IN THE HIGH COURT OF AUSTRALIAOffice of the Registry
Sydney No S153 of 2002
B e t w e e n –
THE COMMONWEALTH OF AUSTRALIA
Application for leave to appeal
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 20 AUGUST 2002 AT 2.07 PM
Copyright in the High Court of Australia
MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: I appear with my learned friend, MS R.M. HENDERSON, for the respondent. (instructed by the Australian Government Solicitor).
MR BRYANT : Yes, your Honour, I understand that is the rule. Before I start on my oral submissions, I need to place on record that 20 minutes allowed for the presentation of my oral submissions severely limits my ability to present even the most concise outline of the cause of action. My submission will include my claim that the Court of less than five Justices is unable to hear and decide a constitutional matter, and this matter now before the Court is a constitutional matter.
My submission also goes to the fact that leave in this case is not required because the judgment I am seeking to appeal is, in effect, the final judgment. If not allowed to present all of my prepared oral submission, I will be denied natural justice, if for no other reason than the best outline of the cause of action will not be before the Court and as a result a decision is not possible.
KIRBY J: Every similar final court in the world has a filter and the filter is necessary because of the population of a country and the large number of applications.
KIRBY J: The Court has upheld the validity of the filter and therefore we are bound by it and we have to proceed in accordance with it.
I have in fact done my best to contain my oral submissions to the 20 minutes allowed and if allowed 20 minutes uninterrupted, in time I should complete within 20 minutes.
McHUGH J: You must appreciate, Mr Bryant , that it is not a question of being interrupted. The purpose of oral argument is to test the argument. It is not merely an opportunity for you to talk for 20 minutes.
McHUGH J: I understand that, but anyway, you will move on to your argument.
MR BRYANT : My submission goes to four issues. In doing so, touches on a number of issues that demand the Court’s attention: (a) that this Court, however constituted, has no proper authority to refuse a jury; (b) that a single Justice of the High Court is without constitutional authority to determine a constitutional matter which Justice Gaudron did when refusing trial by jury; that no less than five Justices are required to constitute a Full Court in a constitutional matter which this matter is; that the requirement for leave to appeal in this case is without constitutional authority and contrary to the Rules of the Court.
My submissions are that the part of the judgment designated as (2) in the order in fact denies me the right to trial by jury and, as a result, is a final judgment because it finally determines my right to a jury trial as set out in the particular summons to which the judgment applies.
McHUGH J: Yes, but it is an interlocutory order in your action and, that being so, it cannot be a final judgment. It is an order within the proceeding. It does not determine your action.
An appeal may be brought as of right to the Full Court of the High Court of Australia from a final judgment or order of a justice exercising the High Court’s original jurisdiction.
McHUGH J: Well, that is so but that is not this case.
McHUGH J: Well, this is an order within the action. It does not dispose of your action.
The question whether a judgment finally determines the rights of the parties is to be answered by considering the legal effect of the judgment rather than its practical effect.
Legally I have a final decision on my right to trial by jury in this matter.
KIRBY J: Yes, but that is ancillary to the substantive matter that you want to argue. It is true that it sometimes is difficult to tell an interlocutory order from a final order, and Lord Denning said the only way to do it is to look it up in the books, but you can accept, I think, that this is an interlocutory order to the substantive matter that you are seeking to put before a court. That being the case, you need leave and it really is not an arguable proposition, I am afraid.
MR BRYANT : With respect, your Honour, the way I read Halsbury’s Laws of Australia, it is. Two, the Human Rights and Equal Opportunity Commission Act 1986 contains a Schedule 2 called the “International Covenant on Civil and Political Rights”. A schedule is part of an Act that qualifies the main body of the Act, as does section 9 of the Commonwealth Constitution qualify the remainder of the Constitution. Under the International Covenant on Civil and Political Rights, which is part of the law in Australia, discrimination on the basis of any status is positively prohibited.
McHUGH J: It is not part of the law of Australia.
KIRBY J: Even I do not think it is part of the law of Australia and I am the most sympathetic to it. It can be used to analyse, develop, interpret ambiguous aspects of our law but it has never been incorporated as part of the law by the Parliament. It could have done so but it has not.
