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High Court of Australia Transcripts |
Perth No P58 of 1999
B e t w e e n -
THE QUEEN
Prosecutor
and
CRAIG ALLAN HUGHES
Defendant
Case Stated
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 2 MARCH 2000, AT 10.22 AM
(Continued from 1/3/00)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Solicitor.
MR MEADOWS: May it please the Court. May I begin by handing up two documents to the Court. The first of the documents is the Corporations Agreement 1997. This is included in the book of additional materials which has been provided by the Commonwealth, but what I am providing to the Court is the official print of the agreement; and secondly, may I hand up the Heads of Agreement as tabled in the Senate on 11 December 1990, certified by the Clerk of the Senate, and I hand that up because, if you go to the definitions in clause 102 of the Corporations Agreement, you will see that "Heads of Agreement" is defined to mean:
the document referred to in the preamble to this Agreement, a copy of which was tabled in the Senate of the Parliament of the Commonwealth on 11 December 1990;
So, by reference, the document tabled in the Senate is the official document, if you like, evidencing the Heads of Agreement.
GLEESON CJ: Thank you.
KIRBY J: What mileage do you get out of that?
MR MEADOWS: The documents which are in the additional materials presented by the Commonwealth were not what I would describe as official copies. What I am seeking to do is to provide the Court with official copies, even though they are the same. I am sorry to burden the Court with more paper, but that was the basis upon which I sought to do it.
KIRBY J: I thought you were suggesting that because it was tabled that the honourable senators must have therefore understood fully what the legislation was that was before them.
MR MEADOWS: Even I would not be so brave as to do that, your Honour. May I deal now with a number of issues which arose yesterday afternoon which, we would say, are something of a distraction because they do not impact, we would say, on the final outcome of the case stated. They bear on the relationship between section 29 and section 56 of the State Act. The first of these is as to whether the Commonwealth Evidence Act 1905 applies to a prosecution of this kind.
In our submission, the Commonwealth Evidence Act does not apply in such a case and my learned friend, the Acting Solicitor-General for the Commonwealth, suggested yesterday that it may. He has instructed me to inform the Court that on looking at the matter further overnight that he wishes to retract that, and that he would support what I am about to say - well, he has not heard what I am about to say, but I hope he will support what I am about to say.
KIRBY J: This is because of your theory that, though they are called Commonwealth laws, that is merely a nomenclature within the Western Australian Act, and they are, in every way, Western Australian laws?
MR MEADOWS: Yes, it is a State prosecution under a State Act and that the State laws of evidence apply. And the reason for that is that, whilst the Evidence Act is a Commonwealth law which has the potential to apply to proceedings for an offence against the Corporations Law by virtue of section 29, by its terms, it does not.
Section 4 of the Commonwealth Evidence Act by its terms says that:
This Act applies in relation to all proceedings in a federal court or an ACT court -
If you look at the dictionary at the rear of the Act, it is quite plain that the Supreme Court of Western Australia does not fall within either of those descriptions. So, as I say, by its terms the Evidence Act does not purport to apply.
GAUDRON J: I suppose whatever Commonwealth Act there is with respect to fines, penalties and forfeitures does not purport to apply either.
MR MEADOWS: My understanding, your Honour, is that certainly the provisions of the Crimes Act relating to sentencing are taken to apply in relation to offences against the Corporations Law.
GAUDRON J: Why is that?
MR MEADOWS: By virtue of the operation of section 29.
GAUDRON J: Not that this case depends on it, but for my part I do not see why, if section 29 picks up the Commonwealth Crimes Act, it does not pick up the Commonwealth Evidence Act.
MR MEADOWS: But the reason why it does not pick up the Commonwealth Evidence Act is because the Commonwealth Evidence Act says that it does not apply to proceedings in a State Supreme or District Court, and that this is so - - -
GUMMOW J: How could it? It could say in respect of federal jurisdiction it does, but otherwise how could it say that it applied?
MR MEADOWS: I take your Honour's point.
KIRBY J: Unless the Western Australian Parliament, out of its power, says, "For this particular little area of the law, we are making these Commonwealth laws apply by force of Western Australian law."
MR MEADOWS: And, indeed, the Western Australian Parliament could adopt in toto the Evidence Act as the Evidence Act of Western Australia, maybe with some changes, but it would be open to it to do so.
HAYNE J: Can I just interrupt you then about the operation of the Crimes Act and the sentencing, imprisonment and release provisions in Part 1B of that Act. They give as their criterion of operation conviction of a federal offence.
MR MEADOWS: Yes.
HAYNE J: A federal offence defined in section 16 as "an offence against the law of the Commonwealth". Can I just understand the way in which you say that operates in connection with section 29 of the State Act? How does section 29 of the State Act operate in conjunction with those provisions of the Crimes Act which uses their criterion of operation "an offence against the law of the Commonwealth".
MR MEADOWS: Section 29 would make them apply because they are Commonwealth laws which applies laws of the State.
HAYNE J: And as if the applicable provisions of the Corporations Law were, when you came to read Part IB of Division 1 of the Crimes Act - - -
MR MEADOWS: Laws of the Commonwealth.
HAYNE J: A law of the Commonwealth.
KIRBY J: I am still not quite with you, because I thought you answered my question in a way that satisfied me, but I am now not so sure. Section 29 says that:
The Commonwealth laws apply -
hence Evidence Act/Crimes Act -
as laws of Western Australia -
by the force of the power of the Parliament of Western Australia -
in relation to an offence against the applicable provisions of Western Australia as if those provisions were laws of the Commonwealth and were not laws of Western Australia.
Now why does that not pick up the Evidence Act? True, the Evidence Act in its terms says it, by the force of the power of the Parliament of the Commonwealth it only applies to those courts, but if the Parliament of Western Australia chooses to pick it up, why does it not get picked up by section 29?
MR MEADOWS: It does not get picked up because it does not convert Federal Court into State Supreme Court.
KIRBY J: But it is "as if", so we are in the realm of a mystery. This is a legal mystery. It is transubstantiation.
MR MEADOWS: But it does not change the character of the court, as defined.
HAYNE J: And the "as if" is a reference to as if the Corporations Law were a law of the Commonwealth.
MR MEADOWS: Yes, I take your Honour's point. Might I also say, your Honours, that there is a reference to this in Cross on Evidence in the sixth Australian edition at paragraph 1820, pages 119 to 120. There are two statutory exceptions to the proposition which I have just put to the Court. The first is to be found in section 5 of the Commonwealth Evidence Act which makes the proof of Commonwealth documents and official records governed by the Evidence Act in all proceedings. So if you were seeking to adduce a Commonwealth document or official record you could rely on the Evidence Act in that instance.
KIRBY J: Can I just get your help again. I see the definite article there, it says the "Commonwealth laws", and therefore that would appear to be the special laws. But if you look at the definition in the Western Australian Act, "Commonwealth law" is given a definition as meaning:
any of the written or unwritten laws of the Commonwealth -
Now, is there some other definition of "the Commonwealth laws", as distinct from "Commonwealth law", because that seems to pick up all Commonwealth law?
MR MEADOWS: I am not sure that that is right, your Honour. If you read on in the definition - - -
KIRBY J: Yes, but it is:
other than the Corporations Law of the Capital Territory -
MR MEADOWS: Yes, I accept what your Honour says.
KIRBY J: There may be an answer to this.
MR MEADOWS: But it still does not alter the definition of "federal court" or "ACT court". You cannot convert those simply by adopting - - -
KIRBY J: But it is "as if", and therefore one would, after all the federal Evidence Act does apply in New South Wales by force of the Parliament of New South Wales, and presumably the definition of "court" has been changed in that State.
MR MEADOWS: Well, it would simply say that the Evidence Act of the Commonwealth applies in the Supreme Court of New South Wales.
KIRBY J: It has not done that, they have re-enacted - - -
GLEESON CJ: No, there is an Evidence Act of the State of New South Wales which happens to be in the same terms as the Commonwealth Evidence Act.
MR MEADOWS: Yes. Well, I am indebted to your Honour. But it could be done by simply enacting legislation which adopted the Commonwealth Evidence Act as the Evidence Act of the State, or the provisions of it at least.
KIRBY J: Well, you say that "as if" they were laws of the Commonwealth is not enough to transmogrify the Federal Court and Territory court into court of Western Australia and therefore, try as you might with the "as if", you cannot do the conversion. But that is not a problem as I take it with the Crimes Act.
MR MEADOWS: No.
CALLINAN J: Mr Solicitor, I take it then that you say that imprisonment or sentencing under the Commonwealth Crimes Act is something different from - and I am looking at section 56 of the Western Australian Act - custody in Western Australia of offenders because that is the phrase in section 56 of the Western Australian Act.
MR MEADOWS: What that deals with, we would suggest, your Honour, is the procedures relating to how prisoners in custody are dealt with.
CALLINAN J: I must say that is what it suggests to me, but I just wanted your submission on it, that is all.
MR MEADOWS: Yes. If there was any doubt about the Evidence Act's applicability, we would say that was dispelled by section 75 of the Corporations Act of WA - that is the State Act - which expressly applies the Commonwealth Evidence Act for the purposes of Part 3 of the ASC Law - well, certain provisions of the Evidence Act. We would say that that would lead to the conclusion that because it has been specifically applied in those circumstances, then it was not intended to apply in other circumstances.
