Punctuation matters - The Australian High Court case of the missing commas

For those who do not believe that commas affect all areas of life, Australia has its own comma case in the High Court of Australia. That’s right a case in the highest court of Australia that was virtually decided by where a comma was or was not, or should or should not have been in the Australian Constitution (a document written at the very beginning of the twentieth century).

The case is called Dalton v NSW Crime Commission [2006] HCA 17 (Click on the case name to view the full judgment).

The very brief summary is that the NSW Crime Commission issued a subpoena for a Victorian police officer to attend its inquiry. The validity of that subpoena was argued, on the basis of whether a commission of inquiry, such as the NSW Crime Commission, had the power to force someone from another state to attend for the purpose of giving evidence (that is, issuing a subpoena).

The relevant section of the Constitution is section 51, subclause xxiv, which gives the Commonwealth the power to make laws 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.”

While this all sounds very boring, one of the arguments was whether and where a comma or commas should be put. All agreed that one comma should be put after the words “criminal and civil process”, but the main argument was whether the second comma should be put after the word “judgments” or after the word “courts”.

Does that make any difference at all?

Well putting the second comma after the word “judgments” meant that the Commonwealth could only issue subpoenas that related to the “criminal and civil process of the courts of the state” (the narrow view), where putting the comma after the word “courts” meant that the it did not have to be court related, and could be just for the “criminal and civil process of the states” (the broad view). As the NSW Crime Commission is not a “court” the first option meant they could not validly issue a non-court related subpoena for a person in another state. As the NSW Crime Commission is part of the criminal and civil process of the states, the second option meant that they could validly issue a non-court related subpoena for a person in another state.

Just in case firstly, you’re still reading, secondly, you understood all that, and thirdly, you’re wondering what the high court did, well they took the broad view, and allowed the section to be read for processes of the states, that is non-court related processes as well. The subpoena was valid, and the Victorian police officer had to attend.