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High Court of Australia Transcripts |
Last Updated: 1 October 2009
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S106 of 2009
B e t w e e n -
GRAEME JOSEPH KIRK
First Appellant
KIRK GROUP HOLDINGS PTY LTD
Second Appellant
and
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
First Respondent
WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CHILDS)
Second Respondent
Office of the Registry
Sydney No S347 of 2008
No S348 of 2008
B e t w e e n -
KIRK GROUP HOLDINGS PTY LTD
First Applicant
GRAEME JOSEPH KIRK
Second Applicant
and
WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CHILDS)
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON
J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 1 OCTOBER 2009, AT 10.02 AM
(Continued from 30/9/2009)
Copyright in the High Court of Australia
__________________
FRENCH CJ: Yes, Mr Solicitor.
MR SEXTON: If the Court pleases. Your Honours, when we finished last night I was just about to go to the situation in 1900 in relation to New South Wales. As I mentioned, the Commonwealth has prepared a volume of materials and my learned friend, the Solicitor-General for the Commonwealth, will go to this in some more detail. But can I say this shortly as to the position, that in relation to indictable offences which is, of course, not this case, section 471 of the Crimes Act 1900 provided for writs of error after the style of the English concept, with the limitations that they involved.
In relation to summary convictions, there were two options. One was a case stated on a point of law to the Supreme Court, which was provided for by section 101 of the Justices Act 1902. The Justices Act 1902 is set out in the Commonwealth’s volume of materials and section 101 is at page 296 of those materials. The other option was an appeal from Petty Sessions to Quarter Sessions. That was provided for in section 122 of that legislation, which is set out at page 302 of that volume.
That provision was in previous statutes including the Justices Act 1850. There is also in connection with that a four-page document that we provided to the Court. It is an extract from The Law and Practice Relating to Appeals from Magistrates by Mr Addison and Mr Paterson published in 1927. It sets out section 122; and following there is an historical note about it including some quotations from Chief Justice Griffith in Sweeney v Fitzhardinge in relation to the origin of appeals to Quarter Sessions. Your Honours will see from the last two paragraphs of the historical note which is on the last page of the four and page 220 of the volume that, taking it back to the Justices Act of 1850.
There was of course also – or reliance could be had on the prerogative writs although with the limitations that may have been involved with those at that time. In that connection, however, section 146 of the Justices Act 1902 should be noted. That is at page 312 of that volume of Commonwealth materials, where it says:
No conviction or order of a Justice or Justices, or adjudication upon appeal of a Court of Quarter Sessions, shall be removed by any writ or order into the Supreme Court.
That was a privative clause in its own way. That was introduced in 1900 by the Justices Act Amendment Act of 1900, although as - - -
HAYNE J: But what was the effect of that? The effect of that was, was it not, to confine the writ to jurisdictional error?
MR SEXTON: Yes, your Honour. If your Honour looks at page 6 of the Commonwealth volume, your Honours will see a reference to Roos v Director of Public Prosecutions, the decision of the New South Wales Court of Appeal to that effect.
FRENCH CJ: Section 109 also interfaces with the case stated mechanism, I think.
MR SEXTON: Yes, your Honour.
FRENCH CJ: So certiorari is not required to remove the writ.
HAYNE J: But certiorari would go in some cases of case stated, I think. If you go to First Edition Halsbury under Crown office practice, I think you will find discussed there the intersection between cases stated and certiorari. I may be mistaken, but I think you will find it there.
MR SEXTON: I cannot contradict, your Honour.
HAYNE J: The more general point to be made, I think, is that Crown office practice, particularly practice in relation to certiorari, was not readily capable of reduction to a couple of simple unexceptionable propositions.
MR SEXTON: We agree with that, your Honour. Your Honours, the net effect, perhaps, of that material is that there was some supervision by the Supreme Court in 1900 in relation to convictions by way of summary prosecution. There is, of course, still some supervision - - -
GUMMOW J: How did they get, if at all, from the Quarter Sessions to the Supreme Court?
MR SEXTON: I think not, your Honour. I think what happened - it was either the case stated to the Supreme Court or I think they were, in effect, alternatives. There is still some supervision of the proceedings of the Industrial Court in this jurisdiction, occupational health and safety, and in other jurisdictions. In New South Wales at this time there are differences in the form of supervision as from 1900, but there is still supervision and in some respects it is wider than 1900, and in some respects it is narrower.
HAYNE J: But to take the example give by Justice Gummow where a summary matter has gone to Quarter Sessions, would certiorari have gone to Quarter Sessions on a demonstrated allegation of want of jurisdiction, or jurisdictional error as, for example, by misconstruction of the statute creating the offence?
MR SEXTON: That could have been a case stated, presumably, your Honour - - -
HAYNE J: Of course.
MR SEXTON: Perhaps 146 of the Act might have stood in the way of that.
HAYNE J: But not surely for jurisdictional error, and the question would become whether a misconstruction - - -
MR SEXTON: It is a construction of section 146 - - -
HAYNE J: But whether a misconstruction of the statute creating the offence by Quarter Sessions would itself amount to jurisdictional error capable of correction by certiorari to quash.
MR SEXTON: It is possible, your Honour. Of course there may be the practical about the record - - -
HAYNE J: No, because certiorari to quash for error on the face of the record presented a difficulty. You could not go beyond the record and what the record was ebbed and flowed over the centuries, but jurisdictional error or, for example, certiorari to quash for bias or interest, I think, may have been open to proof outside bare production of the record, and if that is so, the question becomes live, does it not?
MR SEXTON: Section 146 seems to assume that there can be an appeal to, perhaps only to the Court of Quarter Sessions.
HAYNE J: Yes, and assume Quarter Sessions on appeal misconstrues the section which is the offence-creating provision.
MR SEXTON: That depends on what is meant by “writ” in 146 or whether it encompasses jurisdictional error. It is obviously designed to deal with non-jurisdictional error, we would think.
CRENNAN J: What if a person was convicted in their absence and their absence was referrable to the fact that they were incarcerated, would that be amenable at the time to certiorari? In other words, they had no opportunity to put a defence.
MR SEXTON: The denial of procedural fairness point is certainly a ground. The only question is at that time whether 146 was designed to extend or intended to extend as far as those kinds of cases, as well as cases of non-jurisdictional error. Your Honours, the question of supervision, whatever the precise answer to it, we would say, however – just getting back to my learned friend’s case, the case on the other side, for a moment – it does not mean that the Industrial Court proceedings here are equivalent to proceedings of the Supreme Court, to use the words of section 73(ii), so that an appeal would lie in this case.
That is the question here, really, whether those proceedings or the Industrial Court in its role in this case falls within one of the categories in section 73(ii). We would say that whatever the position in relation to the supervision of the inferior courts by the Supreme Court either then in 1900 or now, that it does not fall within one of those categories. The particular category that is in issue is the category of the Supreme Court, to use the words of the section.
I should say, finally, your Honours, that it seems to us likely that the Court will not have to consider the question of section 73 in this case. Can I, on that subject, just reiterate something that we said yesterday, which is that there is an amended notice of appeal in relation to the appeal proceedings, putting aside the two special leave applications for the moment. The additional ground is ground 5. As we said to your Honours yesterday, in relation to the charges concerning Mr Kirk himself, we do not contest that ground. A question of what follows from that is a matter for the Court, but we do not contest that ground.
Your Honours noted, in relation to the charges against the company, we do not make the same concession. My learned friend on the other side says that the charges cannot be separated in the way that we have proposed. That is also a matter for the Court. I wanted to simply underline that again in case there was any doubt about that from yesterday afternoon.
GUMMOW J: But what remedy would we then give in respect of Mr Kirk on his appeal?
MR SEXTON: I think what follows from that, your Honour, is that the result of the original trial would have to be quashed, the trial not conducted according to law.
FRENCH CJ: And on the basis of the constituted jurisdictional error.
MR SEXTON: That is a different ground, and that is something that the Court will have to consider in relation to – well, perhaps not, it depends how it is approached.
CRENNAN J: Could Mr Kirk be re-prosecuted after the quashing?
MR SEXTON: There may be time limitation problem, your Honour. It depends on the construction of that provision. There is a limitation - I think it is two years under the legislation.
GUMMOW J: The Act is gone itself?
MR SEXTON: Yes. Unless there are any other matters, your Honour, those are our submissions.
FRENCH CJ: Mr Solicitor, what is the position with respect to costs? I gather there may be particular provisions of the Criminal Procedure Act that may impact on it.
MR SEXTON: We can certainly look at that, your Honour, if there are any particular provisions. It depends, to some extent on perhaps the grounds on which the Court’s decision is finally made but your Honour will understand that the parties below agreed on the procedures that were adopted at the trial, but that does not, of course, affect the position now in terms of the way - - -
FRENCH CJ: I think we might need some assistance on the options, having regard to the relevant statutory provisions.
BELL J: I think, Mr Solicitor, that under the Criminal Procedure Act there are particular provisions relating to the orders for costs against a prosecutor in summary proceedings prosecuted in a higher court, which I think would include the Industrial Court, having regard to the definition. It may be that there are particular provisions under the Occupational Health and Safety Act or the Industrial Relations Act governing costs, but if the provisions of section 257D of the Criminal Procedure Act apply, there may need to be some attention to whether there is any contention that the court would either be satisfied or not of the particular matters to which that section directs attention, if it applies.
MR SEXTON: Yes. If it is convenient, we will perhaps put in a note within the next couple of days about that, your Honours.
GUMMOW J: As to costs of the appeal in this Court, that is covered by the Judiciary Act provisions. The question is we then make the order for costs in the Supreme Court that they should have made and that, I suppose, engages the State Act.
MR SEXTON: We will put in a note about that general question, your Honours.
FRENCH CJ: Yes, all right, thank you. Solicitor-General for the Commonwealth.
MR GAGELER: Your Honours, can we supplement our written submissions in four respects. The first is to address the argument inspired by South Australia to the effect that any court that is invested with federal jurisdiction under section 77(iii) of the Constitution is thereby always and without more a court exercising federal jurisdiction within the meaning of section 73(ii). If that argument were correct, it would mean that by virtue of section 39(2) of the Judiciary Act, and subject only to section 35 of that Act, an appeal would lie to this Court from every State court in every matter. If the argument were correct, it would mean that the High Court, since its inception, has proceeded on a false assumption when it has asked for the purposes of section 73(ii) in respect of a State court other than the State Supreme Court whether that Court was exercising federal jurisdiction in a particular matter. That started with the case of Roberts v Ahern [1904] HCA 17; (1904) 1 CLR 406 at page 417.
In our submission, there are three textual answers to the argument. The first is, just looking at the language of section 73 and reading subparagraph (ii) with the chapeau, and reading it grammatically and in that context what it is referring to is appeals from judgments, decrees, orders and sentences of any court exercising federal jurisdiction in context in making those judgments, decrees, orders and sentences, or in making the judgment, decree, order or sentence as the case may be.
HAYNE J: That is, the use of the word “exercising” is not equivalent to “that exercises”.
MR GAGELER: That exercises, yes, that is right. That is the first grammatical point. The second grammatical point is your Honours will notice that the language of “exercising jurisdiction” also appears in section 73(i) and in that context “exercising jurisdiction” could only mean exercising that jurisdiction in making the relevant judgment, decree, order, or sentence, otherwise the words would be simply superfluous and would give rise to the absurdity of an appeal from Caesar to Caesar, because on that construction, section 73(i) would be giving an appeal from the High Court in the exercise of its appellate jurisdiction to the High Court in the exercise of its appellate jurisdiction.
The other textual point is this. If section 73(ii) had been intended to pick up a court that was simply invested with federal jurisdiction then, given the language of investing that one finds in section 77(iii) and also in section 71 of the Constitution, one would have expected the drafter to have used that language.
GUMMOW J: In section 79 it has that word “exercised” again.
MR GAGELER: Yes. Your Honours, they are the textual arguments. There are also two structural arguments, or two structural answers to the South Australian-inspired submission. The first is that it would be odd to the point of being almost inexplicable as a matter of constitutional design that one would have the jurisdiction of the High Court to hear and determine an appeal from a State court exercising State jurisdiction in a particular matter or class of matters turn on whether the Commonwealth Parliament has or has not for its own purposes chosen to vest that State court with federal jurisdiction in some other matter or class of matters.
