DALTON v NSW CRIME COMMISSION

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40816/04

SPIGELMAN CJ MASON P WOOD CJ at CL

Leith William DALTON v NEW SOUTH WALES CRIME COMMISSION BACKGROUND The plaintiff was served in Victoria, where he resides, with a summons requiring him to attend and give evidence before the New South Wales Crime Commission. Greg James J had previously made an order pursuant to s76 of the Service and Execution of Process Act 1992 (Cth), granting leave to the Commission to serve the summons interstate. Section 76 relates to subpoenas in aid of investigative tribunals. The plaintiff contends that the summons and order were invalid.

The Commission and Attorneys General for NSW and the Commonwealth relied on s51 (xxiv) of the Constitution as the constitutional underpinning of s76 of the SEPA 1992. They submitted that a subpoena issued by a commission of inquiry into criminal conduct is itself "criminal process" within the meaning of the placitum. The plaintiff argued that the summons was neither civil or criminal process of the State and that placitum (xxiv) is limited to processes in aid of the enforcement of legal rights in the civil and criminal law.

HELD per Spigelman CJ (Wood CJ at CL agreeing; Mason P dissenting), dismissing the summons:

Per Spigelman CJ (Wood CJ at CL agreeing) s51(xxiv) encompasses compulsory attendance to give evidence in the course of a criminal investigation by a statutory authority. The words "criminal process" are capable, by their natural and ordinary meaning, of extending to encompass such powers. The placitum should be given a broad and purposive construction.

Per Mason P (dissenting) The word "process" in s51(xxiv) is confined to proceedings which are directly connected with the determination of legal rights or the enforcement of the law.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40816/04

SPIGELMAN CJ MASON P WOOD CJ at CL

Leith William DALTON v NEW SOUTH WALES CRIME COMMISSION JUDGMENT 1 SPIGELMAN CJ: I have had the advantage of reading the judgment of Mason P in draft. His Honour sets out the statutory provisions, the submissions and the relevant cases. His Honour's analysis makes it clear that the issue before this Court is not determined by any prior authority. 2 His Honour concludes that the word "process" in s51(xxiv) should be confined to proceedings which are directly connected with the determination of legal rights or the enforcement of the law. The alternative contention is that the relevant phrase "service and execution … of the civil and criminal process … of the States" extends to encompass compulsory attendance for the purpose of giving evidence in the course of a criminal investigation by a statutory authority. 3 The Court's attention has not been directed to anything in the pre-federation history which suggests that the drafters of the Constitution had in mind a scope for s51(xxiv) of the breadth for which the defendant and intervener now contend. Nevertheless, the Constitution was drafted on the basis that it established a mechanism of governance including for a federal system of governance that would, as an organic instrument, grow and adapt to the changing conditions of Australian society for the indefinite future. That the drafters had a particular set of problems in mind does not limit the Constitutional powers to the resolution of those, or analogous, problems. 4 Mason P collects the relevant references in the two basic authorities: Amman v Wegener (1972) 129 CLR 415 and Alliance Petroleum Australia NL v Australian Gaslight Company Limited (1983) 34 SASR 215. The emphasis given therein to the close connection between a committal proceeding and a criminal prosecution and to the close analogy between an arbitration proceeding and civil action in the courts, reflects the facts in issue in those cases. In neither case was the Court concerned to determine the limits of the word "process". 5 I add one additional reference. Gibbs J said in Amman at 438: "A summons issued by a justice for the purpose of securing the attendance of a witness at a committal proceeding is not only 'process' within the ordinary meaning of that expression, but is part of the criminal process of a State within par. (xxiv.), whether or not it can properly be described as the process of a court." 6 The significance of this passage is in his Honour's use of the phrase "not only" and what is said thereafter. Gibbs J emphasised that a summons to attend a committal proceeding is "part of the criminal process of a State". However, his Honour also indicated that a summons "for the purpose of securing the attendance of a witness at a committal proceeding" is also "process", within the ordinary meaning of that expression. This confirms that the word "process" should not be given a narrow meaning. 7 The New South Wales Crime Commission, with its special statutory powers of criminal investigation, stands in a long tradition in Australia of statutory authority for royal commissions of inquiry, which were frequently invoked for purposes of determining whether criminal offences had occurred. (See, e.g. McGuinness v Attorney-General of Victoria (1940) 63 CLR 73 at 99; William Harrison Moore "Executive Commissions of Inquiry" (1913) 13 Columbia Law Rev 500 esp at 508.) 8 The words "criminal process" are capable, in their natural and ordinary meaning, of extending to encompass compulsory powers to force attendance to give evidence in a criminal investigation by such a statutory authority. The context which suggests that the words should be read down is the reference to "service and execution". However, the force of that context in narrowing the interpretation is considerably attenuated by the fact, established by Amman, that the words "of the courts" do not qualify the words "civil or criminal process". These words are at large, albeit in the immediate context of "service and execution". No authority has been cited to the Court which would suggest that these words, in such a context, should be confined to the determination of legal disputes or the enforcement of laws. 9 Section 51(xxiv) should be given a broad and purposive construction. (See e.g. Amman, at 422, 430.) Its purpose extends, in my opinion, to the authorisation of federal laws designed, relevantly, to facilitate and ensure the efficacy of the enforcement of the criminal laws of the states, so as to ensure that in this respect Australia is, in substance, borderless. 10 Section 51(xxiv) must be read in its full context including, s51(xxv) and s118 which provide: "51 The Parliament shall … have power to make laws … with respect to: (xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records and the judicial proceedings of the States." "118 Full faith and credit shall be given, throughout the Commonwealth to the laws, the Public Acts and records, and the judicial proceedings of every State." 11 The object of these interrelated provisions is to ensure that, in broadly expressed respects, the operation of the legal system throughout Australia is, in substance, borderless. The recognition of legislation and of judgments and the service and execution of process are matters which, in the world of nation-states, are determined by treaties. In our federation, with its unified system of governance and a single common law, such matters are not to be effected by treaty-like negotiation, but by the implementation of a single integrated national system under ss51(xxiv) and (xxv) and by the constraint of the Constitution itself in s118. 12 This object of a borderless operation of the legal system is not well served if the s51(xxiv) power is confined to the determination of legal disputes or the enforcement of the law. It is best served if the power extends to ensuring the efficacy of criminal investigations by a statutory authority. It is not desirable to speculate further about the limits of the word "process". 13 In my opinion the proceedings should be dismissed with costs. 14 MASON P: The plaintiff, who resides in Victoria, has been served with a summons requiring him to attend and give evidence before the New South Wales Crime Commission in relation to an investigation being conducted under the code name "Gymea IV". The summons was issued by the Commissioner pursuant to s16 of the New South Wales Crime Commission Act 1985 (NSWCC Act). 15 On 17 March 2004, Greg James J made an order ex parte pursuant to s76 of the Service and Execution of Process Act 1992 (Cth) (SEPA 1992) granting leave to the Commission to serve the summons interstate. It was served on the plaintiff in Victoria on 22 March 2004. 16 Acting through legal representatives the plaintiff made what is described in his submissions as a conditional appearance at the Commission on 5 April 2004. Counsel contended that the summons and order of the Supreme Court were invalid. The matter was adjourned in the Commission on condition that these proceedings were promptly instituted. 17 The NSWCC Act makes it an offence for a person to fail to attend and give evidence before the Commission if served with a summons to appear as a witness (s18). A recalcitrant witness may be arrested (s18AA). 18 The proceedings in the Supreme Court were commenced on 16 April 2004. After various interlocutory skirmishes in the Common Law Division they were referred to this Court. The amended summons seeks a wide span of relief, but in effect raises a single constitutional question, namely whether the service of the s16 summons in Victoria was valid as a matter of federal law. 19 Notices under s78B of the Judiciary Act 1903 have been served. There has been intervention by the Attorney General for the Commonwealth and the Attorney General for New South Wales, each first law officer being represented by the Solicitor General. 20 Section 76 of SEPA 1992 is one of three sections in Part 4, Division 4, Subdivision A of the Act. Part 4 relates to the service of process of tribunals; Division 4 relates to the service of subpoenas in the performance of investigative functions; and subdivision A relates to the service of subpoenas generally. The three sections in Subdivision A provide:

75 Application of Subdivision This Subdivision applies to a subpoena that: (a) has been issued by a tribunal in connection with the performance of an investigative function by the tribunal; and (b) is addressed to a person: (i) who is not in prison; or (ii) who is in prison but who need not attend before the tribunal for the purpose of complying with the subpoena. 76 Order for leave (1) The Supreme Court of a State in which a subpoena is issued may, on application, give leave to serve the subpoena outside the State. (2) The court may give leave only if it is satisfied that: (a) the evidence likely to be given by the person to whom the subpoena is addressed, or a document or thing specified in the subpoena, is relevant to the performance by the tribunal of the investigative function concerned; and (b) if the evidence, document or thing may constitute or contain evidence that relates to matters of state - it is in the public interest that the evidence be given or the document or thing be produced. (3) In granting an application, the court: (a) is to impose a condition that the subpoena not be served after a specified day; and (b) may impose other conditions. 77 Application of other provisions (1) Subject to this section, sections 58 to 65 (inclusive) (other than subsection 63(2)) apply to the subpoena as if the investigative function concerned were an adjudicative function. (2) Any right referred to in subsection 61(1) (as that subsection applies in relation to the subpoena because of this section) that the person served with the subpoena has to apply to set aside or obtain other relief in respect of the subpoena may only be exercised by making any such application to the Supreme Court of the State in which the subpoena was issued. (3) An amount payable to a person under subsection 63(1) (as that subsection applies in relation to the subpoena because of this section) must be paid by the State in which the subpoena was issued.