GLEESON CJ: That is the Evidence Act.
MR MEADOWS: Mine says 1995, your Honour.
GLEESON CJ: My print says 1905.
MR MEADOWS: I must admit, I am reading from the generic version of the legislation.
GLEESON CJ: Probably just a misprint. I am not personally familiar with the Evidence Act 1905 , but that is what this print says.
MR MEADOWS: Yes. Well, I will endeavour to see whether your print is correct, your Honour, but my understanding is that the section is the section in the Evidence Act 1995 .
GLEESON CJ: I think I found it in this print.
MR MEADOWS: It was a misprint but it was corrected, I understand, by Act No 20 of 1995 which changed it from 1905 to 1995, so I am told.
GLEESON CJ: Thank you.
MR MEADOWS: I am also told there was a 1905 Act but it was amended when the 1995 Evidence Act 1989 came into force. Just by way of completeness, could I also point out that the Corporations Law also includes some evidentiary rules of its own, such as section 1305, regarding the admissibility of books in evidence. But having said all that, we would suggest that that is a distraction because it does not go to the answers in the case stated and nor does the question concerning procedures in Western Australia relating to jury trials and trials by judge alone which we say are applicable and that section 80 of the Commonwealth Constitution has no application.
GAUDRON J: Is that because the Judiciary Act does not apply?
MR MEADOWS: Yes, that is partly why, your Honour.
GAUDRON J: Well, that is a complete answer - it does not apply, but why does it not apply?
MR MEADOWS: Perhaps I could take you through the argument - - -
GAUDRON J: No, I do not think so.
MR MEADOWS: It does not really bear on it, your Honours.
KIRBY J: If Justice Gaudron is a little bit interested, I would be interested, without too much of elaboration.
MR MEADOWS: Our proposition is that persons charged with an offence against the Corporations Law do not have to be tried by a jury, or if they are tried by a jury, the verdict of the jury need not be unanimous. Section 29 of the State Act applies Commonwealth laws in relation to offences against the Corporations Law.
The Commonwealth laws do not include the Constitution and we would refer to what the judges of the Court said in Re Colina Ex parte (1999) 75 ALJR 1576 at paragraph [25] by your Honours Chief Justice Gleeson and Justice Gummow applying Sankey v Whitlam; at paragraph [45] by Justice McHugh; paragraph [108] by Justice Hayne where your Honour agreed with Chief Justice Gleeson and Justice Gummow; paragraph [80]by your Honour Justice Kirby, although you expressed some doubts; your Honour Justice Callinan did not decide the point and see also, we would suggest, section 79 of the Judiciary Act itself, which distinguishes between the Constitution and the laws of the Commonwealth. So, we would say that section 29 would not pick up section 80 which would require a trial on indictment to be by jury or a unanimous verdict.
KIRBY J: That theory may have pre-dated the vision of the Constitution as the basal law of Australia and originated in a time when it was thought that the foundation of the Constitution was the Act of the Imperial Parliament. This is not the time to debate it but I think that was the source of my doubt.
MR MEADOWS: Yes, well, quite so, your Honour. In any event, we would say that an accused person accused of an offence against the Corporations Law, whilst he or she would have a right of election to be tried by judge alone, and this is to be found in section 651A(4) of the Criminal Code, the prosecution has the ability to block that election because the Crown has to consent to the trial being by judge alone. As we pointed out in Bond, the term "Crown" when used in the Criminal Code is used interchangeably with the word "prosecution".
So an accused charged with an offence against the Corporations Law has a right to trial on indictment by a jury and if the accused elects, there could be a trial by a judge alone but the Commonwealth DPP, if prosecuting with a policy that all trials would be by jury, could insist that there be such a trial. We would say as well, your Honours, that in terms of the interrelationship between sections 29 and 56 that the specific provisions in section 56 regarding criminal procedure would bring into operation the State laws relating to jury trials, even assuming there were procedures relating to jury trials to be found in Commonwealth laws which, as I understand it, there are none.
The third distraction, if I might be forgiven for saying so, is with regard to the role of the Commonwealth DPP and the question of ministerial supervision. If I could just very briefly make these points, that under the Commonwealth DPP Act section 7(1) gives to the Attorney-General of the Commonwealth a consultative role in relation to:
the performance of the Director's functions or the exercise of the Director's powers.
Section 8(1) provides that:
In the performance of the Director's functions and in the exercise of the Director's powers, the Director is subject to such directions or guidelines as the Attorney-General, after consultation with the Director, gives or furnishes to the Director by instrument in writing.
And section 2 sets out some of the circumstances for directions or guidelines.
Now we would submit that those provisions become applicable where the Commonwealth DPP is prosecuting for a State offence against the Corporations Law.
GUMMOW J: Now, what you say may be consistent, I think, with clause 801 of the agreement you took us to which says that:
the Commission and the Commonwealth Director of Public Prosecutions will have responsibility for the prosecution of offences under the national scheme laws.
MR MEADOWS: Yes, your Honour, but we would say that it is also has legislative sanction.
GUMMOW J: Yes.
MR MEADOWS: And if I could take your Honour to the State Act, section 46 - I am sorry, I should have taken your Honours to section 46 of the Commonwealth Corporations Act.
GUMMOW J: Yes, that links up with 47 in a way.
MR MEADOWS: Yes, it does, your Honour. Section 46, we would say, provides the Commonwealth's consent or authority to a minister in respect of the functions and powers.
GAUDRON J: No, it talks about "under a corresponding law".
MR MEADOWS: Yes, and we would say that section 31(1) coupled with section 29 of the State Act and relying on the definition of "officer" in the State Act - - -
GUMMOW J: Now, well wait a minute. Do not go too fast. Yes.
MR MEADOWS: - - - and "officer" in the Commonwealth Act. So if I could say that again: section 31(1) coupled with section 29 and relying on the definition of "officer" in the State Act and "officer" in the Commonwealth Act picks up the functions and powers of the Attorney-General in relation to offences.
GLEESON CJ: Presumably part of the practical significance of this is that the capacity to set priorities in relation to investigations and prosecutions rests with the Commonwealth Attorney-General.
MR MEADOWS: Yes, your Honour, and it can be taken that that is what the States have agreed should be the case and that the Commonwealth Attorney-General should have supervision of those issues.
KIRBY J: That is the State Executive Government - I am sorry to keep repeating them, but - - -
MR MEADOWS: Not only did the State Executive Government do it in the Agreement, but it is sanctioned by the legislation.
KIRBY J: Including the State legislation?
MR MEADOWS: Yes, your Honour.
GUMMOW J: Perhaps importantly, section 46, which then helps throw some light, I think, on section 47 - - -
MR MEADOWS: Of the Commonwealth Act?
GUMMOW J: Yes. I do not think the DPP is simply being given permission to moonlight.
MR MEADOWS: No.
GAUDRON J: Nor, it seems to me, is the Commonwealth Attorney-General being given permission to moonlight; he is being obliged to do something by section 46 and all those definitions which goes beyond what is in section 61 of the Constitution, it seems to me.
MR MEADOWS: Well, I suppose that takes me directly to the point, which we make in our - - -
GAUDRON J: Yes, and could I add to it, just so that you know what I am thinking: if it goes beyond section 61 and it is not merely permission to moonlight, then, it would seem to me, that section 51(xxxix) will not save it and you have to find a head of power that will, or perhaps several heads of powers that will.
MR MEADOWS: Well, we would deny that, your Honour, as we have said - - -
GAUDRON J: Why?
MR MEADOWS: Well, we would submit that the prosecution of offences is very much one of the executive functions - - -
GAUDRON J: Well, look to the Attorney-General as well, who has been given functions and powers, not merely permission to moonlight, by a Commonwealth Act which, on its face, goes beyond what is involved in section 61 of the Constitution.
MR MEADOWS: Well, with respect your Honour, the powers are given by the State Act - - -
HAYNE J: The Commonwealth legislation, on your submission, is saying, "you shall" - not just you may, "you shall". Where lies the power for the Commonwealth to do that? Now that is a matter more for the Commonwealth Solicitor.
MR MEADOWS: No. What has happened is that the State has picked up those provisions in the Commonwealth DPP Act and said, they apply in relation to State offences under the Corporations Law.
HAYNE J: Let it be assumed that the State Act is saying "you shall"; no question of power may arise if you stopped the inquiry there. But, if the Commonwealth Act is saying you may, that is, you have our permission, but what is more "you shall", where lies the power for the Commonwealth to say "you shall"?
MR MEADOWS: With respect, we say that the Commonwealth does not say "we shall". What is says is "we consent to the State saying - - -
GUMMOW J: It does not say that, nor did clause 801 say that either. It said that the Commonwealth was to have the responsibility.
MR MEADOWS: Yes.
GUMMOW J: And that makes sense.
MR MEADOWS: Yes, it does.
GUMMOW J: It makes sense because the State legislation was, as it were, foreclosing itself from doing these things, so they would not foreclose themselves from doing it, unless they were sure that the other person was obliged to do it, by all that was needed to make it watertight, surely. Otherwise you would have optional enforcement of your laws.
MR MEADOWS: Yes, I understand what your Honour said. But we would submit that the way it works is, as I have said, that the State creates the power and the Commonwealth consents to its conferral.
GAUDRON J: Does it create a duty? Does the State Act create a duty, and query how could a State Act create a duty unilaterally, with respect to an officer of the Commonwealth.