When I say it is odd to the point of being almost inexplicable, the only possible explanation would be that, in creating an appeal of that general nature one is preserving the structural integrity of the system of State courts which are so invested with federal jurisdiction, however minor in nature. Your Honours, our answer to that – and this is really the second structural answer to the overall argument – is that the structural integrity of State courts is maintained by the supervisory jurisdiction of State Supreme Courts and then by the appeal from a State Supreme Court to the High Court that is provided by section 73(ii). That is the first thing I wanted to say.
The second thing is to supplement the answer given by the Solicitor-General for New South Wales to the question that your Honour Justice Gummow asked on the first day at line 1540 of the transcript. That question was really to the effect of what is or what was, as at the date of Federation, the supervisory jurisdiction that was exercised by a State Supreme Court over State courts of summary jurisdiction? To answer that with any precision is a huge exercise. We have attempted to answer it by reference to the precise position in New South Wales only. Our answer should be treated as an addition to what we have in footnote 20 of our written submissions. Your Honours have from us in this respect a volume of material to which you have already been referred. It contains the relevant New South Wales and imperial legislation and orders-in-council.
Your Honours should have with it some late additions. There should be just two loose Acts which I hope have been tucked in the back. The detail of this is set out in our covering note, but as at 1900 the Supreme Court of New South Wales continued to be the institution that was established by the charter of 1823 that you see at page 19 and following and that had the jurisdiction that was conferred by the Act of 1828. If your Honours turn to that Act at page 32, in section III, about a third of the way down the page, picking up the relevant language, it is said that the courts – and here we were talking about not simply the Supreme Court of New South Wales but that of Van Diemen’s Land as well, that explains the plural:
shall be Courts of Record, and shall have Cognizance of all Pleas, Civil, Criminal, or Mixed, and Jurisdiction in all Cases whatsoever, as fully and amply . . . in New South Wales . . . as His Majesty’s Courts of King’s Bench . . . lawfully have or hath in England –
That form of words, as was noted by Chief Justice Griffith in the case of Holmes v Angwin [1906] HCA 64; 4 CLR 297 at 303, could be found in the provisions conferring the jurisdiction on each of the supreme courts of the colonies which became States. We have provided to your Honours a short note which collects those precise provisions together.
In New South Wales, Courts of Quarter Sessions were, as at 1900, established by the Crimes Act and their jurisdiction was conferred by the Crimes Act 1900. The relevant provision appears at pages 251 to 252. It is section 568. It both establishes and confers jurisdiction. There is no need to take your Honours to the detail of that. Courts of Petty Sessions, as at 1900, were established under an Act of 1883. The relevant provision is at page 175, the relevant provision being section 459.
Their jurisdiction in criminal matters was, however, defined by reference to an Act of 1832 that your Honours see at page 90, the relevant provision being section 16. In rather antique language it makes it in courts of summary jurisdiction as one would expect. So far as the mechanisms for review of a summary jurisdiction, or a summary conviction by a Court of Petty Sessions, are concerned, a number of mechanisms were provided. As at 1900 there was an ability to have a case stated on a question of law. That mechanism was provided for in an Act of 1881. It is one of the separate pieces of paper that your Honours have been provided with, and it is an elaborate mechanism which is sufficiently explained in section 1 of that 1881 Act.
It was an ability to state a case or have a case stated on a question of law only. There was separately provision for statutory prohibition which was made in two Acts which need to be read together. One was an Act of 1850. Relevantly, the provision is at page 100. Section 12 of that Act, and if your Honours, just before looking at that, turn over to page 103, there was an Act of 1853 which in section 3 made section 12 of that earlier Act extend to all summary convictions and orders made by any justice or justices. Looking at the provision in the 1850 Act, it provided for an order described as a prohibition to issue from the Supreme Court.
That was interpreted an applied in practice so as to give a form of appeal for a non-jurisdictional error, whether that error be of fact or law. One sees that in the case of Ward, which we have copied to your Honours at page 343. You can see from the first sentence of the Chief Justice’s judgment, Chief Justice Stephen, that it was concerned with “Prohibition, under the Justices’ Acts of 1850 and 1853” directed to justices who had entered a conviction and it is said at the bottom of page 345 in the second-last sentence:
In cases of this kind, however, the Court sits in effect as a tribunal of appeal, with the double province assigned of deciding on the facts as well as the law.
There is a later reference that your Honours ought be aware of in the decision of the High Court in a case of Peck – your Honours do not have this on any list – Peck v Adelaide Steamship Co Ltd [1914] HCA 31; 18 CLR 167. At page 174 there is a more extensive discussion by Chief Justice Griffith of the nature of the appeal for which statutory prohibition provided.
HAYNE J: Was any comparison made between statutory prohibition and what would have been available under writ of error?
MR GAGELER: No, the - - -
HAYNE J: But as a matter of practical reality, I assume that the availability of statutory prohibition supplanted any need to resort to the law relating to the writ of error.
MR GAGELER: Your Honour would be absolutely right, as a matter of practicality. Your Honour has seen that in section 471 of the Crimes Act 1900 there was a preservation of a writ of error that could be directed against any court in any circumstance where the Attorney-General in England could have obtained a writ of error against a court, but the obscurity of tracking that through the case law has just overwhelmed us. We have not been able to find any case in any of the colonies, Australasian colonies anyway, in which a writ of error has gone to a board of summary jurisdictions.
HAYNE J: But writs of error had gone in England in the Judicature Acts.
MR GAGELER: They had in 1875, so - - -
HAYNE J: But apparently not in respect of the House of Lords issuing a writ of error, which is a byway that we need not go down, but for present purposes the conferral of jurisdiction or the description of the jurisdiction of the Supreme Court of New South Wales as picking up the Court of King’s Bench which might ordinarily be expected to have picked up, therefore, the capacity as to writs of error directed to inferior courts, is, as a matter of practical politics, supplanted by statutory prohibition.
MR GAGELER: By statutory prohibition, that is entirely right, yes. What Chief Justice Griffith said about reviewing for errors of fact was that the practice was to follow the rules applicable to a case of an application for renewed trial after the verdict of a jury. He was describing there what he said was the practice in New South Wales and Queensland. If your Honour has the volume, that is [1914] HCA 31; 18 CLR 167 at 174.
HAYNE J: Thank you.
MR GAGELER: He had earlier, just to complete the detail, in a case called Wilcox v Donohoe [1905] HCA 68; 3 CLR 83 at 88, described “statutory prohibition” as a form of appeal. That is again Chief Justice Griffith. So that was really the second mechanism. The third mechanism was an - - -
HAYNE J: Just before you pass on that, Chief Justice Griffith says at 174 of Peck the settled:
has been that the Court will interfere if the decision of the justices is wrong in law –
and then goes on to consider error of fact.
MR GAGELER: Yes, that is right.
HAYNE J:
So, if it appears that the justices proceeded upon an erroneous view of the law, or, to use the modern phrase, misdirected themselves –
et cetera.
MR GAGELER: That is right, yes. So to describe it as an appeal, for all intents and purposes an appeal is pretty accurate. Your Honour, there was then what was styled an appeal from Petty Sessions to Quarter Sessions. As at 1900 there was an Act of 1900 which your Honours also have separately. The relevant provisions providing for appeals were in sections 9 and following, and the powers of Quarter Sessions on appeal were set out in section 12, which included obviously the power to confirm or quash a conviction. That was accompanied, as your Honours have I think already been shown, by section 18 which said that no conviction order or adjudication on appeal shall be removed by any writ or order into the Supreme Court.
That Act of 1900 replaced an Act of 1883 which we have given your Honours at page 172, relevantly. The appeal there was provided from Petty Sessions by section 440 through to 443 and the privative clause was then found in section 444. You see that on the last two lines of the page where it said:
And no conviction or adjudication on appeal shall be removed by any writ or order into the Supreme Court -
There was a case, which we have also given your Honours, at page 347 of a Mr Keyes, where that privative clause was sought to be relied upon as an answer to a writ of certiorari. That was sought to quash a conviction said to be tainted by jurisdictional error.
GUMMOW J: If one goes to footnote (4) on page 360 one will see Sir Julian Salomons cited Willan’s Case as to the construction of these privative provisions, and that was it.
MR GAGELER: I am sorry, your Honour. I missed that.
GUMMOW J: At page 360, footnote (4) there is a citation of Colonial Bank of Australasia v Willan.
HEYDON J: Page 360 of the case.
GUMMOW J: Page 348 of your book. That was the received understanding of what a provision like section 18 meant at the time it was enacted.
MR GAGELER: That is right, entirely. Your Honour is referring to the exchange between Mr Salomans and the Court.
GUMMOW J: It seems to have been a lethal shot by him.
MR GAGELER: Absolutely. His summary of Willan is absolutely right – the right to certiorari is not taken away where the magistrate has acted without jurisdiction. End of story.
All of that position, as at 1900, was then picked up and reflected in the structure of the Justices Act 1902 to which your Honours have been referred in part. It is at page 296 and following. So you have the same mechanisms, but just collected together and set out in an ordered way. You have the special case limited to a question of law in section 101. You continue to have statutory prohibition in section 112. You continue to have the appeal to Quarter Sessions conferred by section 122 and you continue to have in section 146, which is at page 312, a privative clause which continues to get interpreted in the same way.
Mention has been made of Roos. We have given your Honours that at page 357 and following. There is a very useful and rather pithy statement in the judgment of Justice Handley at page 262 of the report, page 365 of the book, where his Honour says from the third line:
This Court has inherited the supervisory jurisdiction of the Court of King’s Bench exercisable by means of the prerogative writs. This jurisdiction existed at common law and continues to exist unless restricted or removed by statute.
He then refers to section 146 and in the next paragraph, opposite letter C, he says:
For centuries provisions which attempt to restrict the supervisory jurisdiction of a superior court of general jurisdiction, such as this Court, have been given a strict and narrow construction. The decisions of this Court establish, in accordance with this principle, that while s 146 does not take away the jurisdiction of this Court to grant certiorari for absence or excess of jurisdiction, it does take away its jurisdiction to quash for error of law on the face of the record - - -
GUMMOW J: That should really mean it does take away its jurisdiction to quash merely for error of law on the face of the record.
MR GAGELER: That is what he meant.
GUMMOW J: The error of law on the face of the record might scream jurisdiction.
MR GAGELER: Of course.
GUMMOW J: It also leaves in - - -
MR GAGELER: I thought it was pretty pithy, your Honour, but maybe it could have been - - -
GUMMOW J: It also leaves the unfathomable distinction between jurisdiction and non-jurisdiction which we have to grapple with in this case. I know you do not want to get into it in this case.
MR GAGELER: If I can help your Honours, I would. I am not volunteering to get into it. I am trying to stick to the knitting. As is shown by the case law - - -
GUMMOW J: It is not a mild question because in the case you have cited itself there was some division of opinion. Justice Sheller dissented.
MR GAGELER: I am not seeking to solve the problem entirely, your Honour.
GUMMOW J: For myself I would have thought there was a lot - - -
MR GAGELER: You might note the jurisdictional - - -
GUMMOW J: I would have thought there was a lot going for what Justice Sheller said, but there we are.
MR GAGELER: Your Honours, you might notice that the jurisdictional error in Keyes, which is the case I referred to at page 347 of the bundle and following, was that the magistrate thought that a cow was anything within the meaning of the statute.
HAYNE J: Well, a misconstruction of the statute creating the offence.
MR GAGELER: A misconstruction of a statute, exactly.
GUMMOW J: If we look at Roos again, at page 368 of your book, letter F, what Justice Sheller is saying there must be correct, I would have thought.
MR GAGELER: Your Honour, that is absolutely correct. There is no doubt about that.
HAYNE J: But the root of the principle there being applied is that you have to resolve what otherwise is the contrariety between the provisions of the Act which say these are your powers, these are the ways in which you will do it, and a provision of the Act that says nothing you do can be questioned. The contrariety is resolved by observing the distinction between mere error on the face, and jurisdictional error.
MR GAGELER: Absolutely, your Honour, and one sees exactly that tension being identified and resolved – albeit in a slightly different way – in Sir Owen Dixon’s famous judgment in the Hickman case, but I do not really want to go into that, unless your Honour wants me to.
HAYNE J: The wound has closed over I am sure, Mr Solicitor.
