Sankey v Whitlam

[1978] HCA 43

High Court of Australia|1978-07-01|Before: Aickin JJ, Murphy J

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Source facts

Court

High Court of Australia

Decision date

1978-07-01

Before

Aickin JJ, Murphy J

Source

Original judgment source is linked above.

Judgment (119 paragraphs)

[1]

These proceedings, which were removed at the outset of the hearing into this Court by an order made under s. 40 of the Judiciary Act 1903 as amended, raise some interesting and difficult issues. Initially there is the question whether declaratory relief of the kind sought should be granted in relation to issues arising in committal proceedings pending before a magistrate in a court of petty sessions. As the proceedings have been removed into this Court, it is this Court's jurisdiction to grant declaratory relief that is engaged. This Court's jurisdiction to grant declaratory relief, delimited as it is by O. 26, r. 19 of the High Court Rules, is no less extensive than the jurisdiction conferred upon the Supreme Court of New South Wales by s. 75 of the Supreme Court Act, 1970. All that was said in Forster v. Jododex Aust. Pty. Ltd. [53] as to the extent of the jurisdiction formerly conferred upon the Supreme Court by the legislation which preceded the Supreme Court Act, 1970 has equal application to this Court's jurisdiction to make declarations of right. Having regard to the breadth of our jurisdiction to grant relief of the kind sought, I see no impediment in point of jurisdiction to the grant of declaratory relief in the present case.

[2]

However, whether the Court should exercise its discretion to grant declaratory relief in this case gives rise to a more acute problem. In Forster v. Jododex Aust. Pty. Ltd. [54] , Gibbs J., with whose judgment on this point McTiernan and Stephen JJ. and I agreed, referred to Lord Radcliffe's observation in Ibeneweka v. Egbuna [55] that "the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making". Except in New South Wales where the grant of declaratory relief is more fashionable than elsewhere (see Bourke v. Hamilton [56] and the cases cited by Needham J. in his judgment), there is a dearth of authority supporting the grant of declaratory relief in relation to committal proceedings. The absence of authority is doubtless to be explained by a variety of circumstances - the recognition that the function of a magistrate in hearing committal proceedings is to decide whether there is a prima facie case against a defendant which warrants his being put upon trial; that a committal for trial is a preliminary examination which involves no final determination of the defendant's guilt of the offence charged; the absence of any appeal from the magistrate's decision; and the existence of the Attorney-General's discretion to commit for trial. All these factors tend to indicate that a plaintiff for declaratory relief in relation to committal proceedings needs to show some special reason why the court should grant the relief sought in lieu of allowing the committal proceedings to pursue their ordinary course. The chequered history of the committal proceedings in this very case is a salutary example of what may occur when proceedings are commenced in a superior court seeking answers to some, but of necessity not all, of the issues arising in committal proceedings. The proceedings before the magistrate are interrupted whilst the superior and appellate courts give attention to particular questions upon which guidance is sought. It may result in unacceptable discontinuity and delay.

[6]

Whether the issues now sought to be determined could be raised for decision in other proceedings in the Supreme Court is not of decisive importance. There has been a long-standing controversy as to the availability of common law prohibition and certiorari to a magistrate hearing committal proceedings. Supreme Courts in New South Wales and Victoria have held that the writs do not lie (Ex parte Cousens; Re Blacket [58] ; Ex parte Lyndon; Re Cooper [59] ; Ex parte Donald; Re McMurray [60] ; Ex parte Coffey; Re Evans, [61] ; Phelan v. Allen [62] ). The Supreme Court of Queensland has taken a different view (Reg. v. Schwarten; Ex parte Wildschut [63] ), as has the Supreme Court of Ontario (Reg. v. Botting [64] ). In this conflict of authority my preference is for the view that prohibition will lie to a committing magistrate to correct for want or excess of jurisdiction. Although it has been said that committal proceedings are ministerial (Ammann v. Wegener [65] ), it should now be recognized affirmatively that a magistrate hearing committal proceedings has, within the meaning of Atkin L.J.'s observations in R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) Ltd. [66] , authority to determine questions affecting the rights of subjects and that he has a duty to act judicially. It is his function to determine whether there is a prima facie case against the defendant sufficient to warrant his being put upon trial. That determination is one which materially affects the defendant because it exposes him to trial upon indictment and to a deprivation of his liberty pending trial. There can be no doubt that in arriving at his decision the magistrate is bound to act judicially in the sense that he must observe certain standards of fairness appropriate to be applied by a judicial officer. It would be quite unacceptable to say that a committing magistrate is not under a duty to act judicially or that he is entirely free from supervision by a superior court, even when acting without jurisdiction or in excess of his jurisdiction.

