C & Ors v Australian Crime Commission [2006] HCATrans 240 (19 May 2006)

--

C & Ors v Australian Crime Commission [2006] HCATrans 240 (19 May 2006)

Last Updated: 1 June 2006

[2006] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S63 of 2006

B e t w e e n -

C

First Applicant

R

Second Applicant

D

Third Applicant

A

Fourth Applicant

M

Fifth Applicant

and

AUSTRALIAN CRIME COMMISSION

Respondent

Office of the Registry
Melbourne No M22 of 2006

B e t w e e n -

B

Applicant

and

AUSTRALIAN CRIME COMMISSION

Respondent

Office of the Registry
Melbourne No M23 of 2006

B e t w e e n -

B2

Applicant

and

AUSTRALIAN CRIME COMMISSION

Respondent

Office of the Registry
Adelaide No A6 of 2006

B e t w e e n -

S

Applicant

and

AUSTRALIAN CRIME COMMISSION

Respondent

Office of the Registry
Melbourne No M24 of 2006

B e t w e e n -

S2

Applicant

and

AUSTRALIAN CRIME COMMISSION

Respondent

Applications for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 MAY 2006, AT 9.28 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC: May it please the Court, in S63 of 2006, C and Others v Australian Crime Commission, M22 of 2006, B v Australian Crime Commission, and M23 of 2006, B2 v Australian Crime Commission, I appear with my learned friends, MR A.M. THOMAS and MR P. KULEVSKI, for the applicants. (instructed by Cosoff Cudmore Knox and Miranda Ball & Co)

MR D. GRAHAM, QC: May it please the Court, in matter A6 of 2006, S v Australian Crime Commission, and M24 of 2006, S2 v Australian Crime Commission, I appear with my learned friend, MR D.N. GALBALLY, QC, for the applicants. I should say the applicant because both the applicants are the one individual. (instructed by Browne & Co)

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth of Australia: If the Court pleases, in all matters I appear with my learned friend, MS S.J. MAHARAJ, QC, for the respondent. (instructed by Australian Government Solicitor)

CALLINAN J: Yes, Mr Walker.

MR WALKER: Your Honours, the issue which was dealt with by the Full Court is stated in the application book at page 73 in the reasons of Justice Emmett. Under the heading of “THE ISSUE” commencing in paragraph 35 on that page your Honours see that the reduction or refinement of the disputes up to that time culminated in an allegation of invalidity which, as his Honour points out on page 74 in paragraph 37, turns on the rival arguments of the parties concerning the legislative drafting device adopted, quite evidently in light of the suggestions in paragraph 40 of this Court’s reasons in Hughes, concerning what might be called the phenomenon of concurrent legislative power exercised on the part of a State, not exercised on the part of the Commonwealth.

In our submission, the various heads of power which might immediately be seen, not least because of the discussion in Hughes, as being available to justify that exercise of legislative power on the part of the Commonwealth are appropriately dealt
with – and, in our submission, in a way that ought to engage the full appellate attention of this Court – in the reasons of Justice Gyles dissenting. The particular passages may be picked up at the foot of page 92 of the application book in paragraph 67 and, in particular, commencing with the idea of section 51(xxxix) in aid of section 61 executive power in the second part of paragraph 67 appearing on page 93 of the book.

The notion that “The executive power of the Commonwealth involves the execution and maintenance of the laws of the Commonwealth, not of the States” is, as the citation makes clear, after all, (a) not novel and (b) established in Hughes or stated in Hughes itself. It is the next sentence which, in our submission, throws up for consideration something which has not been decided by this Court, and that requires an understanding of the difference between the case for decision and, as decided in Hughes, the possible, though, in our submission, not inevitable, meaning of some of the statements of the reasoning in Hughes, particularly in that paragraph 40 to which I will come.

The next sentence of Justice Gyles’s reasons, about line 17 on page 93, goes on to talk about the executive power does not extending “to the execution and maintenance of possible laws of the Commonwealth”, a statement which in its simplicity perhaps conceals the importance of the proposition. It is, of course, obvious that one cannot execute and maintain laws that do not exist. We would add one qualification which, with respect to Justice Gyles, is clearly implicit in the whole of his Honour’s approach. That is that the law itself, the law whose validity we impugn, is not the law whose execution and maintenance is served by that law.

