FEDERAL COURT OF AUSTRALIA

CONSTITUTIONAL LAW - whether judge requiring compliance with notices given under s19 and s30 of the Australian Securities Commission Act 1989 (Cth) (“the Act”) failed to strictly observe provisions of s61, s58 or s75(i) of the Constitution.

CORPORATIONS LAW - whether reasonable grounds for not complying with notices under s19 and s30 of the Act.

CONSTITUTIONAL LAW - whether upon Australia obtaining the status under international law of a sovereign independent nation, the Commonwealth of Australia Constitution Act 1900 (UK) and the Constitution ceased to have effect in Australia - whether no basis for enactment of the Act - whether this court validly created or empowered to enforce obligations under the Act.

PRACTICE AND PROCEDURE - whether appellant ought to be granted extension of time in which to file appeal - whether proposed grounds would fail.

CONSTITUTIONAL LAW - whether order for committal to prison for failing to comply with order of court failed  to conform with s80 and s109 of the Constitution and s78B(5) of the Judiciary Act 1903 (Cth).

PRACTICE AND PROCEDURE - whether contravention of Chapter 29 Magna Carta or Statute Edward III 1331 - whether no jurisdiction to make order of committal because of Habeas Corpus Act 1640 and Article 8 of the Universal Declaration of Human Rights.

Australian Securities Commission Act 1989 (Cth) s19, s30, s70(1)

R v Donyadideh (1993) 115 ACTR 1

Felton v Mulligan (1971) 124 CLR 367

James v South Australia (1927) 40 CLR 1

China Ocean Shipping Company v South Australia (1979) 145 CLR 173

The Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393

Port Macdonnell Fisherman v South Australia (1989) 168 CLR 340

AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION v ERROL JOHN WHITE

QG40 OF 1998

ERROL JOHN WHITE v AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION

QG61 OF 1998

COOPER, SUNDBERG AND MARSHALL JJ

BRISBANE

10 NOVEMBER 1998

THE COURT ORDERS THAT:

1.         The Notice of Appeal from the judgment and orders of Spender J is dismissed;

2.         The appellant pay the respondent Commission’s costs of and incidental to the appeal, to be taxed if not agreed;

3.         The respondent Commission’s notice of motion to strike out the appeal as incompetent be dismissed;

4.         The application to extend the time to file and serve a notice of appeal from the judgment and orders of Drummond J made and given on 16 July 1998 is dismissed; and

5.         The applicant pay the costs of the respondent Commission of and incidental to the application for extension of time, to be taxed if not agreed.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

EXTEMPORE

THE COURT

On 24 June 1998, Spender J ordered Errol John White, the appellant, to comply with notices given under s19 and s30 of the Australian Securities Commission Act 1989 (Cth) (“the Act”) and ordered that he pay the costs of the Australian Securities and Investments Commission (“the Commission”) of and incidental to the application.  On 30 June 1998 the appellant appealed from the whole of the judgment and the orders of Spender J.  However, he did not apply to stay the orders made.

The appellant failed to comply with the orders of Spender J.  In consequence Drummond J, on 16 July 1998, committed him to prison for a period of eight weeks for his contempt of the Court, constituted by his deliberate refusal to comply with the orders made by Spender J on 24 June 1998, and ordered him to pay the costs of the motion for committal. 

The appellant did not appeal against the orders of Drummond J within time.  On 31 August 1998. The appellant applied, by notice of motion, for an extension of time to file and serve a notice of appeal in order to appeal from the judgment and orders of Drummond J.  On 8 September 1998, Drummond J ordered that the application for an extension of time be referred to the Full Court for determination. 

Additionally, on 30 October 1998, the Commission, the respondent to the appeal and to the notice of motion for extension of time, filed a notice of motion seeking the striking out of the appeal for want of competency.  The Commission also opposed the extension of time on the basis that the proposed grounds are such that any appeal based upon these grounds would likewise be incompetent.