MR MEADOWS: We would accept that it cannot, but where the Commonwealth consents, then the duty would arise.
GAUDRON J: And where does the duty come from, both?
MR MEADOWS: No. The power comes from the State and with the power there is, we would submit, a corresponding duty to perform it.
GAUDRON J: Well, query whether a State - let it be accepted that the State can confer power on a Commonwealth officer. Query whether it can impose a duty on a Commonwealth officer.
GUMMOW J: I think you will agree it cannot.
MR MEADOWS: Well, I do agree that it cannot, but the Commonwealth could consent to both the conferral of the power and the imposition of the duty.
GAUDRON J: Well, certainly it may be accepted, from my point of view, that it could consent to the conferral of a power, but when it comes to the imposition of a duty, and particularly a duty that affects individuals - we are not talking about saying you can go out and take rain-gauge measurements in Western Australia if you like - we are saying you can and you shall prosecute people who offend State laws.
MR MEADOWS: I accept that that is the effect of what the scheme does.
GAUDRON J: Why does there not need, in so far as the Commonwealth Act operates to impose a duty, which you seem to accept that it does at least that much, even if it does not do it in terms - - -
MR MEADOWS: It arises out of the existence of the power.
GLEESON CJ: And the character of the person upon whom the power is conferred.
MR MEADOWS: Quite so, your Honour.
GAUDRON J: If Mr Bugg does not do any of this, if he takes the view it is just too hard to work out how sections 29 and 56 operate and therefore he says, "I'm just not going to do it", what happens then? How do you enforce that?
MR MEADOWS: We would say that the Commonwealth Attorney-General, by virtue of the provisions that I have outlined, could - - -
GUMMOW J: Of course, he has been conscripted too.
MR MEADOWS: Only by consent.
GAUDRON J: By whose consent?
MR MEADOWS: I suppose you cannot be conscripted by consent.
GAUDRON J: That is right, and exactly by whose - he has been - - -
GUMMOW J: Conscripted by section 46.
GAUDRON J: By the Parliament?
MR MEADOWS: By the Parliament, yes.
GAUDRON J: Whether he likes it or not in relation to matters outside section 61? He goes along to Yarralumla and he says, "I'll do everything that section 61 obliges me or the legislation in 51(xxxix) in aid of section 61 obliges me"?
MR MEADOWS: That of course takes us, as I said earlier, to the nub of our submission that, first of all, prosecution of offences is elemental, we would say, to the execution of executive power.
GAUDRON J: No, section 61 is concerned with the Constitution and laws of the Commonwealth, is it not?
KIRBY J: Could you get mandamus in this Court directed to the Director of Public Prosecutions or the Commonwealth Minister?
MR MEADOWS: Yes.
KIRBY J: They are officers of the Commonwealth but are they failing to perform a duty which is required by a federal law?
MR MEADOWS: We would submit that, just as it was said in Cram that they remained officers of the Commonwealth and subject to the Constitution - - -
GAUDRON J: But would not the question of whether or not mandamus would go would depend on the validity of section 47 and Regulation 3? If you wanted mandamus directed to the Attorney-General because he told the DPP, "Oh, it is all too hard. I am directing you not to do anything about it. Just leave it; forget it is part of your duty - and that is a direction", so you would want mandamus as the Attorney-General. Would that not depend on the validity of section 46?
MR MEADOWS: It may well do, your Honour, but we say there are two ways of approaching this. The first is that the Commonwealth has an ability to consent, irrespective of any particular head of power. But if you have to go to a head of power, that the head of power is the incidental power operating on the executive power. We would say that the Commonwealth DPP would be subject to proceedings under section 75(v) of the Constitution.
GAUDRON J: How, in relation to State offences, does the incidental power with respect to the executive power operate? Perhaps there is anterior question: does section 51(xxxix) in conjunction with section 61 sustain the DPP Act, or is it sustained by the implied incidental or, perhaps - I will take that back; I do not like that expression - by the several grants of power which sustain the creation of the offences?
MR MEADOWS: We would say it is supported by both. We point this out in our submissions.
GAUDRON J: There may be an argument about it being supported by section 51(xxxiv).
MR MEADOWS: We would say the establishment of the office of Director of Public Prosecutions could clearly be supported under the heads of power which create the offences against Commonwealth laws which the DPP is appointed to prosecute. I do not think there can be any doubt about that.
GAUDRON J: Then, if that is the case, and he is under a duty to prosecute, why would you not say, "And they can be supported - that much can be supported to the extent that the Commonwealth has power to legislate to the same effect as the States"?
MR MEADOWS: As I perceive what I was putting to your Honour, that was exactly what I was saying, that - - -
GAUDRON J: That is a different proposition from what the Solicitor for Victoria put.
MR MEADOWS: Well, it may be, your Honour, but we would certainly suggest that where an offence is validly created pursuant to a head of legislative power - - -
GAUDRON J: It might be. Where a State offence might validly have been created by an enactment of Commonwealth legislative power then - - -
MR MEADOWS: I do not understand how you can create a State offence by the enactment - - -
GAUDRON J: No. Where an equivalent offence might have been created by a head of legislative power in the exercise of legislative power.
MR MEADOWS: I can understand, I think, what your Honour is saying, that if, for example, the Corporations Law was used to create a particular offence which might be committed - - -
GAUDRON J: If it might have been used.
MR MEADOWS: Yes. It might have been committed by a trading corporation and there is a corresponding offence in State law already, yes. The difficulty with that, your Honour, is that you do not have a Commonwealth offence and you do not have a Commonwealth law creating that offence upon which the incidental power can operate.
GAUDRON J: Incidental powers do not necessarily have - we are not necessarily into the area of incidental powers at all. Why is it not - we will take a simple example - a law, with respect to trading corporations, to say the DPP shall with the consent of the States - I will put that in - which is where I think the significance of the State legislation may come in here, the DPP shall with the consent of the States prosecute all those State offences for which equivalent offences might have been created by the Commonwealth?
MR MEADOWS: I would answer it in this way, your Honour: hypothetically, such a law might be valid, but there would be significant problems in identifying whether or not the particular offence was one which could be enacted under - - -
GAUDRON J: Well, there is no difficulty in this case, is there, subject to some reading down? Money was sent outside the country, overseas trade, external affairs, no difficulty.
MR MEADOWS: Well, if you asking me whether the Commonwealth may have been able to enact legislation which proscribed this particular conduct, then I would have to answer that it may well have been able to do so, but whether section 1064 of such a provision, is another matter.
If I could return to my major premise, and that is that it is one of the powers and functions of the executive to prosecute for offences.
GUMMOW J: Yes, that is true obviously, but, in a federal structure, it is obviously not part of the executive power of Western Australia to prosecute Commonwealth offences nor is it part of the executive power under section 61 to prosecute State offences. So, you have to adjust that United Kingdom idea of the prerogative to the federal structure.
MR MEADOWS: Well, I accept that you do have to undertake that process, but once you - - -
GUMMOW J: It may be an underlying part of the problem here.
MR MEADOWS: Yes, but once you undertake that process, it must be accepted, we would say, that it is one of the functions of the executive to prosecute, and the question is, is it incidental to that power?
GAUDRON J: No, one of the functions of the executive of the Commonwealth is to execute and maintain - prosecute clearly comes in there - the Constitution and the laws of the Commonwealth. That is what it says, "Constitution and of the laws of the Commonwealth".
MR MEADOWS: Can I just add this proviso to what your Honour has said, that the section talks of extending to and not being limited to the execution and maintenance of the Constitution and of the laws of the Commonwealth. We would say that section 61 is a conferral of executive power on the Commonwealth government.
GAUDRON J: And extends no further, on one view.
MR MEADOWS: With respect, we would say that that is just a statement of an area to which it extends but, other than that, it is a conferral of executive power in all its plenitude.
GUMMOW J: The reason why it was put in there was to get rid of any idea that it was no more than the collection of those prerogative rights that existed in Britain.
MR MEADOWS: I would accept that. Can I say that it seems to me to be inescapable that the effect of what this Court held in Byrnes was that it was the incidental power which supported the validity of section 47(1) of the Commonwealth Act and the regulations made under that Act and also supported the validity of section 6(2) of the Commonwealth Director of Public Prosecutions Act.
GUMMOW J: No problem in Byrnes though. The offences were clearly trade incorporation offences in relation to that.
MR MEADOWS: They were clearly what, your Honour, I am sorry?
GUMMOW J: Well, the offences in Byrnes' Case were on behalf of the Corporations Law. I have forgotten precisely what they were but they were some form of shortcoming by directors, I think, of trading financial corporations. They would clearly be within the sort of law Justice Gaudron was putting to you.
MR MEADOWS: I see, your Honour.
GUMMOW J: They were not prescribed interests, to put it shortly.
MR MEADOWS: I understand.
GUMMOW J: So, this area of debate just did not arise in Byrnes.
MR MEADOWS: So, is your Honour telling me that the unstated premise in - - -
GUMMOW J: Well, no one debated it.
MR MEADOWS: We would submit that the unstated premise has to be that this was the incidental power operating on the executive power which upheld those provisions, which are the very provisions which are relied on.
GUMMOW J: Their validity was not challenged.
MR MEADOWS: I, of course, was not there and involved in the case but - - -
GUMMOW J: We have taken through just about every section you could imagine.