It is for those reasons, in our submission, that, notwithstanding his Honour resorts to a metaphor – it is a well-known metaphor and one which is powerful and raises for consideration an issue which this Court has not determined in Hughes or, in our submission, in any other decision – the notion of penumbra when it comes to boundaries between State and Commonwealth responsibilities is one which need only be stated, in our submission, to raise a question for special leave. All the more so where the powers in question are powers of coercion and powers of compulsory questioning, powers of production of otherwise private papers and powers which, naturally enough, have in their train, consequentially and contingently upon other conduct, penal consequences.

Over the page on page 94, after having dealt with the matter of royal commissions and the like, Justice Gyles concludes concerning that matter in paragraph 70 on page 94 to the obvious distinction between the information gathering function of a royal commission where the availability of power is obviously enough to found the laws because the information may be used to frame future, that is, possible, laws.

His Honour distinguishes between that case and, importantly, the case here, which is not about the framing, the determinations that your Honours have seen. The summonses are clearly not about the potential framing of Commonwealth laws. This is not for the information of legislators or those advising legislators. This is in aid of the investigation of, against the possible or contingent future prosecution of, offences against State law. That, in our submission, is a correct conclusion and characterisation of the legal effect of the laws in question here in paragraph 70 of Justice Gyles’ reasons.

In paragraph 71 then there are, in our submission, unremarkable – I say that because there is nothing novel about them – but fundamentally important propositions expressed by his Honour concerning what might be regarded as a range of other possible Commonwealth powers, there being no, as his Honour puts it, “nominate Commonwealth law enforcement power” any more than there is a general Commonwealth power to enact a criminal law.

It is necessary to find outside the impugned law a law which is served by the apparatus of criminal investigation and prosecution which is exemplified by the kind of provisions which we attack in this case. It is in that sense that his Honour uses another metaphor at about line 42 on page 94 about the relevant Commonwealth powers being “chameleon-like”. In our submission, what cannot be shown in this case is that there is any Commonwealth law which provides colour to and thus the content which gives validity to the provisions concerning coercive questioning which in these cases require our clients to respond to the commands and coercion of a Commonwealth official agency in aid of the enforcement of State offences.

Your Honours, it is for those reasons that, in our submission, a matter of great public importance is revealed in these cases. Divisions between State and Commonwealth authority, particularly as they relate to the bestowal of such great powers on Commonwealth officials, are, in our submission, of the highest importance in the administration under the law of a federation.

May I then come to what is urged against us and which very plainly is the gravamen of the majority judgments against us as a result of the authority of Hughes (2000) 202 CLR 535. If we first go to page 553 and paragraph 32, the provisions, sections 47 and 46, there being referred to are provisions which for present purposes bear an analogy with the impugned provisions. They are provisions which purport to give Commonwealth officials authority. Their Honours in the majority say:

they do not provide a basis for the imposition by federal law upon Commonwealth officers of duties to perform functions or exercise powers created and conferred by State law. Such a federal law must be supported by a head of power.

So that one looks for a head of power to support a federal law and, for reasons already advanced by Justice Gyles in the court below and that we have adopted, such a federal law will need to be obviously itself a companion or ancillary provision to a substantive federal law if reliance is to be made upon section 61 and section 51(xxxix). However, the matter goes further than that. We accept, as is clear from the reasoning in the court below against us, when one turns to page 555 and 556 in paragraph 40, a passage which is, with respect, at the heart of the relevant constitutional argument.

In our submission, when one looks in a way that may be overly dissecting at the first and last sentences of that paragraph, there is nothing contrary to the reasoning and conclusion of Justice Gyles which we respectfully support. It is, as it were, the middle of the paragraph where we concede that matters are raised which clearly have provided the foundation for the legislative drafting device which has been adopted in this case. Now, in those sentences there is the statement of what necessarily arises from the existence of concurrent legislative power, namely:

State law may create offences in fields where it would have been competent for the Parliament of the Commonwealth to enter directly by its own offence-creating legislation.

