Rizeq v The State of Western Australia [2016] HCATrans 233 (7 October 2016)

Last Updated: 7 October 2016

[2016] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P39 of 2015

B e t w e e n -

JOHN RIZEQ

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 7 OCTOBER 2016, AT 11.29 AM

Copyright in the High Court of Australia

MR M.D. HOWARD, SC: May it please the Court, with MS R.R. JOSEPH, I appear for the applicant. (instructed by Minter Ellison Lawyers)

MR P.D. QUINLAN, SC, Solicitor-General for the State of Western Australia: May it please the Court, with my learned friend, MS R. YOUNG, I appear for the respondent. (instructed by State Solicitor (WA))

FRENCH CJ: Thank you. Yes, Mr Howard.

MR HOWARD: May it please the Court. The primary question is whether section 80 of the Constitution applied to the applicant’s trial. It is common ground that the applicant’s trial was in federal jurisdiction - - -

FRENCH CJ: Well, the anterior question is whether section 79 picked up the State law and turned it into a federal offence creating law.

MR HOWARD: Yes, your Honour, and we say that the Misuse of Drugs Act applied via the machinery or the mechanism of section 79(1) of the Judiciary Act and that via that mechanism an offence against a law of the Commonwealth was created for the purposes of section 80. The matter has been dealt with in a number of decisions dealing with other provisions which pick up State laws.

For example, in the decision in Mok, your Honour the Chief Justice with Justice Bell at paragraph 35 described section 79 as being one of the “verbal formulae by which Commonwealth laws give effect to State laws as laws of the Commonwealth”. If that proposition is correct, then the applicant had to be convicted by unanimous verdict and I think it is common ground that section 114(2) of the Criminal Procedure Act which allows for majority verdicts could not be picked up.

KIEFEL J: What do you say is the state of authority of this Court in relation to the question?

MR HOWARD: We say that the orthodox position as we have sought to characterise it is that the State Act, the Misuse of Drugs Act, has no force of its own, as it were, once the matter is in federal jurisdiction. It needs to be applied or picked up by a law of the Commonwealth Parliament, which we say was - - -

KIEFEL J: Is that by reference to cases which say that particular statutes are indeed picked up by section 79(2)? What are the authorities which you rely upon?

MR HOWARD: For the proposition that the State laws do not apply of their own force and effect, we, amongst others, refer to Solomons.

FRENCH CJ: That depends on which laws are picked up by section 79, does it not, what was said in Solomons?

MR HOWARD: It does, your Honour. I am sorry, I cut across your Honour.

FRENCH CJ: No, I was just saying what was said in Solomons begs the question, does it not, of which laws are picked up by section 79.

MR HOWARD: It does because - section 79 will not pick up all State laws because some are inapplicable within the wording of section 79(1) and the law in Solomons was a case in point because it was a direction to a State official ultimately, or it led to a direction to a State official which could not be picked up under section 79.

FRENCH CJ: Well, section 79 I suppose on one view would pick up what needs to be picked up. The question is does the grant of a diversity jurisdiction authorise a court exercising that federal jurisdiction to hear and determine matters arising under State law as an exercise of federal jurisdiction, without the intermediary step of converting the State law into a federal law, as it were.

MR HOWARD: I think, your Honour the Chief Justice in Momcilovic was, or expressed an attraction to the idea of a State law having a direct application in federal jurisdiction but the matter, as your Honour noted, was not argued in that matter, but it would be at the core of this appeal, how section 79 operates in and which laws it does pick up. The Court of Appeal below said that, or found that, the State Act had retained, or the State offence, putting it more accurately, had retained its character as a State offence.

FRENCH CJ: The Court of Appeal seemed to have assumed - or more than assumed I think - seemed to say that Momcilovic provided the answer. I think that is the question of considerable debate having regard to the fact that the proposition that I floated in that case was not a matter which had been debated and I did not answer it and I do not think any of the other Justices dealt with it at all.

MR HOWARD: No, your Honour, with respect, we accept that as being entirely correct. Our complaint, as it were, is that the two reasons that the Court of Appeal below relied on and in both of those sought to draw on Momcilovic. We say in respect of both of those that Momcilovic did not provide authority for either of those propositions and, further, we say both of those propositions are wrong.

To go back to the question that your Honour Justice Kiefel asked me before, the authorities about the creation of new federal offences, that language is used through Mok, albeit in relation to the Service and Execution of Process Act and - - -

FRENCH CJ: Well, that expressly created a federal offence, did it not, by incorporating by reference to content of a relevant State law? That was a Service and Execution of Process Act provision.

MR HOWARD: The State against us seeks to draw a distinction between the language used in SEPA and used in the Commonwealth Places, which both refer to “apply”, whereas section 79 refers to the matter being binding. There is reference to application later in the section, but they seek to draw a distinction between the effect of the picking up that is done by SEPA and the Commonwealth Places compared to section 79 of the Judiciary Act.

