Porter v The Queen S47/2002 [2003] HCATrans 592 (14 February 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S47 of 2002

B e t w e e n -

CHRISTOPHER MARK PORTER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 2003, AT 9.31 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please your Honours, I appear with my learned friend, MR C.C. WATERSTREET, for the applicant. (instructed by Kings Lawyers)

MR M.G. SEXTON, SC: If the Court pleases, I appear with my learned friend, MS J.A. QUILTER, for the respondent. (instructed by the Crown Solicitor for the State of New South Wales)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, in 1979 section 527C of the Crimes Act was enacted, resulting in the criminalising of being in possession of certain property in certain circumstances.

GUMMOW J: The New South Wales Crimes Act you mean?

MR WALKER: Yes, the New South Wales Crimes Act. Your Honours will find the text at pages 49 and 50 of the application book. The critical elements of that offence I do not need to state exhaustively but, rather, to dwell in particular on the fact that it refers to the state of affairs by which somebody has something in custody and that:

thing may be reasonably suspected of being stolen or otherwise unlawfully obtained -

the notions of "stolen" and "unlawfully obtained" clearly, of course, having a connection of some kind to a system or some systems of law; the notion of having something in custody having a physical, that is, locational attribute.

Following this Court's decisions in Worthing v Rowell and Muston and R v Phillips, of course, as your Honours know, the Commonwealth Places Act was enacted, that is, some eight or so years before the New South Wales provision with which I started. Your Honours will find the familiar words of subsection 4(1) of that Act contained in the Chief Justice's reasons at page 32 of the application book.

In our submission, what this case gives rise to is the critical question as to whether, in following what might have been called judicial advice administered in Worthing v Rowell and Muston, the words of subsection 4(1) are apt to have sufficiently laid down a regime of law for a Commonwealth place so as to make valid the conviction of my client in this case.

GUMMOW J: This is a question of validity or construction for one or both?

MR WALKER: It is both.

GUMMOW J: What is the argument of construction?

MR WALKER: As to construction, the first weight is placed upon the phrase "as in force". The second element is the notion of applying in accordance with their tenor and the interpretational question which assumes validity, contrary to our second argument, the interpretational question is how that could possibly apply to convict my client in relation to the picking up - to use a perhaps dangerous metaphor - a New South Wales law which, in accordance with sections 5 and 12 of the Interpretation Act and ordinary canons of statutory interpretation, is at least, prima facie, to be read as applying to New South Wales matters and things because my client, off the plane from Western Australia, is in a position where the stolen or unlawfully obtained critical elements of the New South Wales law, supposedly picked up by subsection 4(1), is levelled against him as a matter of federal law, that is Commonwealth law, said to apply in accordance with its tenor, the tenor of a New South Wales law, as two principal elements.

First, it cannot infringe section 52(i) of the Constitution, cannot apply to a Commonwealth place. Second, it must in relation to "stolen or unlawfully obtained" at least give rise to questions as to whether - - -

GUMMOW J: Sorry, what was that first statement, "cannot infringe 52(i)"?

MR WALKER: There cannot be an infringement of the exclusive legislative power bestowed by 52(i) by a law of - - -

GUMMOW J: Yes, you are talking of the State Act?

MR WALKER: - - - yes, by a law of the State.

GUMMOW J: Yes.

MR WALKER: So the question then will be interpretatively whether use of the expressions "as in force" and "in accordance with their tenor" can somehow, nonetheless, overcome that essential and, we would submit so far as the federal compact is concerned, a critical delineation between State and Commonwealth, whether that can be overcome by the notion of deeming to have applied. So there are three phrases at the heart of our argument: "as in force", "in accordance with tenor" and "deemed to have applied". There is no question that the State law does not, in accordance with its tenor: (a) apply to a Commonwealth place; or (b) bring in its train systems of law, whether they be Serbia, Russia, England, New Zealand or Western Australia, with respect to the ascertainment of "stolen or unlawfully obtained". For those reasons, the first interpretational question is a critical one concerning - - -

GLEESON CJ: Would the question be any different if the State law was a law that said "Any person who wilfully damages premises shall be guilty of an offence"?