MR GAGELER: That is an inherited wound though, I think, your Honour. We found some assistance on the scope of prohibition and certiorari as understood at 1900, in a book called The Law of Prohibition by Mr Sanderson. It deals with a particular position in Victoria. We have not given your Honours the reference, but in that book, particularly at pages 160 and following, there is a useful discussion of the late 19th century understanding of the ability to obtain either certiorari or prohibition for a decision of an inferior court which is founded on an error of jurisdiction, “error of jurisdiction” being very widely defined.
GUMMOW J: In the present case, there is a question about whether section 163(2) of the Industrial Relations Act, which obliges the Commission in Court Session to apply the rules of evidence – whether that is a jurisdictional matter.
MR GAGELER: There is that question, your Honours, which for policy reasons I do not which to address. Your Honours, as is indicated by the footnote in the case of Keyes, to which your Honour Justice Gummow has already drawn attention - that was footnote (4) at page 348 of our bundle - the leading case as at 1900 on the effect of privative clauses, indeed the leading case, I think, in the Empire, was the decision of the Privy Council in Willan LR 5 PC 417, which your Honours have. It is a decision of the Privy Council on appeal from the Supreme Court of Victoria. The relevant privative clause there you see at page - - -
HAYNE J: Well, not accurately set out as this Court has pointed out.
MR GAGELER: Pardon?
HAYNE J: This Court has pointed out that it is not accurately set out in the report.
MR GAGELER: The 244th section is not accurately set out?
HAYNE J: Just so.
MR GAGELER: Your Honour is ahead of me.
GUMMOW J: SGLB, 78 ALJR 992 at 1002:
Section 244 of the Mining Statute 1865 (Vic) read:
“No proceedings under this Act shall be removed or removable into the Supreme Court save and except as hereinbefore provided.”
MR GAGELER: But if you go to page 423, at the end of the first full paragraph, there it is, in those terms I think, and the argument rejected was that which appears at page 430, really, sufficiently in the first full paragraph under the argument of Mr De Gex and the often quoted, almost canonical statement in answer to that argument one finds at page 442 in the second full paragraph beginning “It is, however, scarcely necessary to observe”. That approach to construction informed, as we would put it, by constitutional principle was uniformly applied throughout the Australasian colonies, so far as we have been able to find, from 1874 onwards with one exception. The one exception that we have found is a case of In re Biel, which your Honours have, a decision of a strong Full Court in Victoria in 1892. The privative clause there, which was a privative clause in a Licensing Act, you will see at the bottom of page 458 it said this:
“No determination order or proceedings under Part II. of this Act or any amendment thereof shall be removed or removable by certiorari or otherwise into the Supreme Court for any want or alleged want of jurisdiction, or for any error of form or substance, or on any ground whatsoever.”
Willan is referred to by the Chief Justice over the page at page 459, but at about point 8 of the page, he says this:
It was admitted in argument that no section in any other Act of Parliament can be found which contains words so strong as these are. It was suggested to the Court that it should struggle against giving its obvious interpretation to this section in order to prevent an alleged injustice being done. Speaking for myself, I protest against such a suggestion.
So he gave the provision its literal operation and treated it as effective to oust certiorari for jurisdictional error. As I said, that is the only case which we have been able to find where a privative clause was successful in that way. It can possibly be explained in two ways: one as the exception that makes the rule; the other is perhaps more satisfyingly as being outside the scope of the rule with which we are concerned for present purposes anyway, in that it is doubtful that the licensing Court, at least in the exercise of the jurisdiction with which the Court was there concerned, which is a reduction in the overall number of licences, could be described as a court of law and in any event it certainly was not a court exercising judicial power. Your Honours, that is the position as at 1900 in broad terms, and in as specific terms as we can cover it in relation to New South Wales.
Can I then come to section 73(ii) and the reference there to the “Supreme Court of any State”. What we emphasise about that is the definite article, “the” Supreme Court of any State. It was, in our submission, at 1900 clearly enough referring to the single institution in each State then of that name as it existed at Federation and picking up obviously any successor to that institution by whatever name that might be created under State constitutions preserved by section 106, always - - -
GUMMOW J: You used the word “successor”.
MR GAGELER: Yes.
GUMMOW J: You did not contemplate fragmentation.
MR GAGELER: No, absolutely not, a single institution unfragmented. That was really the holding of the Court, or the explanation of the Court in Parkin v James, to which your Honours have been taken. It is what the Court said again in Holmes v Angwin, to which I have already given your Honours the reference, and it was applied and reinforced in a case which is in other people’s written submissions, but your Honours, I think, have not been taken to it. It is MLC v Thiel [1919] HCA 68; 27 CLR 187.
Your Honours should perhaps take a look at that. It was decided in an era when judgments tended to be brutally short and the argument which was there put in relation to the arbitration, the Court of Industrial Arbitration of Queensland, was an argument very similar to that which is being put to your Honours. Your Honours see the argument at page 188 being put by Mr Stumm, KC, and you see the progress of that argument, Chief Justice Knox at the end of the argument saying:
I think it is hopeless to argue that the Court of Industrial Arbitration is the Supreme Court; and so do my learned brethren.
Then follows the per curiam judgment, all of that based on Parkin v James.
Now, that said, it really is established, we think, sufficiently by Forge as a matter of authority that that single institution which is contemplated by section 73(ii) is an institution with certain assumed and constitutionally mandated characteristics. The relevant parts of Forge [2006] HCA 44; 228 CLR 45 – to remind your Honours, at page 74 and just picking out the presently relevant critical sentences or half-sentences, at about the fourth line:
It is plain, then, as was recognised in Kable v Director of Public Prosecutions (NSW), that Ch III not only assumes, it requires, that there will always be a court in each State which answer the constitutional description “the Supreme Court of [a] State”.
At page 76, the third line:
Because Ch III requires that there be a body fitting the description “the Supreme Court of a State”, it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description.
All of that we take as bedrock constitutional principle.
FRENCH CJ: That says nothing, does it, about jurisdiction?
MR GAGELER: No. So the question then becomes whether the supervisory jurisdiction of State courts really goes to the character of the Supreme Court, that is as part of the constitutional description or essential constitutional character of a Supreme Court. Your Honours have seen from our written submissions that we do make the submission that supervisory jurisdiction over State courts exercising State jurisdiction for jurisdictional error ought be treated as part of the defining characteristics of a Supreme Court for the purposes of this doctrine.
HEYDON J: It follows from that submission that if you have an industrial court, a land and environment court, a drug court, a murder court, a companies court, all of whom were superior courts of record having equivalent constitutional status to the Supreme Court, but there was a privative clause in relation to the relevant legislation for each of those courts preventing any review of their conduct by way of certiorari for jurisdictional error, there would be invalidity.
MR GAGELER: Why do we say that? Partly for historical reasons, that is, with the one exception of In re Biel one can say, I think with some confidence, that such jurisdiction was in fact a characteristic of each Supreme Court inherited from the Court of Queen’s Bench as at 1900, added to by statute, never taken away and jealously guarded by the courts and why we would say if a continuation of such a characteristic is mandated within the structure created by Chapter III is really for two reasons.
One is what some of your Honours said in Forge at pages 82 to 83, in paragraph 84. That can be interpreted as supporting the notion that the supervisory jurisdiction of the Supreme Court, at least in that respect, is essential to the maintenance of the institutional integrity of lower courts upon which their independence and impartiality and appearance of independence and impartiality is in part based.
FRENCH CJ: Is a Supreme Court of a State left effectively with no jurisdiction other than supervisory jurisdiction still within the constitutional description of a Supreme Court?
MR GAGELER: Yes, your Honour. We do not wish to make a wider argument than the one that I have sought to make already by reference to the minimum content of supervisory jurisdiction being jurisdiction to review for jurisdictional error.
HAYNE J: Retention of that element of original jurisdiction in the Supreme Courts is necessary.
MR GAGELER: Yes, minimum content, in our submission.
FRENCH CJ: And sufficient.
MR GAGELER: And sufficient, yes.
GUMMOW J: There is a slippery question – and I am not saying this critically – but does that leave the notion of jurisdictional error itself frozen?
MR GAGELER: No. I think your Honours dealt with this in Aala for the purposes of section 75(v). No, certainly not.
GUMMOW J: Yes, that would be right.
MR GAGELER: The other structural point we make is this. We see that minimum content of the jurisdiction of the Supreme Court as described in 73(ii) as being essential to the maintenance of the position of this Court, described in section 71 of the Constitution as a federal Supreme Court and putting this Court at the apex of the integrated Australian legal system, which is in part created and in part described by covering clause 5 and section 118 of the Constitution, all of that framed against an assumption of the rule of law as Sir Owen Dixon pointed out in the Communist Party Case and was picked up by the joint judgment in Plaintiff S157 211 CLR 476 at paragraph 103.
The notion of the rule of law being used in that context, being not the rule of law notion that our learned friends seek to invoke in the present case for other purposes, but a more limited notion, and that is of a repository of power, in this case, State judicial power, always being constrained within legal limits and always being subject to legal processes to enforce those limits. That is the sense in which the rule of law was used in the Communist Party Case, restated in Plaintiff S157 and fairly usefully restated by her Honour Justice Gaudron in a passage in Enfield City Council [2000] HCA 5; 199 CLR 135 at paragraph 56. Her Honour was using the rule of law in the same important but relatively confined sense.
HEYDON J: Can you put that sense again, briefly, the sense in which the rule of law - - -
MR GAGELER: Yes, the sense being that within our constitutional system, any repository of governmental power is constrained by legal limits on that power and that the processes of the courts must be available to discern and enforce those legal limits on power.
HEYDON J: A Diceyan idea?
MR GAGELER: A Diceyan idea, yes. Of course, not confined to him, but it does seem to be, your Honour, just really - - -
HEYDON J: No, it is a classical integer according to A.V. Dicey of the rule of law.
MR GAGELER: Absolutely. It really segues into the next point that I wish to make, and that is to move on to our learned friend’s argument about the rule of law, and it is to say this. I have collected about a dozen texts and articles which attempt to expound the rule of law, some in quite significantly different terms. The only common thread that one finds in those general statements of the rule of law appears to be the one that I have just articulated in my own - - -
HEYDON J: Do we find those collected in your submissions?
MR GAGELER: No, your Honour, largely because I found no particular utility in it. If your Honour would be assisted by a list, an extraction - - -
HEYDON J: Yes, I have just been developing an addiction to rule of law analysis. I would be very grateful, unless - - -
MR GAGELER: I will certainly do it.
HEYDON J: Yes, if you could, with the Chief Justice’s leave.
MR GAGELER: I have already collected them for my own purpose as well. I will provide them to you. But there is, in our submission, a danger in taking what is wholly unobjectionable, indeed, a very, very useful description of what is really the purpose and effect of the separation of powers that is affected by the constitutional system, saying it is the rule of law and then taking the rule of law as a freestanding constitutional principle, interpreting it in the light of statements of.....and others, and then drawing implications from that high level constitutional principle. It is the same problem that members of this Court identified in McGinty [1996] HCA 48; 186 CLR 140 when the notions of representative government and representative democracy were at their constitutional height. Chief Justice Brennan said this at page 169, and I will just quote the one sentence:
It is logically impermissible to treat “representative democracy” as though it were contained in the Constitution, to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributed.
In our submission, the submissions made by the applicants/appellants in the present case run the danger of running counter to that observation.
HEYDON J: But you would agree, would you not, that it is relevant – is it not – to take into account standard supposed characteristics of the rule of law in terms of construing statutes?
MR GAGELER: Absolutely, yes. We have said that in our written submissions. What we are concerned about is a constitutional principle which says that the rule of law as embodied in the Constitution means that a duty imposed by law must always be practically capable of compliance, which is the way in which the rule of law is sought to be deployed in the present case. Let me say this emphatically. There is a rule of law which is embodied in the Constitution. It grows out of the text of the Constitution; it grows out of the structure of the Constitution; but it is not an implication of that rule of law that any duty imposed by law needs always to be capable of obedience.
There are, and have been for many years, offences of absolute liability in Commonwealth statutes, particularly, for example, in the migration context and in the customs context where the law specifically says, “If X occurs then Y is liable”. If an illegal entrant is found on a ship entering an Australian port, then the master of that ship is liable. Those provisions have been there for more than a century and they have a lineage going back earlier than that.
There is also, it has been held in this Court, nothing wrong with a legislature, including the Commonwealth legislature, imposing a particular form of absolute liability that is a retrospective liability: if X has occurred in the past, then Y is liable. If the Court pleases, those are our submissions.