The notice of appeal raised three grounds.  They are:

1.         His Honour failed to strictly observe the provisions of Section 61 of the Constitution;

2.         His Honour failed to strictly observe the provisions of Section 58 of the Constitution;

3.         His Honour failed to strictly observe the provisions of s75(i) of the Constitution.

Section 61 of the Constitution provides:

“61.     The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”

Neither before Spender J, nor before this Court, has the appellant shown that s61 was relevant to a proper determination by Spender J of the application of the Commission pursuant to s70 of the Act.  Nor has the appellant identified what it was that Spender J did or failed to do which impacted upon the operation of s61 of the Constitution, in the context of which Spender J ordered compliance with the notices issued under s19 and s30 of the Act. 

There is, in our view, no substance in the first ground of appeal.

Section 58 of the Constitution provides:

“58.     When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen’s assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves the law for the Queen’s pleasure.

The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.”

The appellant has failed to demonstrate any relevant connection between the provisions of s58 and the matters in issue before Spender J. 

There is no substance in the second ground of appeal.

Section 75(i) of the Constitution provides:

“75.     In all matters -

(i)        Arising under any treaty:

....

the High Court shall have original jurisdiction.”

The appellant submits that the effect of s38 (a) of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) is to vest the jurisdiction to hear and determine matters arising directly under any treaty exclusively in the High Court.  A matter arises under a treaty where the right, title, privilege, immunity, duty, or liability in question owes its existence to the treaty or depends upon the treaty for its enforcement or has its source in the treaty:  R v Donyadideh (1993) 115 ACTR 1 at 6;  Felton v Mulligan (1971) 124 CLR 367 at 408 - 409;  James v South Australia (1927) 40 CLR 1 at 40.

In the instant case, the obligations which the Commission sought to enforce against the appellant are those requiring persons served with the requisite notice to appear for examination before the Commission (s19 of the Act) and to produce the specified books relating to the affairs of a body corporate (s30 of the Act).  Those obligations, where there has been a failure to comply with any relevant notice, are enforced by application to the Court pursuant to s70 of the Act.  That section provides:

“70(1)This section applies where the Commission is satisfied that a person has, without reasonable excuse, failed to comply with a requirement made under this Part (other than Division 8).

(2)       The Commission may by writing certify the failure to the Court.

(3)       If the Commission does so, the Court may inquire into the case and may order the person to comply with the requirement as specified in the order.”

The relevant duties and obligations in issue before Spender J arose under the provisions of the Act.  They did not arise under any treaty, nor did that depend upon or rely on the existence of any treaty as a source of the obligation for their enforcement.  There was no matter arising under a treaty for the purposes of s75(i) of the Constitution or arising directly under a treaty for the purposes of s38 (a) of the Judiciary Act which deprived Spender J of jurisdiction to act under s70(3) of the Act.

Before Spender J, the appellant submitted that he had reasonable grounds, within the meaning of s70(1) of the Act, for not complying with the notices.  These reasonable grounds were, it was alleged, that upon Australia obtaining the status under international law of a sovereign independent nation, the Commonwealth of Australia Constitution Act 1900 (UK) and with it the Constitution enacted by clause 9 thereof, ceased to have effect in Australia.  Accordingly, it was submitted there was no basis for the enactment of the Act, with the obligations provided under s19 and s30 and this Court and its members were not validly created or empowered to enforce those obligations.

The argument advanced by the appellant is wrong.  In another form it was rejected by the High Court of Australia in China Ocean Shipping Company v South Australia (1979) 145 CLR 173 at 207 - 214.  The history that appears from the cases and the statutes is one of the working out of the constitutional relationship over time, between Australia and the United Kingdom, in the context of responsible self-government through a written Constitution investing the Australian Parliament with the powers contained in the Constitution, and in franchising the population as electors in accordance with the provisions of the Constitution.  See, for example, The Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393 at 411 - 415;  China Ocean Shipping at 182 - 183, 207 - 214;  Port Macdonnell Fisherman v South Australia (1989) 168 CLR 340 at 378.  The working out of the constitutional arrangements between the United Kingdom and Australia includes the Statute of Westminster Adoption Act 1942 (Cth), the Australia Act 1986 (Cth) and the Australia (Request and Consent) Act 1985 (Cth).

The constitutional arrangements between Australia and the United Kingdom, as developed since 1900, do not create rights or immunities in the appellant under any treaty for the purposes of s75(i) of the Constitution or for the purposes of s38(a) of the Judiciary Act which justified his refusals to comply with the notices served under the Act.  Accordingly, the appellant has failed to demonstrate reasonable grounds for non-compliance with the relevant notices.  Moreover, Spender J had jurisdiction to hear and determine the application under s70 of the Act and the issues raised on the application were not ones falling within the exclusive jurisdiction of the High Court of Australia. 