GAUDRON J: The only question at issue in that case was the right to commence an appeal.
MR MEADOWS: There was more to it than that, your Honour, because there is, we would submit, a specific finding in paragraph [18] as to the validity of those sections.
GAUDRON J: But they were not in issue in any event, but it does not matter.
MR MEADOWS: We would suggest that that conclusion is inescapable from what is said in the final sentence in paragraph [18].
GAUDRON J: "Any question as to the exclusiveness - - -
MR MEADOWS: It is necessary to go back to the beginning of the paragraph.
GAUDRON J: It depends on how you construe it too, of course. If you construe it as to "receive and exercise", that may be one thing and nobody doubts that it goes that far. Once you construe it so as to require him - and I think if I am correct in Byrnes State officers could still prosecute at that stage - - -
GUMMOW J: It is under the old scheme too, you see.
MR MEADOWS: We are dealing here with the national scheme, not the co-operative scheme, in paragraph [18].
GAUDRON J: Yes, but you are looking at it so far as it deals with "receive and exercise" other functions.
MR MEADOWS: That is as far as we have to go, we would say.
GAUDRON J: No, it is not. It may be but, if you construe it in the context of this scheme as requiring him, you have to go further.
MR MEADOWS: We do not believe you have to go that far and we are certainly not putting - - -
GAUDRON J: So you believe that he and the Attorney-General between them can decide it is just too hard?
MR MEADOWS: We do say that. We say that he has a discretion whether or not to prosecute any particular offence.
GAUDRON J: That is a different matter - a discretion whether or not to receive these functions or to exercise them at all.
MR MEADOWS: We would say that he does not have a discretion as to whether he should receive them. They are conferred by the State Act and the Commonwealth Parliament has consented to that conferral but, as to whether he will exercise them, then we would accept that he has the ability to pick and choose.
GAUDRON J: No, no, not to pick and choose. "The ability to decide this whole area is too hard, I am going fishing, and my staff can come with me".
MR MEADOWS: Well, subject to anything that the Commonwealth Attorney-General might say to him - - -
GAUDRON J: Well, then you come to section 46 and you have the same problem with section 46.
MR MEADOWS: Section 46 is only a consent.
GAUDRON J: He and the Attorney-General decide together, or perhaps the Attorney-General tells him, "It is all too hard, we're going fishing".
MR MEADOWS: The State has its remedy. It simply repeals the provisions which give the Commonwealth DPP these functions and powers and confers them on its own DPP.
GAUDRON J: Of course, but is that what these provisions really mean?
McHUGH J: There may be another remedy. As I pointed out in the judgment called GJ Coles in New South Wales, referring to some old cases, if you hold a public office, you have a duty to perform it. If you do not perform it, you can be indicted at common law for failing to perform the duties of a public office.
MR MEADOWS: In Western Australia, I think we probably have a code offence to the same effect.
GAUDRON J: Well then the question is, has he got a duty? So you still have that same problem. Is there a duty?
MR MEADOWS: As I said earlier, we believe that a duty arises from the existence of the power.
GAUDRON J: Which power?
MR MEADOWS: The power to prosecute.
GAUDRON J: Yes. And which Act imposes the duty? Is it both together?
MR MEADOWS: Yes. We would say that it is the two statutes working together.
GAUDRON J: Very well. Well then, what head of power enables the Commonwealth to impose this duty on the Commonwealth DPP, it being a duty which, when exercised, is going to bear on, as the potential at least, the freedom of this citizen? As I said, it is not quite taking rain-gauge measurements.
MR MEADOWS: I am repeating myself. But we say the power comes from the State Act and the Commonwealth has consented to the exercise of that power. The power carries with it a duty.
GAUDRON J: And you say the State can unilaterally impose a duty.
MR MEADOWS: No, it cannot do it unilaterally.
GAUDRON J: Well, it can impose a duty if the Commonwealth consents to the imposition of a duty?
MR MEADOWS: Yes.
GAUDRON J: So the legislatures of the States of the Commonwealth can, in combination, conscript someone to perform functions - and we will deal with this in terms of the Attorney-General - beyond that which the Constitution and his oath of office require?
MR MEADOWS: The first point I would make, and I think I have already made this, it is very hard to conscript someone by consent.
GAUDRON J: No, it is the consent of the Parliament. The Attorney-General has not consented to section 46 as such, has he? He may have voted against it, and it would not matter.
MR MEADOWS: But the Corporations Agreement is the reflection of the agreement between the Executive Government.
GAUDRON J: Well, it does not matter? Let us look to a change of government, and you have got Madam Attorney-General who was never part of it.
MR MEADOWS: The executive is still bound by its political agreements. It can resile - - -
GAUDRON J: Can Madam Attorney-General be indicted if she says "I do not see how I can be conscripted like this. I am not going to do it"?
MR MEADOWS: I am repeating myself: first of all we say that she has not been conscripted, the legislature has said that there are certain powers and functions that are to be exercised by the Attorney-General and that can be exercised in relation to State offences, and for that reason there is an obligation, a duty if you like, which is imposed on her by the Parliament, by the statute.
GAUDRON J: The Commonwealth statute?
MR MEADOWS: Working in combination with the State Act.
GAUDRON J: For which you say you need no head of power.
MR MEADOWS: We say you do not need a head of power, but if you do it can be found in the incidental power operating on the executive power.
GAUDRON J: How is it incidental to the executive power of the Commonwealth to prosecute State offences?
MR MEADOWS: It needs to be looked at in this light, your Honour, that there could easily be a situation where, because of an agreement between the Executive Governments of the Commonwealth and the States has decided that a particular area of conduct should be dealt with on a national basis. His Honour the Chief Justice, referred to driving of motor vehicles as an example. There is no reason why those two polities could not get together and legislate to create a national scheme to cover that. There is no reason - - -
GAUDRON J: Nobody is suggesting you cannot get together and create a national scheme. What he is talking about is this national scheme and the method by which it has been done.
MR MEADOWS: Yes, I understand that, your Honour, but let me put this proposition. That there would be nothing to prevent the Commonwealth and the States setting up a body to prosecute for offences against that national law.
GAUDRON J: Well, maybe. Setting up a body to prosecute, with power to prosecute, with a duty to prosecute?
MR MEADOWS: Yes.
GAUDRON J: Well, you come back to the same question.
MR MEADOWS: Well, you do, but the point is that if you are unable to deny the ability of the Commonwealth and the States to create that prosecuting body between themselves, there is no difference between them agreeing that a particular functionary of the Commonwealth should have that power and function. So, just as it was possible - - -
GAUDRON J: So, on that argument, 51(xxxix) comes in aid of any inter-governmental agreement no matter what and no matter how it operates?
MR MEADOWS: No, I do not say that at all.
GAUDRON J: Do you say section 61 authorises any sort of inter-governmental agreement?
MR MEADOWS: No, I do not say that. I am saying that if it is an agreement which you could reasonably say was within the executive functions of - well, executive power - - -
GAUDRON J: How do you tell that?
MR MEADOWS: Well, that is a matter which - - -
GAUDRON J: That is the question, is it not, in this case?
MR MEADOWS: Of course it is, and you need to view it in its context. Here, the governments have agreed that there should be a national scheme to regulate corporations and that is an unremarkable thing when you consider that corporations operate across State boundaries, operate nationally.
GAUDRON J: One probably does not have any difficulty so far as one is talking about the regulation of corporations.
MR MEADOWS: Well, you do if it is not a constitutional - - -
GAUDRON J: Because you have a head of - - -
MR MEADOWS: If it is not a constitutional corporation you have a problem, on your Honour's thesis.
GAUDRON J: Well, formed within the Commonwealth, covers a lot; trading in the country; foreign corporations formed within the Commonwealth - are there any other sorts?
MR MEADOWS: Well, financial corporations; trading corporations - - -
GAUDRON J: Yes, but - - -
MR MEADOWS: Are there other sorts?
GAUDRON J: Once you get formed within the Commonwealth and foreign corporations, have you not covered the field, in any event?
MR MEADOWS: Well, with respect, no, and I think cases like Fencott v Muller would bear me out.
GLEESON CJ: I was thinking of the St George County Council, Rocla Concrete Pipes.
MR MEADOWS: Yes, well St George Country Council was overturned, your Honour, but there are certainly corporations - say, a company which is a bare trustee may not have any trading or financial operations and it would not be a constitutional corporation.
GUMMOW J: It would have some financial responsibilities, all right.
MR MEADOWS: It may, but a financial corporation, as I understand it, is one which conducts the business of financing. I suspect that I have made my point in regard to the incidental power and I will not labour it any further. Can I just say that another distraction, we would say, is the examination of section 45 of the Commonwealth Act which, whilst it is specifically raised in the case stated, we would say would not affect the overall outcome of the validity of these prosecutions which have been brought by the prosecutor. Having said that, we would support the construction which was placed on that section by the prosecutor, the Commonwealth and my learned friend the Solicitor-General for Victoria.
Your Honour Justice Kirby asked for a flow chart. Could I commend to the Court the analysis of the various statutory provisions in our submissions and in particular paragraph 4, where we set out the provisions of the WA statutes conferring State power on the Commonwealth Director of Public Prosecutions to prosecute offences against the Corporations Law and paragraph 5, where we set out the provisions of the Commonwealth statutes which authorise the Commonwealth DPP to exercise the powers and to perform the functions conferred by the State on him to prosecute offences. Those powers and functions, of course, are conferred by the State Act. We would submit that those paragraphs constitute a good flow chart as to how it all coalesces.