FRENCH CJ: Thank you, Mr Solicitor. Solicitor for South Australia.
MR HINTON: If the Court pleases, can I commence by just ensuring that a copy of the substitute paragraphs 7, 8 and 9 marked up to show amendments in our written submissions were provided.
FRENCH CJ: Yes.
MR HINTON: Thank you. Then the path to resolution in this matter is complicated, in my submission, despite the concession made by my learned friend, the Solicitor-General for New South Wales, and that in no small part is due to issues that your Honours Justice Gummow and Justice Hayne have touched upon: one the contrariety between section 69 and section 179 and exactly what is encapsulated within the notion of a jurisdictional error.
I do not propose to make extensive submissions on what is a jurisdictional error and the line to be drawn between an error within jurisdiction and an error without. An error without, in a way, the high point, is Craig’s Case. South Australia’s submission on what is an error within as at present today remains as it was made in that case by the former Solicitor-General, now Chief Justice. That would tend to accord with the sentiments of Justice Sheller’s judgment in the authority that your Honours were taken to not so long ago.
One potential danger, however, in this case, when we look at a jurisdictional error, is that we are concerned with rulings in a criminal trial and there are large areas of discretion in the conduct of a criminal trial that are given to the trial judge. There are some undoubted definite rules – “thou shalt not - - -
HEYDON J: The question of whether an accused person has contravened section 15 is not a discretionary question.
MR HINTON: I was thinking more of the fact that Mr Kirk gave evidence.
HEYDON J: That is not a discretionary matter either. There are all sorts of discretions that a trial judge exercises in civil and criminal proceedings about the reception of evidence and the extent to which it is admissible for certain purposes and not for other purposes, but that does not arise here, does it?
MR HINTON: What I am flagging is that we must be careful to distinguish between those that are undoubtedly within jurisdiction, where there is a large degree of discretion both vested in the trial judge and indeed between the parties as to how they conduct the case, and a command “Thou shalt not conduct a case in this manner”. I do not propose to get into the construction of section 15 or section 16, or indeed the command in the Evidence Act, if it is a command, as to an accused being compellable. I merely seek to highlight that one must be careful when talking of jurisdictional error committed in the context of conducting a criminal trial, and say no more. If the Court pleases.
FRENCH CJ: Having said one must be careful, does it lead anywhere? I suppose we are all careful.
MR HINTON: What exercises my mind is that - - -
FRENCH CJ: Do not worry about that; just give us the submission.
MR HINTON: I seek to make no further submission in this case, other than to highlight. My submission is we are not in that area of difficulty in this case, but we must be careful when looking at a criminal trial. If the Court pleases.
I did then intend to make submissions on four other topics. It just so happens that in one way or another my learned friend, the Commonwealth Solicitor-General, has touched upon each and every one of them. The first, of course, was to finely emulate a straw man that we created in our written submissions – namely, this argument of the interpretation of the words “court exercising federal jurisdiction”. I do not intend to re-traverse the ground in our written submissions nor those made orally by my learned friend, the Solicitor-General for the Commonwealth.
Can I quickly allude to my learned friend, Mr Hatcher’s, purported use of Kable in the course of attempting to interpret section 73(ii) and indeed the words “court exercising federal jurisdiction”. Mr Hatcher, if I understood him correctly, purported to indicate, by reference to judgments of Justices Gaudron, McHugh and Gummow, that if those words were not construed as he advocated, we would then have the result that we had two standards of justice and an Alsatia or parallel common law area develop.
First, in answer to that, with respect to Kable, South Australia adopts your Honour the Chief Justice’s point made in argument and that is that the Kable doctrine is drawn from Chapter III and cannot then be used to assist in Chapter III’s construction as an element of circularity. Second, we embrace something your Honour Justice Gummow said, and that was that your Honour pointed to the fact that the right of appeal would then be the product of section 39, an accident, and not section 73(ii).
Can we add to that, with respect, the further point that 73(ii), of course, when one comes to federal jurisdiction vested and the High Court’s appellate jurisdiction may be subject to “such exceptions and subject to such regulations”, the opening words of section 73, “as the Parliament prescribes”, not an insignificant point, in our submission, both in answer to the Kable point, the Alsatia point and indeed, the defining characteristics of a Supreme Court, because those opening words contemplate that there could be an area where this Court will be denied appellate jurisdiction. It does not follow then that anything from Kable draws one to having to interpret those words caught from time to time exercising jurisdiction. That leads me to the second point that I wished to address, and that is to touch upon what are the defining characteristics of a Supreme Court. Again, I not wish to - - -
GUMMOW J: Do you disagree with what the Solicitor-General for the Commonwealth said?
MR HINTON: Yes, your Honour, in this respect. There are many aspects of what constitutes a Supreme Court. To latch onto one, it is a power to correct a jurisdictional error and say that alone is the defining characteristic, in my - - -
GUMMOW J: That is not what the Solicitor-General said.
MR HINTON: Then I misunderstood him, if your Honour pleases.
GUMMOW J: He said it was a defining characteristic and the relevant one for this particular case.
MR HINTON: I took him to say that absent any other characteristic that would be enough for you to still have a Supreme Court as contemplated by section 73(ii). I am told that your Honour Justice Gummow has it right and I have misunderstood. I accept that. But the two observations that I wish to make in determining what are the defining characteristics of a Supreme Court are these.
My learned friend, the Solicitor-General, took the Court through the history of the position in New South Wales in particular as at the time of Federation, identifying the supervisory role of the Supreme Court of New South Wales. In passing, he showed that the jurisdiction vested in the Supreme Court of South Australia was the same. All power, summarising it, that the Court of King’s Bench had, Common Pleas and the Exchequer. That is correct. However, as at Federation there was a court that sat above the Supreme Court of South Australia in South Australia. There was a separate distinct court, known as the South Australian Court of Appeal.
GUMMOW J: Did it ever sit? Are there any reports of its decisions?
MR HINTON: Your Honour anticipates me. One that did not sit at all often, if I can put it that way, but created in the 1840s, created - - -
HAYNE J: It is not Melbourne Cup Day. You cannot have a bet on every horse in the race, Mr Solicitor.
MR HINTON: Can I put it this way. The fact that it was there - - -
GUMMOW J: Wait a minute. You say it was there, 1900, are there any commissions on that body that can be found in the archives of your State? It is not good saying a court exists unless you can point to commissions of judges constituting it, I would have thought.
MR HINTON: No, with respect. It was the product of an ordinance and I think it continued to exist until 1930, so after we even got the Criminal Appeal Act 1924 with the modern powers. My point is that it was there. So the South Australian Supreme Court, perhaps notionally, but the fact is it was sufficient to prompt the framers to make that amendment to - - -
GUMMOW J: Yes, that is largely because the delegates from South Australia were very noisy people, led by Mr Kingston and so forth, and Mr Downer and the rest of them, and no doubt the delegates from the other states were puzzled by what went on in South Australia and they thought, well, let us put it in and they will hush.
MR HINTON: I will try not to perpetuate that, if your Honour pleases.
GUMMOW J: We have been worrying about it ever since.
MR HINTON: I am sorry, your Honour.
GUMMOW J: We have been worried about it ever since. Quick and Garran were obviously puzzled by it. Goodness knows what the colonial office in London made of it. It landed on Mr Chamberlain’s desk.
MR HINTON: I accept that. Well, I am not sure if I should accept the way in which South Australians conduct themselves, but I accept the point about the Court of Appeal. My point is it was there and it was something the framers took into account - - -
GUMMOW J: Wait a minute. There was a law that established it still in existence.
MR HINTON: Yes, your Honour.
GUMMOW J: Whether it was there or not or whether it was a phantom, we do not really know.
MR HINTON: The law was there, the power given to get there was there and it remained until approximately 1930. I can put it no higher. That is, of course, a factor to be taken into account when one looks at what was contemplated and, your Honour Justice Gummow, with respect, it is still a factor how weighty the question remains. The second, of course, is when we look at the defining characteristics of the Supreme Court, my learned friend the Solicitor-General for the Commonwealth quite rightly said that in a way, it is – and these are my words, not his – but inextricably linked to the role that this Court plays, because the power of this Court to superintend, in particular the common law of Australia, is dependent upon the power of the Supreme Courts.
We then have the question, do you have to have the power to correct everything? An important consideration to be taken into account is again those opening words of section 73 which potentially exclude from this Court the power to superintend everything. If this Court’s appellate jurisdiction can be subject of exceptions, then why cannot a Supreme Court’s jurisdiction capacity to supervise - - -
GUMMOW J: Of course, that is a matter for the Parliament of the Commonwealth, not the Parliament of any one State; that is why.
MR HINTON: If your Honour pleases.
GUMMOW J: There is a whole lot of law about what “exceptions” means.
MR HINTON: There are, and it includes the power to exclude. If that is so, then the necessary link does not exactly follow; it is not the strongest point, in my submission. Two factors to be taken into account in determining what are the defining characteristics of a Supreme Court - - -
GUMMOW J: Have you looked at Cockle v Isaksen?
MR HINTON: No, your Honour.
GUMMOW J: In Cockle v Isaksen 99 CLR, Sir Owen Dixon said that power of exception reservation cannot be used to eat it up. He used the metaphor of eating up. The Parliament of the Commonwealth has always hearkened to that idea.
MR HINTON: Not to eat it up?
GUMMOW J: Yes.
MR HINTON: Not to eat it up and yet to make exceptions are two different things, with respect, having not read the authority. Of course, we cite in our submissions a tax case – Watson – where there was the power to exclude an appeal from a single judge of this Court to a Full Court, the single judge exercising the original jurisdiction, again an exception but not eating up the jurisdiction of this Court and as – I cannot recall which of your Honours said, it does then fall back to a question of degree. In my submission when one looks at the question of degree for the reasons given by my learned friend, the Solicitor-General for New South Wales, in this case South Australia submits we fall on the right side of the line.
Can I then take one brief moment to deal with the notion of the development of two common laws if you cannot get to this Court, in effect, from the Industrial Court of New South Wales. In my submission that is to mischaracterise the position. If the Industrial Court of New South Wales fails to correctly apply the law or interpret the law, it errs. A second field of common law in Alsatia is not created. It is the same as two intermediate
level appellate courts in two States deciding the same issue differently. There remains but one common law of Australia, but one is wrong.
The real issue in this case is the importance or the means by which error
can be corrected and is the method provided in New South
Wales sufficient such
that one, section 179 remains valid; two, the Industrial Court is not the
Supreme Court. In my submission
that is the correct manner in which to
characterise the issue.
The last issue, with respect to which I seek to
make oral submissions is the question of the rule of law and the use of it in
this
case. I do not need to traverse that. I adopt everything that fell from
my learned friend the Solicitor-General for the Commonwealth.
If
your Honour Justice Heydon pleases, a broad meaning of the rule of law
is regularly used in understanding and developing the
common law or interpreting
statutes. When it comes to its use to interpret the Constitution, however, the
assumption that it forms a basis upon which the Constitution is framed forms
part of the context in which the Constitution is interpreted. It is therefore
given a much broader – narrower – operation.
There are many examples dotted throughout the authorities in this Court in addition to those that my learned friend referred to. With respect to section 75(v) there is Re Patterson 182 ALR 657, there is the Commonwealth v Mewett, Re Residential Tenancies, Abebe v the Commonwealth – and I could go on. Your Honour mentioned an addiction. Those added references can be provided to you if they would assist. As it is a basis that informs the context in which the Constitution is to be interpreted it does not amount to a freestanding, independent source of private rights as it is sought to use in this case. If the Court pleases.
GUMMOW J: The relevant citation in Cockle v Isaksen is [1957] HCA 85; 99 CLR 155 at 166, the joint judgment of Sir Owen Dixon and Justices McTiernan and Kitto and also the judgment of Justice Williams at 168.
MR HINTON: Thank you, your Honour. There was one last and very brief point to assist. I could not help but hear the discussion about the way in which one interprets what is an absolute and a strict liability offence and whether or not the Proudman v Dayman defence applies in a given case. The authorities with respect to how to go about interpreting a criminal offence to determine that question are, in my submission, He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 and, more recently, CTM v The Queen [2008] HCA 25; 236 CLR 440, if that assists the Court. If the Court pleases.
FRENCH CJ: Yes, thank you, Mr Solicitor. Mr McLeish.
