Dalton v NSW Crime Commission

Dalton v NSW Crime Commission - [2006] HCA 17 - HCA 2006 case summary — Zoe

[35]

This litigation arises from the operations of the corporation constituted by s 5 of the New South Wales Crime Commission Act 1985 (NSW) ("the State Act") as the "New South Wales Crime Commission" ("the Commission"). The Commission "is to consist of" the Commissioner (appointed by the Governor) and any Assistant Commissioners that are appointed (ss 5(3), 5A, 5B). The Commission is empowered by s 13(1) of the State Act to hold hearings for the purposes of an investigation and by s 16(5) to take evidence on oath or affirmation. The Commission thus answers the definition of "tribunal" in the SEP Act, set out earlier in these reasons.
The principal functions of the Commission are set out in s 6 of the State Act. They include investigation of matters relating to certain criminal activity, the assembling of evidence and the furnishing of reports relating to illegal drug trafficking and organised and other crime. Section 16(1) empowers a member of the Commission to summon a person to appear before it at a hearing to give evidence and to produce such documents or other things (if any) as are referred to in the summons.
A person served with a summons to appear as a witness at a hearing before the Commission shall not, without reasonable excuse, fail to attend as required or to attend from day to day unless excused or released from further attendance (s 18(1)). Failure to attend may lead to the issue by the Commissioner of a warrant for the arrest of the witness (s 18AA(1)) and detention until released by order of the Commissioner (s 18AA(5)). The Supreme Court is empowered by s 18AC to review these decisions made under s 18AA(5).
The Commission thus is an example, in corporate and permanent form, of the proposition that throughout Australia "general legislation [has] long existed arming commissions of inquiry with the power of compelling testimony". The words are those of Dixon J in McGuinness v Attorney-General (Vict)[4]. A striking instance is provided by the colonial legislation in Victoria. After amendment in 1872[5], ss 14 and 15 of The Statute of Evidence 1864 (Vic)[6] empowered boards or commissions appointed by the Governor in Council to summon witnesses to attend, be sworn and give evidence, on pain of committing an offence by failing to do so[7].

[37]

On application of the Commission made to the Supreme Court on 17 March 2004, the Court granted leave for service of the subpoena issued on 12 March 2004. Leave was given to serve on the appellant whose address was shown in the order as an address in St Kilda East, Victoria.
Service was effected in Melbourne on 22 March 2004 and the appellant made what was described as a conditional appearance at the Commission.
Shortly thereafter, the appellant commenced against the Commission a proceeding in the Supreme Court from which the appeal to this Court derives. There was no dispute that the summons issued under s 16 of the State Act was a subpoena within the meaning of the definition in s 47 of the SEP Act which had been issued by "a tribunal in connection with the performance of an investigative function by the tribunal" as required by s 75 of the SEP Act. However, the relief sought by the summons filed on 16 April 2004 included an order setting aside the grant of leave under s 76 of the SEP Act on the ground that s 76 is "unconstitutional". The jurisdiction of the Supreme Court thus engaged was the federal jurisdiction conferred by a combination of s 30(a) and s 39 of the Judiciary Act 1903 (Cth), the matter being one arising under or involving interpretation of the Constitution.
By order made by a judge of the Supreme Court, proceedings were remitted to the Court of Appeal to determine questions including the validity of s 76 of the SEP Act. The Attorneys-General of the Commonwealth and for New South Wales intervened in support of the validity of s 76. The Court of Appeal (Spigelman CJ and Wood CJ at CL; Mason P dissenting)[8] held that the challenge to the validity of s 76 failed. It is from that dismissal of the appellant's proceeding in the Supreme Court that the appeal to this Court is brought. The Attorneys-General of the Commonwealth and for New South Wales are joined as second and third respondents to the appeal. The Attorneys-General for Victoria and South Australia intervened in support of the validity of the federal law.

[39]

Before turning to the issues bearing more immediately upon the validity of s 76, something more should be said of the interrelation between the State and federal statutes.
Section 35 of the State Act provides a regime for the service of documents for the purposes of that statute. On its face, the service for which s 35 provides is not limited to the taking of steps solely within New South Wales[9]. However, par (a) of s 8(4) of the SEP Act provides that that statute applies "to the exclusion of a law of a State ... with respect to ... the service or execution in another State of process of the relevant State that is process to which this Act applies". Hence the steps taken in this case relied upon the SEP Act rather than upon any efficacy in s 35 of the State Act to found service upon the appellant in Victoria.
If the appellant were to succeed in the challenge to the validity of s 76 of the SEP Act, then a question would arise as to the reach of s 35 of the State Act. The Solicitors-General for New South Wales and the Commonwealth submitted that, upon its proper construction, there was nothing in the State Act to deny the efficacy of service of a summons outside New South Wales and elsewhere in Australia. In particular, the Solicitor-General of the Commonwealth emphasised a point made in Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc[10]. This is that a body such as the Commission does not exercise judicial power, whereas, in accordance with traditional concepts, the assertion of curial jurisdiction in personal actions depends upon service of the initiating process in the jurisdiction[11].
The relief which the appellant seeks in this Court includes declarations that the notice issued by the Commission on 12 March 2004 "was not validly served" and that the appellant is not required to appear at the Commission in answer to it. No declaration could be made in terms of that width without entering upon the issue respecting s 35 of the State Act which has been noted above[12].
However, the primary declaratory relief sought by the appellant concerns the invalidity of s 76 of the SEP Act. The appellant fails to demonstrate that invalidity. Accordingly service was effective in accordance with the federal law and no occasion further to consider s 35 of the State law is presented by this appeal.

