Australian Securities and Investments Commission v Vis, Haarsma and Goodger No. Scgrg-99-1478

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
v VIS, HAARSMA AND GOODGER
[2000] SASC 258

Full Court: Doyle CJ, Prior and Williams JJ

1................ DOYLE CJ:..... Australian Securities & Investments Commission (“ASIC”) filed a complaint in the Magistrates Court of South Australia. The complaint charges four persons. The complaint charges Mr Vis with being concerned in the management of a corporation without leave of the Court, contrary to s 229(3)(b), s 91A and s 1131 of the Corporations Law. The complaint charges Mrs Vis, Mr Haarsma and Mr Goodger with aiding, abetting, counselling and procuring the offence, contrary to those same provisions and contrary to s 5 of the Crimes Act 1914 (Cth). The complaint is filed under s 49 of the Summary Procedure Act 1921 (SA) (“the SPA”). The complaint having been filed, a summons was issued pursuant to s 57 of the SPA. Mr Vis pleaded guilty and was sentenced.

The other defendants were not asked whether they admitted the truth of the complaint: cf s 67 of the SPA. The complaint was listed for hearing on the basis that the other defendants would not admit the truth of the complaint, and so the Court would proceed to hear the evidence: see s 68 of the SPA.
Before the date fixed, the matter was called on before a magistrate. Counsel for the other defendants submitted that the complaint against the other defendants should be dismissed because s 5 of the Crimes Act could not be used to charge the other defendants with aiding, abetting, counselling or procuring the commission of an offence against the law of a State. The Magistrate upheld the submission and dismissed the complaint.
ASIC appealed against the decision of the Magistrate, claiming to exercise the right of appeal conferred by s 42 of the Magistrates Court Act 1991 (SA) (“the MCA”). That section confers a right of appeal on “a party to a criminal action”. There can be no doubt that the section confers a right of appeal against an order dismissing a charge. It provides specifically for an appeal against “a judgment dismissing a charge of a summary or minor indictable offence”.
The appeal was reserved to the Full Court for determination. On the hearing of the appeal Mr Game SC, counsel for the other defendants, submitted that the Supreme Court lacks jurisdiction to entertain the appeal, and that ASIC lacks power to institute the appeal. He also supported the Magistrate’s decision that s 5 of the Crimes Act could not be relied on to charge the other defendants. Mr Kourakis QC submitted that the appeal was competent, that ASIC has power to appeal, and that the Magistrate was wrong.
Mr Kourakis did not submit that the Magistrate should have treated the reference in the complaint to s 5 of the Crimes Act as a mere matter of particulars, able to be cured by reference to some other statutory provision. I assume that he did not do so because his submissions were based on the premise that ASIC’s case against the other defendants depended upon the availability of s 5 of the Crimes Act.

The Corporations Law of South Australia

The complaint identifies the offence as one against the Corporations Law. Section 13(2) of the Corporations (South Australia) Act 1990 (“the CSA Act”) provides that for the purposes of the laws of South Australia a reference in an instrument to the Corporations Law is to be taken to be a reference to the Corporations Law of South Australia. That law is set out in s 82 of the Corporations Act 1989 (Cth). The enactment by the South Australian Parliament of provisions found in a section in Commonwealth legislation is the central element in a cooperative legislative scheme intended to create “a single national Corporations Law applying of its own force throughout Australia”: CSA Act s 13(1).
Aspects of this scheme have been considered by the High Court in Byrnes v R [1999] HCA 38; (1999) 73 ALJR 1292; in Bond v R [2000] HCA 13; (2000) 74 ALJR 597 and in R v Hughes [2000] HCA 22; (2000) 74 ALJR 802. I will refer later to each of these cases in more detail.
The legislative scheme appears to have worked satisfactorily for some years, at least in its routine application. However, more recently some defects in the foundations of the scheme have begun to emerge. In Byrnes, the majority reached their conclusion in relation to the relevant aspect of the scheme “… by following a thread through the eye of several legislative needles”: [1] The threads which they followed were “… threads through the wilds of legislative complexity”: [12]. In the end the thread that they followed broke, resulting in the conclusion that the Commonwealth Director of Public Prosecutions (“the CDPP”) lacked the power to appeal against the inadequacy of a sentence, a power which one might surmise the framers of the scheme wished the CDPP to have. In his reasons, Kirby J referred to “the grotesque complications that exist in the regulation of corporations under Australian law”: [77]. He referred to the scheme and to its predecessors as “legislative calamities”: [78].
In the face of such judicial indications of dismay, one embarks with diffidence and hesitation upon a search for the right thread in the present case, a thread that will lead the court through the legislative wilderness and will not snap under the strain.
I forebear from setting out the origins the nature and the purpose of the legislative scheme. These are outlined in the High Court decisions referred to, and in particular in the reasons of the majority in Hughes at [18] - [29] and in the reasons of Kirby J at [54] - [73]. Nor will I repeat the guidance to be found in Byrnes, Bond and Hughes as to some of the principles and legislative devices upon which the scheme is founded.

