Rizeq v The State of Western Australia [2017] HCATrans 12 (2 February 2017)

Last Updated: 2 February 2017

[2017] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P55 of 2016

B e t w e e n -

JOHN RIZEQ

Appellant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 FEBRUARY 2017, AT 10.14 AM

(Continued from 1/2/17)

Copyright in the High Court of Australia

KIEFEL CJ: Solicitor-General for New South Wales.

MR SEXTON: If the Court pleases, we can be brief in the light of the submissions that have been made by Western Australia and the Commonwealth but if I can make a couple of points. Our learned friend, Mr Howard yesterday seemed to base his case on two propositions, the first being that the States have no power to make laws applicable in federal jurisdiction and the second that section 79 of the Judiciary Act then fills that gap.

The first of those propositions is in many ways an assertion without any direct authority but it seems to us to be an unlikely conclusion because there would be a vacuum in the absence of section 79 and in any event it seems to us that it cannot be right if, as we and Western Australia and the other interveners say, section 79 is limited to laws incidental to the exercise of federal jurisdiction and would not pick up the Western Australian law here.

Several members of the Court noted yesterday that there is a series of isolated statements in many of the cases that are cited by both sides, including us, as seemingly supporting their view, but few of those cases were squarely looking at the question that is before the Court in this instance. Having said that, I was going to take your Honours to two particular authorities, but before doing that I should note that matters that we would have otherwise mentioned have already been dealt with by those who have gone earlier.

One case that was particularly in point was the discussion by Chief Justice French in Momcilovic at paragraph 100, which your Honours have been taken to on several occasions, where his Honour the Chief Justice quotes the passage from Professor Zines’ book, again we would say on point, and to similar effect the remarks of Justice Kitto in Anderson v Eric Anderson at page 30. Your Honours have been taken to those.

Also, we acknowledge, of course, that the States cannot control or regulate the exercise of federal jurisdiction. Your Honours have been referred to the remarks of Justices Nettle and Gordon in Alqudsi and to Justice Gummow’s comments in APLA at paragraph 230.

So, in summary, we say that the purpose of section 79(1) is supplementary in the sense that it seeks to fill any gaps in the federal legal framework that would otherwise inhibit the relevant court in disposing of the matter in question in the exercise of federal jurisdiction and that formula is perhaps reflected in the remarks of Chief Justice Gleeson and Justice Gummow in GPAO at paragraph 80. Your Honours have been taken to that as well, so I will not read it.

I think perhaps your Honours have not been taken to the passage from Justice Gaudron in Commonwealth v Mewett (1997) 191 CLR 471 at 522 where her Honour said that:

s 79 will operate to “pick up” State or Territory laws only to the extent that the statute law of the Commonwealth and the common law in Australia need to be supplemented to enable the matter in issue to be determined.

It seems to us to reflect the construction of section 79(1) for which we would contend and it is, we would say, obviously unnecessary as part of that exercise for a State provision creating a criminal offence to be picked up and applied as a federal law to enable a case such as the present one to be properly disposed of by the State court.

Now, the other case that I will take your Honours to is the R v Federal Court of Bankruptcy [1938] HCA 10; (1938) 59 CLR 556 and the passage is at 586 to 587 by Justices Dixon and Evatt in relation to section 51(xxxix) of the Constitution which, as was noted by Chief Justice Gleeson, Justices Gaudron and Gummow in Edensor at paragraph 57, which was as being the source of power for section 79 of the Judiciary Act.

Your Honours will see at the bottom of page 586 there is a reference by their Honours to section 51(xxxix) and then just over the page at 587 at the top, they say the matters on which the Parliament is thus given authority to legislate are those which arise in the course of executing the judicial power, that is to say, matters which attend on – which attend or are incident to the exercise of jurisdiction or any of the powers of the judicature. So, the notion of “incident” to the exercise of jurisdiction seems to us to again reflect the construction of section 79(1) which we say is apposite here.

Then at the very end of that long paragraph, their Honours say in other words, a law “with respect to matters incidental to the execution” of judicial power must – and they go on to make some reference to that but, again, “incidental to the execution of judicial power” are the words that we would emphasise.