We interpolate, the obvious difference between the case in which that statement has been made as part of the reasoning and the present case is that in Hughes there were two complementary pairings of Commonwealth and State legislation. There was the Commonwealth, if one likes, territorially based Corporations Law and the State adopting provisions in the Corporations Acts. There were also the second pairing, namely, the provisions, both Commonwealth and State, concerning the enlistment of Commonwealth officials for the enforcement of State laws. That pair, that double pair of complementary Commonwealth/State legislation, is missing in this case.

The case for decision in Hughes concerned the circumstances given rise to by the existence of such a complementary pair. To take out of that context the words of the sentence I have just quoted and the next two sentences, which are part of the crux of the matter, in our submission, is such a contestable proposition that it attracts or should attract a grant of special leave for it to be argued in full. The next of those sentences in paragraph 40 in Hughes refers to 51(xx) but does not go on because the case did not require it for decision to investigate the position which would have been so had there been a State law with respect to such constitutional corporations, but no existing Commonwealth law of any kind. That is unexplored and unelaborated.

Again to interpolate, the difference between these cases and Hughes is highlighted by the last sentence of paragraph 40. In that case there was no need to imagine anything because the Commonwealth law had politically and legally preceded the text of the State laws. There had been a device of adoption. That meant that there was no need to explore the obvious differences that come from the difference of the polities, on the one hand the Commonwealth, on the other hand States, if only in relation to the Territory which even with extraterritoriality provides a different question as to nexus and a different result as to scope in relation to the exercise of legislative power even by verbatim similar text.

Now, when one then comes to the next of the sentences upon which the Commonwealth fastens in paragraph 40 of Hughes, their Honours said that:

In such a situation, a federal law which specifies that certain Commonwealth officers have powers and functions expressed to be conferred by the State law with respect to the prosecution of State offences is a law with respect to that head of federal legislative power.

That is the sentence which we urge raises for decision something which was not actually for decision in Hughes bearing in mind the existence in fact of the two complementary clauses, State and Commonwealth legislation, which characterises the position considered in Hughes. Now is raised by these cases the question whether mere concurrency of power where the Commonwealth has not exercised the power suffices for the enlistment by Commonwealth legislation alone, that is, operating of its own force and without request for conferral of authority otherwise, whether that is enough to permit the executive authority of Commonwealth agencies to be wielded against individuals on account of suspected activity alleged to be, or as to which there is reasonable belief to consider that there may be, infringement of State law.

In our submission, it would be misreading of authority to regard Hughes as having even properly gone into the consideration of that issue. I say “properly” in the sense that it was not for decision in that case and your Honours have seen in the central paragraph 40 of the reasons that essential aspects of that problem did not require elaboration and were not elaborated or explored.

For those reasons, in our submission, this is a matter of great importance in relation to the borderline between Commonwealth and State power. It affects a great number of potential individual rights, as one can see from the facts of these cases. If the holding of the Full Court stands simply for what it decides at the moment, it would appear that the propositions expressed in those reasons are capable without any great extension to be applied in fields far beyond simple criminal investigation of State offences. It would appear to be generalisable to the enlistment of Commonwealth executive authority in areas where the Parliament of the Commonwealth has not assumed responsibility politically to legislate but the executive is prepared simply to deploy the Commonwealth agencies in support of what from time to time will come in and out of concurrent exercise of legislative power by the States. May it please your Honours.

CALLINAN J: Mr Graham.

MR GRAHAM: May it please the Court. I can be very brief. Firstly I would respectfully adopt what has already been put to the Court by my learned friend, Mr Walker. Secondly, I would adopt, without reading it, in particular paragraphs 10 and 11 of our written submissions. Then I would refer to paragraph 12 of those written submissions where we have set out the reasons why special leave should be granted, which we respectfully submit are compelling. What I wish to do, going beyond what my learned friend, Mr Walker, did was just to refer back a little more to what Hughes’ Case was about. No doubt your Honour Justice Callinan remembers it with some vividness, as do I.