Jurisdiction to entertain the appeal

The offence charged is an offence against the Corporations Law of South Australia. Accordingly, it is “an offence against the applicable provisions of South Australia”: CSA Act s 29(1). The definition of “applicable provision” is to be found in s 3(1) of the CSA Act.
Section 29 of the CSA Act is an important provision. It provides as follows:
“(1). The Commonwealth laws apply as laws of South Australia in relation to an offence against the applicable provisions of South Australia as if those provisions were laws of the Commonwealth and were not laws of South Australia.
(2)For the purposes of a law of South Australia, an offence against the applicable provisions of South Australia -
(a)... is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth; and
(b) is taken not to be an offence against the laws of South Australia.
(3).......... Subsection (2) has effect for the purposes of a law of South Australia except as prescribed by regulations under section 80.”

By this means, the means used to apply the Corporations Law itself, the Parliament of South Australia has “picked up” or adopted and applied laws of the Commonwealth Parliament. The Parliament of South Australia has made those Commonwealth laws apply and operate “as laws of South Australia”. It is as if the Parliament had enacted in terms, or set out in a schedule to the CSA Act, the laws referred to. The laws referred to are identified by the definition of “Commonwealth law” found in s 3(1) of the CSA Act. The legislative device is valid and effective: Hughes at [22] - [27]. The device is valid and effective despite difficulties which may arise in a particular case.

By s 29(2)(b) of the CSA Act, the offences charged are taken not to be offences against the laws of South Australia. That is, they are so taken “for the purposes of South Australian law”.
Accordingly, s 9 of the MCA (conferring jurisdiction on the Magistrates Court) and s 49 and s 57 and other provisions of the SPA do not confer jurisdiction on the Magistrates Court to hear the complaint in this case. Those provisions are to be read as referring only to jurisdiction to hear charges of offences against a law of the State. For the purposes of those provisions, by s 29(2)(b) of the CSA Act, the offences charged are taken not to be an offence against the laws of South Australia.
Likewise, s 42 of the MCA which provides for rights of appeal against a judgment given in the criminal jurisdiction of the Magistrates Court, does not provide for a right of appeal in the present case, and confers no jurisdiction on the Supreme Court to entertain the appeal in the present case.
The jurisdiction of courts in respect of criminal matters arising under the Corporations Law of South Australia is provided for by Div 2 of Pt 9 of the CSA Act: s 53(a). Section 54 contains certain definitions. Section 55(1) is central to the issue of jurisdiction. It provides as follows:
“Subject to this section, the several courts of each State and the Capital Territory exercising jurisdiction -
(a).... with respect to -
(i)the summary conviction; or
(ii)the examination and commitment for trial on indictment; or
(iii)the trial and conviction on indictment,
of offenders or persons charged with offences against the laws of the State or Capital Territory, and with respect to -
(iv).. their sentencing, punishment and release, or
(v) their liability to make reparation in connection with their offences; or
(vi).. the forfeiture of property in connection with their offences; or
(vii) the proceeds of their crimes; and
(b)... with respect to the hearing and determination of -
(i)proceedings connected with; or
......... (ii) appeals arising out of; or
(iii)appeals arising out of proceedings connection with,
......... any such trial or conviction or any matter of a kind referred to in paragraph (a)(iv), (v), (vi) or (vii),
have the equivalent jurisdiction with respect to offenders or persons charged with offences against the Corporations Law of South Australia.”