So, in a federal constitution in which the Commonwealth has been granted specific limited powers we would say that the power to make laws incidental to the federal judicature would not sensibly extend to enact State laws as Commonwealth laws wherever federal jurisdiction is enlivened. Even if as a matter of statutory construction section 79(1) had the effect for which the appellant contends – and, of course, we say that it does not have

that construction – but even if it did the Commonwealth Parliament, we would say, would not have legislative authority to pass the law with that construction. We would say that that is reflected in the comments that are made by Justices Dixon and Evatt that I have just taken your Honours to. Unless there are any other matters, your Honours, those are our submissions.

KIEFEL CJ: Thank you. Solicitor-General for Queensland.

MR DUNNING: May it please the Court. We wish only to make these three brief submissions in support of Western Australia and in essence those submissions go to the, what in our submission is evident scheme that is created to manage situations precisely like this, that in fact far from the relevant provisions producing the sort of difficulty that is alleged here by the appellant, in fact the machinery of provisions are provided to deal with that.

In that regard, your Honours, I apologise - paragraph 1 in the second-last line, there should be the word “and” between “constitutional” and “allied” so that it makes grammatical sense. Can I seek to make good that submission in this way? In our respectful submission, one sees a scheme that was introduced with federalism in this way. It recognised that there would be matters that would now take on a federal dimension and one of those was, as in a case like this, a matter arising between a State and a resident of another State.

The scheme that was enacted had a constitutional element and that was, first of all, 75(iv) which conferred an original jurisdiction on the High Court to deal with that matter. Then the next element of the scheme was 77(ii) and (iii) to recognise the fact that the Commonwealth could now make that jurisdiction an exclusive jurisdiction and could invest the jurisdiction back in the State, if it wanted to, to dispose of that matter.

That was the constitutional framework that was established. It needed a legislative framework to give effect to it and one first sees that in sections 38 and 39 of the Judiciary Act, but presently we are concerned with 39(2) and the way that was to operate was to invest those State courts with that jurisdiction.

The final element of the scheme that was necessary to avoid capricious or unwanted results of the sorts that appear was 79(1) because you now had a situation where relevantly, for present purposes, a jurisdiction that once would have been solely exercised by a State had had an original jurisdiction created in the High Court in respect of that matter. It had had that jurisdiction made exclusive and then invested in the States. You ran the risk that the substantive law, which had not changed at all, might yield a different impact because things like procedural laws would not be those of the State but, rather, those that applied federally and 79(1) was astute to deal with exactly that problem.

Now, we respectfully submit that when one sees it in those terms it is a scheme with a self-evident purpose to prevent precisely the concerns that are raised here. Might we also add that sections 39(2) and 79(1), in so much as they are raised in this case, are unaltered from the time of their enactment in 1903 which we submit again reflects the fact that they were intended to thereby create a scheme that would work in this way.

May we then finally make this submission? In the course of argument yesterday, the issue of the operation of section 79(1) arose and the apparent tension between authorities that talk about 79(1) picking things up and other authorities that talk about it being declaratory or directory. We hope in a submission that would help rationalise some of that tension, though recognising that sometimes it dissatisfies both rather than satisfies both, may we make this submission to try and harmonise that situation?

In our respectful submission, what one sees in 79(1) is the Commonwealth mandating that where a court exercises federal jurisdiction, it is bound to apply the laws of the State. Conceptually, that is a very straightforward matter. It simply says, when you exercise federal jurisdiction as a court, you are bound to apply these laws.

When one comes to do that in operation, some of those laws would have applied in any event. How does one describe the operation of section 79(1) in those circumstances? Some people have described it as directory or declaratory; some say it has no application. In our respectful submission, they are all manners of expressing the fact that the application of those laws was mandated by 79(1). As it happened, they were going to apply in any event.