So far as the corporations power is concerned, if I could just touch on that, we would seek the opportunity to respond to the written submissions which my learned friend Mr Richter proposes to put to the Court.
GAUDRON J: It may go beyond the corporations power.
GUMMOW J: It may involve, in this case, external affairs, may it not?
MR MEADOWS: Yes, well, I think if my learned friend touches on that, we would seek to respond.
GAUDRON J: I am just figuring out the facts of the case stated, that is all; they seem to involve an offshore - - -
GAUDRON J: So there is section 51(i) as well.
MR MEADOWS: Yes - well, I take what your Honours have said and we will certainly address those. But could I - - -
GLEESON CJ: The only thing in making a response, Mr Solicitor, is that you should be subject to a time limit of 7 days, the same as that which was imposed on - - -
MR MEADOWS: We would have no difficulty with that, your Honour. Could I just say, though, that section 1064 of the Corporations Law does not require any support from a Commonwealth head of power.
GAUDRON J: Does not acquire any?
MR MEADOWS: Does not require.
GAUDRON J: Well, we know it does not require any, because it is a State Act, but could it acquire any might be the question?
MR MEADOWS: Yes, I understand what your Honour has put to me and it is consistent with the exchange that has taken place between us just a short time ago.
GUMMOW J: And it involves probably disentangling some of the sub-definitions. Prescribed interest then breaks off and it breaks down to, I think, investment contract might be this particular case, I am not sure; one of the paragraphs of investment contract.
MR MEADOWS: Could I just say in passing - and I hope I am not going to be taken up on this, only because I do not want to take up too much of the Court's time at this moment - that we would say that a law relating to prescribed interest is not in fact the law about corporations at all, that it is actually a law about raising money by public subscription and a natural person or a partnership could raise money by public subscription and, in the case of a partnership, for some purpose other than an interest in the partnership, and you could not say that a law which proscribed that conduct was a law relating to corporations. A law which said that public corporations may only procure public subscription by a particular method might be such a law, but certainly - - -
GLEESON CJ: Is a law that says, nobody except an Aboriginal shall go on this land, a law with respect to Aboriginal persons?
MR MEADOWS: No, because the conduct which is proscribed is the conduct of persons who are not Aboriginal persons. In any event, as I said, I did not want to get into this in any depth at this stage, but we would say the real question is whether the authorisation of the Commonwealth Director of Public Prosecutions is supported by a head of power, not whether section 1064 is so supported.
GAUDRON J: Sorry, whether the Office of the Director of Public Prosecutions - - -
MR MEADOWS: No, whether the authorisation of the Director to prosecute for State offences is supported.
GAUDRON J: And you say it is supported by 51(xxxix).
MR MEADOWS: We do.
GAUDRON J: And you do not say anything else?
MR MEADOWS: No - - -
GAUDRON J: You allow it might be if - also on the basis that the Commonwealth might legislate to the same effect?
MR MEADOWS: Yes, I would not eschew that. If it please the Court.
GLEESON CJ: Thank you, Mr Solicitor.
MR MEADOWS: Before I do sit down, my learned friend, the Solicitor-General for Victoria, has prepared a table of proposed answers which show what the various parties would suggest the answers to the questions in the case stated should be. If I could hand that up.
GLEESON CJ: Thank you very much. Thank you, Mr Solicitor. Yes, Mr Richter.
MR RICHTER: If the Court pleases. So far as the flow chart that I think I promised Justice Kirby yesterday is concerned, I take on board what Mr Meadows says in relation to that and in relation to the difficulty of creating a flow chart with respect to the provisions that apply, because the provisions are collectable within a fairly short compass in terms of the Director of Public Prosecutions' abilities to launch a prosecution, and the Court has essentially been supplied with the basis for it. Although, in our respectful submission, the Director of Public Prosecutions document headed "Form of Indictment", there are some errors that need to be clarified and I would like to go to those, if I may, as the first matter, bearing in mind that any reply with respect to the heads of power supporting section 47 or, indeed, the whole scheme, that will be the matter for the reply within the 7 days, and so I will leave that, other than to say that at the moment, the proposition of the learned Solicitor for WA appears to be in accord with the proposition that we will make, that 1064 is certainly not supported by the corporations power, but we will go into that - - -
GAUDRON J: Well, that takes you then to 51(i) external affairs and, perhaps, reading down in your written submissions.
MR RICHTER: Yes, and all those possibilities.
GAUDRON J: Well, it is certainly reading down.
MR RICHTER: Yes. So far as the power in 51(xxxix) is concerned, in so far as that arose, we would say that what is foreseen by the scheme or, indeed, envisaged by the scheme, is the use of that incidental power as incidental to the execution of State laws, in fact, and that that is not a purpose for which it can be utilised. The Director of Public Prosecutions in - - -
GAUDRON J: I suppose if it did extend to the execution of State laws then you would not need the State's consent. The question is: does it extend with the consent of the State or at the request of the State to the execution of State Laws?
MR RICHTER: Of State laws, yes, and, in our submission, there it would be it does not unless there is some other arrangement in place. The incidental powers of the Commonwealth are not incidental to the execution of powers of the States. They are incidental to the execution of powers under the Constitution.
Going to Mr Bugg's document headed "Form of Indictment", he refers to section 6(1)(a) and (b) of the Commonwealth Director of Public Prosecutions Act giving the Director the function to institute prosecutions on indictment. What needs to be added, of course, is that it is for offences against the law of the Commonwealth. That hardly need be said. But what it also omits to say is that the exercise of that power is limited by and subject to, for example, section 8(1) of the Commonwealth Director of Public Prosecutions Act where section 8(1) provides:
the performance of the Director's functions and in the exercise of the Director's powers, the Director is subject to such directions or guidelines as the Attorney-General, after consultation with the Director, gives or furnishes to the Director by instrument in writing.
et cetera . There is also - - -
GLEESON CJ: I may have misunderstood his argument, but I thought it was section 6(2)(a). I will just have to check the transcripts.
GAUDRON J: It was section 6(2)(a).
MR RICHTER: It was section 6(2), yes, he was referring to section 6(2). But so far as his reference to 6(1)(a) and (b) of the first paragraph in his forms of indictment, what we wanted to draw the Court's attention to was the overriding supervisory function of the Attorney-General set out in section 8(1). That has significant consequences when one looks at the overall position of the Commonwealth Director of Public Prosecutions. One of those consequences would be that, in fact, the Attorney-General is not a person who is listed in the regulations, in Regulation 3.
GUMMOW J: Do not need it because of section - - -
GAUDRON J: Section 46.
MR RICHTER: Yes. In any event, the provisions of section 6(1)(m) of the Commonwealth Director, of course, which require the consent of the Attorney to hold an appointment to prosecute offences against the laws of the State would have to be supplanted by the scheme which is envisaged in relation to the national scheme.
GUMMOW J: I think that is accepted.
MR RICHTER: Yes, the point that we want to make really is this, that apropos the interrelation between section 29(1) and section 31, it is not as simple as saying one simply takes certain laws of the Commonwealth as laws of Western Australia. If it was, there would be no problem but they require, effectively, a rewrite of a number of laws of the Commonwealth and that is not what is provided for because that is effectively what then has to happen without guidance as to what it is that is to be rewritten, and that is part of the principal submission that we make in relation to the invalidity of section 29.
It is seductively attractive to follow through the process of reasoning that says that section 29 simply by reference adopts Commonwealth laws and applies them as laws of Western Australia and then one follows through by looking at section 31 and that a:
law applying because of section 29 that confers on an officer or authority of the Commonwealth a function or power in relation to an offence against the applicable provisions of the Capital Territory also confers on the officer or authority the same function -
To disregard the fact that what is really required is a rewrite of the Act, the Commonwealth Act, the Commonwealth Director of Public Prosecutions Act.
HAYNE J: And what is it in 29 or 31 that requires a rewrite of the Commonwealth Act as opposed to a rewrite of the applicable provision?
MR RICHTER: Because if one looks at the Commonwealth Director of Public Prosecutions Act, essentially his function to prosecute offences against the law of the State comes from section 6(1)(m) and that is effectively to be disregarded.
GAUDRON J: No, but his functions to prosecute under the ACT law come from 6(1)(a).
MR RICHTER: Yes.
GAUDRON J: That is all he needs, is it not, for 31 to operate?
MR RICHTER: That is the theory for 31 to operate because he is authorised to prosecute within the ACT, but within the ACT he is authorised to prosecute as the Commonwealth Director of Public Prosecutions, whereas within the polity of Western Australia it is not the office, we would say, it is a person who has to be appointed, and that would have to throw us back to 6(1)(m) rather than to his functions with respect to the ACT. That is why we started off the submissions in terms of drawing attention to the difficulty that the form of the indictment creates, because it highlights the sort of problems that are involved in the whole process.
That of course applies not just with respect to the Director of Public Prosecutions Act in itself but, if one takes section 29(1) and indeed the whole of section 29 at their face value with respect to Commonwealth laws, then we would submit it requires a significant rewrite or a rewrite of the Director of Public Prosecutions Act of the Commonwealth. We would also submit that it requires a considerable degree of angst in relation to whether or not there is a law of evidence that applies in the State of WA with respect to these trials.