Your Honours will recall that the scheme there was one where the function of prosecuting all offences under the Corporations Act of the Commonwealth and the corporations laws of the States was attempted to be conferred upon the Commonwealth DPP to the exclusion of the State prosecuting authorities and the Court was required to consider whether that intention had been carried into effect and whether the legislative provisions which had been enacted for that purpose were constitutionally valid.

The most critical question was whether the legislative scheme had validly conferred upon the Commonwealth DPP both the function of prosecuting such offences and also a duty to do so. Your Honour Justice Callinan will remember how much that latter question troubled the Court in the course of argument. The keys steps in the joint judgment leading to a conclusion that the scheme was valid are to be found in paragraphs 28, 30, 32, 33 and 40 of the joint reasons. Reference has already been made in detail to paragraph 40.

A study of the arguments of counsel and the judgments in Hughes indicate that several different lines of argument were advanced by the DPP,
the Commonwealth Attorney-General and the intervening State Attorneys-General in support of validity, but the task of the Court was one which I may respectfully describe as one which was a search for a proper and satisfactory basis for supporting the legislative scheme which endeavoured to carry out the policy which I mentioned at the outset.

It would seem that the Court adopted a submission which had been advanced by the Commonwealth in subsequent written submissions in that case which appear at page 543 of the report. In the result the Court found that by reason of the view taken of sections 46 and 47 of the Commonwealth DPP Act the scheme could be supported. It is perhaps a matter of notoriety that the judgments and arguments in that case gave rise to much concern amongst those concerned with the administration of the Corporations Law scheme leading eventually to the enactment of the Corporations Act 2001 (Cth) and the referrals by the States under section 51(xxxvii) of the Constitution which in part underpinned that legislation.

What was perceived by some to have been a possible vacuum exposed by the judgments in Hughes in legislative or Commonwealth power now appears to have been not a vacuum but an arsenal from which the Commonwealth can draw further legislative mechanisms and to do so unilaterally without the support of complementary State legislation. In short, the question here concerns the scope of the legislative power of the Commonwealth to make laws authorising investigations by Commonwealth officers, including investigations by compulsory process. The question is: does that power extend to laws authorising investigations into possible criminal conduct where the only nexus between the Commonwealth legislative power and the criminal conduct is that the Commonwealth could validly have legislated to proscribe that conduct, although it has not done so? We say that is an important point warranting the grant of special leave. If the Court pleases.

CALLINAN J: Mr Solicitor.

MR BENNETT: If the Court pleases. If there were anything in the points argued, we would concede the importance of the matter, but there is a very short fallacy in the propositions put against us and it is conveniently illustrated by the paragraph on which both my learned friends rely, paragraph 70 of the judgment of Justice Gyles at page 94 of the application book in C, R, D, A and M. That is the blue application book. Your Honours will see that he there says in the last sentence of that short paragraph:

The principal purpose of the provisions is obviously the facilitation of enforcement of existing State legislation.

Now, that rather assumes a single characterisation of purpose. The legislation would be perfectly valid if there were no State criminal offence involved. The question is: is the investigation of conduct as to which the Commonwealth could under one of its powers have passed a criminal law a valid exercise of Commonwealth legislative power? Clearly it is. The mere fact that someone has an offence for it is interesting but has nothing to do with it.

CALLINAN J: What is the other characterisation, Mr Solicitor?

MR BENNETT: Under a purpose relevant to the investigation of matter arising under whatever Commonwealth power would have supported that legislation. What my friend really has to say is that because the State has passed a law proscribing the conduct we are suddenly prohibited from investigating it, whereas otherwise you might have been permitted to do so. But, in any event, the fact that the State has passed legislation is not a reason for prohibiting the investigation by us.

Let me give a homely example from my favourite power. Let us assume there is a spate of murders of lighthouse keepers in lighthouses and the Commonwealth, under the lighthouses power, anxious to keep the lights burning, wishes to investigate who is behind this matter. Now, there is no offence at the moment of murder in a lighthouse or murder of a lighthouse keeper under Commonwealth law. It is left to State law to deal with murder. Is it seriously suggested that we cannot investigate under the lighthouses power, by the use of compulsory powers if necessary, this spate of murders in lighthouses with a view no doubt, if someone is found, to handing the person over to the State authorities for prosecution under State law?