KIRBY J: It is not made part of the law by the Act to which it is a schedule. It could have been but it is not. But that does not mean it is irrelevant to our law. Judges can look at it in developing the common law, for example, or, I believe, in construing statutes and the Constitution.
In every suit in the High Court, unless the Court otherwise orders, the trial shall be by a Justice without a jury.
McHUGH J: Yes, I appreciate that.
MR BRYANT : Back in 1988 a Commonwealth referendum question proposing amendment to limit trial by jury under section 80 of the Constitution was defeated in every State by the biggest majority vote ever recorded in the history of Australian constitutional referendums. Section 80 of the Constitution exists to protect everyone against arbitrary decisions.
McHUGH J: It refers to trials of indictable offences. There is no indictable offence here. You are not on trial for an indictable offence against a law of the Commonwealth.
KIRBY J: It is a fairly limited guarantee of trial by jury, according to the decisions of this Court.
(To alter the Constitution to extend the right to trial by jury, to extend freedom of religion, and to ensure –
and so forth.
KIRBY J: That is why I am surprised to hear you say that that referendum was about restricting the right of trial by jury. My recollection of it was that the proposal was to include rights of trial by jury larger than those that presently exist, including in the States.
KIRBY J: That may be right.
McHUGH J: It sought to amend the Constitution by providing that:
The trial of a person for an offence, where the accused is liable to imprisonment for more than two years . . . shall be by jury –
This is not your case. You want a jury to determine a constitutional issue.
MR BRYANT : Yes, your Honour. The referendum sought to change the effect of section 80 and section 80 said, “The trial on indictment of any offence”, any offence. In my reading, “any offence” is the operative words of that section. The proposal to amend that sought to delete those words, “of any offence”, and limit “jury” to only certain things that they proposed in the referendum.
The trial of a person for an offence, where the accused is liable to imprisonment –
so it sought to limit the trial by jury, whereas in the original section 80 it was unlimited except by the word “indictment”, and “indictment” is a word that really means writ or charge. It has no special meaning in the dictionary. I have in the last two pages of the authorities a copy of the dictionary that deals with “indictment”.
McHUGH J: Yes, but it has nothing to do with this case. Your suit is an action in which you seek a declaration that a certain law of the Commonwealth is invalid.
McHUGH J: It has nothing to do with offences against the law, Mr Bryant . Juries only determine questions of fact. There is no question of fact raised in this particular case. This is a question of law. It is a question of constitutional law.
McHUGH J: It is not a question of modern interpretation. There was a time in the common law when the difference between law and fact was very important from a juror’s point of view. Until 1670 if jurors got a wrong verdict, the judges could punish them. As a result the jurors sought to get around that by finding only the facts of the case, leaving it to the judges to apply the law to those facts and enter the judgment in the action. That was called a special verdict.
MR BRYANT : Yes, your Honour. I understand down through the ages the jury system started very early and worked effectively and the establishment, if you like, the courts, if you like, manoeuvred the whole thing around and it caused revolutions and all sorts of situations and we are heading in that direction again at the moment where the law has been manoeuvred around so that people do not have any rights and the Parliament is unlimited.
McHUGH J: It is limited by the Constitution. Again and again this Court has declared Acts of the Federal and State Parliaments invalid, and important Acts including the nationalisation of banks and the outlawing of the Communist Party, various other important issues of the time, political issues.
MR BRYANT : Section 80 of the Constitution exists to protect everybody against arbitrary decisions. As it is, the referendum refused to change that. Arbitrary decisions by one, two, three or less than twelve people, irrespective of the position held by the decision-maker. The International Covenant on Civil and Political Rights reinforces existing Australian constitutional law in this respect and it reinforces the right of trial by jury in all cases, both civil and criminal.
KIRBY J: I do not think it specifically refers to jury trial because it applies in many countries where they have never had jury trial. It is a feature of English-speaking countries. Though they do exist in limited respects in France and other countries, it is not a universal feature. Mr Bryant , I am most sympathetic to the jury right and section 80 and I have dissented in a number of cases concerning that right but, as it has been interpreted and as its language permits, it is a very restricted guarantee of jury right. I understand the referendum in 1976 to have been an attempt to overcome those restrictive interpretations but it failed, as you say, with a very big majority against it.