21 Having regard to the definitions of "tribunal" and "investigative function" in s3 of SEPA 1992, the definition of "subpoena" in s47 of that Act, and the powers of the Commission to take evidence on oath or affirmation contained in s16(5) of the NSWCC Act, it is common ground that s76 of SEPA 1992 was engaged in the present case. If the section is relevantly valid it supports the order made on 17 March 2004 granting leave for service interstate. 22 The Crime Commission is established by the NSWCC Act (s5). Its objects are to reduce the incidence of illegal drug trafficking and of organised and other crime (s3A). To achieve these objects, the Commission may hold hearings relating to relevant criminal activities referred to it for investigation by its Management Committee (ss13(1), 25(1)). "Relevant criminal activities" are defined in s3 to mean any circumstances implying, or any allegations, that a relevant offence (also defined) may have been, or may be being, or may be about to be, committed. 23 The principal functions of the Commission are set out in s6. Its role is investigative, with powers to liaise with other bodies (s7) and disseminate information and reports to appropriate authorities (s6). The Commission has no power to make a finding of guilt or innocence, or to commit for trial, or to convict or punish. Its function is investigative as set out in the definition of "investigative function" in s3 of SEPA 1992 that: ..in relation to a tribunal, means the function of conducting an inquiry other than an inquiry conducted in connection with the performance of an adjudicative function. 24 In these proceedings, the Commission and Attorney General for NSW rely solely upon s51(xxiv) of the Constitution as the constitutional underpinning of s76. They submit that process in the nature of a subpoena issued by a commission of inquiry into criminal conduct is itself "criminal process" within the meaning of the placitum. 25 The Attorney General for the Commonwealth submits that s76 is valid and supported by s51(xxiv) of the Constitution, supplemented if necessary by the incidental power. 26 It is conceivable that s76 could be read down to save it from invalidity (cf Ammann v Wegener (1972) 129 CLR 415 at 434 per Gibbs J). The ultimate question in the present case is whether it is valid to the extent that it supports the leave granted by Greg James J on 17 March 2004 and the ensuing service interstate. The question as to whether interstate service is permitted by the NSWCC Act standing alone was not raised in the proceedings. 27 Placitum (xxiv) confers on the federal Parliament, subject to the Constitution, power to make laws for the peace, order and good government of the Commonwealth with respect to: the service and execution throughout the Commonwealth of the criminal and civil process and the judgments of the courts of the States.

28 There is no punctuation within the placitum. It was therefore possible (as a purely textual matter) to construe the legislative grant in two ways:

• Narrower view : This would read the power as "the civil and criminal process, and the judgments, of the courts of the States" . On this interpretation the power would be confined to court process alone.

• Broader view : This would read the power as "the civil and criminal process, and the judgments of the courts, of the States" . 29 The broader view was accepted by the High Court in Ammann. In so holding, the Court followed Aston v Irvine (1955) 92 CLR 353 at 364. 30 The High Court in Ammann held that a summons in the nature of a subpoena served interstate requiring a person to attend committal proceedings in South Australia was validly issued pursuant to s16(1) of the Service and Execution of Process Act 1901 (Cth) (SEPA 1901). An ensuing arrest warrant was also held validly issued pursuant to s16(2) of that Act. 31 Section 16 of SEPA 1901 differed from s76 of SEPA 1992. At the time Ammann was decided it relevantly stated: Subpoena or summons to witness may be served in another State by leave of a Judge etc. 16(1) When a subpoena or summons has been issued by or out of a Court, or by a Judge, a Police, Stipendiary or Special Magistrate or a Coroner, in any State or part of the Commonwealth, requiring any person to appear and give evidence or to produce books or documents, in any civil or criminal trial or proceeding (including any proceeding before a Coroner), such subpoena or summons may upon proof that the testimony of such person or the production of such books or documents is necessary in the interests of justice by leave of such Court Judge Magistrate or Coroner on such terms as the Court Judge Magistrate or Coroner may impose be served on such person in any other State or part of the Commonwealth. (2) If such person fails to attend at the time and place mentioned in such subpoena or summons, such Court Judge Magistrate or Coroner or any other Police, Stipendiary, or Special Magistrate having jurisdiction in the State or part of the State or part of the Commonwealth in which the subpoena or summons was issued may on proof that the subpoena or summons was duly served on such person, and that a reasonable sum was tendered to him for his expenses issue such warrant for the apprehension of such persons as such Court Judge Magistrate or Coroner might have issued if the subpoena or summons had been served in the State or part of the Commonwealth in which it was issued….

32 A constitutional argument similar to the first one raised in the present case was rejected in Ammann. The subpoena and ensuing arrest warrant there in question had been issued by a special magistrate exercising the non-judicial function of holding a preliminary inquiry with a view to deciding whether an accused person should be committed for trial in South Australia. It was argued that the placitum is limited to the making of laws with respect to the service and execution of the civil and criminal process of the courts of the States (ie the narrower view referred to above). The High Court unanimously held that the placitum should be construed by reference to its historical background (see per Barwick CJ at 422, per McTiernan J at 427, per Menzies J at 429, per Gibbs J, with whom Walsh and Stephen JJ agreed, at 436 and per Mason J at 441). So construed, it was not to be interpreted as if the words "of the courts of the States" qualify the word "process". For example, Barwick CJ held (at 422) that: … upon its proper construction, s51(xxiv) relevantly gives legislative power with respect to the service and execution throughout the Commonwealth of the civil and criminal process of the States. In other words, in my opinion, the words 'of the courts' do not form part of the description of the subject-matter so far as concerns the civil and criminal process.