MR McLEISH: If the Court pleases, I propose to confine our oral submissions to the question whether section 73 of the Constitution mandates a specific content to the supervisory jurisdiction of Supreme Courts with which section 179 of the Industrial Relations Act is inconsistent. We adopt the submissions of the other interveners on the meaning of the expression “the Supreme Court” in section 73 and otherwise rely on our written submissions.
We wish to concentrate on the question of the supervisory jurisdiction and whether or not it has a specific constitutional content. It may not be necessary for the Court to reach this issue. Section 179, of course, preserves review for jurisdictional error. The Court has been referred already to the analysis of Chief Justice Spigelman in the first Court of Appeal decision in this case which commences at page 866.
GUMMOW J: The first question, Mr McLeish, may be, one looks at section 179 and then one reads Willan’s Case, over 100 years ago, does not reading what was said so long ago and was being acted upon for so long set the picture for the construction of 179?
MR McLEISH: It may well do for the construction, yes, your Honour, but where we part from the submissions for the Commonwealth is that it also bears on the constitutional capacity of the State Parliament to enact a privative clause that affects the exercise of the supervisory jurisdiction. So we accept Willan as the guiding rule of construction in 1900, but where we part company is whether or not that rule of construction had constitutional force.
GUMMOW J: Yes.
MR McLEISH: I suggested that the question may not need to be reached and that depends, of course, on your Honours’ construction of section 179 and also whether or not the appellants in the appeal are successful in identifying jurisdictional error within that section.
GUMMOW J: I do not think one can construe section 179 without not only Willan in mind, but also the constitutional structure.
MR McLEISH: Yes, that may well be correct, your Honour.
GUMMOW J: It has to be so, I should think.
MR McLEISH: Our submission merely is that it may not necessarily - - -
GUMMOW J: You cannot construe section 179 as if we were sitting in the United Kingdom.
MR McLEISH: No, your Honour, it may not necessarily be - - -
GUMMOW J: At some date before the Human Rights Act.
MR McLEISH: The first point we wish to make is that in identifying a central feature of the Supreme Court’s jurisdiction under Chapter III, Kable is of limited utility. We say that because Kable is ultimately about whether a State Court is fit as a repository for federal jurisdiction and we say that not a lot can be drawn from that concept which informs the jurisdiction which the court exercises in relation to its inferior tribunals. Kable was a case in which the vesting of particular jurisdiction in the court was held to render it unfit. We submit it is much more difficult to say that an absence of jurisdiction in a Supreme Court could render it unfit to exercise federal jurisdiction.
GUMMOW J: If the State Act in Kable had said, and there will be no appeal to the High Court on any decisions of the Supreme Court, that would have been invalid.
MR McLEISH: It would not have operated in federal jurisdiction at all.
GUMMOW J: No. We are talking about State Court. It was in the Supreme Court, Kable, was it not?
MR McLEISH: Yes.
GUMMOW J: The legislation operated on the Supreme Court of New South Wales.
MR McLEISH: Yes, that would not be competent for the State to have said because of the entrenched right of appeal to this Court from the Supreme Courts.
HEYDON J: I join issue with you on one thing. If you had – along the lines of a question I put earlier – a State Parliament setting up a specialist Industrial Court, Land and Environment Court, Murder Court, Drugs Court, Companies Court, Testator’s Family Maintenance Court, but keeping the Supreme Court still going, but no power in it to review any of the activities of those courts, is not an entity that becomes completely white anted and wanting in experience of almost every type of litigation, an unsatisfactory receptacle for federal jurisdiction?
MR McLEISH: Your Honour, it depends what is involved in saying that there is no power in the Supreme Court to review the decisions of those bodies. We will be submitting that if what is meant by that is that the exercise of the supervisory jurisdiction is limited by a privative clause, that that is permissible. If the jurisdiction of the Supreme Court were taken away, in other words, it was simply provided that it lacked power to grant as a matter of jurisdiction, it lacked jurisdiction to issue what were now orders in the nature of prerogative risk that would be a different matter. Our submission is that the scope of the supervisory jurisdiction at all times remains a matter for the State Parliaments.
Now, it may be that if all of these aspects of original jurisdiction are taken away from the Supreme Court it ends up as a hollow shell and may not satisfy section 73 for that reason, but it is our submission that the creation of bodies from which the exercise of supervisory jurisdiction is attenuated does not affect the central character of the Supreme Court.
HAYNE J: Is there an irreducible minimum of supervision?
MR McLEISH: We say not, your Honour. The irreducible minimum is the existence of the jurisdiction. I will elaborate on why we say that, of course, but it is a minimum that could only be reached in a case where a privative clause was construed in the manner of In re Biel so if the rules of construction applicable to privative clauses gave the result that there was no utility whatsoever in any case at all in reviewing the decision of a particular body that could be described as that at minimum and we say that that is something that the State can do.
I mentioned earlier that of course the State privative clause is inoperative in a matter in federal jurisdiction. We do not need to go into that, but if I could just give your Honours a reference to the discussion of that concept without taking your Honours to it in Australian Red Cross Society v Beaver Trading Company Proprietary Limited [1947] HCA 60; (1947) 75 CLR 320, especially at pages 326 and 327.
Although we challenge the applicability of the holding in Kable to this issue, of course the reasoning in Kable regarding the continued existence of State Supreme Courts is a potential source of an implication regarding the necessary content of the jurisdiction of those courts, and the Court has been taken to the discussion in Forge, in particular, at paragraph 57 in the judgment of your Honours Justices Gummow, Hayne and Crennan about the implication that the States must maintain a court answering the constitutional description of the Supreme Court. Our written submissions at paragraphs 39 to 46 and the submissions of the other interveners have advanced reasons why that refers to the bodies called Supreme Courts in 1900, a single unfragmented body of that description.
The relevant feature of the State supreme courts in 1900 for present purposes is their jurisdiction replicated from King’s Bench to review and otherwise supervise tribunals and courts of limited jurisdiction. The Court has been taken by the Solicitor-General for the Commonwealth in the shorter supplementary materials to the provisions that confer that jurisdiction on the various State Supreme Courts, or did in 1900. I think we may also provide to the Court a copy of section 18 of the Supreme Court Act 1890 which is also found in those materials.
What we draw from Willan in the first place, though, is that it was also well established in 1900 that the exercise of the supervisory jurisdiction of the Supreme Courts could be affected by privative clauses and privative clauses have been around for probably as long as the supervisory jurisdiction and including in respect of convictions of the summary offences, as the Court has already heard in the case of New South Wales. The two features that we say have to be started with in 1900 are the existence of the King’s Bench jurisdiction, but also the longstanding existence of privative clauses.
The question then becomes, what can be drawn from the way in which those privative clauses were construed? Before I come to that though, we have provided to the Court an extract from Irvine’s Justices of the Peace and, without taking your Honour through chapter and verse, we wanted to draw the Court’s attention to some parts of that. In summary, the position governing summary offence jurisdiction in Victoria was not relevantly dissimilar to that which has already been described in New South Wales both in its key features and in its great complexity. For the sake of simplicity we have provided this contemporary extract rather than sought to provide all the statutes.
GUMMOW J: What did Irvine say about Biel?
MR McLEISH: I am not sure that Irvine refers to Biel, but I will come to that part of it, your Honour. It certainly refers to Willan. I will come to that part. Pages 254 and following deal with the appeal from Petty Sessions to General Sessions, and that is found, for example, at the bottom of 255:
It is enacted –
this is section 127 of the Justices Act 1890 –
that when any person feels himself aggrieved by the summary conviction of any court of petty sessions imposing a fine, penalty, or forfeiture, of more than five pounds, or imposing any term of imprisonment . . . may, with certain exceptions, appeal from such conviction or order to the next practicable court of general sessions.
That appeal is by way of rehearing. That appears on page 265 in the middle of the page by reference to authority rather than the statute itself. Chapter II of the work commences at page 275. That is entitled “Control of a Supreme Court”. It sets out there a number of ways in which control may be exercised.
HAYNE J: Just before you come to that, at 267 and 268 there is reference to the privative clause which precluded review of certain particular kinds of decision of Courts of General Sessions.
MR McLEISH: Yes, your Honour. As I read that, it is filling in gaps left by the more general privative clause relating to convictions. These are largely procedural matters and it appears that this is intended to stop circumvention of the principal privative clause by attempts to challenge the sufficiency of the statement of the grounds of appeal, for example, and other procedural matters. On page 275 it is stated:
As the law exists at present [the Supreme Court] control may be exercised, according to circumstances, in any of the following modes:–
i. Prohibition at common law.
ii. Certiorari.
iii. Statutory order to review.
iv. Mandamus.
v. Mandatory order.
Turning straight to certiorari, that commences at page 281. The writ is described in familiar terms. Then in the following paragraph the learned authors state:
Many Acts of Parliament expressly take away the power of removing by certiorari proceedings had under them into the Supreme Court; and a general provision is included in the Justices Act 1890, enacting, in express terms, that ‘no proceeding to be had touching the conviction of any offender against any Act, or touching any order made, or any other matter or thing done or transacted in or relative to the execution of any act, shall be vacated . . . by certiorari or any other writ . . . Notwithstanding such clear language, the power of the superior Courts to issue writs of certiorari is nearly as unlimited as ever. It is said that the effect of such a privative clause is to limit the power of the Court to grant a writ of certiorari to cases in which there is a manifest want of jurisdiction or excess of jurisdiction, or manifest fraud.
There is a citation to Willan. That is where I was thinking perhaps there may have been a reference to Biel, in answer to your Honour Justice Gummow’s question, but there is not. This is all consistent with the New South Wales position. That general provision for certiorari is section 139 of the Justices Act referred to in footnote (c) on page 282.
The other form of review I just wanted to take the Court to was the statutory order to review commencing at page 288 and it is explained – this is similar to the procedure in New South Wales which caused the avenue of certiorari to become unused, in effect, in practice not to offer anything that was not already available through the statutory process. So the authors explain on page 288 the two statutory modes of reviewing the decisions of justices:
These were orders to prohibit, and orders to quash : the former intended, perhaps by the Legislature to take the place of the common law writ of prohibition with respect to proceedings before justices, but actually . . . having a much wider application, and the latter bearing a somewhat similar relation to the writ of certiorari already discussed. These provisions did not, as has been shown, exclude the common law powers of the Supreme Court : the statutory remedy was cumulative on that at common law. But there always existed a considerable difficulty in determining which of the two statutory remedies was the one proper to be adopted in each particular case, and, as it was held that these modes of review were not cumulative, but distinct as between themselves, the responsibility of choosing the right one was usually attended with some risk. This difficulty no longer exists, since a single remedy, by what is termed an order to review, is substituted for the two previously existing.
In other words, the two statutory reviews previously existing. It is explained towards the bottom of that page, and this is through sections 141 to 146 of the Act, that the procedure involves an application:
to show cause why the conviction order or warrant should not be reviewed. This provision, which gives, inter alia, an appeal from every conviction and civil judgment of a court of petty sessions or justice, has, as regards orders made in their civil jurisdiction, been restricted by a recent statute –
in the civil jurisdiction. I do not need to trouble your Honours with that. So in summary, although there was a privative clause construed in accordance with Willan in relation to summary offences in 1900 there was also the statutory right of review, somewhat similar to an appeal, in any event very similar to the position in New South Wales.
The question then which the Court might reach is what is the significance of the rules of statutory construction in cases such as Willan, and it has long been accepted, of course, that the meaning and operation of a privative clause is ascertained by construction of the whole statute, and that involves the reconciliation of the express limits on the power of the body under review, on the one hand, and the expressed inability to enforce those limits on the other. It is the contrariety which your Honour Justice Hayne referred to earlier this morning.
Not wishing to reopen any wounds, but it is usefully set out in the judgment in S157 211 CLR 476 and in particular at page 501, starting in the second line, their Honours in the joint judgment refer to what Justice Dixon said in Hickman:
Rather, if legislation purports to impose limits on authority and contains a privative clause, it is, so his Honour said, “a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity”. And in that process, according to his Honour, an attempt should be made to “reconcile” the apparently conflicting legislative provisions.
Paragraph 60 on that page:
It follows from Hickman, and it is made clear by subsequent cases, that the so-called “Hickman principle” is simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions. Once this is accepted, as it must be, it follows that there can be no general rule as to the meaning or effect of privative clauses. Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provisions pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision.