[70]

The submissions for the appellant assumed a clear and decisive distinction, carried into s 51(xxiv), between investigative and adjudicative functions. The process with which s 76 is concerned, a subpoena answering the requirement in s 75 that it be issued by a tribunal in connection with the performance of an investigative function, cannot, the submissions continued, attract the support of par (xxiv) of s 51 of the Constitution.
Part 4 of the SEP Act (ss 47-80) is so drawn as to distinguish between the exercise by tribunals of adjudicative functions and investigative functions. In particular, Div 3 (ss 56‑74) provides for the service of subpoenas in the performance of adjudicative functions. That term is so defined (in s 3(1), set out earlier in these reasons) as to require the determination (which may be attended by the alteration) of the rights or liabilities of a person in a proceeding where there are two or more parties. The appellant does not dispute that, at the State level, where the exercise of the judicial power of the Commonwealth is not involved, such functions may be given to a tribunal. It was accepted in Alliance Petroleum Australia NL v The Australian Gas Light Company[40] that arbitration for the resolution of legal disputes between parties is an example. It would follow that s 57 of the SEP Act, which provides for the grant of leave by a court of a State to serve a subpoena in aid of an adjudicative function, is supported by s 51(xxiv) of the Constitution.
However, the appellant submits that s 76, because it relates to the investigative functions of tribunals, stands decisively apart from s 57 of the same statute. The proposition appears to accept that, whilst the process of courts is linked to the exercise of adjudicative functions and is plainly the subject for a law under s 51(xxiv) of the Constitution, so that there is an analogical extension in favour of the exercise of adjudicative functions by tribunals, the exercise by courts of investigative functions does not occasion or support the issue and service of process within the scope of s 51(xxiv). There is then no foundation for an analogical extension in respect of the investigative functions of tribunals.
The appellant in this regard relied heavily upon a passage in the judgment of Barwick CJ in Ammann as authority that the phrase "the civil and criminal process" in s 51(xxiv) is confined to the determination of legal disputes or the enforcement of laws. Barwick CJ said[41]:

[76]

Three further points should be emphasised here. The first is that s 51(xxiv) is in that class of constitutional provisions, identified with examples by Gleeson CJ in Singh v Commonwealth[51], which contains terms which are naturally understood and applied with reference to their legal meaning. The second is that what the courts regard as their process is not fixed but develops over time[52]. Examples are the development of the asset preservation order[53] and the anti‑suit injunction[54]. The third has been made earlier in these reasons. It is that the construction of s 51(xxiv) given in Ammann qualifies any ordinary meaning of "process" which links it to the conduct of litigation in the courts.
However, whatever may be the metes and bounds of s 51(xxiv) after Ammann, the present appeal may be resolved on fairly narrow grounds. Is the "subpoena" defined in s 47 of the SEP Act sufficiently analogous, in the circumstances of this case, to the process in aid of the investigative functions exercised by the courts at the time of federation and, if need be, as since developed by the courts?
The definition in s 47 of the SEP Act specifies a process which "requires" the giving of oral evidence or the production of a document or thing. The term "require" indicates not a duty of imperfect obligation, but a sanction imposed by law. The analogy with a writ of subpoena will readily be apparent. The processes of the Court of Chancery as they developed up to the introduction of the Judicature system provided for the procuring of the attendance of witnesses to give evidence before an examiner by the issue and service of a writ of subpoena with sanctions for default culminating in an order for committal to prison under warrant of the Lord Chancellor[55].
The subpoena the subject of the order under s 76 in this case had the incidents under the State Act described earlier in these reasons. These included the arrest and detention of the recalcitrant witness with provision for review by the Supreme Court under s 18AC of the State Act.
The tribunal required by the definition of "subpoena" in s 47 of the SEP Act must be established by or under State law and be authorised to take evidence on oath or affirmation (s 3(1)). The Commission answers that description. The subpoena must be issued in connection with the performance of an "investigative function", which is the case here. Finally, s 76 conditions the service out of State upon leave by the Supreme Court of the State of issue.
All of these matters, taken together, show that the scheme of Pt 4, Div 4 of the SEP Act, in which s 76 is found, provides for the service of what may fairly be described as process of the States, by analogy to court process as understood even at federation, and certainly as circumstances have developed since. It may be that some legislative scheme falling short of that in Pt 4, Div 4 would also be supported by s 51(xxiv). But upon that question the Court should not now enter.