33 Ammann is also clear authority for the proposition that a subpoena and a warrant to enforce compliance with a subpoena can be "process" within the placitum, even though they do not initiate relevant proceedings. 34 The plaintiff in his written submissions accepted that the reasoning in Ammann made it "difficult, if not impossible" to argue that this Court should take the narrower view of the placitum. It is impossible. 35 The plaintiff's serious argument is that the s16 summons is neither civil or criminal process of the State. 36 It was accepted in the plaintiff's written submissions that, if the summons is criminal or civil process, it is process of the State of New South Wales. The plaintiff resiled from this position at the hearing, but nothing he later advanced suggests that the original concession was misconceived. The Commission's power to issue and serve the summons derived from a State enactment in aid of a Commission that undoubtedly represents the Crown in right of the State. 37 The plaintiff points to the facts in Ammann and contends that nothing in that decision supports the view that civil and criminal process includes a summons issued by a purely investigative tribunal, such as the Commission. Reference is made to Mason J's reservation in Ammann (at 441) of "a question whether or not the power extends to the process of Royal Commissions and tribunals which are not courts in the strict sense". 38 Mason J did not spell out the reasons for his reservation. Nevertheless, they are fairly apparent when one recognises that the point did not arise for determination in Ammann. What arguably distinguishes Ammann from the present case is that the process there involved (subpoena and arrest warrant) were steps in the enforcement of a legal right that had been set in train, ie prosecution for an offence. The nub of the plaintiff's constitutional argument in the present case is that placitum (xxiv) is limited to process in aid of the enforcement of legal rights in the civil and criminal law. 39 Barwick CJ said (at 422) that: Whether [a subpoena] is a civil or criminal process will, I think, be determined by the nature of the proceeding in or at which the persons upon whom it is to be served is required to attend and testify. A preliminary examination by a stipendiary or special magistrate in connexion with a complaint of or information as to the commission of an indictable offence is, in my opinion, for this purpose a criminal proceeding.

This reasoning, I observe, does not support the defendant's and interveners' submission that every subpoena or summons to attend and give evidence is itself civil or criminal process. Barwick CJ was making the point that a subpoena that is otherwise "process" within the placitum is civil or criminal dependent on the nature of the substantive proceedings of which it is in aid. He did not say that every subpoena falls within the scope of the placitum. Elsewhere in Ammann he and the other justices demonstrated why the particular subpoena had that quality. 40 The High Court's rejection of the narrower interpretation means that the placitum extends beyond process in or for court proceedings (Alliance Petroleum Australia NL v Australian Gas Light Company (1983) 34 SASR 215, discussed below) or process of courts exercising non-judicial functions (Ammann). As indicated by Mason J's reservation, it is however a further step to hold that the placitum extends to the process of non-courts exercising non-judicial functions, including "investigative functions" as defined in SEPA 1992. 41 The reasoning in Ammann casts some light upon the High Court's understanding of the scope of the placitum and why it was not exceeded in that case. As indicated, the Court concluded that a subpoena in aid of committal proceedings before a magistrate was criminal process within the placitum. 42 Barwick CJ said (at 423, emphasis added): Before passing to observe upon the alternative argument put forward on behalf of the applicant I ought to say that, in my opinion, the word 'process' in the paragraph is not in its nature limited to process which is issued by a court or to process which initiates a legal proceeding. No more is involved, in my opinion, in the notion of the civil and criminal process to which par. (xxiv) refers than a document which may be served or an order which may be executed in relation to proceedings for the establishment of legal rights or the enforcement of the criminal law . 43 The Chief Justice referred to committal proceedings being, with the exception of an ex officio indictment laid by the Attorney General, "an indispensable step in the enforcement of the criminal law by the trial [on indictment] of offenders in the courts of law" (at 422). 44 The other justices in Ammann also emphasised the relationship between the subpoena and the matter to which it was directed, sometimes in the context of showing that s16(1) of SEPA 1901 was engaged. 45 Thus, McTiernan J held (at 426) that the preliminary examination before the special magistrate was a "criminal proceeding" within s16(1). 46 Menzies J said (at 429) that "the preliminary examination under Pt (V) of the State Act of a person charged with an indictable offence is, of course, part of the criminal process of the State; so is the process to compel the attendance of witnesses at such an examination". 47 Gibbs J (with whom Walsh and Stephen JJ agreed) gave an extended discussion about the history of committal proceedings, stating (at 437) that: No doubt those functions might be performed in other ways, but at Federation the preliminary examination was (and still is) an essential part of the criminal procedure in its existing form. A summons requiring a witness to attend at such a preliminary examination is clearly 'process'.