Now, we say that that is not a true distinction that ought be drawn and that it is the creation of the offences via that mechanism and it is not just those three statutes. Of course, your Honours will be aware that there are many other Commonwealth statutes which, in one form or another, seek to pick up some State law.

FRENCH CJ: I suppose, absent a clear-cut answer to the question you raise on at least your first ground of appeal, the real issue for us is whether it raises a matter of public importance which warrants the grant of special leave.

MR HOWARD: In that respect, there is obviously the question of justice to the individual and if we are correct then the applicant has not been convicted according to law, but there is a broader point of significance, which is if, as I apprehended, section 79 and the operation of section 79 is going to be an important part of what the Court needs to consider, that has broader ramifications for federal jurisdiction and the application of that statute and it is a point of, we would say, broad significance in that respect.

FRENCH CJ: This is a matter for the Solicitor-General, I suppose, but it goes beyond section 79; it goes to the question of how federal jurisdiction operates in relation to State law claims, State law or liabilities created by State law, particularly in relation to the diversity jurisdiction. No doubt there would be implications in other areas in relation to such things as the accrued jurisdiction.

MR HOWARD: We would accept that, with respect, your Honour. On the question of the language that is used of it becoming a federal offence, which is what we contend for, I have already taken your Honours in passing to what your Honour the Chief Justice said with Justice Bell in Mok, but your Honour Justice Kiefel with Justice Keane in that case at paragraph 52 and her Honour Justice Gordon at paragraph 85 all referred to what had been created as a new federal offence.

Now, I accept what your Honour the Chief Justice said which is there is a difference in language used and, as I said, that is what the State puts against us. But, with respect, the distinction that is sought to be drawn, in our submission, is not so plain and if it is the case which this Court has held that SEPA and the Commonwealth Places legislation create new federal offences, even though the content is written State law, the source of it is from the Commonwealth Parliament, then we say by equality of reasoning or parity of reasoning then what is picked up by section 79 also creates a federal offence.

FRENCH CJ: What happens if section 79 is not there, you just have federal diversity jurisdiction? That is a constitutional head of jurisdiction. It does not need section 79 to work, does it?

MR HOWARD: It does not. What there would need to be then is a conferral of that federal jurisdiction on the State court, and section 39(2) of the Judiciary Act could do that. The question then would be the State court exercising federal jurisdiction, what law will it apply to this criminal prosecution, and that is where the machinery of section 68 of the Judiciary Act and section 79 of the Judiciary Act become important.

Your Honour is quite correct. Section 79 does not make the matter in federal jurisdiction and it does not confer that federal jurisdiction on a State court, but what it does seek to answer, in our submission, is what law should the State court exercising federal jurisdiction apply to this prosecution?

FRENCH CJ: Well, what if it is put as a prosecution in the original jurisdiction of this Court under section 75(iv), being a prosecution under a State law against a non-resident?

MR HOWARD: Yes. Well, it would be - your Honour the Chief Justice says “State law”, I take it your Honour means the content provided by State law.

FRENCH CJ: Yes. There is a prosecution for a criminal offence by a State authority against a non-resident of the State. It is a matter in which the High Court has original jurisdiction. It is brought in this Court.

MR HOWARD: Yes. The question then for the Court would be which law will it apply to that criminal prosecution, and that is the machinery that is provided for by the Judiciary Act through sections 79 and 68, in our submission, because your Honours will be aware that there are some statements – and we have cited them – at paragraph 12 of our reply in the application book at page 184, where we contend that this is a consequence of - - -

FRENCH CJ: Mr Howard, perhaps it might assist if you move to the other grounds at this point.

MR HOWARD: Well, your Honour, as we indicated in the written papers, we do not intend to address oral arguments to the other grounds. The applicant is content for the Court to decide those on the papers.

FRENCH CJ: All right. We will hear from the Solicitor then.

MR HOWARD: May it please the Court.

FRENCH CJ: Just on ground 1, I think, Mr Solicitor.

MR QUINLAN: If your Honours please. We of course rely upon broader reasons for leave being refused in relation to the other grounds concerning their appropriateness as a special leave question. In relation to ground 1, can we say, your Honours, that were the proposition that our learned friends contended for correct then we could not argue that that was not a matter of general importance. It would be. But the nature of the question is such, in our respectful submission, that it is not correct and that in fact the conclusion reached by the Court of Appeal that the offences for which Mr Rizeq was charged and tried always remained relevantly offences against a law of the State.

FRENCH CJ: Has the question raised ever been answered directly by this Court?