That principle, we say, tells against reading too much into statements along the lines that privative clauses were ineffective to exclude jurisdictional error. One cannot generalise about privative clauses, and what Willan represents is a construction of a particular privative clause in a particular statute, and similarly Biel represents a construction of another privative clause in a different statute.
Could we add to that reference a reference to the more recent decision of the Court in Fish v Solution 6 Holdings Ltd [2006] HCA 22; (2005) 225 CLR 180 and in particular the joint judgment at page 194. At paragraph 33 the Court states:
It is well established that “[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”. Against that, however, must be put the “basic rule, which applies to privative clauses generally ... that it is presumed that the Parliament [or, it may be interpolated, a State parliament] does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies”. In addition, it must also be presumed that a State parliament does not intend to cut down the jurisdiction of the Supreme Court of that State over matters of a kind ordinarily dealt with by the State Supreme Courts and which, if dealt with by those Courts, are amenable to the appellate jurisdiction of this Court under s 73 of the Constitution.
These latter considerations weigh heavily against reading the expression –
in that particular case in a particular way so as to –
create a very large island of matters in which not only could there be no appeal to a Full Bench of the Commission, save by leave, the orders made by the Commission would not, or at least would not ordinarily, be susceptible to review by the Supreme Court or, ultimately, by this Court. The Supreme Court’s role would be confined to granting relief ensuring the Commission’s compliance with jurisdictional limits when, by hypothesis, the jurisdiction of the Commission would extend to a very wide range of agreements . . .
The determinative question, however, remains: what does the Act provide?
We say that the considerations about the desirability of the Supreme Court dealing with a particular matter, and the matter therefore being susceptible of coming to this Court in its appellate jurisdiction, are taken into account in the process of construction and that is what is indicated in this judgment.
In other words, the determinative question remains what does the Act provide? No doubt it is presumed that Parliament does not intend to cut down the jurisdiction of the Supreme Courts with the corresponding flow-on effects to the appellate jurisdiction of this Court. But that is only a presumption, we submit, and where the Act does provide otherwise, the effect is that the jurisdiction of the Supreme Court is limited and it follows that the appellate jurisdiction of this Court is likewise.
FRENCH CJ: Unless, as it happens, the court in question is exercising federal jurisdiction in which the question under the State law comes up.
MR McLEISH: Yes, in a federal jurisdiction that – of course the State court cannot exclude this Court’s appellate jurisdiction.
FRENCH CJ: So, if the Full Bench in this case, for example, had been faced with some argument, for example, about inconsistency with the Commonwealth’s statute, then the appeal would have lain by special leave to this Court?
MR McLEISH: The privative clause itself - - -
FRENCH CJ: Would be displaced.
MR McLEISH: - - - would be displaced. That is Australian Red Cross v Beaver.
GUMMOW J: Or the Act may have been picked up in a Federal Court in the accrued jurisdiction, may it not, the State Act?
MR McLEISH: Yes. There might be other ways in which – the analysis in Beaver is essentially that only the Commonwealth Parliament can make exceptions.
FRENCH CJ: I know they were not talking much about accrued jurisdiction at the time of the Convention debates. Does it have any implications at all, a potential dichotomy for the way we approach section 73(ii)?
MR McLEISH: Only this, your Honour, and that is that if a matter comes into federal jurisdiction through the accrued jurisdiction, that will negate the privative clause in that matter, but beyond that, no, we submit. Our submission is that the principles of statutory construction applied to privative clauses do not yield a constitutional limitation on the power of State Parliaments to enact such clauses. We say that emerges in two ways. Firstly, because the process of construing the privative clause involves construing the Act as a whole and reconciling the contrariety between the provisions, the court is at the same time both identifying the limits, if any, of the powers of the body in question and identifying the scope of the supervisory jurisdiction.
Whatever limits it identifies to the powers of the body in question, the supervisory jurisdiction still exists and can be engaged if those limits have been exceeded. For example, applying the Willan analysis, the process of construction in that case revealed that the court in that case could not, among other things, manifestly exceed its statutory jurisdiction. If it does, then certiorari was available. Had the process of construction revealed a different outcome, then we submit that certiorari may not have been available. In other words, one privative clause dictates a certain availability of certiorari, another privative clause will dictate another.
The second reason we say that the rules of construction do not produce a constitutional limitation are that it was recognised both before and after 1900 that a State or colonial legislature could create a body with powers not susceptible to Supreme Court review if that was what the statute, properly construed, provided for. The Court has been taken to Biel and that is one example. We have not identified others where the court found that the intention of the legislature was to immunise the body from review, but it was - - -
GUMMOW J: Biel has to be read with an understanding that it could not have immunised from ultimate control by the Privy Council, could it?
MR MCLEISH: It does, yes, your Honour. But in terms of powers of the - - -
GUMMOW J: Under the 1844 UK Act the prerogative would have extended right into the depths of this new creature, would it not?
MR MCLEISH: Yes. That was certainly part of the landscape at that time.
GUMMOW J: That has to be borne in mind when you are construing the position now occupied by this Court at the apex as it now exists.
MR MCLEISH: It does, your Honour, but the case also shows that it was competent for the Parliament to exclude the Supreme Court - - -
GUMMOW J: I know, but there is a suppressed premise. Your suppressed premise is that the colonies who had this ultimate subjection in their judicial structures to review by the Privy Council, once they became states and in view of what has happened since 1900, have escaped that limitation and there is no substitute for it – namely, this Court. When in Wright’s Case Sir Owen Dixon talked about a great vice of fragmentation of the common law, that fragmentation was controlled, really, ultimately by the Privy Council in colonial times. I think the suppressed premise you have is to permit that fragmentation now in Australia, which seems odd.
MR MCLEISH: Your Honour, we have made our written submissions - - -
GUMMOW J: Simply because the Constitution translated you from a colony to a State in a federal system.
MR MCLEISH: We accept we have to deal with that translation process but in terms of where the unfragmented common law comes from, we have set out in our written submissions - - -
GUMMOW J: The common law including the common law for construction of statutes, Mr McLeish. Let us never forget that.
MR MCLEISH: Yes, your Honour. We have said in our written submissions why we say that is not merely a constitutional concept, so not a great deal can be – I should not say “merely”, I should say “not only”.
HAYNE J: But it reflects upon the accuracy of the premise of this part of your argument that it is competent for the State to create by hypothesis a body of limited powers but the limits of those powers are not capable of enforcement. The premise contains within itself seeds of its own destruction.
MR McLEISH: With respect, your Honour, that is not quite our submission.
HAYNE J: It is certainly not the way in which you put it, Mr McLeish, but is that not the content of the submission you are making when you say it is within State capacity to immunise a body from review?
MR McLEISH: We say if the State has established a body of limited powers, one of the things that defines those limits is the scope of any privative clause and unless the State has enacted a privative clause properly construed in the Biel manner, then there will always be limits.
HAYNE J: The body has no limits if it is construed in the manner of Biel.
MR McLEISH: That is correct, your Honour, and that is the extreme case.
HAYNE J: Which is the premise for this section of your argument that it is within power to create this extreme case?
MR McLEISH: We accept that it is within power. We probably do not need to go that far because we say that whichever bodies of limited powers the State creates will be subject to the supervisory jurisdiction.
GUMMOW J: Chief Justice Higinbotham had strong and eccentric views about the role of Privy Council, did he not?
MR McLEISH: He did, your Honour.
HAYNE J: Not confined to that subject, I think.
GUMMOW J: That underlies what he is saying in Biel, I think, but I think he was being a little bit rebellious.
MR McLEISH: He did not like Willan either, as he went on to say. Biel he would have taken a more robust approach. Your Honours, this Court in its early days did look at this question and there are two cases I wanted to take the Court to briefly. The first is Clancy v Butchers’ Shop Employees Union [1904] HCA 9; (1904) 1 CLR 181. This case concerned the Arbitration Court of New South Wales and, in particular, on page 196 section 32 of the Industrial Arbitration Act 1901, which was a privative clause I do not think I need to read to your Honours, it said at the bottom of the page – this is in the judgment of Chief Justice Griffith:
It is said that this section altogether excludes the jurisdiction of the Supreme Court to interfere with the proceedings of the Arbitration Court in any way.
There are two answers to this contention, one being that similar sections taking away the right to certiorari and other remedies have always been construed as not extending to cases in which a Court with limited jurisdiction has exceeded its jurisdiction. It has often been held that when the legislature uses words in this well-known form they must always be taken to have intended the enactment to be subject to the rule I have mentioned.
GUMMOW J: What are you getting out of Clancy?
MR McLEISH: Your Honour, I am taking your Honours to that reference because Chief Justice Griffith does refer to it. I more wanted to take your Honours to Justice O’Connor, but our only quibble with what Chief Justice Griffith says there is the use of the word “always”, given that it is a process of construing the whole statute. On page 204 Justice O’Connor says, second line of his judgment:
With regard to the question of jurisdiction, I think that it is particularly important in applying an Act which gives new and very extensive rights and remedies, and, in a sense, creates relations altogether new to the law, that the power of the Supreme Court to see that all inferior Courts keep within the jurisdiction which the law has allotted to them should be preserved, unless the legislature has given clear indication of a contrary intention. It is within the power of the legislature, if it thinks fit, to make the Arbitration Court the sole judge of the extent of its own jurisdiction, but for the reasons given by the Chief Justice it is perfectly clear, on reading the Act, that the legislature has indicated no intention to give the Court such unlimited power.
That, we say, is consistent with the notion that it is a process of construction. It is going to be an unlikely case where there are no limits on the body created, but it is within the power of the legislature to do that if it wishes.
GUMMOW J: Section 32 is not all that different from section 179.
MR McLEISH: It is different, we would submit, insofar as it does not distinguish between decisions and purported decisions in particular. It is a predecessor of 179.
GUMMOW J: And 179 talks about prohibition, not just certiorari.
MR McLEISH: Yes, certiorari or otherwise.
GUMMOW J: That looks like the ancestor of section 179.
MR McLEISH: I believe that may be so. The second case from this period is Baxter v New South Wales Clickers’ Association 10 CLR114, decided in 1909. This involved the same provision. The Court considered it – the provision is set out at page 129. I am sorry, it is not the same provision – a provision in substantially the same terms. Section 52 of the Industrial Disputes Act is set out in the middle of page 129. The Chief Justice then says:
Except for the concluding sentence this section - - -
I am not sure what he means by that because it is a single sentence, but this section is substantially the same as section 32 of the Arbitration Act, which was interpreted in Clancy’s Case. His Honour here gives the provision a more elaborate treatment and one perhaps inconsistent with saying that a privative clause always has a certain effect. At the bottom of page 130 he states:
Having regard to the nature of the jurisdiction thus conferred . . . I am of opinion that sec. 52 does not apply to the decision now under consideration. I think that the section only applies to decisions given under the Act itself, and does not apply to decisions given under the jurisdiction -
et cetera. He then says:
It is therefore unnecessary to decide the larger question raised as to the meaning of the concluding sentence of sec. 52.
But he adds some observations and he says:
I have great difficulty in accepting the argument that every order purporting to be a decision of the Judge of the Industrial Court is unchallengeable for want of jurisdiction.
He alludes to the contrariety in slightly different terms. At the end of that paragraph he says:
A grant of limited jurisdiction coupled with a declaration that the jurisdiction shall not be challenged seems to me a contradiction in terms. Effect must be given to the whole Statute.
Doing that on page 132, in about line 8, he says:
But I do not think that it can be inferred from sec. 52 that the jurisdiction of the Court has no limits except those which it thinks fit to impose upon itself.
So it comes to a different result to the Biel result. Then he says:
On the other hand, I think that it is clear that the legislature intended that that Court should have jurisdiction to decide without appeal or challenge any question of law –
and that is his construction of section 52.
HAYNE J: But the drawing of the distinction there exemplified between an intention the Court should have jurisdiction to decide questions of law arising incidentally, et cetera, leads to the difficulties of a kind reflected in the close division of the Court in the R v Gray; Ex parte Marsh. The Court evenly divides there on whether there was and if there was the significance of there being a misconstruction of the word “irregularity” in the legislation empowering a Federal Court to inquire into irregularities in election. Having regard to the great breadth with which jurisdictional error is spoken of in cases like Nat Bell, how does one apply, if at all, this distinction between error of law within jurisdiction and error of law going to jurisdiction that is flagged in cases like the Boot Clickers’ and so on?