Section 55 bears a close resemblance, in its structure, to s 68 of the Judiciary Act 1903 (Cth), and in particular to s 68(2). The counterpart to s 68(1) is to be found in s 56 of the CSA Act, to which I will refer later in these reasons.

Clearly enough, s 55 is intended to confer jurisdiction on the courts of South Australia to hear and determine a complaint charging a person with a summary offence against the Corporations Law of South Australia, and at least in certain circumstances, is intended to confer jurisdiction to entertain an appeal against a decision of the Magistrates Court made in the exercise of this jurisdiction. It is aimed at the jurisdictional gap which would otherwise exist because s 29(2) of the CSA Act provides that an offence against the Corporations Law of South Australia is, for the purposes of South Australian law, taken to be not an offence against the law of South Australia.
There is no suggestion in the present case that s 55(1)(a)(i) of the CSA Act did not confer jurisdiction on the Magistrates Court to entertain the complaint filed, to issue the summons and to hear and determine the matter: see s 64 and s 69 of the SPA. When a complaint charging a summary offence is filed in the Magistrates Court, the Magistrates Court begins to exercise jurisdiction “with respect to … the summary conviction … of … persons charged with offences against the laws of …” South Australia. The court exercises jurisdiction with respect to the summary conviction of such a person, although the exercise of that jurisdiction may result in a conviction, an order dismissing the complaint or, if the SPA so permits, some other order that disposes of the matter. Section 55(1)(a)(i) must be read as conferring jurisdiction to embark on the hearing of a complaint, whether the defendant pleads guilty in writing, appears and admits the truth of the complaint, or does not admit the truth of the complaint, in which event the court proceeds to hear the evidence: see the SPA s 57A, s 67 and s 68.
It appears to me that, for the purposes of the SPA, the hearing has begun when the parties appear before the court: SPA s 64. It is not necessary to decide whether it begins at an earlier stage. The SPA contemplates that if both parties appear, the Court will proceed to hear and determine the complaint. In most cases the defendant will then either admit the truth of the complaint or not admit the truth of the complaint: s 67 and s 68 of the SPA. Section 64 of the SPA authorises the Magistrate, upon the parties appearing, to “proceed to hear and determine the matter of the complaint.” That authorised the Magistrate to embark upon the hearing by dealing with preliminary objections to the complaint.
The point of all this is that although s 55(1)(a)(i) of the CSA Act refers only to jurisdiction with respect to the summary conviction of persons charged, it must, as I have already said, embrace jurisdiction to entertain the complaint and to hear and determine it. The jurisdiction conferred is jurisdiction with respect to the hearing and determination of a charge against a person charged with a summary offence. That must be so. As will appear, this is of some relevance to the jurisdiction conferred by s 55 of the CSA Act with respect to appeals.
Appeals are dealt with by s 55(1)(b). Once again, the device is to confer, with respect to persons charged with offences against the Corporations Law, a jurisdiction equivalent to that exercised with respect to persons charged with offences against State law. It is necessary to identify what I will call the State jurisdiction that is referred to, and then to proceed on the basis that an equivalent jurisdiction is conferred with respect to persons charged with offences against the Corporations Law. The State jurisdiction identified is, omitting the letters and numbers from the provision, “jurisdiction … with respect to the hearing and determination of … appeals arising out of … any such trial or conviction …”. A court which has that jurisdiction under State law, is given the equivalent jurisdiction with respect to persons charged with summary offences against the Corporations Law.
The words “any such trial or conviction” must refer to something to be found in s 55(1)(a). The words are apt to refer to a trial on indictment, a conviction on indictment, and to a summary conviction. The Supreme Court exercises jurisdiction with respect to appeals arising out of such trials and such convictions, and accordingly has the equivalent jurisdiction with respect to persons charged with offences against the Corporations Law.
But in the present case the appeal is against the dismissal of a complaint charging a summary offence. Can the reference to “such trial or conviction” be treated as a reference to the exercise of the jurisdiction to receive a complaint, issue a summons, and then hear and determine a charge of a summary offence by dismissal or by conviction, in much the same way as I have treated the reference in s 55(1)(a) to jurisdiction with respect to the summary conviction of persons charged? Alternatively, can the reference to “such trial or conviction” or to “such trial” be read as a reference to the hearing of a charge of a summary offence, or as a reference to a previously unexpressed reference to a trial or hearing, that unexpressed reference presumably being found in s 55(1)(a)(i)?