His Honour held (at 437-8) that a subpoena was part of the criminal process of a State, citing the definition of "process" in Wharton's Law Lexicon , 9th ed (1892) (emphasis added): It is largely taken for all the proceedings in any action or prosecution , real or personal , civil or criminal , from the beginning to the end; strictly, the summons by which one is cited into a court, because it is the beginning or principal part thereof, by which the rest is directed. 48 Mason J also rejected the argument that a summons to attend committal proceedings was not part of the civil and criminal process of the courts of South Australia. He said (at 441, emphasis added): It has been said of the word "process" that "in its broader sense it includes all proceedings in the course of litigation , but in its narrower sense it is restricted to refer to the summons, writ or other mandate by which a person is brought into court and the litigation is formally commenced" Boilermakers' Society of Australia, Queensland Branch, Union of Employees v Brisbane Welding Works Pty Ltd , per Gibbs J [[1965] Qd R 598 at 605]. Here it is not disputed that in s51(xxiv) the word includes a subpoena or summons requiring a witness to attend and give evidence. 49 The Queensland Supreme Court judgment of Gibbs J, cited by Mason J, refers in turn to the definition of "process" in Jowitt: Dictionary of English Law ("the proceedings in any action or prosecution, real or personal, civil or criminal, from the beginning to the end; strictly, the summons by which one is cited into a court, because it is the beginning or principal part thereof, by which the rest is directed") (emphasis added). 50 The relevant definition of "process" in the Oxford English Dictionary is similar in effect, except that it is confined to an action at law. (This perhaps explains why the drafters of the placitum saw fit to add the words "civil and criminal".) 51 These references all suggest that the concept of process relates to the adjudication of legal rights, or (in Barwick CJ's words) "the establishment of legal rights or the enforcement of the criminal law". 52 This criterion was satisfied in Ammann because of the traditional association between committal proceedings and the criminal law. Committal proceedings were described by Barwick CJ (at 422) as "an indispensable step in the enforcement of the criminal law". Menzies J spoke (at 429) of the preliminary examination as "part of the criminal process". Gibbs J (at 437) called it "an essential part of the criminal procedure" at federation. The Court's reasoning indicates that their Honours regarded this as a matter of some significance. 53 In Barton v The Queen (1980) 147 CLR 75, Wilson J described the committal proceeding as (at 112): … a procedure designed to facilitate the administration of criminal justice. It serves this purpose in two ways: in the first place, it marshals the evidence that is tendered on behalf of the informant in deposition form, a form which enables it to be perpetuated and be available for use at the trial in the event of the witness being dead or otherwise unavailable; in the second place, it requires the magistrate to be satisfied that the evidence establishes a prima facie case before the accused person is committed to stand trial…. 54 At the time of federation the power of a magistrate to inquire in committal proceedings depended upon there being an information (Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 356-7, Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27, Grassby v The Queen (1989) 168 CLR 1 at 11-12). This stemmed from "Sir John Jervis' Act" of 1848 that had been adopted in the Australian colonies. In other words, there was a statement in the nature of a charge, an information being "the first step in proceedings of a criminal character which will end in either conviction or acquittal" (Electronic Rentals at 38 per Windeyer J). 55 Committal proceedings have been described as forming "part of a curial process which [in the case of federal offences] is centred upon the judicial power of the Commonwealth and which, in the case of a subsequent trial, culminates in the exercise of that power" (The Queen v Murphy (1985) 158 CLR 596 at 612). By contrast, investigations by officers of the law of actual or suspected crimes are not part of the course of justice, at least for the purposes of the common law offences concerned with perverting the course of justice (The Queen v Rogerson (1992) 174 CLR 268). Nor are commissions of inquiry regarded as involving the exercise of judicial power, as I demonstrate below. 56 The defendant and the interveners accept that there are points of distinction between committal proceedings and the purely investigative functions of a Royal Commission or a standing commission of inquiry, even when the latter two bodies are involved in investigating crime with the aid of compulsive powers. They submit nevertheless that Royal Commissions with such functions and powers were an established part of the legal landscape in pre-Federation Australia. It is further submitted that the Crime Commission is involved in the enforcement of the criminal law such that no pertinent distinction can be drawn between committal proceedings discussed in Ammann and the present case. I do not accept this submission. 57 Considerable reliance was placed on the South Australian Full Court decision in Alliance. In my view, for the reasons that follow, Alliance offers no assistance to the defendant and interveners in their argument that Mason J's reservation in Ammann was unjustified. Indeed, it reinforces my understanding as to the meaning of "process" in its constitutional context. 58 The Full Court held that an arbitration was or could be a "civil proceeding" within s16(1) of SEPA 1901. It then addressed the question whether s51(xxiv) of the Constitution authorised s16(1) to the extent that it was engaged in the instant case. In light of Ammann, the fact that the subpoena compelled attendance before an arbitrator and not a court was non-determinative. The Court nevertheless examined the nature of arbitration proceedings, concluding that subpoenas in aid thereof were civil process of the State, at least so long as the arbitration concerned the vindication of legal rights. (This is further support for my conclusion that a subpoena per se is not within the placitum.) 59 Alliance related to an arbitration to determine the future price to be paid for natural gas from the Cooper Basin. Negotiations had failed to produce agreement as to an acceptable formula. The affected parties had agreed to refer the matter to arbitration, without admitting that the Arbitration Act 1891 (SA) was engaged (see 34 SASR at 224). Subpoenas were issued pursuant to s19 of that Act and a Master had granted leave for service interstate, relying upon s16 of SEPA 1901. The recipients of the subpoenas moved to set them aside on various grounds. Bollen J decided a strictly limited set of issues (see at 225-6), not including whether the arbitration involved a justiciable issue (see at 230). His Honour refused the applications to set aside the subpoenas (at 232). 60 The matter came to the Full Court on limited issues raised in a case stated by Bollen J arising out of appeals from the Master by various affected parties. One such appeal (by Kingsmill) challenged to the Master's order granting leave to serve a subpoena interstate. The grounds of appeal included: 2A. An arbitration pursuant to submission is incapable of being "a proceeding" within the meaning of s16(1) of the Service and Execution of Process Act, 1901 . 2B. Section 16 of the Service and Execution of Process Act, 1901 is ultra vires the powers of the Commonwealth Parliament under s51(xxiv) of the Constitution to the extent (if at all) to which it applies to subpoenas to appear and give evidence or to produce books or documents before an arbitrator appointed pursuant to a submission.

