

DANNY STRAFORD

Sixth Respondent

ADRIAN WEBSTER

Seventh Respondent

CHRISTOPHER BUTTNER

Eighth Respondent

ALLAN WILLIAMS

Ninth Respondent

MICHAEL BANACH

Tenth Respondent

KELVIN CAM

Eleventh Respondent

Office of Registry

Sydney No S19 of 2000

B e t w e e n -

JOHN JAMES PRICE

Applicant

and

JULIAN FITZGERALD

First Respondent

KEITH JOHN RANDELL

Second Respondent

Applications for special leave to appeal

GLEESON CJ

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MARCH 2000, AT 12.27 PM

Copyright in the High Court of Australia

____________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR L.J.W. AITKEN, for the applicant in each matter. (instructed by Colbron & Associates)

MR A. ROBERTSON, SC: May it please the Court, I appear with my learned friend, MR S.B. LLOYD, in matters 18 and 20 for the second to eleventh respondents, and in matter S19 for the second respondent. (instructed by the Commonwealth Director of Public Prosecutions)

GLEESON CJ: Thank you, Mr Robertson. I have a certificate from the Deputy Registrar to the effect that she has been informed by the solicitor for the first respondent in each of these matters, that is the Crown Solicitor for New South Wales, in S18 and S20 of 2000, and the Victorian Government Solicitor in S19 of 2000, that the first respondent does not wish to be represented at the hearing of these matters or submit to any order of the Court, save as to costs.

Yes, Mr Jackson?

MR JACKSON: Your Honours, may I deal first with S19 of the application, in which Mr Fitzgerald is the first respondent, he is the Victorian Magistrate. The question which arises there is whether section 3E of the Crimes Act pursuant to which the relevant search warrant was issued is invalid. May I take your Honours to the provision immediately.

GLEESON CJ: Is that the persona designata question?

MR JACKSON: Yes. Your Honours will see that section 3E empowers a person who is described as "an issuing officer" to "issue a warrant to search premises", and your Honours will see that the term "issuing officer" - I would refer you to section 3E, your Honours.

GLEESON CJ: It is in this bundle of materials that we have been given, at the front under Division 2. Yes?

MR JACKSON: Your Honours will see that section 3E(1) empowers a person who is described as "an issuing officer" to "issue a warrant to search premises", and that term, "issuing officer" is defined by section 3C which is the definition provision and it is defined to be:

in relation to a warrant to search premises.....means:

(a) a magistrate; or

(b) a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants -

and so on.

Your Honours, could I just pause to say, in relation to the definition of the term "magistrate", that there is a definition of "magistrate" in the Acts Interpretation Act, but all that it says relevantly is that it applies to a person who is, or is the equivalent of, a stipendiary magistrate, that is to say a permanent - someone employed on a stipend. Your Honours, the term "magistrate" in section 3C(1) does also have a definition in this sense, that it is said in a number of sections to have a meaning affected by section 3CA. You will see that then section 3CA, which says that:

(1) A function of making an order conferred on a magistrate by -

those provisions -

is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

Those provisions, your Honours, to which particular reference is made, deal with, if I could put it very shortly, these things: section 3ZI, strip search; 3ZJ and 3ZK, taking identification materials; 3ZN identification parades for suspects under 18; and 3ZW, retention orders for seized items. Now, your Honours will see that what is not included, of course, is section 3E and the submission which we seek to make and which was made in Full Court was that whatever might have been the operation of section 3E prior to the introduction of section 3CA, the provisions of the Act are now to be read as a whole. If one looks at the provisions as a whole, one sees that the consequence, in our submission, is that when section 3E is speaking of a magistrate, it is not speaking of a magistrate as persona designata, and that is supported too, we would submit, by the way in which the definition of "issuing officer" if framed with the reference to persons who work in a court. Your Honours, that is the first aspect of it.

There is another aspect of it too, and that is what is the basis on which the Commonwealth may require the magistrate to perform, require or authorise the magistrate to perform the function? Your Honours will see that there is a power in the Act in section 3B to make arrangements - I am not entirely certain whether your Honours will have 3B(1), but could I give your Honours the - - -

GLEESON CJ: Yes, we have 3B(1), I think.