Really, the same analysis, in our respectful submission, is apposite when it comes to deal with language talking about laws being picked up. So if we take, relevantly for present purposes, procedural laws or something like that that would not otherwise have applied, what one sees is the court exercising federal jurisdiction is bound to apply the laws of the State. If they would not have been otherwise applicable, then they are nonetheless to be applied by force of the demand in 79(1) and talking of them being picked up is a matter of expression of reflecting conformity with the statutory requirement of 79(1).

Now, if that submission be accepted, then it would mean that much of the concern about the tension between, on the one hand, conceptions of laws being picked up and, on the other hand, 79 directing or not applying to

laws would be passed over. In our submission, it ought to be accepted because the thing that ultimately, in our submission, most powerfully speaks to the scheme we have made these submissions in relation to is that if one looks just to the plain text of those two constitutional and two statutory provisions upon which we have been addressing, they yield such a result.

GAGELER J: If I can understand this, this is a submission that section 79, in its terms, refers to all State laws and in its operation it is partly declaratory and partly operative. Is that the way it goes?

MR DUNNING: That would be - the practical consequence is it will be partly, it will be partly declaratory, though we would, Justice Gageler, submit that it is really the first part of that that describes what the law does and the latter part is just a matter of expressing how that law will operate in practice and we submit – we say you ultimately get there by simply looking at the unglossed text of the provisions in question and when one does that you see they do not demand the picking up of, for example, the drugs legislation in Western Australia and turning it into a Commonwealth law. Unless we can assist your Honours any further on any topic, they are our submissions. Thank you, your Honours.

KIEFEL CJ: Thank you. Solicitor-General for Tasmania.

MR O’FARRELL: If the Court pleases, we respectfully adopt the submissions of the respondent, Western Australia. We just want to say a couple more things about what has already been said to articulate our case. We submit, perhaps to pick up the learned Solicitor from Queensland’s last point, that the appellant’s case does not pay sufficient attention to the text of either the Constitution or section 39(ii).

As to the question of jurisdiction and how the charge under the Misuse of Drugs Act comes into Commonwealth jurisdiction and is then vested in the State court it is fully explained, in my submission, in section 75(iv) and section 77(iii) of the Constitution and then section 39(2) of the Judiciary Act. So far as jurisdiction goes, that is really the end of it. The matter is, of course, the breach and the charge. The prosecution enlivens the jurisdiction. At that level, there is no need for the court to worry about some superadded theory of a law area because it is all explained within the jurisdiction.

So far as section 79 is concerned – sorry, I will just complete that last submission. So our submission is that the Misuse of Drugs Act provisions, in this case, apply directly and there is no need for recourse to section 79. But what section 79 does, in my submission, is to - and the authorities suggest that it facilitates or enables the jurisdiction. So it is what is

necessary for the jurisdiction to be discharged and no more. So, in my submission, on those two points, the direct application of the charge and then the facilitation of the jurisdiction, that is all your Honours need, in effect, in order to decide the case.

As to the alternative submission, again, in my submission, there is a question of the text of section 79. So if your Honours were against the direct application submission then the text of section 79 comes into sharper focus. It focuses on, for this purpose, the laws of the State and it also refers in the exception to the laws of the Commonwealth.

Now, in our submission, the laws of the Commonwealth have a well-understood meaning. Those are laws that are enacted by the Commonwealth Parliament and similarly the laws of the State are those laws which are enacted by the State. So there is an immediate recognition within the section itself of the two polities, as it were.

All that section 79 does in order to facilitate the exercise of the jurisdiction is that it makes those laws which are not subject to the exception and which are applicable binding on the courts. It gives the courts, effectively, a reference and the architecture in order to decide the case. But we submit, your Honours, that it does not follow from that formulation that the State law somehow loses its inherent characteristic as a State law.

Now, for the appellant’s case to succeed, it actually has to go through some process of transmogrification and become something which it is not. It has to become, in effect, a law enacted by the Commonwealth Parliament by the device of section 79. We submit that on the plain text of section 79, that could not be the case, and it is for that reason we get to the point at the end of the case that we say section 80 could never become available to Mr Rizeq. If the Court pleases.

KIEFEL CJ: Thank you. Solicitor-General for Victoria.