[77]

The appeal should be dismissed. The appellant should pay the costs of the Commission but not the costs of the Attorneys-General, whether as parties or interveners in this Court.
KIRBY J. Pursuant to the Service and Execution of Process Act 1992 (Cth) ("the SEP Act")[56], Mr Leigh Dalton ("the appellant") was served in the State of Victoria with a summons issued by the New South Wales Crime Commission ("the Commission"). The summons was issued under the New South Wales Crime Commission Act 1985 (NSW) ("the State Act"). It purported to require the appellant to appear as a witness at a hearing in New South Wales before the Commission. Pursuant to the State Act, a failure on the part of a person served to appear, and to attend until excused or released, would, in the absence of reasonable excuse, authorise the issue by the Commission of an arrest warrant[57] and the detention of the person served until released by order of the Commission[58].
The appellant challenged the power of the Commission, whether under the State Act or pursuant to the federal SEP Act, to oblige him to appear before it for the purpose of giving evidence or producing the documents or other things referred to in the summons[59]. Principally, the appellant contended that the State Act could not of its own force impose such obligations, he being in Victoria. So far as the federal SEP Act purported to so require, the appellant submitted that it was beyond the law-making powers of the Federal Parliament.
The constitutional challenge failed in the New South Wales Court of Appeal[60]. However, that Court divided. The validity of the SEP Act to render the Commission's summons effective in Victoria was upheld by Spigelman CJ (with whom Wood CJ at CL agreed). But Mason P dissented. He was of the view that the appellant was entitled to a declaration that the Commission's summons was not validly served on him because of a want of constitutional authority for the provisions of the SEP Act on which the Commission relied[61].
Doubtless because of the majority disposition and the course of the proceedings, the Court of Appeal did not proceed to consider whether the State Act, of its own force (or as applied by federal law in a court exercising federal jurisdiction[62]), was sufficient without the SEP Act to compel the appellant to comply with the summons and to proceed to New South Wales to appear before the Commission.
By special leave, the appellant appeals to this Court against the judgment of the Court of Appeal. The appeal fails. The challenge to the constitutional validity of the federal SEP Act should be rejected. There is no need to consider questions as to the operation of the State Act, according to its own terms. The judgment of the Court of Appeal, reliant on the federal SEP Act, should be affirmed. The appellant must comply with the Commission's summons.

[79]

The facts: The facts were not in dispute. So far as they are relevant to this appeal, they are stated in the reasons of Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ ("the joint reasons")[63]. The appellant submits that the requirement, imposed on him by the terms of the Commission's summons (and the penalties for disobedience) constitute an infringement of his liberty. He seeks relief from them. Unless compelled by law, he is unwilling to submit to the investigatory processes of the Commission. It is a body created within the executive government of the State of New South Wales with large coercive powers from which he prefers to be free. Unless the summons served on him[64] is valid, that is his right.
The legislation: The relevant provisions of the SEP Act[65], the State Act[66] and earlier laws for the interjurisdictional service of process within Australia[67], are also set out in the joint reasons. Mention is made there of the somewhat narrower language of the Service and Execution of Process Act 1901 (Cth) ("the 1901 Act"). It contained the provisions in force when questions of constitutional validity arose in earlier decisions of this Court[68].
The provisions of the State Act are coercive. The principal stated objects of that Act are "to reduce the incidence of illegal drug trafficking" and "to reduce the incidence of organised and other crime"[69]. Proved involvement in either of those activities would potentially expose a person to criminal liability attracting, upon conviction, substantial punishment. Even if no offence inculpating the appellant himself were alleged, or established, participation in assembling evidence for use "in the prosecution of a person for a relevant offence arising out of any such matters"[70], the review of an earlier police inquiry into matters relating to such criminal activity[71] and other functions of the Commission could potentially involve him in risks and dangers. Perhaps because of this, and unlike the courts, by the State Act a hearing before the Commission is to be "held in private"[72].
Although a person giving evidence before the Commission "may be represented by a legal practitioner"[73], the Commission has power to exclude legal representation in some circumstances[74]. The Commission also has large powers to control examination or cross-examination of witnesses[75]. It can suppress the publication of evidence, the contents of documents and other material facts[76]. A witness summoned to attend, or appearing before, the Commission at a hearing is not generally[77] excused from answering any question, or producing any document or thing, on the ground that the answer or production might incriminate or tend to incriminate the witness, "or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground"[78]. The answer made, or document or thing produced, by a witness at a hearing before the Commission is not ordinarily admissible in evidence against the person in any civil or criminal proceeding or in disciplinary proceedings[79].
Clearly, therefore, the procedures of the Commission amount to a departure from the principles of accusatory justice that ordinarily govern the conduct of criminal proceedings in this country. The "right to silence" and to put the prosecution to proof of serious criminal accusations that may be made against a person summoned (or the family or associates of that person) are severely modified by the State Act. That this is done in respect of matters within the legislative competence of the New South Wales Parliament is one thing. However, the appellant objects to the attempt to oblige him to leave Victoria and to proceed to New South Wales. He says that this has not been validly done by the State Act and, so far as the SEP Act purports to impose a federal legal obligation on him to do so, it exceeds the nominated heads of federal constitutional power.
I have explained the features of the State Act so that the practical issues in the appeal will be sharpened. This is not simply a case of an administrative tribunal with modest functions or a fact-finding body assisting in policy development. This case involves coercion and potential self-incrimination in the official investigation of serious criminal offences. The appellant asked: if the Commission could be brought within the SEP Act as a "tribunal", could a State, by its laws, empower a police constable or other person or body to gather evidence of any crime against the laws of the State in a similar way and then to impose on persons anywhere in the Commonwealth a requirement to present before that person or body in another State to answer incriminating questions, so long as leave was granted under the SEP Act for that purpose?
The constitutional context: The key provision of the Constitution invoked by the Commission, with the support of federal and State governmental interveners, to uphold the validity of the impugned provisions of the SEP Act was s 51(xxiv). Subject to the Constitution, that paragraph empowers the Federal Parliament to make laws with respect to:

[91]

Duty to the Constitution: The duty of a judge of this Court, in deciding a matter brought before it, is to quell the controversy between the parties[90]. But the "quelling" must be done in accordance with law. Where the meaning and application of the Constitution is concerned, from which the judges of this Court derive their authority, there is an individual duty to the document[91]. That duty cannot be overridden or ignored because of the way parties choose to present their case[92]. Nor can past rulings or procedural restrictions[93] impede this Court's faithful application of the Constitution. These statements do not mean that judges approach constitutional questions as if the law reports contain blank pages. The greatest of respect is paid to the decisions of the past. However, many cases show that fresh consideration of such decisions can sometimes lead to new approaches, including on constitutional questions[94].
As I have mentioned, the appellant did not argue that the "civil and criminal process" mentioned in s 51(xxiv) of the Constitution referred only to the "process … of the courts of the States". Indeed, the appellant disclaimed that argument[95]. He did so although, were it to succeed, it would have been fatal to the validity of the SEP Act in its application to the interstate service of a summons issued by a "tribunal" such as the Commission.
Whatever arguments might be mustered to the effect that a magistrate conducting a preliminary hearing in an interstate police court is a "State court" for constitutional purposes[96]; that an interstate special magistrate conducting a preliminary examination in connection with a complaint that a defendant had committed an indictable offence is also a "court" for such purposes[97]; and further that an arbitration ordered under the Arbitration Act 1891 (SA) has sufficient resemblance to a curial arbitrator to be a "court" for such purposes[98], such arguments could not succeed here. The Commission is not on any arguable basis a "court[] of the State[]". It is an authority of the executive government of the State. Sufficient has been revealed of its functions and powers to show that it does not, and is not intended to, operate as a "court". Certainly, for the purpose for which the summons was issued by the Commission to the appellant, in order to interrogate him, no court-like adjudicative function was contemplated. The purpose of the summons was investigatory. Whilst Australian courts, in particular jurisdictions and in certain cases, sometimes perform investigatory functions, the broad-ranging investigation by the Commission with a view to identifying criminal liability and to commencing separate criminal proceedings is not a function of the "courts of the States" as contemplated by the Constitution.
It follows that, even if past authority of this and other courts on the meaning of s 51(xxiv) of the Constitution could be distinguished on the facts or explained with other justifications, the present appeal presents the first of the above issues squarely, assuming that the Court should decide it.
The Court's present authority: In its report Service and Execution of Process[99], the Australian Law Reform Commission addressed the alternative approaches to the meaning of s 51(xxiv) in terms that were repeated by Mason P in the Court of Appeal[100]:

[99]