MR JACKSON: Yes. Well, your Honours will see - - -

GLEESON CJ: It is on page 5 of the print, is that right?

MR JACKSON: Your Honour, I have a different thing, but I am sure that is right. Section 3B(1) empowers the making of "arrangements with the Governor of a State", and so on for:

(a) officers of the State or Territory to exercise powers and perform functions; and

(b) facilities and procedures of the State or Territory to be made available;

in relation to the carrying our or enforcement under this Act of orders made under this Act or another Act.

Your Honours, that is the only relevant provision for the making of arrangements and the only arrangements that appear to have been made are those which are referred to, if I could give your Honours a copy of an extract from Watson & Watson, "Australian Criminal Law". On the second page of the document I am about to give your Honours, you will see at the bottom of that second page:

Arrangements for the other States and Territories are in similar terms.

It sets out the arrangement for New South Wales and that does not cover matters of this kind, if, indeed, section 3B(1) would extend to such arrangements. The point we would seek to make, your Honours, is this: one has a situation adverted to, in a sense, in the other way, the other side of the coin, in the Court's decision in Bond v The Queen in (2000) HC 13 in paragraph 15, where the Court referred to the fact that:

It is well established that a State by its law cannot unilaterally vest functions under that law in officers of the Commonwealth, whose offices are created by Commonwealth law and who have the powers vested in them by -

statute. Now, your Honours, what we would seek to say is that the obverse applies as well, and the situation which obtains is that there needs to be, at the least, some State provision or perhaps some assent by the State Executive Government to the exercise of the powers. That was adverted to, your Honours, in Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144, and in the Court's judgment at page 151, the last paragraph on the page refers to section 77 of the Constitution and then discusses that, and if I could go then to the last line on that page, and the top of the next page:

There is no provision in the Constitution which enables the Commonwealth Parliament to require State courts to exercise any form of non-judicial power.

Your Honours, assuming for the moment that we are not talking about the exercise of judicial power, and assuming also that the magistrate is not an officer of a court in relevant respects, one goes on then to the start of the next paragraph where their Honours say:

It is to be noticed that s. 28(1) of the Re-establishment and Employment Act does not take any magistrate as a designate person or as a person who with his own consent and that of the State, may be detached from the court to which he belongs and used for particular purposes.

That legislation was held to be:

addressed to the court of summary jurisdiction as such.

What we would submit, your Honours, is that all that one has in the present circumstances is a provision which purports to cast a power and the exercise of the power of duty upon an officer of the State, on the assumption that it is personal designata, without there being anything to authorise the officer from the State so to do. Your Honours, those are the submissions I wish to make on that application. Could I say in relation to the other two applications, that we do not seek to add to what is contained in the written submissions.

GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Robertson.

MR ROBERTSON: If your Honours please. In relation to the first point, which is the construction point, we submit that the trial judge and the Full Court was correct in the construction that was adopted, and that is there is no basis for construing the legislation as excluding, by the specific provision upon which our learned friends rely, the notion of persona designata from the definition of "issuing officer". That is what the submission comes down to; that is, the express terms of the provision that was inserted, as we submit, for clarity, did not involve the proposition that, therefore, the Parliament intended to make unconstitutional the general provision that had earlier been made in the previous legislation. What was involved was no more than making explicit in relation to particularly intrusive powers or the proposed exercise of particularly - - -

GLEESON CJ: Intrusive powers that obviously required an immunity. Part of the purpose of 3CA is to confer an immunity on these people.

MR ROBERTSON: Yes, we would accept that, with respect, your Honour and the history of it is referred to in the Full Court's judgment, and that is that both those sections commenced at the same time, but, in fact, 3CA was added to the statute by a later Act, and the detail of that is set out in the Full Court's judgment. So, for the reasons that we have advanced in our written submission, which adopts in very large part what the Full Court said, we would say there is really no basis for the expressio unius argument which is what it comes down to, it being necessary for the success of that argument put by our learned friends that the Parliament was intending to make unconstitutional the earlier and general provisions by means of a provision attempting to make, in a sense, more constitutional the more intrusive powers. So we would submit that there is really no basis on the statutory construction question for a grant of special leave, and I will not repeat what we have put in our written submissions on the construction point.