KIRBY J: Anyway, that is water under the bridge.
MR BRYANT : Section 77A of the Judiciary Act 1903 is ultra vires to the power of the Parliament of the Commonwealth and if it is challenged as an offence against the law, the law being the Constitution, it is entitled to be tried and tested before a jury. This Court is created under the Commonwealth of Australia Constitution. The Constitution is an Act of the British Parliament which is bound by and subject to the laws of England. The term “the laws of England” refer to a collection of constitutional laws of England which includes Magna Carta, the Declaration of Right, the Bill of Rights and other constitutional laws. The laws that come under the title of “the laws of England” are also part of the common law, common because it is accepted as the law of the land by the common people and, second, applies to all people equally under the law.
All of the above being the case, which I submit that it is, the High Court is subject to and bound by the laws of England as far as they apply to our circumstance. That is, bound by the principles contained in the constitutional common laws, the laws of England. No Australian Parliament or court has the legal authority to alter in any way whatsoever the relationship of Commonwealth Constitution to the laws of England, because the only legal authority to approve such a change is vested in the Australian people by section 128 of the Constitution.
McHUGH J: The Parliament of the Commonwealth and the Parliament of the State and the legislature of the States change the common law every day. In fact, they are proposing to do it in respect of the area of negligence law at the present time in a drastic way.
was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it.
We are seeing it being abolished slowly here in Australia. This, along with other material from Blackstone, can be found in the authorities as well.
Trial by jury, even though it existed for time beyond record, became immovably locked into Australian constitutional law via the laws of England as a direct result of the Magna Carta 1215. The jury was in place in England at the time of the Assize of Clarendon in 1166. Trial by jury recorded in civil cases in the Grande Assize in 1179. The right to trial by jury of one’s equals, as this right is expressed in the 1215 Magna Carta, is constitutional law and as such belongs to the people. It is not the property of the government. As a result, the government has no constitutional authority to amend or abolish it.
I am aware, as are many informed Australians, that the Court has taken the exact opposite position but the Court is wrong. The Court’s position is based on a position that is turning out to be the direct opposite to those established by Magna Carta, a position for which there is absolutely no legal basis except the quasi-legal base built by the Court itself to entrench its own unlawful position. To hold the totally false position that government or the courts have the power to abolish the fundamental principles finally established in written law by Magna Carta is to hold that the government has the power to abolish sections or in fact the whole of our Commonwealth Constitution. Such a position is politically and constitutionally unsustainable.
Magna Carta, along with other constitutional laws, came to Australia with Captains Cook and Phillip and with every Englishman or British subject that has since landed and settled in Australia. An important authority for this position can be found at page 10 in the annotated Constitution by Quick and Garran, and I quote:
that wherever an Englishman went he carried with him as much of English law and liberty as the nature of his circumstances required . . . This was the fundamental principle of English –
McHUGH J: The British Parliament changed that to this extent by passing the Act 9 George IV Chapter LXXXIII which made the law of England, so far as it could be applied in New South Wales as at 28 July 1824, I think it was, applicable. That was the only law that came here.
MR BRYANT : My submission, your Honour, is that anything the British Parliament done that is contrary to Magna Carta is unconstitutional. At page 16 we find the following statement referring to the rights of Englishmen, and I quote:
They carried with them the traditions and charters of their ancestors; Magna Charta, the Petition of Rights and the Bill of Rights formed a part of their political inheritance as much as those muniments of title were the birthright of those of their fellow countrymen whom they left behind them.
This is by no means an exhaustive list of the authorities that clearly establish the constitutional law and the rights and liberties inherited by all Australians. If the Court requires additional authorities, they can be found in the Virginia Charter of 1606 and again in Quick and Garran and other constitutional records.