I was interested the other day of course to hear the suggestion that has now been retracted, that the Commonwealth Evidence Act applies. It does not, never has and could not by its own terms. But the problem is this: section 29 on its face would say that the Evidence Act of the Commonwealth does apply because it is a Commonwealth law, notwithstanding the fact that it purports to apply to certain courts and in certain ways. But what an upholding of the validity of 29(1) would require, in our respectful submission, would be a rewriting of some provisions of the Commonwealth Evidence Act and adoption of some of its provisions and rejection of some of the others.
This cannot be, in our respectful submission, an exercise which is left to this Court. The legislature needs to specify which laws of the Commonwealth apply. What laws of the Commonwealth? What parts of the law?
GAUDRON J: In the end your submission may really come down to this, that what has been produced by this exercise by the Parliament in Western Australia was not the specification of any law.
MR RICHTER: That is right. Certainly in respect of the Evidence Act, of evidence laws.
GUMMOW J: Because this phrase "as if" does not really tell you what the text is.
MR RICHTER: That is right. If one says, "It is deemed", then it has a certain meaning and one could then look to the content of what it means, and one could then inform the law of Western Australia with content - - -
GUMMOW J: But if that is right, why does not section 79 of the Judiciary Act have the same vice, at the other end of the scale?
McHUGH J: To some extent section 79 does because in Pedersen v Young, for example, Justice Kitto said that the Judiciary Act does not purport to do any more than to pick up State laws with their meaning unchanged.
MR RICHTER: Yes, and that is precisely the point that I was making.
GUMMOW J: But do you say that is the same here?
MR RICHTER: No. The effect of section 29 requires changes, whereas the - - -
HAYNE J: Changes in what?
MR RICHTER: Changes in Commonwealth laws so that they, in fact, read differently from the way they read as Commonwealth laws.
KIRBY J: But that is by force of the legislation of Western Australia.
MR RICHTER: Yes.
KIRBY J: If the Parliament of Western Australia, within its power, says that that is what is its will for the people and State of Western Australia, why is that not competent - - -
MR RICHTER: Because, in our respectful submission, it introduces a jurisdictional nonsense in the sense that if it imports laws then there has to be certainty about what laws it imports. If all it imports is the notion that there is a corpus of Commonwealth laws that can then be rewritten by the courts of Western Australia, it creates a situation of impossibility.
McHUGH J: No, I am not sure that that is right that you have to rewrite. What you have to identify is the applicable provisions of the State law and then you have to ask yourself are they provisions which, if they were laws of the Commonwealth, other Commonwealth laws would apply to? If they are, then they just operate.
MR RICHTER: Well, if one looks at 79 of the Judiciary, that is the sort of application that it has.
McHUGH J: But if you had an applicable provision which said whoever does such and such is guilty of an offence, and you have a Commonwealth provision which would operate on such an offence, then is that not the effect in the section, that is, section 29?
MR RICHTER: That it operates by force of Western Australia law?
McHUGH J: Exactly.
MR RICHTER: That would be so if it could be done so, but if we look at the example that I have given - - -
HAYNE J: Well before you come to that, what words in section 29 require any rewrite of any Commonwealth law?
MR RICHTER: Well they do not in themselves require a rewrite, because they do not say so, but if one looks at Commonwealth laws, such as the Evidence Act, such as the Director of Public Prosecutions Act, where you have to substitute, for example, the Attorney-General of the Commonwealth, you have to substitute for that some other Attorney - - -
GAUDRON J: No, you do not.
HAYNE J: No, that is assertion founded not, at least yet in your argument, on the words of the section; where do we find it in the words.
MR RICHTER: In terms of the specificity, for example, if there is accountability to the Attorney-General of the Commonwealth under section 8 and the Director is amenable under section 8 to the power of the Attorney-General, in our respectful submission, the Attorney-General would be doing that with respect to the Director's functions for the State of Western Australia.
GAUDRON J: Well, that is one view, but it is a view I think that is not strictly accurate. He is doing it with respect to his 6(2)(a) function, being the function that comes from section 47 of the Commonwealth Corporations Act and Regulation 3 under section 73 of that Act.
MR RICHTER: And the question is whether that provision can be supported by a head of power, which we will deal with.
GAUDRON J: If the State Act operated alone, what it would be purporting to do is to expand the function under 6(1)(a) and it does ultimately seem to be a function imposed by Commonwealth law.
MR RICHTER: By virtue of the fact that the Director has functions to prosecute in the Australian Capital Territory.
GAUDRON J: Yes. You get there by a maze.
MR RICHTER: Yes, but it is a maze which, in our respectful submission, falls on dead ends and runs into difficulties. I was going to go back to the Evidence Act, if I might, for a moment because the effect, in our respectful submission, of what has been argued in relation to that is that effectively there is no substantive law of evidence in Western Australia operating for Corporations Law prosecutions. We arrived at that through the following analysis: if, for example, Commonwealth laws do not pick up the Evidence Act of the Commonwealth - the Commonwealth law in section 29 - we then look to a measure that was seen as a measure to fill the gaps. In other words, we go to section 56, which was said to fill the gaps. But when looking at section 56 it does not pick up the laws of evidence of Western Australia at all because, subject to that particular division, the laws of Western Australia respecting the arrest and custody in State of offenders or persons charged with offences; and criminal procedure in State in relation to such persons apply in Western Australia so far as they are applicable. The law of evidence is not a law of criminal procedure - - -
GUMMOW J: That is defined in subsection (4).
MR RICHTER: Precisely, and does not include the law of evidence. The law of evidence is a substantive law; it is not procedure because, as your Honour, Justice Gummow says, criminal procedure is defined in subsection (4). So we have a situation where, pursuant to this scheme, the Evidence Act of Western Australia does not appear to apply, the Evidence Act of the Commonwealth does not apply, what laws of evidence does a judge apply in the course of a trial in Western Australia of the Corporations Law? This is but one of the sort of lacuna that exist - - -
GUMMOW J: But what is happening in practice? I know that it may not really be relevant - - -
MR RICHTER: In practice, your Honours were told that the Commonwealth Evidence Act was applied, which it is not. In practice, I think, the State Evidence Act is applied. The problem is not so acute in New South Wales, for example, because, of course, the uniform Evidence Act was adopted and adapted with some significant changes, so that is applied. But the State evidence laws appear to apply. The problem with all that is that you get to that, if the Judiciary Act applies, if section 79, which talks about evidence, brings it in, but the Judiciary Act would have to be changed for those purposes to refer to, not just proceedings for offences against the law, or rather not just for proceedings under federal law in State courts, but to include the incorporation of State Evidence Act for all cases. That is why we say that the upholding of section 29 creates those sorts of difficulties, which point to the fact that the scheme is completely invalid. They seem to be insurmountable difficulties.
I understood Mr Justice Hayne, of course, to say that there is no such thing as a difficulty of construction that we can simply put aside. But the conclusions that follow here, and we cannot put it aside, is that this Court is going to have to say, and on a proper lawful basis, which law of evidence applies to trials of Corporation Law offences. Not just that - - -
GAUDRON J: You do not have to say it in this case, though.
MR RICHTER: Well we do, to the extent that the validity of section 29 is challenged, and the validity of section 45 is challenged, and the questions are raised whether they are valid exercises of power. We do have to say it in the sense that if it is not possible with this scheme to come to the conclusion there is a proper workable system according to law has been created, then what has been created is not valid. So we do have to say it, and I have mentioned the Evidence Act - - -
GUMMOW J: The only immediate question is whether this indictment - - -
MR RICHTER: Well, I started with that, but I met with some resistance in relation to that as to why the case was removed, and there are other questions that are raised as a consequence of that, and they arise consequentially from a consideration of looking at the indictment and saying that, without a doubt, this is a Commonwealth indictment. And there is no doubt about that, in our respectful submission. There can be no doubt about that. So the question arises, what laws apply to the trial on that indictment, and that brings us immediately to section 29, section 31 of the State Act and to a whole host of considerations about whether or not section 80 of the Constitution applies or not in the rest.
So the argument essentially is this: if section 29 is read on its face as purporting to in fact deem laws of Western Australia to be laws of the Commonwealth, not just by way of a choice of law provision, but by way of informing the substance of the law and laws of both Commonwealth and State, then it is beyond the legislative competence of the Parliament in New South Wales to create those offences against the laws of the Commonwealth in that sense, if that be the reading. If that not be the reading, then we say there are insoluble and insurmountable problems raised by the construction of Commonwealth laws there, and they are insoluble because, in principle, they create essentially circuitous reasoning and circles, and that cannot be the basis for the validity of that provision.
I have spoken about the Evidence Act. There is, of course, also the question of the Judiciary Act which I have already referred to in the context of evidence, in the context of section 79. But 68(2) is also a law of the Commonwealth, and what does one do about that in terms of importing procedures, or importing laws? Does one rewrite it? Does the Western Australian court rewrite it so that it can then be rewritten or re-enacted into a law of Western Australia, because, on the face of it, all the Commonwealth laws that apply are rewritten. On the theory of the Commonwealth Solicitor, there is a re-enactment as it were. But a re-enactment is one thing and a rewriting is another.