In Ammann, Walsh J and Stephen J agreed in the reasons of Gibbs J and with the orders that he proposed. Somewhat similar opinions on the ambit of the power appear in the reasons of Menzies J[107] and of Mason J[108]. Although he dissented in the result, Barwick CJ expressed a like view on the question whether the words "of the courts" in s 51(xxiv) formed part of the description of the subject matter "so far as it concerns the civil and criminal process". In Barwick CJ's view "[t]hose words … form part of the description of the other section of the subject-matter of the paragraph, namely, the judgments of the courts of the States."[109] The result is that the reasoning in Ammann resists any reconfiguration of the operation of the closing phrase of s 51(xxiv) of the Constitution. No doubt, this explains why the appellant elected not to argue the opposite and proceeded directly to the second issue on which, he hoped, more promising prospects awaited him.
Contrary arguments: Despite the present state of authority there are, as it seems to me, significant textual, contextual and other arguments against the Court's doctrine as it now appears to be established.
First, the text, standing alone, suggests that the words "of the courts of the States", appearing at the end of the paragraph, govern both "the civil and criminal process" and "the judgments" stated earlier in the paragraph. There is no punctuation in the paragraph (as there is in s 51(xxv) and in s 118 of the Constitution) to indicate clearly that the closing phrase relates only to some words and not to others. The text itself lends support to a suggestion that "the courts of the States" is intended to govern the entirety of the preceding expression, namely "the civil and criminal process and the judgments". Both elements in that expression constitute the universe of the activities that the "courts of the States" are engaged in. Before any court determination, there is "civil and criminal process". After determination there are "the judgments" of the courts. Put together, therefore, the two expressions capture the totality of the formal activities of "the courts of the States" in respect of which "service and execution throughout the Commonwealth" might be required.
Moreover, the repetition in the text of the definite article ("the") before each of "civil and criminal process" and "judgments" suggests that the closing phrase was intended to govern each of the separately identified curial activities. Such a result would not be unusual in a federal Constitution, conceived in the 1890s, aimed at curing the dual colonial problems of service and execution of "the civil and criminal process … of the courts" and service and execution of "the judgments of the courts". With respect, as a matter of text and apparent purpose, there is therefore much to be said for a view of the ambit of the power contrary to that preferred in Ammann.
Secondly, the constitutional context lends support to this conclusion. If it had been intended to sever "the judgments of the courts of the States" from service and execution of "the civil and criminal process" of the States, it might have been expected that punctuation would have marked the severance, as did the comma placed before the closing phrase in s 51(xxv), respecting "judicial proceedings". In an economically stated and carefully drawn text, the differential absence of such punctuation supports a functional interpretation of s 51(xxiv). Unsurprisingly, that function is one concerned with all of the activities of "the courts of the States". They are the bodies, as such, apt to require "service and execution throughout the Commonwealth"[110]. This includes both "process" and "judgments". A similar argument of punctuation and arrangement can be drawn from the terms of s 118 of the Constitution.
The provision for the service and execution of "the civil and criminal process", referred to in s 51(xxiv), would also seem more naturally to relate to the process "of the courts of the States". This is because Ch III of the Constitution is at pains to create an integrated Judicature and thus to evidence a federal constitutional concern with the operation throughout the Commonwealth (a borderless society for this purpose) of the State courts' processes and judgments. There is no equivalent provision in the Constitution for the integration of the formal processes of the non-court federal and State executive powers. At least this is so unless the moribund Interstate Commission, envisaged by s 101 of the Constitution, provides the means, but then as a federal body.
Whilst, in the way the Commonwealth has developed, the grant of a federal legislative power to make laws for the service and execution of the civil and criminal process of the States outside the courts might be viewed by some as convenient, it does not fit naturally within the basic ideas of the Constitution envisaging integration of the courts as a matter of legitimate federal governmental concern but separation of the "processes" of the executive governments, being the several "sovereignties" together united in the Commonwealth but maintaining their separate governmental identities and functions.
Thirdly, an historical recollection adds further support for this view. As the joint reasons point out[111], the colonial difficulty that preceded the adoption of the Constitution in terms of s 51(xxiv) produced the Federal Council of Australasia, established under the imperial statute of that name[112]. As appears from s 15 of that statute (cited in the joint reasons) there is no doubt that the mischief identified in that Council, which was also in the minds of those who later drafted and adopted the federal Constitution, concerned, and concerned only, the activities "of the courts", "of courts of law" and of "criminal process" which, at that time, meant only process in and of "the courts". Nothing in the statute establishing the Council or in the three Australasian statutes for service and execution of process made by the Council[113], lends any historical support for a suggestion that the interstate enforcement of the "civil and criminal process" of an executive government was contemplated by the adoption of s 51(xxiv). On the contrary, placed in its historical setting, the language of s 51(xxiv) appears to be a tighter, briefer expression of the powers formerly belonging to the Federal Council. They were powers confined to the process "of the courts".
Fourthly, whilst it must be conceded that the exposition of the majority reasons in Ammann supports the broad interpretation of s 51(xxiv), on one view the determination of the point was not essential to reach the Court's orders in that case. This is because, for constitutional purposes, the subpoena addressed to the applicants in Ammann was arguably part of the "criminal process … of [a] court[] of the State[]" of South Australia, namely of the Adelaide Magistrates' Court before which they were required to appear to give evidence in committal proceedings.