It is one thing to treat a reference to “jurisdiction ... with respect to ... the summary conviction of ... persons charged” as embracing jurisdiction over all matters leading up to the determination of the matter of a complaint, and so as embracing a conviction, and also the dismissal of a charge. It is not difficult to so read s 55(1)(a)(i) because commonsense indicates that that is what that provision must mean, if it is to make sense. It is a compressed reference to the exercise of summary jurisdiction involving the hearing and determination of a complaint. It is more difficult, in the context of a provision for appeals, to treat the reference to any such trial or conviction as embracing the dismissal of a charge.
Jurisdiction with respect to appeals is usually conferred by reference to the disposition or outcome in the court below. Thus, terms such as conviction, judgment and order are commonly used. When a term is used which indicates not just a result, but a particular kind of result, Parliament is usually taken to refer only to that kind of result. It is probably for this reason that s 42 of the MCA confers a right of appeal against any judgment in the criminal jurisdiction, rather than a right of appeal against a conviction or dismissal of a complaint. The more general term is used in interests of economy and, through the definition in s 3(1) of the MCA, picks up a variety of judicial decisions. Mr Kourakis QC would have the court read the reference to “such trial or conviction” as if it were a reference to an appeal arising out of the exercise of the jurisdiction referred to in s 55(1)(a)(i) or as if it were a reference to a judgment given in the exercise of that jurisdiction. His submission attempts to carry into s 55(1)(b) the concept of the compressed reference to jurisdiction which I have identified in s 55(1)(a)(i).
I consider that the language does not permit the provision to be read in this manner.
I acknowledge that the expression “any such trial or conviction”, because of the disjunctive use of “or”, is capable of being read as a separate reference to trial and to conviction, and so is capable of being read as including a reference to a trial (or hearing) resulting in the dismissal of a complaint.
But the expression “any such trial or conviction” is apparently a reference to a trial or conviction referred to in s 55(1) of the CSA Act, and in that provision “trial” appears to be linked to matters tried on indictment. This suggests that the reference in s 55(1)(b) is only to the three matters already identified by me as obviously referred to. I will return to this point later, when considering the meaning of s 68(2) of the Judiciary Act 1903 (Cth), and its relevance to the meaning of s 55. At this point I simply record that in Adams v Cleeve (1935) 53 CLR 185 Rich, Dixon and Evatt JJ said (at 190) that there was “something to be said for the view” that this expression, in s 68(2) of the Judiciary Act, “relates only to trials upon indictment”. The contrary view was expressed by the Court of Criminal Appeal of New South Wales in R v Luscombe [1999] NSW CCA 365; (1999) 48 NSWLR 282 at [77], 297.
Moreover, it is not usual to refer to a trial when speaking of the hearing of a charge of a summary offence. In s 9 of the MCA and in the relevant provisions of the SPA the reference is to a hearing of a summary offence. That terminology, and the distinction between the use of “trial” and “hearing” is longstanding and well entrenched, although exceptions are encountered from time to time.
One of Mr Game’s submissions was that the hearing had not commenced, and so in any event the appeal did not arise out of the trial (or hearing). My view is that the hearing had commenced, but that the difficulty arises at the earlier stage of treating the reference to a trial as a reference to the hearing of a summary offence.
My initial conclusion, based on the language used, is that s 55(1) does not refer to a court exercising jurisdiction with respect to the hearing and determination of appeals arising out of the dismissal of a charge of a summary offence.
But Mr Kourakis submitted that s 55 should be interpreted flexibly in this respect. As he rightly observed, in this State appeals against an order dismissing a charge of a summary offence are commonplace. The Justices Act 1921, the predecessor of the SPA, was amended in 1923 to make it clear that a complainant could appeal against the dismissal of a complaint. Mr Kourakis submitted that there is no reason why the Parliament of this State would not have intended to provide for such appeals. There is considerable force in that point. Mr Game submitted in response that one must bear in mind that this is a cooperative scheme and, in the interests of national uniformity, it is possible that the Parliaments of the States and Territories intended only to provide for a limited category of appeals in matters arising under the Corporations Law. Mr Kourakis also invoked the object of s 55. He submitted that its object, as in the case of s 68 of the Judiciary Act, is to establish equivalent jurisdiction with respect to offences against State law and offences against the Corporations Law. He relied upon the well established line of authority dealing with the purpose of s 68 of the Judiciary Act 1903 (Cth): see, for example, The Queen v Murphy (1985) 158 CLR 596 at 617. There is force in that point also. The concept used in s 68 of the Judiciary Act, and in s 55, is that of vesting a jurisdiction equivalent to the jurisdiction exercised with respect to persons charged with offences against State law. National uniformity is necessarily subordinated to equivalence of jurisdiction within a given State or Territory. There is no reason why Parliament would not have intended to pick up the jurisdiction conferred on this Court to hear an appeal against the dismissal of a charge of a summary offence. The issue is whether this submission is sufficient to overcome the difficulty that I have encountered with the terms used by Parliament.