If it was a simple matter of re-enactment we would say there was some substance in the argument, especially in his written submissions in relation to that. But what is involved here is not a notional re-enactment by Western Australia which simply picks up Commonwealth law and says this is now Western Australian law. What is involved is a significant rewrite of, at least, a number of those laws.
GLEESON CJ: You seem to be suggesting this law is void for uncertainty.
MR RICHTER: That is certainly one way of doing it and it is void for uncertainty because it does not create a subject matter to operate on which is properly ascertainable. Now, I understand the constitutional principles and the laws of statutory constructions which, of course, say you go out of your way completely to give something which appears to be very, very uncertain some sphere of operation.
But in this instance, the whole scheme, in our respectful submission, is a snake biting its tail. There is no beginning and no end at which one enters the magic circle and gives it complete meaning and that is a real problem with it. So, we say, first of all, as a matter of construction if you have to construe it away from what it purports to mean on its face it really is void for uncertainty because you do not have a meaning that we can settle on, a proper meaning we can settle on.
Secondly, if you take it on its face at face value it purports to create offences against the law of the Commonwealth and that is definitely beyond the legislative competence of the Parliament in Western Australia so it is void for that. So, either way you get to the conclusion that the scheme is a shambles, in our respectful submission, and that is a keystone to the scheme.
McHUGH J: So you are not raising any question of invalidity. No, you are not, are you?
MR RICHTER: I am sorry, your Honour.
McHUGH J: Are you raising a question of invalidity about whether or not it is a law? Is this an argument that it is not a law within the Austinian sense because although it may purport to impose a sanction, there is no command of the sovereign.
MR RICHTER: There is no valid command.
McHUGH J: No command that is perceptible to the subject.
MR RICHTER: Yes, I do raise that, but I also raise it within the - and that really comes back to the notion of uncertainty that there is no command with certainty, invalidity on that basis but there is a constitutional invalidity in the context of the federal structure within which we operate where States do not have the power to create offences against the law of the Commonwealth. So it is invalid on both counts.
Having addressed your Honours about the Evidence Act we must not overlook, of course, that the Judiciary Act is in some ways in the same situation as the Evidence Act but with greater repercussions in this sense, that the Evidence Act, the Commonwealth Evidence Act says it only applies to certain courts and so on and it would not apply to the courts of Western Australia.
So you would need to, if one were serious about adopting Commonwealth laws, you would perform a bit of surgery on the Evidence Act, but if one is serious and the words mean what they say in terms of Commonwealth laws, one has to regard the Judiciary Act as a law of the Commonwealth. One then looks at it and it says, "Its fear of operation is where you have proceedings for breaches of the law of the Commonwealth in State courts invested with federal jurisdiction and then we have the importation of section 80 and so on. We will do some surgery about that in relation to offences which are not offences against the law of the Commonwealth but are deemed offences against the law of the Commonwealth and that way we will then bring in section 80", and one has to have a wholesale reconstruction of the - - -
GLEESON CJ: I understood the argument about the Evidence Act to proceed on the basis that the reason the Evidence Act is not caught up or taken up by section 29 is the same as the reason the Native Title Act is not taken up by section 29; that is, that it has nothing to do with this subject matter.
MR RICHTER: But it has to do with this subject matter, that is right, in WA but, on the face of it, a subject matter for which we are looking is Evidence Act that applies to a trial, because we need to know what sort of trial one is having. Now, there are the possibilities of - - -
GLEESON CJ: Yes, but there is no Commonwealth Evidence Act that speaks to this subject. Presumably the expression "the Commonwealth laws apply" means the Commonwealth laws that are capable of applying, apply?
MR RICHTER: Yes. Well if that be so, then there is an exclusion of the Commonwealth Evidence Act without the bringing in of any body of evidence law that might apply at all.
GLEESON CJ: Why would you need to bring it in? It is there. It is the State law of evidence.
MR RICHTER: I am not sure that that is right. Well, it is certainly the State law of evidence, but the whole structure is that one is applying the laws of the Commonwealth. It is not taken to be an offence against the laws of the State of Western Australia and, theoretically, the laws of evidence in Western Australia apply to offences which are against the law of Western Australia, in the same way that they would not be applicable to offences against the law of the Commonwealth. As my learned junior reminds me, section 56 is there to fill the gaps, as has been put, but it does not fill that one.
GAUDRON J: I am not too sure that that is right. I am sorry, I am puzzled about it from various ends from time to time. Section 56 applies with respect:
to persons who are charged with offences against the Corporations Law of Western Australia -
or of another State -
in respect of whom -
and it depends in respect where that "in respect of whom" is read -
jurisdiction is conferred on a court of -
Western Australia -
by this Division.
.....or a corresponding law of another -
and when you go back to "this Division" - - -
MR RICHTER: Go back to section 55.
GAUDRON J: - - - you see, "Jurisdiction of courts". First of all it confers jurisdiction on courts of the other States and then by 55(2) you confer jurisdiction on the court of Western Australia -
Where a provision of a law of another State or the Capital Territory -
can vest it on the Western Australia court. It may be that this only applies, as I suggested, as a sort of double renvoi, in cross-vested legislation or in cross-vested jurisdiction, so that if it comes to South Australia, you apply Part 8, and then, if there is any room left for this, you apply Western Australian law.
MR RICHTER: In South Australia. The section 55 is a very, very troublesome section in the sense that it really refers to exercising jurisdiction, but it really does not tell one what the jurisdiction is, about anything.
GUMMOW J: Part 9, which is the root of all this, is it not - you have to start with section 40 which talks about Division 1:
(1) This Division provides in relation to -
(a) the jurisdiction of courts in respect of matters other than criminal matters.....arising under the Corporations Law of Western Australia;
The question then is, where do you find jurisdiction in respect of criminal matters arising under the local Corporations Law?
MR RICHTER: That is what I was looking for. I do not know, your Honour - 53 - - -
GAUDRON J: Fifty three.
MR RICHTER: "This Division provides in relation to" - - -
GUMMOW J: That is 53(a).
MR RICHTER:
(a) the jurisdiction of courts in respect of criminal matters arising under the Corporations Law -
GAUDRON J: Maybe its jurisdiction exists under the Supreme Court Act, or equivalent, and what this division is concerned with is extra jurisdiction when a matter - - -
MR RICHTER: Under the Corporations Law.
GAUDRON J: Yes.
MR RICHTER: Yes, and if it does, then section 55 is really not particularly clear as to what on earth it does. Whatever it does, it certainly does not cover evidence but, as has been observed, maybe evidence is just part of the law for Western Australia in any event. But there is a - - -
GAUDRON J: Section 55 vests jurisdiction in the courts of the other States and the Capital Territory.
MR RICHTER: Section 55, yes.
GAUDRON J: Section 55(a).
MR RICHTER: Yes.
GAUDRON J: Then, (2) excepts jurisdiction from other States and Territories.
MR RICHTER: That is right.
GAUDRON J: But there does not seem to be any other conferral of jurisdiction by that division so, presumably, jurisdiction in relation to matters such as this just comes under the Supreme Court Act.
MR RICHTER: Well, it is difficult to know.
GAUDRON J: Or, perhaps, if the Judiciary Act applies it comes by the Judiciary Act.
MR RICHTER: That is why we say it is difficult to know and we are looking at jurisdiction. It is all very well to say that the State of South Australia can try - - -
GAUDRON J: I suppose if you do not succeed here your next step is to challenge the jurisdiction - - -
MR RICHTER: One supposes so, but one really needs to look at this scheme as a scheme which, in our respectful submission, is based on pretending to be that which it is not - I am loath to use Justice Kirby's appellation as sham because it then might be said to carry certain other connotations with it, but it is a sham. It purports to be that which it is not and, in our respectful - - -
KIRBY J: But statute books are full of fictions, fewer today than there used to be, but they still exist.
MR RICHTER: Fictions are not necessarily shams, with respect, because with Austinian jurisprudence you can say that day is night and the law says day is night and anyone who calls it something else is guilty of a criminal offence. We all know that in the lay sense it is sort of a sham, but in the Austinian sense it is not; it is law. Night is day. What we have here in section 29 is the contrary of that. We have a pretence that night is day and then we say that really when we look at it, night is not day. So, although we say it is, certain other things follow.
To that extent, what your Honour Justice Kirby said about the sham nature of the whole thing, it is a bootstrap. The whole exercise is an exercise of bootstrapping arising out of a political problem that exists for some reason unknown to me between the States and the Commonwealth about the corporations power, and I do not need to go into that. But, strangely enough, that sort of controversy has led to all sorts of things. One might look at the ministerial agreement, for example, and say that there are provisions in it which on the face of them are not only unenforceable but appear to be contrary to law because they seem to be abdicating the powers of Parliaments. The State is undertaking Commonwealth legislation in clause 513. The Commonwealth:
will not introduce a Bill that would repeal or amend a national scheme law, or make a regulation under a national scheme law, unless before its introduction or making the Ministerial Council has been consulted about it and -
except as provided by this Part -
has approved it.
That seems to be a fettering of the Commonwealth's legislative power, which is unconstitutional. There is the counterpart to that for the States in - - -
KIRBY J: Parliament could just ignore that.
MR RICHTER: Parliament would have to ignore it.
KIRBY J: That cannot bind Parliament.