The second point is one which is, as I understand it, was not raised before the trial judge or before the Full Court. That is the point about the co-option or the requirement of the magistrate to exercise the powers. We submit that the proper construction of the provision is that, in fact, there is no requirement and in the same way as this Court held in Jones by reference to Hilton v Wells that there was no question there of compulsion. We would submit, at the level of statutory construction, before one ever gets to any graver questions there is no imposition of an obligation on the magistrate.

GLEESON CJ: The presence or absence of compulsion is actually bound up with the persona designata question, is it not?

MR ROBERTSON: We would so submit, we would so submit. Could I take your Honour to the bundle of materials provided by my learned friends, and in there is included a photocopy of Jones v The Commonwealth which is otherwise reported in 71 ALR. The report begins at 497. It looks like it is about six pages from the end of that bundle, your Honours. It is only a two-page judgment.

GLEESON CJ: Yes, it is the second last case we have in the bundle.

MR ROBERTSON: The second last, and the point that I wanted to draw your Honours' attention to a the foot of page 498 of the report - and this is the joint judgment of Chief Justice Mason, Justice Wilson, Justice Brennan, Justice Deane, Justice Dawson, Justice Toohey. So it included some of those who were in the majority in Hilton v Wells and some of those who were in the minority in Hilton v Wells because your Honours will recall that Justice Mason and Justice Deane dissented in Hilton v Wells on the point of construction. At the foot of 498 their Honours say, with reference to Hilton v Wells:

However, when the majority and minority judgments are closely compared, it appears that the point of departure was on a matter of statutory interpretation. The minority considered that s 20 imposed an obligation on a judge to perform the function, that of dealing with an application for the issue of a warrant, thereby raising consequences having importance for the exercise of judicial power. On the other hand the majority proceeded on the view that s 20 did not impose an obligation on a judge to perform the function, whether he consented to do so or not.

Our submission is that section 20 is in all material respects the same as the relevant power in the Crimes Act, that is, that there is no requirement on the magistrate to perform the function in, I think, it is section 3E. So 3E is relevantly the same as section 20 of the Telecommunications (Interception) Act.

My learned friend, Mr Jackson, referred to Bond v The Queen, but that is substantially, in our respectful submission, a different issue because when it is going the other way, it raises the section 109 question. What the Court is presently concerned with is, on our submission, as to the proper construction of the statute, no compulsory power or requirement at all.

Then, if I can remind your Honours of perhaps two things. One is, because this matter was not the basis of submissions below, then there was no exploration of the factual issue, if it became necessary to do so, of whether or not and how the State had consented to the magistrates being made available. Your Honours will recall that it is clear that at least so far as a consensual exercise of power is concerned, there is no impediment on the Commonwealth vesting executive power in an official who may also be a State official. That is, in part, reflected in Queen Victoria Memorial Hospital which our learned friends referred to, but it goes back to, in our submission, at least to James v The Commonwealth 41 CLR where, for example, Mr Justice Starke said at 463, if I can read three or four lines:

In my opinion, the Commonwealth may select its own agents or licensing authorities - whether persons resident in a State, or bodies incorporated by a State, or administrative bodies constituted under a State law. It is unnecessary to consider how far the Commonwealth could compel such administrative bodies as those last mentioned to administer the Commonwealth laws, for in this case the Dried Fruit Boards are functioning under the Commonwealth law without objection.

Of course, here there is no evidence one way or another of either objection or consent because the question was never ventilated below. At page 460, Mr Justice Higgins says:

There are many State functionaries who are selected by the Commonwealth to carry out Commonwealth functions - including State magistrates, State policemen, State taxation officers; and I know of no principle that forbids such delegation.