Although, for some purposes, committal proceedings have been viewed as administrative, and not judicial, in character, for constitutional purposes it would be difficult, at least today, to describe the Adelaide Magistrates' Court, or its equivalent, in Ammann (any more than the Police Court in Aston) as other than a "court[] of the State[]" within s 51(xxiv)[114]. At various points in their reasons, both Barwick CJ[115], Gibbs J[116] and Mason J[117] appear to acknowledge that the "process" in Ammann was that of the "courts of the State[]" issuing the subpoena. Yet if that were so, there was no need in Ammann (any more than earlier in Aston) to differentiate between "the civil and criminal process … of the States" and the "civil and criminal process … of the courts of the States". The facts of each case applied equally to either interpretation.
Fifthly, the risks of enlarging the imposition on the liberty of individuals of obligatory interstate executive government "process", issued by inquisitorial bodies such as the Commission, arguably present greater dangers than the interstate service and execution of the "process and the judgments of the courts". This is because the courts in Australia are guaranteed a minimum degree of constitutional independence, either directly under Ch III of the Constitution, in the case of federal courts, or, in the case of State courts, under the principle upheld in Kable v Director of Public Prosecutions (NSW)[118]. Important safeguards for the rights of the individual normally lie in the process of courts.
There is no similar constitutional guarantee in the case of the executive governments, their officers and agencies. As the State Act illustrates in the present case, the ambit of the powers of such executive agencies, and the manner of their functioning, may not be as attentive to individual rights as, traditionally, the "courts of the States" have been. Ordinarily, courts perform their functions in public; they are independent of external influence; they allow parties to be legally represented; and usually their dispositions are susceptible to appeal. These are not necessarily features of bodies within the executive government - federal, State or Territory.
In recent years, the number and variety of State investigatory bodies have proliferated significantly[119]. Therefore, to contemplate a power in the Federal Parliament to provide for the service and execution of the "process" of so many such State bodies is, to say the least, to envisage a net of power, potentially diminishing freedoms, cast far beyond that previously provided and wholly beyond that envisaged when s 51(xxiv) of the Constitution was adopted[120].
Royal Commissions and official Commissions of Inquiry existed in the several colonies of Australasia before federation[121]. However, the interjurisdictional enforcement of their "process" was not a cause of concern to explain the "innovative" power to permit interstate service and execution of process in such a case. Doubtless this is why Mason J in Ammann[122] expressly reserved the question whether the power afforded by s 51(xxiv) extended to "the process of Royal Commissions and tribunals which are not courts in the strict sense". Such reservation would not strictly have been necessary if the "process" of non-courts was within the ambit of the power. Arguably, if all that was required was that the "process" be that "of the States", it was not necessary for Mason J to express the reservation as he did.
Conclusion: an assumed construction: Having regard to the foregoing, it will be obvious that I have distinct reservations about the interpretation of s 51(xxiv) of the Constitution that this Court accepted in Aston and in Ammann. I acknowledge the need to adopt a broad approach to a grant of legislative powers appearing in the Constitution, such as in the paragraphs of ss 51 and 52[123]. Especially so where the purpose of the power is, as here, to provide facilitative procedures; to reduce uncertainties and inconvenience in the operations of the applicable organs of government within the nation; and to respond to the changing features of modern government[124], which certainly now includes the proliferation of court-like tribunals[125] exercising adjudicative functions sometimes akin to those of the courts[126]. However, the language of s 51(xxiv) demands that content be given to the expression "of the courts". The controlling effect of that expression must be determined accurately. Constitutional convenience does not erase the text or resolve the doubts to which it gives rise[127]. The provision must still be given its true meaning.
In constitutional adjudication there is often need for stability and settled conclusions. Absent fresh insights, stability in constitutional interpretation is often desirable. Eventually, judicial hesitations may have to bend to majority wisdom. But it may overstate things to say, as O'Connor, Kennedy and Souter JJ did in Planned Parenthood of Southeastern Pennsylvania v Casey[128] that "[t]he legitimacy of the Court would fade with the frequency of its vacillation"[129]. In this respect, Australians are more resilient and realistic in their understanding of the contestable character of much constitutional decision-making[130].
Because the appellant did not argue against the approach adopted in Aston and Ammann, this appeal substantially took the course of accepting that approach, particularly as expressed in the reasons of Gibbs J in Ammann[131]. This is not, therefore, a suitable occasion in which to give effect to a contrary opinion. Whatever reservations I may feel concerning the interpretation of s 51(xxiv) adopted before this case (and as to the necessity and operation of the remarks expressed having regard to the identity of the State "court[]" in each case issuing process for execution interstate[132]) the proper course is for me to accept the present doctrine, having voiced my doubts about it[133].
The present state of constitutional authority (and the convenience to governments of the constitutional result arrived at) may cement the present doctrine in place so that it passes into the unquestioned meaning of the Constitution[134]. On the other hand, it may be that a future misuse, or over-use, of interstate service and execution of State executive government process will encourage a fresh look at whether this was the correct meaning of s 51(xxiv) of the Constitution. Whatever happens in the future, I have expressed my reservations.