Mr Game submitted that the view that jurisdiction is not conferred to hear and determine an appeal arising out of the dismissal of a complaint is reinforced by the well established presumption that Parliament does not intend to give the prosecution a right of appeal against an acquittal or dismissal. That presumption is well established by authority. The presumption is a strong one in relation to suggestions that general words are intended to confer a right of appeal against an acquittal by verdict of a jury. The strength of the presumption in relation to the dismissal of a charge heard summarily is not so clear.
The matter was considered by the High Court in Davern v Messel (1984) 155 CLR 21. Gibbs CJ said (at 31):
“... The view has been taken that the common law rule against double jeopardy would be infringed by allowing an appeal from an acquittal, since the rule requires that an acquittal be treated as final.”

A little later he said (at 32):

“... that a statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly.”

When he came to consider courts of summary jurisdiction, he said (at 37-38):

“A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury. The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted.”

After referring to a number of decided cases, he said (at 38):

“... It is apparent that it is no longer exceptional, or thought to be contrary to public policy, in Australia, to allow an appeal from an acquittal by a magistrate or justices.”

Wilson J agreed with Gibbs CJ (at 65).

Mason and Brennan JJ appear to have recognised the same principle of interpretation as that referred to by Gibbs CJ: at 46. When they came to consider the position in Australia, after referring to a number of English decisions, they said (at 51):
“The course of judicial decisions in Australia on statutory provisions providing for an appeal from orders made in summary proceedings has been less uniform than in England and Ireland.”

After referring to a number of Australian decisions they said (at 52):

“The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury verdict of not guilty has been traditionally regarded as inviolate.”