61 These two questions of law were reserved by Bollen J for the Full Court and were answered in the following terms by the majority (King CJ and Wells J): 2. An arbitration pursuant to submission is capable of being a "proceeding" within the meaning of s16(1) of the Service and Execution of Process Act, 1901 (Cth) . 3. Section 16 of the Service and Execution of Process Act, 1901 (Cth) , in its application to subpoenas to appear and give evidence or to produce books or documents before an arbitrator appointed pursuant to a submission, is within the legislative powers of the parliament of the Commonwealth.

62 Neither King CJ nor Wells J found it necessary to consider whether there was a valid submission to arbitration in the particular case (see at 235-6, 253). Their Honours merely addressed the particular questions reserved, answering the second (constitutional) question in terms that limited the principle they enunciated to arbitrations pursuant to a submission generally. Their Honours did not decide whether the instant arbitration was of the nature of a curial arbitration and thus within s16 of SEPA 1901. 63 King CJ held that since arbitration is recognised by statute as a method of resolving legal disputes as an alternative to litigation in the courts, it fell within the description of "civil proceedings" in s16. It did not matter whether the arbitration was pursuant to court order or submission (at 236). As to the nature of the question to be decided, King CJ said (at 236-7): Nor do I think that the nature of the question to be decided by the arbitrator can affect the characterization of the arbitration as a civil proceeding. If the question is not one which may be lawfully submitted to an arbitrator, there is no valid submission to arbitration and, of course, no civil proceeding. If the question is one which may be lawfully submitted to arbitration, it seems to me that the arbitration must be a civil proceeding irrespective of the nature of the question. The arbitration is a civil proceeding because the law makes the question a proper subject of arbitration and the arbitration procedure possesses the characteristics referred to above which render it a civil proceeding. 64 As to the constitutional question, the Chief Justice held (at 237, emphasis added): It follows that the parliament may make laws with respect to the service of documents which are properly characterized as civil processes of the State notwithstanding that they are not court processes. Some stress was laid upon this point in argument, but, as the subpoena in question was issued out of the Supreme Court and is therefore undoubtedly a process of the court, the point does not appear to be relevant. I do not think that the fact that a subpoena compels attendance before an arbitrator rather than before a court can deprive it of its character as a civil process of the State. In Ammann v Wegener Barwick CJ said: "No more is involved, in my opinion, in the notion of the civil and criminal process to which par (xxiv) refers than a document which may be served or an order which may be executed in relation to proceedings for the establishment of legal rights or the enforcement of the criminal law." Arbitration, as authorized and regulated by State law, is a proceeding for the establishment of legal rights. In my opinion the contention that s16(1) of the Service and Execution of Process Act is beyond power so far as it would authorize service of a subpoena to give evidence or produce documents in an arbitration, or in an arbitration as to the type of question before the arbitrator in the present case, cannot be sustained.

65 I do not read the last sentence as concluding that every conceivable type of arbitration would involve determining issues establishing legal rights. Earlier (at 235-6) the Chief Justice had acknowledged that a live issue remained as to whether the arbitration in question involved a "claim, difference or dispute" within the meaning of s27 of the Arbitration Act. 66 It is possible that I am wrong on this last point. What is, however, clear is that Wells J agreed with the Chief Justice's orders for narrower reasons than the Chief Justice that tend to support the view of "process" that I favour. 67 Wells J reviewed the historical role of arbitration in the common law of England (at 247-250). Since the end of the seventeenth century it had been regulated by Act of Parliament. In South Australia the Arbitration Act 1891 gave authority to an arbitrator to inquire into a controversy and make an award if the arbitrator acted pursuant to order of the Court or a formal submission of the parties. Wells J concluded (at 250):