MR NIALL: May it please the Court. By way of oral submissions, can I just briefly address two additional points; one respecting section 109 of the Constitution and the other one, very briefly, the construction of section 79. Dealing first with section 109 and its place in the argument, in our submission, section 109 in its place contemplates that the laws of a State and the laws of the Commonwealth will co-exist as independent sources of rights, duties and obligations, unless there is inconsistency, at which case the supremacy of the Commonwealth law will prevail.

Now, of course, where a claim of inconsistency arises, a court invested with federal jurisdiction, which will be a State court or a federal court, will resolve that contention in the exercise of federal jurisdiction. That arising, the matter would then be and remain in federal jurisdiction. Now, in the event, in our submission, that the court finds there is no inconsistency, the State law continues in its operation, as it did before the resolution of the 109 argument, of its own force. Its operation is unaffected by the fact that the court has exercised federal jurisdiction. If there is inconsistency, the law will be invalid and it will not be applied in federal jurisdiction.

On the plaintiff’s case, the limit or ambit of State legislative power is not relevantly determined by section 109, but it is determined by the invocation of federal jurisdiction because once that occurs there are no longer any applicable State laws operating in their own terms. There are only, or can only be on that argument, Commonwealth laws. So it is at that point, not the determination by the point of the section 109 argument but on the invocation of jurisdiction that according to the plaintiff a Commonwealth power has become exclusive.

KIEFEL CJ: Are you saying it renders section 109 inoperative?

MR NIALL: In a material sense it does. The State law could fail independently for a 109 reason not directed to this point but in substance it does not matter because the State law is incapable of operating in the federal jurisdiction. So in the trial of the accused under a State law who renders an argument which is tenable that the State law is inconsistent with the federal law, it is immediately in federal jurisdiction, the State law becomes a federal law and the judge resolving the issue has two federal laws to resolve.

Now the consequence of the argument is that the norms previously established by State law could only exist as laws of the Commonwealth and it would depend upon an exercise of Commonwealth legislative power in respect of an area where it does not have Commonwealth legislative power. Now, in our - - -

NETTLE J: With the result that section 109 would never arise.

MR NIALL: That is so and, in our submission, it is firstly inherently improbable that State legislative power would turn on the temporal invocation of federal jurisdiction because you would not know at the time of the legislative power the width of the power and equally the federal power to legislate would be enlarged by the invocation of federal jurisdiction.

Now, in our submission, as a matter of text in the Constitution, the plaintiff’s construction throws a further anomaly because the plaintiff’s construction in the trial under a State law, where the accused makes a contention of inconsistency, the State offence provision is a law of a State for the purposes of section 109, according to the argument, but then when one comes to section 80, the State offence provision is a law of the Commonwealth.

Now, if it is a law of the Commonwealth for section 80, one would have thought that it would be a law of the Commonwealth for section 109. That disconnection or anomaly textually shows or points up a fundamental problem of the submission and, in our submission, the more natural, orthodox approach would be that the State law continues in force, of its own force, as a law of the Parliament of the State, subject only to the 109 issue.

Can I then turn briefly to section 79? Victoria submits in line, I think, with all the respondents – all interveners that there is an area of exclusivity belonging to the Commonwealth. Although the formulations are somewhat, in our respectful submission, generally expressed, they are relatively narrowly confined and relate to the investing and regulating of jurisdiction.

In our respectful submission, there is no need in this case for more precision because on any formulation of exclusivity it does not cover the offence provision in this case. That is the area of exclusivity, in our submission, and section 79 responds to it precisely and it operates and identifies on laws which are within the exclusivity of the Commonwealth.

GAGELER J: Only those laws?

MR NIALL: Only those laws, so we departed, with respect, from the submission just advanced by my learned friend from Queensland. As a matter of construction, the laws are not all of the laws but the laws of the type that answers the exclusivity of the Commonwealth and one gets that as a matter of construction and the construction arguments have been put and I will not repeat them but we do emphasise the language of section 79(1) being binding on the court in contrast to covering clause 5 of binding on the court, the people and the very deliberate idea of a law binding on a court is one which is about the exercise of that court’s adjudicative function.