MR WALKER: The point would be slightly different because of the importation into 527C of this notion of a system of law, but as to the first premises of the argument of interpretation, no. The example your Honour gives me would certainly be grist to our mill because that example was - - -

GUMMOW J: Sorry, where do you get this notion of system of law out of 527C?

MR WALKER: "Stolen" and "unlawfully obtained". The notion of "stolen" has to do with an offence against the laws of property; "unlawfully" of course is a word which explicitly raises the notion of the system of law. Has your Honour picked up that reference to "stolen" and "unlawfully obtained"? It is found on page 50 in the quotation from the provision at about line 21.

GUMMOW J: Yes, thank you.

MR WALKER: So that is the interpretational question and, in our submission, there is absolutely nothing in reasons below which grapples with that fundamental or threshold difficulty and, in our submission, it need hardly be said that a law which is criminal and which lays down such an important interference with what is otherwise a liberty, namely, to be deemed lawfully in possession of any property you happen to have with you, rather than have to justify the lawful possession of anything you have with you, is something which ought to be, perhaps more than any other kind of provision, pellucid in the ambit of the conduct which is illegal and the ambit of the conduct which is, therefore, legal.

The second point is a point concerning validity. Here, of course, we are striving against what is undoubtedly the powerful resources of argument against us, namely, that this provision would appear to have been, notwithstanding what might be called the confident blandness of its provisions, it would appear to have been drawn in accordance with judicial advice. The first thing to be said about the judicial advice, of course, is that - - -

GLEESON CJ: What was the date of this legislation?

MR WALKER: It was 1971.

GLEESON CJ: I am sure the Commonwealth was very well advised.

MR WALKER: Yes, there could be little doubt about that. I did say "confident". Your Honours, the judicial advice, of course, was not given with any text for the Bench. Therefore I am, however dangerously, able to venture to your Honours that there is no authority on the point.

The question here, of course, has a mixture of difficulties. The first is prospectivity, that is, is it an exercise of legislative power within the relevant meaning of section 52 of the Constitution to have enacted in the terms of section 4(1) something which will pick up - again to use that somewhat dangerous metaphor - the provisions of laws which are not even yet the dreams of State legislators. That is the first question and, in our submission, that is a basal question of the responsibility of the Commonwealth legislature to its electors.

GUMMOW J: It says:

exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes - - -

MR WALKER: Textually, your Honour, our argument concentrates on the notion of making a law.

GUMMOW J: Yes.

MR WALKER: In our submission, is not to make a law - - -

GUMMOW J: You might be attacking section 79 of the Judiciary Act?

MR WALKER: Not directly, but whether that is carried in its train - - -

GUMMOW J: There seems to be some distant thunder, though.

MR WALKER: - - - whether it is carried in its train may be another issue but, in our submission, 52, by the ordinary English reference to making a law does raise a question with which this Court, in our submission, has by no means definitively dealt in relation to what it requires in order for a text to satisfy the description of something which is the result of making a law.

Section 4(1), set out in page 32 of the application book, is said by the decisions below in this case to answer that description because completely, validly and, one might say, deliberately unknown to the Commonwealth legislators, eight years later something is enacted in one of the States whose laws can be picked up which has this effect upon what is otherwise the lawful state of having something in one's possession. Whether that is making a law in a system of representative and responsible government is something, in our submission, which does need to be confronted.

Now, at first sight, it may not appear a promising sign, but I rely upon dissenting judgments in the US Supreme Court. But, of course, I do not rely on them because they are dissentients, but because the issues which were decided, adversely to the present contention by us in Sharpnack, are issues which are fundamental and they are issues which finally require of a legislature that their conduct be legislative rather than simply, as it were, handing over the entire good government mandate to other people not responsible to the same body of electors and not addressing the same questions of public interest.

That topic, we say, is illustrated by the approach in Sharpnack to be one of fundamental and general public importance, so that in a special leave application it is not to the point that we call in aid the reasoning of a dissenting opinion. Rather, it is to the point that this is something which this Court ought to look at, particularly in the frame of criminal provisions. May it please your Honours.

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

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter. The application is dismissed.

AT 9.45 AM THE MATTER WAS CONCLUDED