[100]

The constitutional position reached: I have examined the operation of the closing words "the courts of the States" in s 51(xxiv) for a reason. Although the appellant did not advance an argument that those words governed the phrase "the civil and criminal process", effectively his concession is, in my view, fatal to his constitutional challenge.
Once it is accepted that the power afforded to the Federal Parliament by the paragraph is to make laws with respect to "[t]he service and execution throughout the Commonwealth of the civil and criminal process … of the States" (and not "of the courts of the States") it is impossible for the appellant to succeed. This is because the removal of the reference to "the courts" removes the phrase that is essential, in my view, to erecting an argument that "the civil and criminal process" referred to is limited to the type of "civil and criminal process", involving the adjudication of rights and liabilities, such as is performed by "courts".
Once this point is reached, it follows that the power extends to the "civil and criminal process … of the States", including as the States act through the executive government and its agencies (and perhaps also any such process of the parliaments of the States[135]). There is no apparent reason then to stamp the "civil and criminal process" referred to with a confining ambit. Indeed, when the controlling character "of the courts of the States" is taken away from the "civil and criminal process" referred to in s 51(xxiv), it is much less likely that such "process" would be incidental to the adjudication of rights and liabilities. Adjudication is normally a function of the courts, including in State jurisdiction. But, whereas in State jurisdiction, non-court tribunals, executive bodies and, occasionally, State parliaments and their committees, may sometimes affect, by adjudication, the rights and obligations of those coming before them, this is not a universal feature of non-court "process". It is quite common, indeed usual, for tribunals and other bodies within the executive government of the States (and even sometimes for State parliaments and their committees) to engage in far-reaching inquiries. The decisions of such non-court bodies may be adjunct to the provision of evidence or other information upon which policies and proposed laws will be devised, or subordinate legislation made, by the executive. Or they may be incidental to legislation considered, or developed, by a State Parliament. Removal of the controlling element of "process" as ancillary to "the courts" subtracts the invariable feature of adjudication of rights and obligations that the appellant would now have this Court read into the power.
If the alternative ("narrow") interpretation of the structure of the paragraph had been adopted, there would be great force in the appellant's submission. But, having abandoned that argument, the appellant's endeavour to draw the character he described out of nothing more than the words "the civil and criminal process" fails. Certainly, it fails in this case where the summons of the Commission clearly falls within the words "the criminal ... process ... of [a] State[]", being a "process" designed, amongst other things, to investigate "relevant criminal activity referred … for investigation" and to "assemble evidence [for] the prosecution of a person for a relevant offence" (including a "serious drug offence") as defined[136] with a view to fulfilling the objects of the Act, namely to reduce the incidence of illegal drug trafficking and organised and other crime[137].
Accepting, then, that non-court "process" is included in the power afforded by s 51(xxiv), how could it be said that the summons issued in this case was otherwise than part of the "criminal process"?
Past authority on "process": In an attempt to rescue his submissions, the appellant relied (as did Mason P in the Court of Appeal[138]) on a passage in the reasoning of Barwick CJ in Ammann[139]:

[106]

The foregoing reasoning, and Mason J's subsequent reservations concerning the status of a summons of an interstate royal commission[143], suggest that Ammann was not the right case in which to resolve the ambit of s 51(xxiv). If the process issuing body there was, in fact and law, one of "the courts of the States" it was unnecessary, in order to reach a conclusion on the validity of the application of the federal law to the summons, to decide what portion of the language of s 51(xxiv) the words "of the courts" qualified. But that did not stop the other members of the Court expressing a constitutional conclusion now deployed against the appellant.
Once it is accepted, as the appellant did, that the phrase "of the courts" did not qualify "the civil and criminal process", the foundation for Barwick CJ's opinion that the "criminal process" referred to was one "for the establishment of legal rights or the enforcement of the criminal law" cannot be sustained. In Ammann, Barwick CJ was in dissent. Although, elsewhere in his reasons, his Honour endorsed the majority approach on the ambit of s 51(xxiv), the definition that he adopted for "criminal process … of the States" could only be accepted if the "criminal process" referred to in the grant of power was one limited to a "process … of the courts". There is no reason for reading such "process" in the confined way suggested, once the "criminal process" contemplated is not confined to that "of the courts" but extends to any "criminal process" of the executive government or (so far as such a power exists) of a State Parliament.
It follows that there is no binding or persuasive authority of this Court to sustain the appellant's argument on the second issue.
Textual and contextual factors: The appellant submitted that, notwithstanding the larger ambit of "process" consistent with Ammann, the word in the context of s 51(xxiv) of the Constitution was a technical legal word, invariably related to a proceeding before a court or tribunal, involving for that reason a process of adjudication or of the enforcement of the criminal law by the trial of offenders. A summons by the Commission therefore fell outside "criminal process", so conceived.
In support of this submission, the appellant cited the definition of "process" in Wharton's Law Lexicon[144], used by Gibbs J in Ammann, as follows[145]:

[108]