When one, in our respectful submission, construes it in that way as responding to or reflecting the exclusivity of the Commonwealth legislative power, that area does not give rise to any section 109 issue for the reasons given in GPAO at paragraphs 38 and 80, endorsed by five members of the Court in Agtrack [2005] HCA 38; 223 CLR 251, at paragraph 62.

Now, in our submission, because the area of exclusivity does not engage 109, because the States simply do not have a power to make a valid

law with respect to that area of operation, there is a fundamental problem with the plaintiff’s case to enlarge the area of exclusivity to everything that might be applied in federal jurisdiction which is the consequence, as they made clear in their written submissions, that once federal jurisdiction is engaged the area of exclusivity belonging to the Commonwealth is all laws that apply, both creating norms or otherwise, then for our submission that approach should not be accepted. May it please the Court.

KIEFEL CJ: Thank you. Solicitor-General for South Australia.

MR BLEBY: May it please the Court. I propose to contribute to two questions that were asked by the Court yesterday. The first, that of your Honour Justice Gageler as to whether section 79 speaks only to the gap in State legislative power created by Chapter III and, secondly, that of your Honour Justice Nettle asking why an interpretation of section 79 that directs the application of the law of the State where the court is sitting or is declaratory would be suspect.

The first is the subject of paragraphs 7 to 10 of our oral outline. In looking at the case through the lens of orthodox statutory construction we approach the purposive aspect of that exercise against the constitutional landscape that has been surveyed quite thoroughly yesterday in its various aspects.

The most significant aspect of that, of course, is the gap in State legislative power that is created by the dynamic by which State courts can be invested with federal jurisdiction that the otherwise largely plenary and enduring State legislative power is denied in precisely that respect, that is, where the Commonwealth is granted exclusive legislative power under Chapter III and 51(xxxix). That is, if you like, the hard definition of the gap but, of course, its delineation in any particular circumstance might be difficult and I adopt the comments of the Solicitor for Victoria in that respect.

But the Commonwealth Parliament, of course, has then expanded the gap and sharply delineated it by removing concurrent State jurisdiction via the mechanisms of sections 38 and 39 of the Judiciary Act. We are then faced with an apparent legislative purpose that is quite clearly crystallised for section 79. Section 79 is inserted into that very clearly defined gap in State legislative power and it does so by fastening onto the location of the court where it is sitting, that is by the words “in that State or Territory” in the section and that is something that is, on the whole, unlikely to change in any given proceeding.

By reference to the location of the court, it ensures that all laws that go to the exercise of jurisdiction, if I can just put it broadly for present purposes, will be uniform in that State or Territory court. That establishes a very tidy scheme of coherence, continuity and consistency across all judicial proceedings in a particular State or Territory court, whether the jurisdiction is federal or State. So filling the gap precisely in that way is both invited by the constitutional landscape and it serves a clear legislative need.

Purposively, that then provides a compelling reason to conclude that section 79 fills the gap and only fills the gap and that is, itself, consistent with the textual and contextual aspects that we identify in our written submissions which were explored by your Honour Justice Edelman, in particular, yesterday.

That then brings me to your Honour Justice Nettle’s question which is why would it be suspect to go any further and interpret the section as either directing the application of State law or having some form of declaratory effect? This is the subject of our oral points at 11. In addition to the justifications or the matters that were raised by the respondent, the Commonwealth and your Honour Justice Gageler yesterday, each of the appellant’s construction and these other possibilities of directory or declaratory operation suffer from an immediately unsatisfactory conceptual issue of placing the foundation of substantive liability in any given proceedings on to shifting sand and there may or may not be particular practical consequences depending on the nature of the proceeding. Those possibilities were traversed yesterday.

But it applies – that shifting sand issue applies to these other possibilities as well because it applies to any situation where section 79 is said to speak to substantive law. But in the case of a directory or declaratory approach, we have identified a different issue. There is a potentially disruptive consequence and this is on the thesis of declaratory or directory.....choice of law interpretation.