[46]

So understood, the view expressed by Windeyer J. is at least as wide as that expressed in Reg. v. Foster; Ex parte Commonwealth Steamship Owners' Association [86] and by Barwick C.J. in Spratt v. Hermes [87] . It certainly extends to laws made in or pursuant to the exercise of the legislative powers conferred upon the Parliament. For present purposes I am prepared to assume that s. 61 of the Constitution, when it speaks of "the execution and maintenance of this Constitution, and of the laws of the Commonwealth", draws a distinction between the Constitution as an Act of the Imperial Parliament and laws made by or under the authority of the Commonwealth Parliament and that this distinction is reflected in the expression "law of the Commonwealth" elsewhere in the Constitution so as to confine it to laws made by or under the authority of the Parliament in the exercise of its legislative powers. I am also prepared to assume that the expression is used in a similarly restricted sense in s. 86 (1) (c) of the Crimes Act, though I should be inclined to interpret it more widely. Yet it does not follow from this assumption that s. 105A of the Constitution, as a law amending the Constitution, stands outside the category of laws of the Commonwealth. A law that amends the Constitution is nonetheless a law made by the Parliament and, further, a law made by the Parliament in the exercise of the legislative power conferred upon it by s. 128 of the Constitution. The circumstance that the section prescribes compliance with special and additional conditions before the proposed law enacted by Parliament becomes a law does not in my view deny that what Parliament does under s. 128 is exercise legislative power. What distinguishes an exercise of power under s. 128 from the normal exercise of legislative power by the Parliament is that the section requires that the proposed law shall be submitted to a referendum and that it shall be passed at that referendum by a prescribed majority before it shall be presented to the Governor-General for the Queen's assent. What is required is the approval by the prescribed majority ascertained in the manner described in the section before the proposed law for alteration of the Constitution can be presented for assent. The section refers to the enactment before assent as a proposed law, this being the description that the Constitution elsewhere gives to bills before assent (see ss. 53 and 54), bills which, upon receiving assent, constitute laws made by the Parliament. Furthermore, it proceeds on the footing that the proposed law, when assented to, like all other laws made in the exercise of the legislative power, will take effect as law. In all this there is nothing inconsistent with the exercise of the legislative power of the Commonwealth which by s. 1 of the Constitution is vested in the Parliament consisting of the Queen, the Senate, and a House of Representatives. As I say, the only difference from an ordinary exercise of the legislative power lies in the prescription that before assent the approval of a prescribed majority of electors shall be obtained at a referendum.

[99]