Now, even assuming against us that, for present purposes which we are content to assume, there is a question of consent on the one hand, as opposed to a lack of consent on the other, going to constitutional validity, there is here no evidence of any objection or lack of consent or, indeed, what the arrangements are at all, by virtue of which these magistrates are made available. We would certainly agree that whatever arrangement it is, it is not within the express power to make arrangements under section 3B, but then again, that comes back to some expressio unius point of construction, that is, because there is express provision for arrangements, it does not suggest, in our submission, that one always has to have express provision for arrangements in the legislation.

If I can remind your Honours of one other reference in Reg v Humby; Ex parte Rooney 129 CLR 231, this question which your Honours will recall was to do with a court ordering that payments be made to a State body. That question, the question of whether it was voluntary or compulsory, was the point of construction that arose, but there is also, particularly in Justice Gibbs' judgment, a reference to the constitutional question where his Honour said at 240:

the Constitution was certainly not intended to inhibit co-operation between the Commonwealth and the States and their respective agencies.

So, your Honours, we would submit that special leave should not be granted, in part because the question our friends now seek to ventilate would involve some issue of fact which was unexplored below. We say that there is no compulsion and rely on Jones v The Commonwealth for that purpose. In relation to the other two applications, we also are content to rely on our written submissions in so far as the administrative law question is involved. If your Honours please.

GLEESON CJ: Thank you, Mr Robertson. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I say four things in response to our learned friend's submissions. The first is concerned with the construction question. What we would seek to say is that my learned friend kept speaking about the intention of Parliament, when it did this or did that. Parliamentary intention, in the end, has to be derived from what the Parliament does, and if Parliament amends an enactment, one must take the amended act as it appears from the Act as so amended. Your Honour, that is saying the same thing twice, I think.

The second thing concerns the reference to Jones v The Commonwealth. The observations that were made in that case were concerned, of course, with Hilton v Wells, and Hilton v Wells was dealing with the position of a federal judge, as distinct from a judge of a State court. The third thing is that the material before the court in relation to this case was referred to at page 50 in the primary judge's reasons, and what was simply stated was, you will see at about line 26, when he turned to this case. He said:

As I am informed, Mr Fitzgerald is a stipendiary magistrate appointed under the Victoria Magistrates' legislation which obviously establishes -

and so on. Your Honours, the point we would seek to make is that it is true, of course, that in some cases the Commonwealth can enlist the services of officers of the State, but that really depends, in the first place, upon the source of power that is being looked at. If one looks, for example, at Aston v Irvine [1955] HCA 53; (1955) 92 CLR 353, what your Honours will see is that in the discussion in that case, at page 363, at the last paragraph on the page, going throughout, in fact, most of the next page, the basis of the ability to do so was a particular constitutional legislative power, and, of course, a Commonwealth legislation power may extend to bind or otherwise affect the operation of States and State officers.

A different situation obtains where, as here, what one is speaking about is simply some power that is being exercised, presumably pursuant to section 51(xxxix), and your Honours, in those circumstances, we would submit that something more is necessary than merely there to be some undertaking or agreement. What there would have to be, ultimately, is something that comes back to some statute which would have to be able to be identified.

GLEESON CJ: In each of these three applications, the Court is of the view that there is not sufficient prospect of success of an appeal to warrant a grant of special leave and the application is dismissed. Can you resist an order for costs?

MR JACKSON: No, your Honour.

GLEESON CJ: In each case the applicant must pay the respondents' costs of the application.

MR ROBERTSON: May I also raise this question, your Honour. There was an undertaking in place until 4 o'clock this afternoon but I assume it is common ground that what your Honours have just said effects a discharge of the undertaking? I am sorry, I was not aware of this letter, your Honours. Perhaps I should not have - it goes to a question of privilege, I think, does it not? I should not have detained your Honours. We can sort that out between ourselves.

MR JACKSON: Your Honours, if there is any difficulty about the matter, perhaps it could be mentioned before the Court very early this afternoon.

GLEESON CJ: Well then, we will adjourn until 2.00 pm.

AT 12.54 PM THE MATTER WAS CONCLUDED