There might be the risk – and if we use the example of the case that is on our list of Musgrave v The Commonwealth [1936] HCA 80; (1937) 57 CLR 514 where this Court sat in Sydney in its original jurisdiction having to – on a libel action, the only publication in respect of which occurred in Queensland, and for this Court sitting in Sydney having to apply – the risk was having to apply the substantive law of New South Wales by reason to the use of the words “in that State or Territory” in section 79 where the relevant publication occurred in Queensland was rejected by their Honours Justices Evatt and McTiernan at page 551.

Now, that unpalatable consequence might be thought that a text in all cases to which they are applicable could answer that precise issue because, of course, the law of New South Wales would not otherwise be applicable

to a defamation that was published only in Queensland and where the High Court is sitting in Sydney. But, if section 79(1) were to have any directory or declaratory effect, this then would raise its own conundrum because if Queensland substantive law did not apply directly of its own force in those proceedings, it would then have a potential vacuum of substantive law because section 79 is only speaking to the law of a State or Territory being binding on courts in that State or Territory.

The Musgrave example shows that section 79(1) must be based on the premise that substantive State law applies of its own force. That is the only way that Queensland law could have applied in that proceeding. So the Commonwealth’s alternative argument that the section is directory is, of course, premised on this Court rejecting that that is the case. But if that rejection were made, if a substantive law does not apply directly, then the Musgrave example shows that there would be no substantive law for section 79(1) to direct the application of or to declare.

So when we take that purely statutory interpretation to the construction process, our submission is that it is an inevitable premise of the section that substantive law must apply of its own force. May it please the Court.

KIEFEL CJ: Thank you. Mr Howard, a reply?

MR HOWARD: May it please the Court. Yesterday your Honour Justice Gageler asked me a question in relation to the five cases that we had cited in relation to the operation of section 79. Your Honour was asking me about whether they all involved provisions that might answer the description of having a double function. I did not give your Honour a very good answer yesterday and I would like to revisit that, if I may.

The double-function idea appears in the joint judgment in Edensor and it is described at paragraph 66 in the joint judgment of the Chief Justice and Justices Gaudron and Gummow and it is put that the law, at the start of the paragraph, the law may create - - -

KIEFEL CJ: Sorry, which paragraph is that?

MR HOWARD: I am sorry, your Honour, paragraph 66.

KIEFEL CJ: Sorry?

MR HOWARD: Paragraph 66.

KIEFEL CJ: Paragraph 66.

MR HOWARD: So the idea that it is permissible by reference to Ex parte Barrett that the provision should create a norm and then it may, at the same time, either give the remedy or give the curial forum, and I think that I had answered your Honour to the effect that in the five cases we had put forward that they involved a double-function provision. That is not correct and it is apparent in Edensor from the next paragraph.

Still within 66, the Court will see towards the foot of page 590, the non-double function - if I can call them that - provision is where there is a norm created but there is another law which provides the remedy or confers the jurisdiction and the joint judgment talks about section 52 of the Trade Practices Act and then in paragraph 67 says that section 615 of the Corporations Law (Vic) creates the norm but leaves to other sections the remedies. So Edensor is not a case of a double-function provision. There is a separate norm created from the remedy, so that needs to be borne in mind.

In Austral Pacific, and I do not need to take your Honours to the case specifically, but we would say the Queensland State Contribution Act created a right or a liability, so it is a norm or equivalent to a norm-creating provision but it did not have the second function, so it was not a double-function provision. Parker - - -

EDELMAN J: There was a concession in that case, was there not, that the State legislation could only operate by virtue of section 79?

MR HOWARD: By the combination of section 64 and 79.

EDELMAN J: Yes.

MR HOWARD: And your Honour Justice Keane, I think, appeared in that case but it is the basis on which the case proceeds.

The case of Parker, which my learned friend the Solicitor for Western Australia dismissed as a choice of law case, was about the Victorian enactment of Lord Campbell’s Act and, again, I do not need to take your Honours to the case itself, but the provision in the Wrongs Act in Victoria created the norm. It did not have the double function. In Macleod, which I will if I may take your Honours to, again your Honours will see, if I can take your Honours to paragraph 12 on page 294, that section 999 creates the norm and then section 1311 creates the offence.