MR RICHTER: I appreciate that, your Honour, but to the extent that our learned friends have been relying on this agreement as having any consequence, one would say it really is not binding, it is not valid. That is simply an illustration of what leads to this scheme in the way that this scheme came about. I will leave going back into the Judiciary Act for the moment, but may I raise the issue of the Commonwealth Crimes Act. So far as the Commonwealth Crimes Act is concerned - I am terribly sorry. In relation to the Judiciary Act, there is one thing that I do want to still refer to, and that is the case of Cook (1996) 130 FLR 354 which is referred to in our outline of submissions. One finds that in Queensland the Queensland Court of Criminal Appeal says that section 68(2) of the Judiciary Act applies to the Corporations Law of Queensland.
KIRBY J: What, via section 29 or the equivalent?
MR RICHTER: Yes. It says that section 68(2) of the Judiciary Act applies to the Corporations Law of Queensland via section 29 which applies Commonwealth laws.
KIRBY J: What is the meaning of the definite article here in 29? It does not say "Commonwealth laws apply", it is, "the Commonwealth laws apply".
MR RICHTER: Yes.
KIRBY J: Is that meant to refer to the Commonwealth laws as defined in this Act?
MR RICHTER: Yes, and it goes back to that definition - we go back to the definition of "Commonwealth law" and it is those Commonwealth laws that apply. I am reminded, of course, that section 31 itself makes it clear when one looks at applicable provisions of the State:
A Commonwealth law applying because of section 29 that confers on an officer -
et cetera. They are a petition of what is, in fact, a defined term.
GUMMOW J: But the defined term includes non-statute law of the Commonwealth.
MR RICHTER: Yes, it does. And that, in itself, raises problems about the sort of certainty and status of what 29 was supposed to achieve.
KIRBY J: But I do not know of any doctrine in Australia, tell me if there is one, or in the United States that says, if a statute is so uncertain in its operation that, eg in a criminal matter, it cannot be an Act of a Parliament of the kind that the Constitution envisaged. Is there such a document?
McHUGH J: Well, in the United States it is dealt with under the due process. But we have not got it.
MR RICHTER: Under due process the US would quash it, yes.
KIRBY J: But what about here? Is there any? I have never heard of such a document.
MR RICHTER: There is no equivalent.
KIRBY J: It might have and it might worth a swathe through, as Justice Hayne said yesterday, through the federal statute book.
MR RICHTER: I suppose one cannot say it is not the law of the Parliament of Western Australia, but one can say, in the situation where it is so vague as to be incapable of having a meaning, that it cannot be applied.
KIRBY J: I have never heard of this Court saying that.
MR RICHTER: No, because this Court, of course, takes the view that whatever else one may be able to do in terms of construction, it should arrive at some construction that gives it some meaning.
KIRBY J: That is right. That is out of respect for the role of the Parliament.
MR RICHTER: Of the legislature. Which is why I am not really adumbrating the notion of voidness for uncertainty in that sort of sense, but rather propounding the notion that it is not that uncertain, that its intent is clear, and that its intent is contrary to the Constitution, because its intent is clear, it is to create an offence against the law of the Commonwealth and that it does not have the power to do. And it cannot create an offence against the law of the Commonwealth for the Commonwealth or in Western Australia.
KIRBY J: But it can in Western Australia create an offence against what is in law a law of Western Australia, but what, for the purposes of the Western Australian statute, they are pleased to call the Commonwealth law.
MR RICHTER: Yes, but that would not be what they do here because here what they say is "The Commonwealth laws apply".
KIRBY J: But as Western Australia laws. It begins with - I mean I do not want to go over this all again.
MR RICHTER: Indeed, no, I understand, your Honour. I understand that construction but we say that when one looks at it together with the complementary provisions in section 45 that the whole scheme falls down because it requires an analysis of State sovereignty and State power which - I do not believe that the State power has the ability to enact sham legislation and I suppose that is one basis on which to look at voidness for uncertainty in a sense. There would be some implied limitation there against a creation of a sham but what is created here is a sham.
The matter that I wanted to take your Honours to next was, in particular, the provisions of the Commonwealth Crimes Act and so far as the Commonwealth Crimes Act is concerned, of course, it is particularly important in the area of sentencing but, of course, it also informs the area of parties to a crime, for example the questions of...., the questions of principles and participation. The Commonwealth Crimes Act deals with all those matters and it deals with all those matters in a way which is somewhat different in various respects from the Criminal Code in Western Australia.
Now, what we then look to in section 29 is to say the Commonwealth Crimes Act is certainly a Commonwealth law within its meaning so it is to be applied as a law of Western Australia but when one looks at it, one needs to rewrite the Commonwealth Crimes Act in order to make it a law of Western Australia because, for example, the questions that arise of the prerogative of mercy, the questions that arise about releases on licence of Commonwealth prisoners and so on do not relate to officers of Western Australia. They relate to the executive power of the Commonwealth. They relate to what the Governor-General can do. They relate to what the Commonwealth Attorney-General can do.
So it requires a rewrite of the Crimes Act of the Commonwealth and not just saying we are re-enacting it as part of the law of Western Australia and these are but examples and I do not want to take the Court's time unduly but one could, if one was studious enough, multiply the sort of examples which tell the Court that when they adopt the laws of the Commonwealth it is not as simple as saying that by an exercise of Justinian jurisprudence they are saying, "This law which is, in fact, a law of the Commonwealth, we will transmogrify it, call it a law of the State of New South Wales." If that was what was intended, that is one thing, but it is not because it requires modification and significant modification.
Now, I do not think I can assist the Court by repeating myself in relation to that, and I certainly will not, but it is a major point of our submission in respect of the notion that the provision is invalid. I think I have already addressed the question of the inconsistency between section 29 and section 56, and we say that inconsistency is highlighted when one considers the provisions of section 55 as well.
As to the notion of conferral, the kind of notion of conferral that is contemplated by section 32, I want to draw the Court's attention that in relation to the acceptance of any conferral, there has to be authority at the other end to accept it. That, of course, is the proposition that is accepted by this Court. The head of power to accept it at the other end is of importance and is of significance and we cannot point to an appropriate head of power to accept those appointments within this scheme.
Finally, we want to draw the Court's attention to the - no, we will address the question of the head of power in written submissions. If it please the Court, those are the matters that I wanted to put in reply. Although the validity of section 47 is not raised in the case stated, in our respectful submission, the head of power to support section 47 and section 46 is so implicitly tied up in the validity of the whole scheme that we would be seeking - - -
GUMMOW J: It would fit in probably with questions viii and ix, I think.
MR RICHTER: Yes, and we would be making submissions about that without asking for reformulations of the stated questions.
KIRBY J: Just a small question. It was mentioned earlier by, I think, Mr Bugg. What is the case that says that even though the Parliament has not adumbrated a reference to particular heads of power, that is not the test that you look at?
MR RICHTER: Fontana, I think.
McHUGH J: There is a passage in Justice Starke's judgment in Ex parte Walsh and Johnson 37 CLR.
MR RICHTER: Yes.
McHUGH J: There has been a later reference.
MR RICHTER: Yes. The interesting aspect though about which - I am not aware of any cases. I mean, there is authority for that proposition.
KIRBY J: You do not contest that?
MR RICHTER: I do not contest that.
KIRBY J: No.
MR RICHTER: What I do contest is this, that this case is quite unique because I have not come across another situation in which the Commonwealth Parliament expressly disavows other heads of power in the reliance on the territories power in which it did, and goes out of its way to disavow it. From what we have seen here in the last couple of days, one can understand why because no-one wants to tackle the question of the Corporations Law, it seems.
KIRBY J: It does not disallow it in the sense of, we do not rely on section - it just does not mention it.
MR RICHTER: Well, in the way that they specifically nominate the head of power as the territories power which, of course - - -
GAUDRON J: Other than for Part 8 though.
MR RICHTER: Yes.
GAUDRON J: And then you are left at large as to Part 8.
MR RICHTER: Yes, as to Part 8 and its validity, and, in respect of that my experience may be short, but I have not come across a situation in which the reference is so pointed and so specific as to, by implication, completely reject reliance on other heads of power.
KIRBY J: But, in terms of principle, the question is, is it a valid law of the Commonwealth, and that depends upon whether it fits within the powers conferred upon the Parliament of the Commonwealth, not whether the Parliament draftsman has adumbrated the long list that one usually sees - - -
MR RICHTER: With respect, it goes a little beyond that in the sense that our learned friends rely on incidental powers. Incidental powers depend on it being incidental to the execution of another power. If another power is not being executed, the incident does not arise and, what we are saying is, whilst one might look for a head of power that might sustain something, this legislation is not an execution of a head of power with respect to which the incidental power can be attracted and, in the end, when one looks at the scheme, all that is happening here is all the incidental powers of the Commonwealth are, in fact, invoked, in one way or another, in order to assist the execution of State laws - not of Commonwealth laws - as part of this scheme, and we say that that is not an appropriate invocation of incidental power under the Constitution. If the Court pleases.
GLEESON CJ: Then, you have 7 days within which to file the written submissions mentioned - - -
MR RICHTER: I am acutely aware.
GLEESON CJ:- - -And all your opponents will have a further 7 days after that to file any reply they wish to make.
MR RICHTER: Thank you.
GLEESON CJ: Subject to that, we will reserve our decision in this matter and will adjourn until 10.15 tomorrow morning.
AT 12.22 PM THE MATTER WAS ADJOURNED
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