Immediately after this citation, Gibbs J proceeded to reject any suggestion that "process" in s 51(xxiv) was confined to originating proceedings[146]. Moreover, his rejection of the necessity for the "process" to be process "of the courts of the States", as such, meant that he rejected the limitation of the expression to process ancillary to court proceedings. So the citation of Wharton is of limited assistance.
The appellant then invoked the definition of "process" contained in Jowitt's Dictionary of English Law, cited in this case by Mason P[147]. This is very similar to Wharton's definition. It is defective for the same reasons. Butterworth's Australian Legal Dictionary defines "process" as "a document issued or filed with a court or tribunal in proceedings, which requires a person to attend before the court." That definition is broad enough to include the Commission's summons in this case, once "process" of non-courts is regarded as constitutionally permissible. Yet even that definition is then unduly narrow when a non-court State body is accepted as entitled to issue "process" that enlivens the constitutional power. So long as that can validly happen, the "process" involved will be that proper to the non-court issuing body. It is not necessarily confined to the functions traditional to court "process".
There are dangers in using legal dictionaries to give meaning to the composite expression "civil and criminal process". Until comparatively recently, most such legal "process" was undoubtedly issued by courts. Therefore, so far as "process" of the kind requiring "service and execution throughout the Commonwealth" was concerned, it was typically that issued by courts and it related to the adjudicative work that courts normally perform.
In recent times, but not only then, "process" that qualifies as "civil and criminal", has been entrusted to non-court bodies in the branches of government outside the courts. A common feature of "civil and criminal process" is that it requires attendance of a person before a body established by law relevant to the enforcement of the criminal law under the sanction of a penalty for disobedience. This is what the summons issued by the Commission to the appellant purports to do.
Unless the Constitution is to be confined to the meaning of "civil and criminal process" at the time of federation, it is necessary to give meaning to the phrase by reference to its essential features, and functional purposes, rather than its historical or traditional characteristics[148]. The examination of the meaning of "process" in general dictionaries suggests that the essential features of "process" relate to "a systematic series of actions directed to some end" or "a continuous action, operation or series of changes taking place in a definite manner"[149]. Although the words "civil and criminal" import a curial connotation, general dictionaries include amongst legal meanings "the whole course of the proceedings in an action at law"[150]. In the context, this does not use "at law" in a technical sense but refers simply to proceedings having a legal character.
Removal of the confinement of the "process" from necessary connection with the "courts" demands acceptance of the wider functions to which the "process" may be ancillary. Such "process" must still be capable of characterisation as "civil and criminal". It is not completely cut loose from its traditional legal characteristics. However, the notion of functions incidental only to the adjudication and determination of rights and obligations is not inherent in the word "process" for which s 51(xxiv) provides. The contrary conclusion could not be reconciled with the holding in Ammann accepted by the appellant.
Constitutional words: Despite his acknowledgment that the phrase "civil and criminal process" in s 51(xxiv) of the Constitution represented constitutional words, the meaning of which was to be found in their "essential features"[151], some of the appellant's submissions appeared to support a purely historical interpretation of the expression, assigning to it the meaning accepted when the Constitution was adopted in 1900 and in England before that.
Thus, the appellant urged that "criminal process" was historically traced to the courts as "the Queen's courts" so that all power exercised in that respect was "by, or by delegation from, the Crown"[152]. Such notions cannot confine, or control, the meaning of the Australian Constitution, written and accepted by Australians for their governance. Whilst historical considerations may certainly inform words and concepts in the Constitution, this Court has a duty to give meaning to the text, based on the words used, informed by history, guided by authority and applying any relevant constitutional interpretive principles.
It is often useful to examine the Convention Debates and pre-federation history in interpreting provisions of the Constitution. However, such considerations cannot control the meaning[153]. Necessarily, the Constitution is given meaning as an instrument of government the purpose of which is to operate for the ages. Inevitably, different generations read the text as an organic instrument[154]. They see meanings and applications which earlier generations, with their different experiences, did not see[155].
Changing "criminal process": The content of "criminal process" is a case in point. In 1900, that phrase would have conjured up significantly different notions for a reader of the Constitution than it does today. Apart from the wider range of executive (and possibly legislative) bodies that now play a part in aspects of what can broadly be described as "criminal process", the subject matter and content of what is "criminal" has greatly changed. Some of the change, but not all, has come about because of changing technology[156].
Cybercrime, biological crimes, crimes involving acts of terrorism, trans-border crimes and crimes involving a wide variety of narcotic drugs, as well as new means of proving criminal involvement and propensity, all suggest that new content will be given to the constitutional expression "criminal process" today, when compared with 1900. The constitutional text accepts such broader meanings. It responds to the changing ambit of the word "criminal" and the developing notion of "process" in s 51(xxiv). The power is not open-ended and wholly without boundaries. But the boundaries have expanded. They are not confined to those known to the founders in 1900[157].
To the extent that Ammann, and the present appeal, endorse an application of s 51(xxiv) of the Constitution to the "process" of executive (and possibly parliamentary) bodies outside the "courts of the States", and conjure up a "parade of horribles"[158] with people oppressed by non-court summonses demanding their attendance before inquisitorial bodies in distant parts of the Commonwealth, the Constitution and federal law give three answers. Protection against misuse rests principally in the, admittedly imperfect, democratic and accountable features of the system of government created in the Constitution. The "process" involved, whilst not necessarily of a court of a State, must still answer to the requirement that it is of a "civil" or "criminal" character. The SEP Act requires judicial leave[159] before the obligation of attendance is imposed by federal law.
Conclusion: s 51(xxiv) applies: The summons issued by the Commission under s 15 of the State Act was certainly a "criminal process" within s 51(xxiv) of the Constitution. Essentially, it was a subpoena. This is a recognised, essential and well-established form of "civil and criminal process" as that phrase is understood in Australia[160]. Accepting (as the appellant did) that it did not have to be "process … of the courts", it was "process … of [a] State[]". It therefore validly enlivened the SEP Act. It authorised the grant of leave, providing for its service out of the State of New South Wales and in the State of Victoria. Once served, it bound the appellant to conform to its terms. It did so by the combination of the State Act, operating in federal jurisdiction by virtue of the Judiciary Act 1903 (Cth), together with the facultative provisions of the federal SEP Act.
It follows that, on the postulate accepted by the appellant as to the meaning of s 51(xxiv) of the Constitution, endorsed by the decisions of this Court, the SEP Act was, in this respect, valid. The majority of the Court of Appeal were correct to so hold.

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