In relation to this particular issue I agree with what my brother Stephen has said, save that I express a concluded view on a point which he leaves open. I agree that the Constitution itself as originally enacted is not a "law of the Commonwealth" in the relevant sense. I would also agree that the Constitution as it stands from time to time in the light of amendments made to it is also not a "law of the Commonwealth" in the relevant sense. The amendments viewed separately, however, stand in a somewhat different position. The procedure for alteration of the Constitution is prescribed in s. 128 and, in my view, that procedure requires that the Constitution may be amended only by an Act of the Parliament of the Commonwealth which in its ordinary signification is plainly enough a "law of the Commonwealth". It is true that the process of enacting an amendment of the Constitution requires a different procedure for the production of an effective Act of the Parliament than that which is normally required. But this is not the only instance of such a situation. It is, I think, clear that a measure passed under the procedure prescribed in s. 57 of the Constitution for dealing with deadlocks as between the House of Representatives and the Senate is just as much an Act of the Parliament and a law of the Commonwealth when passed in accordance with the procedure prescribed for a joint sitting of the House of Representatives and of the Senate, to which the Royal assent is given, as is a measure approved separately by each of the House of Representatives and the Senate to which the Royal assent is given. It does not appear to me that an amendment to the Constitution under s. 128 stands in any different position. The procedure prescribed by s. 128 does not appear to me to differ materially from the special procedure prescribed by s. 57, which, with the Royal assent, produces that which is in truth an Act of the Commonwealth Parliament, i.e. a law of the Commonwealth. It is this point which my brother Stephen leaves open.

[102]

The various questions with respect to Crown privilege apply equally in relation to the first and the second information, but in the light of what I have said about the first information, I regard them as live issues only in relation to the second. I am of opinion that the Loan Council papers are relevant to the second information as framed. The second information charges that the relevant persons conspired to deceive the Governor-General that the "proposed borrowing" was for and intended to be for temporary purposes only, whereas it was not for or intended to be for such purposes, and was in contravention of the Financial Agreement 1927, as amended, the Constitution Alteration (State Debts) 1928 and the Financial Agreement Act 1944, as amended. For that charge to be made out it would, as I see it, be necessary to establish first the agreement between the parties and that its purpose was to deceive the Governor-General. The unlawful character of the conspiracy might be derived merely from the intention to deceive, but that involves establishing that the borrowing was not for temporary purposes only. The information, however, involves the further allegation that the borrowing was not authorized by the Financial Agreement. It is not desirable to consider now whether or not the latter is an essential element requiring proof. It may be well thought necessary to prove all the elements specified in the information, even if it might be possible to succeed by proof only of the first three. It may be enough to establish a conspiracy for an unlawful purpose within the scope of the common law offence to show that the loan was not for temporary purposes and that the conspiracy was to deceive the Governor-General into thinking that it was. The possibility remains, however, that the borrowing might have been within the limits authorized by the Loan Council and, therefore, lawful. The conspiracy as alleged involves both those elements of unlawfulness, though they may be alternatives. It appears to me, therefore, that the amount authorized by the Loan Council would be relevant to the second information.

[110]

There are a number of features of those paragraphs, and corresponding paragraphs in other affidavits, which I find unsatisfactory in relation to the proper mode of claiming "Crown privilege". The deponent does not state that he has himself perused the particular documents. He does not specifically state that the minutes record either in full or in summary form the discussions which took place at those meetings or whether they record merely the decisions arrived at. Different considerations would apply to records of discussions of State and Commonwealth government policy and arguments for and against raising larger or smaller loans and the division thereof among the members, on the one hand, and the mere recording of a decision that the Commonwealth was authorized to borrow X million dollars on its own account. Moreover, the affidavit states merely that in the opinion of the Treasurer the documents "belong to a class of documents which public interest requires should not be disclosed" without indicating what is the class or category into which they are said to fall. It is not, in my opinion, enough simply to say that documents belong to a class which public interest requires should not be disclosed. That itself is not a category which is relevant or helpful. The authorities referred to in other judgments show that there are some categories of documents as to which authority has established that they should either not be disclosed at all or perhaps only in exceptional circumstances, but there is no category or class simply of documents which should not be disclosed. If a new class is to be established which is not to be produced, irrespective of the contents of any particular document, then more information than is here given would be required. Generally it seems to me that the affidavits claiming Crown privilege are cast in a form appropriate to the law as it stood prior to the decision of the House of Lords in Conway v. Rimmer [7] and not the law as it now stands.