MR QUINLAN: The question as to whether or not section 79 creates, for example, federal offences in circumstances where federal diversity jurisdiction is engaged has not been addressed at all in this Court. That is, there is no authority one way or the other. The only authorities in relation to the nature of criminal laws picked up by a federal statute are the authorities in relation to Commonwealth Places (Application of Laws) Acts and in relation to Mok, the Service and Execution of Process Act.

FRENCH CJ: That has a particular terminology and wording that we addressed in Mok.

MR QUINLAN: Yes, and can I say, with respect, in that regard it is not simply, in our respectful submission, the text which is fundamentally different, but it is the text, the context, the purpose and the power of the relevant provision, because in those cases what the Commonwealth has done has been to create an offence in circumstances in which there was previously no offence and in relation to which the State could not create an offence, that is, the State had no relevant legislative power.

KIEFEL J: Well, in that circumstance, as I think you point out in your written submissions, there is a need for section 79(1) to act upon it because there is nothing which can apply of its own force.

MR QUINLAN: Yes. What we would say – and in our respectful submission this is, when one looks at the authorities as a whole, a conclusion which supports in its entirety the propositions for which we contend – is that the laws which section 79 picks up, as was expressed in Solomons, are the laws which could not of their own force apply in federal jurisdiction. Those are the laws that it addresses. Laws which could apply in federal jurisdiction of their own force do not need to be picked up by section 79 and, in our respectful submission, as a matter of power, the head of power under which section 79 is made is the incidental power in relation to the federal judicature, read with sections 76 and 77, et cetera.

Otherwise, section 79 would be converted into a provision which regulated the rights of States and residents of other States, or between residents of different States in their entirety. That would, as a matter of power, go beyond that which the Commonwealth Parliament could do.

KIEFEL J: You may well be correct in the argument that you are putting, but the question of special leave is whether or not it is at this point clearly enough stated by this Court, and whether the question is one – which I think you have conceded – of general importance.

MR QUINLAN: Yes, and we certainly accept that if the Court concludes that it is a matter about which the authorities are not sufficiently clear, and that there is an arguable basis for what is contended, it would be a matter of general importance.

KIEFEL J: Do you say that the case is put beyond doubt?

MR QUINLAN: We do insofar as there is no authority - - -

KIEFEL J: The other way.

FRENCH CJ: The other way.

MR QUINLAN: There is no authority the other way, and there is also the authority, for example, that we referred to in paragraphs 17 and 18 of our submissions, that the exercise of federal jurisdiction is in relation to “the independently existing substantive law”. In a sense, the entirety of the notion of accrued jurisdiction rests on the notion that in federal jurisdiction, matters of State law can be - - -

KIEFEL J: There is another area of importance then.

FRENCH CJ: That just indicates how important the question of principle is.

MR QUINLAN: As I said.

FRENCH CJ: I suppose its significance is indicated also by some of the academic writing about it, on two sides of the argument, really, that has followed Momcilovic.

MR QUINLAN: Yes. Can I say this in response to one aspect of a question your Honour the Chief Justice raised with my learned friend, and it really highlights the correctness of the position we put, which is that the consequence of the argument put by our learned friends that State laws cannot apply their own force at all in federal jurisdiction would mean that without the passage of the Judiciary Act, residents of other States would be in effect immune from the laws of the State of Western Australia, because on the applicant’s argument, section 79, there would be no substantive law applicable to their relationship once federal jurisdiction was invoked. Our submission is that State laws, as a result of the Federation, have always applied in the State to residents of other States, and that this Court has always had federal diversity jurisdiction to determine those rights.

KIEFEL J: Or, as I think you have also put in your submissions, section 79 would then operate to disapply State legislation.

MR QUINLAN: Precisely. Perhaps I am talking myself more into the - - -

FRENCH CJ: Well, I think, Mr Solicitor, you have just about convinced us there should be a grant of special leave.

MR QUINLAN: - - - general importance of it. Can I say in that respect that our submission, which I do not want to be lost, is that the other proposed grounds of appeal – grounds 2, 3 and 4 – are matters in relation to which in any event there should not be a grant of leave. They do not raise matters of importance. Ground 3, in particular, is heavily fact-specific in

relation to what was, in our submission, an orthodox application of the proviso in the criminal appeal. If the Court pleases, those are our submissions.

FRENCH CJ: Thank you. Yes, we will not need to hear from you in reply, Mr Howard. There will be a grant of special leave in relation to your substituted ground 1, which appears at page 129 of the application book. I imagine that there will be interveners. The case is likely to take, I would think, a day?

MR QUINLAN: Yes, I think with the interveners, it will, your Honour.

FRENCH CJ: You will need to issue 78B notices, I think, because there is a 75(iv) point and there is the 80 point.

MR HOWARD: Yes, your Honour.

FRENCH CJ: Yes, all right, thank you. The Court will now adjourn until 10.15 on Tuesday, 11 October, in Canberra.

AT 11.53 AM THE MATTER WAS CONCLUDED