Placitum xxiv must, in my opinion, speak of and in relation to the actual civil processes available in a State, from time to time, no matter what labels are given them, or what associations they may have acquired in the course of history. In my opinion, history, practice, authority, and legislation, unite in proclaiming that, in South Australia, placitum xxiv applies to and in relation to arbitral proceedings; they are, in this State, as much a part of the civil process as a suit commenced by writ or summons issued out of a Court. 68 The nature of arbitration over the years, as discussed by his Honour (at 247-9), had drawn attention to its function in determining by award a matter of controversy between parties. At 250, he referred to arbitration in South Australia as "part of the law adjective for the definition and enforcement of rights and duties in private law". 69 As to the scope of s16 of SEPA 1901, Wells J held that the reference to "any civil proceeding" extended and applied to arbitral proceedings founded upon a "submission" within the meaning of the Arbitration Act. 70 Wells J's analysis of a third issue ("Is there a submission to arbitration under the Arbitration Act?") is of considerable significance to the present summons. I shall return to it, after examining the reasons of Zelling J, especially his reasons for not joining in the orders proposed by the Chief Justice. On my reading, Wells J did not dispute so much of Zelling J's reasons as are pertinent to the constitutional issue in the present case. 71 Zelling J referred to the history and nature of arbitration in England as a non-curial method of dispute resolution. In his view, s51(xxiv) was wide enough to comprehend "at least some kinds of process in aid of arbitration" (at 242). 72 Turning to the scope of s16 of SEPA 1901, Zelling J held that it was not confined to curial proceedings. He cited Cheney v Spooner (1929) 41 CLR 532, where the section had been applied in relation to a subpoena to attend and be examined before the Master in Equity in relation to the affairs of a company in liquidation. 73 However, the arbitration in question in Alliance did not (he held) fall within the term "civil proceeding" within s16. Assuming, without deciding, that s16 extended to arbitrations based on submission, Zelling J held that "the contemplated arbitration here has no resemblance to curial arbitration and is therefore outside the ambit of s16 however widely it is construed". His reasons were (at 244-5, emphasis added): This arbitration will result in legislation for the future, not the decision of disputes, present or future, relating to existing rights. No doubt the arbitrators have to decide judicially in the sense that they must give the parties a fair hearing but they are not being asked to pronounce on a dispute as to existing rights ; they are laying down either a price or a formula for a price legislatively for the future. … In my opinion, the arbitration in the instant case does not consist of a justiciable issue triable civilly. Courts pronounce on the existing rights of the parties, they do not give advisory opinions and they do not act legislatively. Holdsworth … makes the same comment that a submission to arbitration has the feature that jurisdiction is taken from ordinary courts and is exercised by other tribunals. I do not think this is a proceeding taken from the ordinary courts. I think the arbitrators in this matter could better be described as quasi-arbitrators. The distinction is not so much the common one that is found in the books between an arbitrator and a valuer but one between an arbitrator performing duties which would otherwise be performed by a court and an arbitrator laying down legislative rules for the future. 74 On this basis, Zelling J would have set all of the subpoenas aside. 75 Wells J agreed with the Chief Justice in dismissing the appeal from the primary judge (Bollen J), who had decided a limited set of issues referable to the subpoena. Wells J held that South Australian statute law had treated arbitrations of every nature as a "civil proceeding" in South Australia, for the purposes of s16 of the SEPA 1901 (see at 250). Acknowledging the reasons of Zelling J, Wells J noted that there was an available argument as to whether there had been a submission to arbitration in the instant case that would have engaged the Arbitration Act. That argument could, he recognised, have impact upon the application of s16 of SEPA 1901 and the valid engagement of placitum xxiv (see at 252-3). Since however that argument had not yet been raised in the proceedings, the limited existing challenge to the subpoenas failed (see 253). 76 Nothing in the reasoning of Alliance supports the wider view of the constitutional term "civil and criminal process… of the States" advocated by the Commission or the interveners, ie one going beyond process (initiating or otherwise) directed towards the determination (but not exclusively curial determination) of civil and criminal disputes as to legal rights. 77 Nor does Cheney v Spooner assist the defendant. It held that a summons in the nature of a subpoena requiring a person to attend and to be examined before the Master in Equity concerning the affairs of a company in liquidation fell within s16(1) of SEPA 1901. No constitutional point was taken in that case. But the essential reasoning proceeded on the basis that the summons was related to the "proceeding" previously initiated in the Supreme Court by the presentation of a petition for the compulsory winding up of the company concerned (see at 537, 539 and In re Beall [1894] 2 QB 135 cited by Starke J). 78 It will be apparent from the foregoing, that I would reject the submission particularly articulated by the Solicitor General for the Commonwealth in response to questioning from the Court, that a summons in the nature of a subpoena is of such antiquity and universality that it is a form of criminal and civil process of the State, regardless of the proceeding or matter to which it is directed. The detailed examination of the nature of committal proceedings (in Ammann) and of arbitration (in Alliance) would have been pointless if that were the case. 79 It was further submitted that the words "criminal and civil" were inserted in the placitum before "process… of the States" by way of emphasis, not definition. The object was to remove any suggestion that process might be confined, presumably to a civil connotation. Reference was made to the Federal Council of Australasia Act 1885 (Imp) that conferred on that Council legislative authority in respect to: (d) The service of civil process of the courts of any colony within Her Majesty's possessions in Australasia out of the jurisdiction of the colony in which it is issued: … (f) The enforcement of criminal process beyond the limits of the colony in which it is issued, and the extradition of offenders (including deserters or wives and children, and deserters from the imperial or colonial naval or military forces):