MR McLEISH: Your Honour, we had hopes - - -
HAYNE J: To avoid the question? We cannot.
MR McLEISH: It may well be that the distinction, as your Honour Justice Gummow alluded to, mean something quite different to what it did in the time of Willan and that may be relevant to the construction of privative clauses. Today the presumptions that the Court approaches when construing a privative clause may take into account perhaps that the legislature has a certain understanding of what jurisdictional error is, but it might be on the question of construction, but we say it does not go to the issue of competence of a State Parliament to limit the powers of the bodies it creates. Turning to the judgment of Justice O’Connor at the bottom of page 145, referring to the privative clause five lines from the bottom, he says:
Taking the words in their widest meaning they are, no doubt, capable of being construed so as to prevent the challenging of any decision of the Industrial Court on any ground whatever. Such a construction would, in effect, throw down all limits, and would constitute the Court itself the final arbiter of its own jurisdiction. It is, of course, open to the legislature to invest a tribunal with unlimited power, and should the enactment constituting it clearly express that intention, it would be the duty of this Court to give full effect to it. But where the words are not clear and express it becomes the duty of the Court to examine the whole enactment, its scope and purpose, in order to ascertain the object which the legislature intended to effect.
He goes on to undertake that process of construction over the following pages but acknowledging that if the legislature really wants to take that extreme step, it can be done. Similarly in the judgment of Justice Isaacs at page 161, in the middle of the page, his Honour says:
I should not omit to notice an argument addressed to us that the legislature when prescribing jurisdictional limits cannot have meant nevertheless to allow the Court to wander at large unchecked by the Supreme Court, and so to enlarge its own jurisdiction as it pleased.
That argument does not convince me. The legislature is master of its own creatures. It has erected a Court which it thinks may be well trusted to observe the bounds prescribed; a Court whose decisions are arbitral in nature, or else supervisory –
et cetera, and looks at the features of that particular Court, and concludes:
It has always power to shorten the authority of the Court or impose a check upon its action.
In other words, it is open to the legislature to create a creature, to use his Honour’s expression, and if it does not act in the way the legislature has in mind it can always shorten its authority or impose a check upon its action.
HAYNE J: What his Honour was contemplating at 162 is that there would remain a residual power to control by certiorari otherwise than for fraud. He gives the example of the Industrial Court sentencing an employer to penal servitude, and make no doubt the Supreme Court would prohibit an Act so manifestly lawless, et cetera. So that although his Honour speaks in terms of large legislative power, the boundary is identified or at least gestured towards.
CRENNAN J: I think it is fair to say also that Justice Barton at 140 and 141 indicates that he is not persuaded that there would not be boundaries in certain circumstances in residual jurisdiction.
MR MCLEISH: I am sorry, your Honour. Yes, I failed to take your Honours to Justice Barton. What his Honour says, your Honour, is quite correct, with respect. About 10 lines from the bottom of the page his Honour says:
The legislature has of course power to make an inferior Court the sole custodian of the extent of its own jurisdiction.
In line with the other members of the Court:
But it is our duty not lightly to impute to it so extraordinary an intention -
That is no doubt correct, your Honours. It need not be decided in this case whether or not that is something that the legislatures can do. We submit that the fact that so much – the scope of the limits, if any, which are applicable to a court of limited jurisdiction or an inferior tribunal is a matter for the legislature. It follows inevitably from that that the exercise of the supervisory jurisdiction is subject to whatever those limits are. Those limits are construed, among other things, by reference to the particular privative clause.
It follows, we submit, that even assuming that a supervisory jurisdiction which in substance reflects that of King’s Bench is an essential ingredient of a Supreme Court, the exercise of that jurisdiction has always been subject to the statutory context in which the power in question was conferred. The Constitution does not restrict the State legislatures in the kinds of privative clauses it enacts.
At the highest, therefore, a Supreme Court under section 73 must possess a supervisory jurisdiction to be exercised in any particular case in accordance with such limits as are imposed on that exercise by any privative clause as properly construed or, put differently, the supervisory jurisdiction ensures that tribunals and inferior courts are susceptible to review by the Supreme Court when they exceed their powers under the relevant legislation as properly construed but always bearing in mind that the legislation includes the privative clause.
Our learned friends for the Commonwealth, the learned Solicitor-General, in oral argument referred to the integrated judicial system as a basis for giving constitutional force to the, as I understood him essentially, Willan principle, to the idea that jurisdictional error needed to be capable of review in the Supreme Court in every case. We have addressed that matter in our written submissions, but we submit that the integrated judicial system is a little like the rule of law and we rely on McGinty also to contend, as we do in our written submissions, that reliance on the integrated judicial system is reliance on something drawn from Chapter III and that it cannot be used as a basis for taking the further step in reasoning that the integrated judicial system requires a supervisory jurisdiction of a particular substance in the Supreme Courts.
In other words, the integrated judicial system would flow – one does not know how integrated it is until one answers this question about the supervisory jurisdiction, and so appeal to those notions, we say, involves appeal to something extraneous to the Constitution which is the process of reasoning, which was criticised in McGinty.
However, we do submit that the result in the present case is consistent with the integrated judicial system to which the cases refer and the supervisory jurisdiction in the present case is quite consistent with that. We have set out in our written submissions at paragraphs 90 and following why we say that is so.
Can I just in conclusion refer briefly to section 106 of the Constitution which your Honour Justice Gummow raised. Our short submission on that is that it is not of assistance in this case. The reason we say that is that although it provides that:
The Constitution of each State of the Commonwealth . . . continues as at the establishment of the Commonwealth-
and subject to the Constitution, it also says in the concluding words:
until altered in accordance with the Constitution of the State.
So that there has to be something else in the Constitution, we submit, that would prevent the State from altering the supervisory jurisdiction of the Supreme Court because section 106 not only continues the constitutions, but permits the States to alter them, subject to the Constitution. If it please the Court, those are our submissions.
FRENCH CJ: Yes, thank you, Mr McLeish. Yes, Mr Hatcher.
MR HATCHER: If it please the Court, might we turn to the identification by our learned friends for the Attorney-General for New South Wales and the respondent of the statutory duty that was imposed upon us, and that is to be found at page 53 of the transcript of yesterday where Mr Agius put that the risk that our client had to ensure was prevented was the risk of the vehicle overturning when driven.
HEYDON J: Just for clarity, could you tell us the line. We do not have - - -
MR HATCHER: I am afraid, your Honour, the print that came off the Internet did not have lines. It only has - - -
HEYDON J: We have lines, but we have different pages.
MR HATCHER: I see.
HAYNE J: If you hit the “Download” button on the AustLII site, you will get the lines. There we are.
MR HATCHER: I am indebted to the Court for that assistance and I can assure the Court by 2.15 we will have the lines and I will make no further reference.
FRENCH CJ: I was thinking we would be finished by 1 o’clock, Mr Hatcher.
MR HATCHER: Well, that is possible but not with the lines, I am afraid. Perhaps if we could supplement our submissions with a short note as to the lines in writing, then certainly we can complete our submissions by 1 o’clock. In any event, that was the duty as it was characterised against us.
Now, it is clear from our principal submissions that we contend that so construing the statute as to say that that is a duty created under the statute is a misapplication of the statute. It extends the criminal law. It does so in a way that is incapable of sensible compliance. It does so in a way which is inconsistent with relevant interstate authority and therefore contravenes the truth faith provisions of section 118 of the Constitution and it does so in a way inconsistent with Australian law as enunciated in contemporary cases in this Court. Now, if all that be so, it seems to us that on that aspect of the case, jurisdictional error is established applying Craig in the conventional sense.
GUMMOW J: Do you say that the failure to observe section 163(2) respecting rules of evidence gave rise to jurisdictional error?
MR HATCHER: Yes, your Honour.
GUMMOW J: And jurisdictional error infecting both your clients?
MR HATCHER: Indeed, your Honour.
GUMMOW J: What do you say as to the argument that the company is in a different position?
MR HATCHER: However one wants to take the technicalities, there were two trials heard at the same time, evidence in one, evidence in the other. If one is infected, it is impossible to immunise the second.
Now, if the application of Craig and the distinction between error in an inferior court and error in an administrative tribunal be apt to this particular situation of a court from which there is no review, or no appeal, then our appeal in relation to corporate responsibility is clearly in a different category. Our appeal in relation to the refusal to deny leave to appeal is clearly in a different category. On any sensible application of Craig, treating this as an inferior court for the purposes of the Craig analysis, they would be mistakes of law within jurisdiction. But they have significant effects.
The first and principal among those is in respect to both those matters at the time of Federation, faced with a summary trial, our clients could have raised those matters before the Supreme Court by way of case stated and could have had the Supreme Court proceed to deal with it on appeal. They could have got a writ for error of law on the face of the record. They could have had the matter in the ultimate reviewed in this Court.
That was the Supreme Court that the draftsmen of the Constitution had in mind when they preserved a right of appeal. These were the matters that they had in mind when they preserved a right of appeal. The preservation of those matters has significant impacts on an Australian integrated judicial system and upon full faith and credit for the purposes of section 118. The New South Wales Attorney-General and the respondent contend that these matters are now protected, that the Industrial Court is entitled to make errors of the type we complain, without review.
Given what we say about the impact that has on our clients’ rights as they stood at Federation, we say that cannot be right. If they are right, then in our respectful submission the Supreme Court of New South Wales is now something different to that which it was at Federation and it is different because that part of its jurisdiction that involved criminal proceedings for industrial safety now resides in the Industrial Court and for the purposes of New South Wales the Industrial Court represents the Supreme Court in respect to that element of jurisdiction as at Federation. For that reason, we say that an appeal lies to this Court from the Industrial Court, and we repeat and rely on our subsidiary submissions. Can I then come to the case put against us - - -
BELL J: Mr Hatcher, I just wonder, before you do that, returning to the appeal and to the question of the jurisdictional error on which you rely, putting to one side the Evidence Act issue, to the extent that your complaint is that the court construed the provision as one that was incapable of compliance, is the other way to put that complaint that the essential factual ingredients of the charge brought both against the company and the personal defendant was not averred and that there was a defect in the charge? Is that the other way of approaching the matter?
MR HATCHER: It is, your Honour, and it is so for this reason. If one regards the duty in terms of contemporary Australian law, the way the law is applied in other States, the way similar provisions have been applied in this Court, one looks to the situation of a particular employee in a particular circumstance and there must be a particular act or omission giving rise to the offence and all that would need to have been in the averment and it is not.
HAYNE J: That also seems to carry within it the proposition that there is a misconstruction of section 15.
MR HATCHER: Quite, your Honour.
HAYNE J: Which brings us to the debate that we find in Gray v Marsh, for example, between Chief Justice Gibbs’ opinion at 373, Justice Deane at 386 to 387 and the like, about whether a misconstruction of that kind is jurisdictional error where the decision is taken by that which is deemed or provided by legislation to be a superior court of record, and the Industrial Court is relevantly a superior court of record, is it not?
MR HATCHER: The statute provides that, your Honour, yes.
HAYNE J: Yes.
MR HATCHER: An inferior court in the sense of subject to review.
HAYNE J: I understand that, but the application of this distinction of which we were speaking earlier this morning about jurisdiction to go wrong on questions of law and errors of law within jurisdiction, without jurisdiction is what seems to me to lie at the heart of the Division 3 or in Gray; Ex parte Marsh.
MR HATCHER: Your Honour, apart perhaps from this one additional complexion to this case, we are here dealing with criminal law and we are talking about whether a misconstruction of the statute can result in a new crime essentially.
HAYNE J: I understand that.
MR HATCHER: Can I come to the matter that your Honour Justice Bell raised with our learned friends before I go to the detail of my learned friend’s submissions, and that was the nature of this statute as beneficial legislation and as regulatory legislation. There is much learning on that subject.
We certainly contend that this legislation is for the purpose of ensuring safety, the safety of employees at work. In fact, part of our complaint is the way in which it is interpreted does not achieve that end. We say it is much more likely to achieve the end of securing the safety of people at work if it attends on the people and on the work they do rather than on hypothetical concepts. When one comes to deal with regulatory provisions and absolute offences one generally has a very clear idea of what it is that the legislation requires of you.