So again, it is similar to Edensor. It is not a provision that has the double function, and while your Honours have Macleod, it was put against us yesterday by the learned Solicitor for Western Australia that what was being spoken about in the picking up in that case in the joint judgment of six Justices was only the provisions of the Justices Act. Now, with respect, we do not agree with that. We accepted yesterday that the point of the case was about the picking up of the Justices Act. That was the point in decision but, as is made plain in paragraph 10, in the first part of paragraph 10 there is a reference to the Court of Petty Sessions which then follows:

s 79 of the Judiciary Act operated to “pick up” State law –

So there is a clear statement that it is the offence provisions – it is the norm and it is the offence provisions which are being picked up in the Court of Petty Sessions by section 79 and it cannot be, with respect to my learned friend, dismissed in the way that it was. So that is a more full, and we would say more accurate, answer to your Honour Justice Gageler’s question yesterday about the double function provisions.

If I can turn then to say that the text of section 79 is plain in the sense that it talks about the laws of each State. It does not, in our submission, admit readily to the distinction that is sought to be drawn against us, and we emphasise that point. Your Honour Justice Bell had an exchange with my learned friend for Western Australia yesterday about the difficulties that may arise when a matter comes into federal jurisdiction as a result of a change. That is badly expressed – it may result if the matter comes into federal jurisdiction.

Of course, we do not deny that our contentions will lead on occasions to difficulties. But, of course, even for the laws which, across the Bar table are accepted as becoming operative in federal jurisdiction, there is the real possibility of difficulties being created, and that is not of itself a reason to reject our arguments. The second point we make in relation to the debate or the exchange your Honour Justice Bell had is that inconvenience caused by matters coming into federal jurisdiction is not new. It may be regrettable but it is not new.

Can I just give your Honours an example of an early case of Troy v Wrigglesworth [1919] HCA 31; (1919) 26 CLR 305, where there was a prosecution under Victorian traffic laws. The defendant raised a defence based on Commonwealth law and that led to the court – which went on to hear and find the defendant guilty – being found by this Court to have been improperly constituted because of the provisions then of the Judiciary Act. The point of that is only to say we do not – we cannot shy away from the fact that what we put will cause difficulties from time to time. So the difficulties are there, even within the laws that are accepted and it, of itself, cannot be a reason to reject the argument.

Can I deal with a matter that your Honour Justice Edelman raised yesterday and it has been in a different way, or different ways, referred to this morning, which is the difference in language between binding courts in section 79 and the language in, say, the covering clause or the language in section 68. Our submission in respect of that – which I will not spend long on, I promise – is that the difference in wording is not of great significance.

In looking at these provisions, it would be a mistake, in our submission, to seek to derive too much of a conclusion based on the differences in the language. We say that because we would say there is a variety of verbal formulae that was used over a period of time designed to achieve the same result. If I can hand up – we have handed up an unofficial copy, which was the best we could do as Court started, but we have now been able to provide a better copy of the Imperial Australian Courts Act from 1828. We have given your Honours an extract which has the cover page and then it has section XXIV.

This statute does similar work to covering clause 5 later and your Honours will see that it is expressed to be in the language of “applied” in the first line, but it is also as one comes down your Honours will see that there is a sentence starting “Provided also”. We note that part of the sentence that says:

shall be applied in the Administration of Justice in the Courts of New South Wales and Van Dieman’s Land respectively.

So the way that the laws were to be binding on the people was through this provision which, on its face, is addressed to the courts. We draw on that only to say that when one looks at section 79 and section 68 and covering clause 5, there is this variety of verbal formulae used but, in our submission, they are all seeking to achieve the same thing, which is the application of the laws not just to courts but to the people governed in that system as well, and we rely on it as much as anything for the difficulties of trying to draw too much from different wording used across a period of time in statutes.