80 The end to which this submission implicitly proceeded was the contention that criminal and civil process covers the whole of a field. It obviously does, but the field has boundaries that need to be explored. The essential meaning and features of the term as it existed in 1901 require to be located and respected. And since a legal phrase is involved, identification of essential meaning and features must be based upon reference to legal usage and understanding at federation (Ng v The Queen [2003] HCA 20 at [9], Singh v The Commonwealth [2004] HCA 43 at [10]). 81 In my view, the term "process" has a limited connotation and the adjectives "civil and criminal" are neither surplusage nor words of universality. They say something about the character of the State process envisaged by the placitum, emphasising its connexion with the enforcement of legal rights, as stated in the passages to which attention has already been drawn. The adjectives also put to rest any possibility that "process" might be confined to civil process. Problems with service of criminal process were well known at federation (see Quick & Garran, The Annotated Constitution of the Australian Commonwealth, 1901 ed, reprinted pp617-20). 82 I would also reject the cognate proposition that "process" means nothing more than orders or instruments capable of service emanating with State authority from some State body. I could not accept that a Council order for demolition of an unsightly building fell within the scope of the placitum. 83 Invoking the analogy of committal proceedings, the defendant and the interveners contend that there is a sufficiently close relationship between the investigative role of the Commission and the enforcement of the criminal law to bring the present matter within the scope of the constitutional power. 84 Reliance is placed on the obviously broad and auxiliary function of the placitum. Unlike many provisions in ss51 and 52 of the Constitution, placitum (xxiv) presents as a facultative provision that solves a possible problem stemming from limitations on colonial extraterritorial legislative powers as perceived at Federation. 85 Implicit in this last submission, I think, is the proposition that those responsible for the Constitution would never have envisaged that the Commonwealth Parliament might exercise its legislative power on the topic to the exclusion of State law addressing the same subject matter (cf s8(4)(a) of SEPA 1992). Nevertheless, the proposition that the placitum is facultative in the sense I have indicated retains considerable force, despite this (perhaps unworthy) aside. 86 The defendant and interveners are also justified in pointing to the expansive and facultative approach to the placitum, based upon historical matters, endorsed by the High Court in Ammann (see esp per Barwick CJ at 421-2, per Gibbs J at 437). As the High Court said in Aston (at 364): The nature of this power, as well as the prior history of the subject to which it relates, provides strong ground for interpreting it as enabling the federal legislature to regulate the manner in which officers of the law in one State should act with reference to the execution of the process of another State. 87 Some of the reasoning in Ammann is even more closely supportive. The High Court had no doubt as to the non-judicial nature of committal proceedings, but nevertheless viewed them as part and parcel of the criminal law, given their traditional role (well recognised in the nineteenth century) of being a stage in the prosecution of all indictable offences (except for those initiated by ex officio indictment of the Attorney General). (None the less so, I would add, because the Attorney General could enter a nolle prosequi after committal for trial.) 88 Those supporting validity in the present case submit that the Court should not confuse committal proceedings (as the denotation or illustration) with the core constitutional concept (or connotation) of (relevantly) "criminal process... of the State". Commissions of inquiry into matters criminal, exercising compulsive powers conferred by statute, gathering evidence with a view to prosecutions being launched by the appropriate authorities were well known in Australia at the time of Federation (see generally W Harrison Moore, "Executive Commissions of Inquiry" (1913) 13 Colum L Rev 523 at 508, Clough v Leahy (1904) 2 CLR 139 at 153, Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 88). 89 The idea of a standing commission of inquiry is comparatively recent in this country (Peter M Hall, Investigating Corruption and Misconduct in Public Office: Commissions of Inquiry - Powers and Procedures (2004) Law Book Co p638). But this (I accept) is a development of the pre-Constitutional institution of Royal Commissions, like the progression from horse and buggy to aeroplane, that has no constitutional significance. 90 It is however clear in Australian law that the establishment of a commission of inquiry does not involve the exercise of judicial power, even if the commission has compulsive powers and the function of making findings as to criminal guilt (McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, Lockwood v The Commonwealth (1954) 90 CLR 177, Victoria v Australian Building Construction Employees' and Builders Labourers' Federation). 91 It follows that the pre-Constitutional antiquity of commissions of inquiry does not assist in resolving the critical question, which focuses on the meaning of "criminal and civil process" in the placitum. That meaning embraces subpoenas in aid of bodies not exercising State judicial power, such as committing magistrates (Amman) and arbitrators (Alliance). But it does not in my opinion extend beyond process (including subpoenas) associated with the establishment of legal rights or the enforcement of the criminal law. The summons in the nature of a subpoena in the present case is not of this quality. 92 The Attorney-General for the Commonwealth did not develop the submission that the incidental power in placitum (xxxix) took the matter further. I do not think that it does, especially in the context of a body operating under State legislation. 93 Accordingly, the plaintiff is entitled to a declaration that the summons was not validly served, together with an order for costs. 94 WOOD CJ at CL: I have read in draft form the judgments of Mason P and Spigelman CJ. I agree with the judgment and orders proposed by the Chief Justice.

Last Modified: 12/17/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.