There is nothing wrong with where something falls under both federal and State power, as all the powers in section 51 do, there is nothing wrong with the Commonwealth saying, “We will legislate as to part of the field and leave the balance of the field to the State, and in relation to a particular matter we will legislate for the investigation and let the States deal with the prosecution”.

CALLINAN J: Mr Solicitor, we do not need to hear you any further.

MR BENNETT: If the Court pleases.

CALLINAN J: Gentlemen, that is a fairly clear intimation of our views. Is there anything you would like to say?

MR WALKER: Your Honours, the proposition that the provisions would be valid even if there had been no State law enacting an offence is one which, in our submission, cannot possibly meet the present situation. The present situation is of provisions which explicitly posit the actual existence of State laws and indeed turn on that existence. So that, in our submission, raises for consideration an abstraction which simply does not arise here and is certainly no answer to the way in which the argument has been put, at least in accordance with the reasons of Justice Gyles.

Similarly, our argument is not accurately described as one which has the consequence that it amounts to a proscription of Commonwealth power by reason of or in the event that a State has enacted an offence-creating provision. That is completely at odds with what we have put in terms as being the concurrent existence of power. The point we raise is not that there is a proscription by a State enacting legislation, but that there requires to be an actual exercise of Commonwealth legislative power rather than the mere existence of a power to do something which has not been done.

Finally, of course, in relation to the lighthouse keeper murder case, that is one of the examples which the records shows was raised in Hughes, but the reasoning my learned friend has advanced on the basis of that favourite example of his simply does not appear in the reasons of the Court in Hughes. In our submission, if that is the kind of issue that falls to be determined according to the position of the Commonwealth here, then that is a ground for, not against, a grant of special leave. If it please the Court.

CALLINAN J: Do you wish to add anything, Mr Graham?

MR GRAHAM: I do not wish to add anything, if the Court pleases.

CALLINAN J: We are of the view that if any appeal were to proceed, that is if a grant of special leave were to be made, the appeal would enjoy insufficient prospects of success. Do you ask for costs, Mr Solicitor?

MR BENNETT: Yes, your Honour.

CALLINAN J: Have you anything to say?

MR WALKER: No, your Honour.

CALLINAN J: The applications are refused with costs.

MR BENNETT: Your Honour, there is an issue about the confidentiality orders.

CALLINAN J: We were unable to find in the material – and we may be wrong about this – any identification of the people involved. All the material seemed to refer to them by initials. In any event - - -

MS MAHARAJ: Yes, your Honour. There are two issues. We did file some summonses in all the matters. If I can just give your Honours the numbers: in 63 of 2006, A6 of 2006 and - - -

CALLINAN J: There are nine summonses, are there not, is that right?

MS MAHARAJ: Yes. We did file summonses in order to get confidentiality orders and I think those orders are sought by consent. In addition, your Honours, some material has been filed and that is in the respondent’s authorities and other material from tabs 7 to 11 inclusive, which includes summonses and confidential matters.

CALLINAN J: But none of the material on the file reveals any of the names, does it?

MS MAHARAJ: No, your Honour, not to our - - -

CALLINAN J: You would understand that courts are reluctant to make orders for confidentiality, but in fact there is nothing that anybody going through the file would find that would in any way reveal the names of the people.

MS MAHARAJ: That is why I mentioned the material from tabs 7 to 11 inclusive.

CALLINAN J: Justice Heydon has just drawn my attention to some material that might do that.

MS MAHARAJ: Yes, your Honour. These are protective orders in all the matters that I have just mentioned.

CALLINAN J: There is no objection to this, Mr Walker?

MR WALKER: No, your Honour.

CALLINAN J: We would make the orders sought then.

MS MAHARAJ: Just out of abundance of caution, material inclusive from tabs 7 to 11 in the respondent’s material be kept confidential as well. They are the confidential summonses.

CALLINAN J: We would order accordingly.

MS MAHARAJ: If it please your Honours.

AT 10.01 AM THE MATTERS WERE CONCLUDED