If I can turn to a matter that your Honour Justice Bell raised with me yesterday in relation to if our argument was correct then it would leave the application of section 80 to, in effect, the discretion of the States. I accepted that that was the consequence yesterday. In our submission, that of itself need not be a reason for concern in the sense that it is the way the Commonwealth Places legislation works. I do not need to take your Honours to it but can I just note that that is referred to in the Pinkstone decision at paragraphs 40 and 41.

My learned friend for Victoria this morning mentioned the problem or the difficulty in relation to section 109 of the Constitution and section 79. In our submission, we made it yesterday but we make it again in answer to that. Much of the difficulty which is put or perceived is resolved by the Agtrack order of approaching section 109 and section 79 and I gave your Honours the references yesterday and I will not repeat it but I mention it again in reply.

The last matter was your Honour Justice Keane yesterday, in a question asked me, in effect, was there any – or that section 80 of the Constitution could have referred to courts exercising federal jurisdiction rather than the formula that it currently has, and I think in that debate there was a question as to whether the provision had – there had ever been contemplation of the provision being in terms of exercising federal jurisdiction. I agreed with your Honour that it had not been contemplated. Can I correct that?

It appears that in the Melbourne sessions, if that is the right word, in 1898 that the Convention had a form of words that included exercising federal jurisdiction inserted so that from Adelaide where it had said “established under the authority of the Constitution” there was a change to exercising federal jurisdiction by the Convention. That was then – the drafting committee in Melbourne in March of 1898, so it was short-lived, went to the words “the trial on indictment against any law of the Commonwealth shall be by jury”. We do not have the notes from the drafting committee. Then that was then adopted by the committee of the whole – it appears in March of 1898 a few days later without any debate.

KEANE J: Yes, the final form of words – the debate leading to the final form of words was really focused on the question as to the ability of the Commonwealth Parliament to decide by fixing upon a law as either – fixing upon an offence is either indictable or not as attracting the guarantee. So what was actually being said was entirely directed to a decision of the Commonwealth Parliament as to the offence-making provision and that is how the final form came to be produced. But in the 1891 Convention, Andrew Inglis Clark had proposed a draft Constitution Act in which – which is a precursor to, I think, the provision you are speaking of. In that provision, in section 65 of his draft Constitution Act, he had a provision which said:

The trial of all crimes cognisable by any Court established under the authority of this Act shall be by Jury –

Now, what would seem to be pretty clear is that the possibility of a provision in the terms I put to you was specifically addressed by the Convention and specifically, distinctly, not adopted.

MR HOWARD: I do not quibble with any of that, your Honour, of course, other than to note that at the time of the 1891 provision that your Honour mentions, there was no diversity jurisdiction for residents of

different States and it was not then thought to vest federal jurisdiction in State courts. So, those things came later.

KEANE J: And, when they came, the idea of guaranteed trial by jury, in that special constitutional sense, the idea that that would be available in any case in federal jurisdiction had been distinctly not adopted.

MR HOWARD: It had been taken out by the drafting committee. We do not know why and what the drafting committee put forward was adopted by the whole of the committee and we do not know why.

KEANE J: Well, we do know that what they were concerned with when they adopted the final form of words was the power of the Commonwealth Parliament to determine whether or not trial by jury would be available because it would be for the Commonwealth Parliament exclusively to determine whether or not the offence would be an indictable offence. It is evident that their concern was exclusively with laws made by the Commonwealth Parliament – offence-making laws.

MR HOWARD: Can I say then in response that that then in fact links back to the point I was seeking to make, or the further answer I was seeking to give to Justice Bell, which is say in Commonwealth Places. That has been left via a device to the States to make that decision as to whether the section 80 guarantee will apply, and if that is right for that picking up or application of laws, we say that there is no reason why it ought not extend to section 79 picking up of criminal laws as well as they did in Macleod, otherwise one ends up with what we yesterday described as a hierarchy of valid Commonwealth laws picking up State provisions. Unless there is anything further, may it please the Court.

KIEFEL CJ: Thank you, Mr Howard. The Court will reserve its decision in this matter and adjourn until 10.00 am tomorrow.

AT 11.14 AM THE MATTER WAS ADJOURNED