Given these authorities, there can be no doubt that Magna Carta, in all its relevant parts, came with the first English settlers as their individual and collective property and as such is beyond the power of any Parliament, government or court to dilute or remove. I submit that the constitutional laws of England are as much, in fact more, the property of the Australian people than the Commonwealth Constitution is. It is their birthright.
McHUGH J: The Australian people approved what became the Constitution of Australia Act. It was submitted to a referendum and the people approved it.
McHUGH J: That gave the Parliament of the Commonwealth power to pass laws. As long as they make laws within their powers, even if it constitutes abolishing juries in civil actions, it is a lawful Act of the Parliament.
MR BRYANT : Rationally, if that is what actually happened, the people approved the Constitution and the Constitution is part of an English law. English law was subject to Magna Carta and the Bill of Rights and what the people approved was subject to all those things. They realised that when they approved it and you are telling me now that the Court has some ability to take away those rights.
McHUGH J: Those rights that you assert, unfortunately from your point of view, just did not exist after the Constitution came into force except in so far as the Parliaments of the Commonwealth and the States allowed them to continue in force. But if they wanted to change them, they were at liberty to do it. That is the whole purpose of a Constitution: to change laws.
MR BRYANT : Your Honour, I take the view that the Constitution was part of English law and, therefore, bound by the laws of England and, in fact, that brought forward the Statute of Westminster and the adoption of that by the Federal Parliament which included the words to the effect that no longer would Australian law makers be bound by the laws of England. So if it did not exist at the time, why did the Parliament pass that law?
Then, again, if we move forward to the Australia Act 1986 in 1986 where exactly the same situation applied where the States were bound by the laws of England and the Federal Parliament saw fit to coerce the States into entering into an agreement to abolish their limitation placed on them by the laws of England. So, if what you are saying is correct, why are those two laws?
It is my submission that any legislation that purports to remove or restrict the right to trial by jury is no law and counts for naught and, as a result, it is beyond the authority of this Court to refuse my request to trial by jury. Back to Quick and Garran at page 1:
In the statute 7 and 8 William III c. 22, declaring void colonial laws repugnant to English Law –
This limit also applied to federal laws, colonial laws became federal laws at Federation. This was the case in Australia until the purported Commonwealth adoption of the Statute of Westminster and at State level until purported passing of the Australia Act, both of which are unconstitutional enactments and, as a result, cannot be law.
Since Magna Carta in 1215 there has been no clearer written set of principles of English-cum-Australian constitutional law, often referred to as common law, than it is not only the right and duty of juries to judge what are the facts but also what is the law and what was the moral intent of the accused.
McHUGH J: But that has never been the situation that juries determine the law. Juries determine facts. Now, everything in the universe in one sense is a fact or a phenomenon but the common law has classified some of those facts as law and others as facts that may be the subject of evidence. The common law has always distinguished between the abstract rules, principles and standards that it is the duty of the courts to apply and enforce and the concrete events and the occurrences that come within the scope of those rules and give rise to a cause of action. Those abstract rules are principles and standards that are operative within a jurisdiction of what is called law. In contrast, the common law has described as facts those phenomena, those concrete events and occurrences to which the rules, principles and standards of law apply. That is the difference.
Quick and Garran at page 808 and 809, we find reference to the Constitutions Act 1828, pages that clearly establish the position at the time when the colonies were subject to martial law, a carry-over from the First Settlement, when the first settlers were either convicts or military personnel all bound by martial law, all having their common law rights suspended as a result of their individual circumstances. The 1828 Act provided the opportunity to move from martial law to common law but the opportunity has never been taken up.
McHUGH J: You have had your 20 minutes and it is a matter for you how you use that 20 minutes.
MR BRYANT : I must object, your Honour. I know you have made a decision. I must record my objection. I believe I am being denied natural justice to put my whole case, as I said earlier, irrespective of the rules. The rules should not deny people justice.
McHUGH J: The Court does not need to hear you, Mr Solicitor-General.
The Court is of the view that, despite the earnest arguments of Mr Bryant , there is no reason to doubt the correctness of the decision of Justice Gaudron refusing the application. Accordingly, the application for leave to appeal is refused with costs.
AT 2.35 PM THE MATTER WAS CONCLUDED