The example of our learned friend the Solicitor-General for the Commonwealth is apt. A master on a ship is absolutely liable if there is some person on that ship when he brings the ship into the country. He has control of that ship. He knows exactly what he has to do. To say that you have to ensure against a risk of this inanimate object overturning when some unnamed, unknown, hypothetical employee leaps onto it is in an entirely different category, in our respectful submission.
It is that difference of approach that leads the United States - and it is a matter dealt with in our principal written submissions at paragraph 57 - to say if there is not a specific duty created by, in that case, the safety legislation, the Health and Safety at Work Act – if there is not a specific duty then the general duty is to be adjudged by what a reasonable employer would do in the circumstances.
That is incorporated by way of the due diligence provisions of the American Constitution. In our respectful submission it is consistent with the rule of law or what a fictitious barrister in England might have called the golden thread of English justice.
Can I come to deal with the matters that our learned friend for the Attorney and the respondent, Mr Agius, dealt with and we would wish to be very careful in the way in which we take the Court to these matters. My learned friend, Mr Agius, referred your Honours to paragraphs 151 and 152 of Justice Walton’s judgment. Can I note that your Honour Justice Hayne, when the Court was taken to those provisions, drew attention to the judgment at page 833, line 40 where there was some equivocation as to whether there was one employee whose access to the ATV was restricted, or two, and if one has regard to his Honour’s judgment at page 784 of the papers at paragraph 76, there is an affirmative finding that Mr Haden had been told not to drive the ATV off the roads, so two of five are told you cannot use the ATV off the road. That has all the hallmarks of a restriction on access.
Can I also note that our learned friend read to the Court from his Honour’s judgment paragraphs 151, 152, 156, and 157. That has the unfortunate effect of not directing the Court’s immediate attention to paragraph 153. Can I take the Court to that paragraph. His Honour said:
My findings at paragraph [105], in part based on Mr Kirk’s unequivocal evidence that –
and he set out that evidence –
are sufficient, in my view . . . to find that each of the failures particularised in the charges was established beyond reasonable doubt.
He deals with Mr Kirk’s evidence. He continues –
the duties imposed by ss15 and 16 of the Act fall squarely on the Company. By purporting to delegate all responsibility for health and safety to Mr Palmer, the Company has neglected those duties. However, the Company’s failure does not end there. Having delegated total responsibility, the Company took no steps to ensure that Mr Palmer had the necessary skills to conduct a risk assessment, to provide or arrange training, to instruct others in the safe use of the ATV or to supervise the use of the ATV. Further, the Company took no steps to ensure that Mr Palmer carried out his duties, particularly with respect to health and safety.
The findings in 154, 156 and 157 follow on from that. It is not a finding that Mr Palmer did not do these things. It is a finding that Mr Kirk, the company, did not ensure that Mr Palmer did these things. That is clearly a very different concept and so much is clear when one turns to page 833, paragraph 156 at point 40:
The fact that Mr Palmer gave such an instruction –
This is the instruction not to go off-road –
to two contractors is not evidence that he had the view that such an approach was generally applicable or that he enforced it as a general rule. In any event, the Company gave no such instruction to Mr Palmer or any other employee or contractor.
So what his Honour is focusing on at all times is what the company is said to have done independent of anything Mr Palmer did, which makes it an impossible task for our client to defend when Mr Palmer is the only person running the operations of the farm. You need to see what he did. Can I note at paragraph 157 on the next page, his Honour says in the parenthesis:
(a warning the manufacturers considered serious enough to include on decals designed to be affixed to racks) I have found that there was no system in place in relation to towing with the ATV and there was no evidence of the presence of the warning decal on the ATV.
Now, where that comes from we are entirely at a loss. Mr Jamieson gave express evidence that the warning decals were on the machine, that he looked at them and that he knew not to take it up hills, having looked at them, though he knew not to take it on steep hills in any event. That evidence appears – I am sorry, your Honours, I will not take up time. I will find the reference and include it in our note.
My learned friend, Mr Agius, put that the employees had not ridden the ATV before. He continued, “Their experience had been in riding motorbikes”. In fact, Mr Thorn – this is one of the employees with restricted access – gave evidence at the papers volume 1, page 146 at point 28 – that he had been driving ATVs for many years. Mr de Save at page 142 from point 18 to point 23 refers to having ridden agricultural bikes for many years. I should say we understand that to be a reference to an ATV because he is distinguishing from motorbikes but we concede that it is equivocal. Mr Jamieson gave express evidence, led by the prosecutor - - -
GUMMOW J: We have got a document headed “Annexure A, Comparison of Restrictions on ATV Use”.
MR HATCHER: If it please your Honour, that is a document that is reproduced in the papers at page 1172. It was before the Court of Appeal. What we have done is included the appeal book references to the current books.
FRENCH CJ: Your decal’s reference, I think, is mentioned there at page 119 and 120.
MR HATCHER: I am indebted to you.
FRENCH CJ: Appeal book volume 1, under the heading “Jamison”.
HAYNE J: I think you said it was at 1172. It is in fact at page 1022.
MR HATCHER: Can I then observe that part of our failures are said to be in relation to a system in relation to towing on the property. The majority of the witnesses said they had never seen the ATV used for towing. One witness said the ATV had previously been used dragging a wire gate behind it over the flat paddocks at the front of the property to level the horse manure. That is the only evidence short of Mr Palmer’s bizarre episode of any towing by the ATV.
Your Honour the Chief Justice asked about whether there was evidence of Mr Palmer going through the owner’s manual or whether that was simply an inference. In fact, Mr Grech gave evidence which is to be found at 124, point 45, that he took Mr Palmer through the major warnings in the owner’s manual at the time of the handover of the machine, and in fact, Mr Palmer signs a form to say that he has been shown that.
Can I remind the Court of what was characterised as the reductio ad absurdum proposition that our learned friend, Mr Agius, put - the chainsaw that anyone can come on and use. He says, in the ultimate, “You permit them to use a chainsaw without any knowledge at all as to whether they are capable or aware of the risks, then you have an obligation to address that risk”. Now, we do not disagree with that. We have a knowledge of these employees, we have a knowledge of the risk, we have a knowledge of their capacity to deal with the risk and their evidence is that all that addresses the risk. Not one of them indicates any likelihood that they would do anything as stupid as Mr Palmer did, and the Court has seen the photograph. The Court can see just how ridiculous it was. To say that this is a property with gullies everywhere is, with respect, to rather overstate the proposition.
There are a couple of paddocks at the start. These can be clearly seen on the photos that were taken. They are flat. There is a road then down to the shed that is referred to where all the farm equipment is held, well back from the house. There is then a road, the road on which the incident occurred, which goes down and accesses further flat paddocks. All the areas of work are flat areas and they are joined by roads that, on the prosecutor’s evidence, have grades of between 10 and 14 degrees.
Our learned friend put that there were training courses and there was evidence of training courses and those training courses were given in situ and should have been undertaken. Can we observe that Mr Carter gave the evidence in relation to training courses at 151, 154 to155. In his evidence, what Mr Carter said was in March 2001, that is, at the time of the accident, there were training courses in relation to ATVs. They had been in place for a while, but we were never told how long these courses had been in place. We do know from Mr Grech, at AB 128, that if they were in existence in 1998 when the machine was sold, he would have anticipated being aware of them.
He was quite aware of the company that was providing them and he would have, in fact, informed the customers that such a course was available, but he certainly did not know of such a course and did not tell Mr Palmer that such a course was available. Mr Carter’s evidence was, he would not do the course in situ. There were not sufficient numbers of warrant it. It takes two instructors. Whether he did the course in situ or on their own property there is no way he would in the course of that course show anyone to go down a slope such as Mr Palmer went down. It is ludicrous. It is unsafe.
Interestingly enough, Mr Carter, the expert called by the prosecutor, said, “We do not have regard to the owner’s manual when we devise our courses”. So it seems to be possible to have someone ride an ATV without having them read the owner’s manual.
Can I supplement the note that is before your Honours in relation to the warning decals. Mr Grech gave evidence at 227 and 235 that the warning decals were in place, that he showed them to Mr Palmer and he showed Mr Palmer their relationship to the warnings in the manual. Mr Jamieson says he saw them. The manual says they are in place, must be maintained and Polaris will provide you with a free one if any are missing. All the evidence was that all machinery at the farm was maintained to the highest order. Nothing was wanting. The minute anyone said anything was wrong with anything it was repaired. Can I then come to the submissions that were made as to the submissions my learned junior put to the Full Court.
FRENCH CJ: How much longer do you think you will be, Mr Hatcher?
MR HATCHER: Your Honour, I propose giving a number of references. I would expect to be no more than three minutes.
FRENCH CJ: All right.
MR HATCHER: We would ask the Court out of deference to my learned junior to read the submissions. We do not ask that they be taken out of context. We do not think it is appropriate to go cherry picking submissions to attempt to put forward a proposition. In particular, can we note at page 1016 at paragraph 12, page 1018 at paragraph 19, and in the passages prior to paragraph 19 your Honours will note that there are a series of authorities referred to. The one failure in my learned junior’s submission is the absence of Krakowski v Eurolynx Properties Limited, but all to that effect.
Paragraphs 23, 24 and 25 on page 1019, paragraphs 26 and 27 on page 1020, on page 1021, paragraph 31. In appeal book page 1045 from point 5 to point 45, at 1047 from point 55 to 1048 point 25, on 1048 at point 5, on 1049 from point 20 to point 30, and point 50 to 1050 point 30, at 1053 point 40 - - -
GUMMOW J: Sorry, what are all these relevant to?
MR HATCHER: Whether our client put before the Industrial Court a correct characterisation of its case on corporate responsibility. If I can perhaps go to page 1053 of the appeal book in volume 3 where my learned friend for the Attorney and the respondent rose to his feet and said at about point 28:
More importantly, the ground of appeal before this Court attacks the approach of the trial judge and submits that his Honour failed to identify that it was Mr Palmer rather than Mr Kirk who had been chosen by the company to have fulfilled the duty of the company that’s what we’re here today to deal with. It’s our primary submission that his Honour never made any such error and that upon a examination when one looks at the judgment one can see that his Honour did two things. He looked at whether Mr Kirk made any contribution in terms of managing the risk and he identified what if
anything Mr Kirk had done but then he went on to look and make findings about what Mr Palmer had done, keeping always in mind that the issue for his Honour was whether or not the company was in breach of its obligation.
A finding that Mr Kirk did not adequately manage the risk is not inimical to a finding that Mr Palmer did not adequately manage the risk. Our friend’s primary submission is that his Honour fell into error, that he looked at Mr Kirk and having responsibility for occupation of health and safety and he failed to recognise the company had so ordered its business that that responsibility fell on Mr Palmer. Well that’s not in fact what his Honour did.
My learned friend did not seem to have too much difficulty understanding the argument that was being put. Over the page on 1054 at line 50 he agrees that it is not challenged here by the appellant that one can delegate one’s responsibility.
It was never asserted by our client that Mr Kirk could delegate the responsibility to Mr Palmer. What was said was the duty had been delegated to Mr Palmer and if you wanted to know whether the duty had been fulfilled you had to look to what Mr Palmer did. We have handed up Waugh v Kippen rather than relied on Pearce. The Court will see that in the text of Waugh v Kippen, Sheen v Fields is adopted. That same approach we urged in relation to the construction of a safety statute is applied. One looks to the likelihood of risk to a particular employee in the course of what that particular employee is doing or is called upon to do by his employer.
Can we also note that we have handed up a copy of the report – I am sorry, I should give the citation for Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 and can I note in particular the passage at 163, commencing at point 9 and continuing. We have also handed up, just by way of completing the record, the judgment of the Court of Appeal in CI & D Manufacturing Pty Ltd v The Industrial Court of New South Wales (1996) 40 NSWLR 1. That is the judgment of the New South Wales Court of Appeal on review for jurisdictional error. There was no right in the Industrial Court to entertain an appeal on acquittal in the case Haynes v CI & D Manufacturing that was relied on by my learned friends. May it please the Court, they are our submissions.
FRENCH CJ: Before you sit down, Mr Hatcher, you are going to want to say something about the question of costs in Full Bench.
MR HATCHER: We are, your Honour. We thought we may rather take the same indulgence as the Solicitor for New South Wales.
FRENCH CJ: Yes, all right, so you will respond with another note. Thank you. The Court will reserve its decision. The Court adjourns until 9.30 tomorrow in Canberra and 9.30 tomorrow in Sydney.
AT 1.06 PM THE MATTER WAS ADJOURNED
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