The third ground of appeal is without substance.

The grounds relied upon do not entitle the appellant to the relief that he seeks in the appeal.  The appeal should be dismissed with costs. 

We turn to the appellant’s application to extend time to file and serve a Notice of Appeal from the judgment and orders of Drummond J.  The first of the grounds the appellant wishes to raise on any appeal from Drummond J’s decision is that his Honour erred “by exercising his judicial powers that are ultra vires the Constitution of Australia (s80, s109), and the Judiciary Act 1903 (Cth) (s78B(5))”.  We understand this to mean that his Honour failed to act in conformity with these provisions.

Section 80 of the Constitution requires a trial on indictment of an offence against the law of the Commonwealth to be by jury.  No such trial is involved in the present case.  Section 109 of the Constitution has no application.  The appellant makes no case that there is a state law which is inconsistent with the Commonwealth law. 

Section 78B of the Judiciary Act requires notices of a constitutional matter to be given to the Attorneys-General of the Commonwealth and the States where a case pending in a court involves a matter arising under the Constitution or involving its interpretation.

Subsection (5) provides that:

“Nothing in sub-section (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so”

We do not understand how this subsection is relevant to the appellant’s case.  Drummond J in fact required notices under subsection (1) to be given, and they were given.  We do not see how it assists the appellant for him to say, as he appears to want to, that Drummond J could have proceeded to hear an urgent interlocutory application without complying with subsection (1).

Assuming that the Commission’s motion that the appellant be dealt with for contempt is an application for urgent relief of an interlocutory nature, it was for Drummond J to decide whether to proceed without requiring notices to be given or to adjourn the matter pending the giving of notices.  The appellant has not pointed to anything which enables Drummond J’s exercise of discretion to be impugned.

The second matter the appellant wishes to raise is that Drummond J failed to observe the due process of law “in contravention of Chapter 29 of the Magna Carta 1297 and the Statute Edward III 1331”:  Magna Carta is part of the law of Queensland - see the Imperial Acts Application Act  1984 (s5 and Schedule 1).  The Statute of Edward III is not - see s7 of the Imperial Acts Application Act 1984.  Chapter 29 of Magna Carta provides, so far as material, that no free man shall be taken or imprisoned or deprived of his liberties except by lawful judgment of his peers or by the law of the land.

The law of the land includes s31 of the Federal Court of Australia Act 1976 (Cth) which empowers the Court to deal with contempts of the Court, and there is no doubt that the appellant was dealt with by Drummond J in accordance with that law.  There is no substance to his complaint that his Honour failed in this respect to observe due process of the law.

The final ground is that Drummond J had no jurisdiction to hear and determine the matter by reason of the Habeas Corpus Act 1640 and Article 8 of the Universal Declaration of Human Rights.  Section 6 of the Habeas Corpus Act is part of the law of Queensland - see Imperial Acts Application Act 1984 (s5 and schedule 1).  As is well-known, s6 of the Habeas Corpus Act 1640 enables a person who has been imprisoned to obtain an order that he be brought before the Court so that the Court can determine whether his imprisonment is “just and legall”.  The section has no application to the appellant.  At the time of the proceedings before Drummond J, he was not imprisoned.  The question before Drummond J was whether he should be dealt with for contempt, perhaps by being imprisoned.  In any event, there is nothing in s6 which deprives this Court of jurisdiction to deal with matters of contempt.

Article 8 of the Universal Declaration of Human Rights provides that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”.  Whatever the applicability or ambit of this provision, it does not, on any view, deprive this Court of the power to punish for contempt. 

As each of the proposed grounds of appeal would fail, to grant the extension of time to file and serve a notice of appeal in the terms proposed would be an act of futility.  Accordingly, the application should be dismissed with costs. 

In the view that we take on the substantive appeal, it becomes unnecessary to deal with the Commission’s motion to strike out the appeal as incompetent.  The notice of motion should be dismissed with no order as to costs.

Associate:

Dated:              1/12/98