The other two Justices appear to have recognised no qualification to the principle of construction, treating it as applicable with full force to courts of summary jurisdiction: Murphy J at 62, Deane J at 66. In particular, Deane J adhered to what I might call the unqualified application of the presumption as expressed by him in Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397; 19 ALR 547 at 555.
The effect of the decision in Davern is that a right of appeal conferred in general terms will not readily be construed as providing for a right of appeal against the dismissal of a summary charge, but on the other hand the history of provision being made for such appeals means that it will not be difficult to find a sufficient indication of the necessary intent. But in the present case, as it seems to me, the language used by Parliament is language which, far from being suggestive of a right of appeal against a dismissal, if anything raises a doubt whether that was intended. The principle of interpretation referred to in Davern may not be decisive in this case. One can at least say that it cannot assist Mr Kourakis in overcoming the difficulty that I perceive as lying in his path.
I diverge to observe that the same issues arise under s 68(2) of the Judiciary Act. Counsel have been unable to find any decision in which the existence of jurisdiction to entertain an appeal against the dismissal of a charge of a summary offence has been considered in the context of s 68(2). We were told that there are cases in which such appeals have been entertained, but they are cases in which jurisdiction had been assumed rather than decided. If there were a body of authority making it clear that such appeals could be entertained under s 68(2), that would support reaching the same conclusion in relation to s 55(1)(b), but there appears to be no such body of authority.
The history of s 68 is well known. A reference to appeals was inserted into s 68 after the High Court decision in Seaegg v The King (1932) 48 CLR 251 established that neither s 39 nor s 68, as it then stood, of the Judiciary Act 1903 (Cth) conferred jurisdiction with respect to an appeal against a conviction on an indictment filed by the Commonwealth Attorney-General in respect of an offence against the laws of the Commonwealth. Section 68 was promptly amended by the Commonwealth Parliament to insert the provision which it now contains conferring a like jurisdiction to that which exists “with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith.” In Peel v The King (1971) 125 CLR 447 the High Court held, by a majority, that s 68(2) confers jurisdiction to entertain an appeal against sentence, not only by a convicted person but also by the Attorney-General. But it so held because it took the view that an appeal against sentence was an appeal arising out of a trial or conviction, or if necessary out of proceedings connected therewith, and it further took the view that if jurisdiction with respect to an appeal against sentence was conferred, that jurisdiction could be invoked by the Attorney-General or by the person sentenced. Part of the reasoning was that if the provision was not taken to confer a right to appeal against a sentence, then no appeal would be available to a convicted person wishing to appeal against sentence. In that context Gibbs CJ said that if the provision was ambiguous, it should be broadly construed: at 468. But he there advocated a broad construction to ensure that an appeal against sentence was available to a convicted person, that being a right of appeal that there was every reason to think Parliament intended to confer. In the case of s 55 of the CSA Act there is no doubt that a convicted person has a right of appeal against conviction. The same impetus to find a right to appeal against a dismissal is not present. I consider that the approach taken by the High Court in Peel does not assist Mr Kourakis in this respect.
In Sender (1982) A Crim R 344 the Court of Criminal Appeal of Tasmania held that s 68(2) confers upon that Court jurisdiction to hear an appeal brought by the Attorney-General of the Commonwealth against an acquittal of a charge on an indictment filed by the Commonwealth Attorney-General and alleging an offence against a law of the Commonwealth. Green CJ reasoned (at 347) that it has:
“always been an inherent characteristic of s 68 that it could operate so as to result in the rights of parties to criminal proceedings varying markedly, from State to State.”
This was because of the legislative device of determining Federal jurisdiction by reference to the laws of each State as they exist from time to time. The principle that legislation should not be read as conferring the right of appeal against an acquittal was no obstacle to the conclusion reached by the Court, in the opinion of Green CJ, because s 68(2) clearly left it to State law to identify the appeals in relation to which jurisdiction is conferred: at 347. His Honour must have rejected the notion that the reference in s 68(2) to appeals should be read as a reference to appeals other than appeals against an acquittal. He also relied upon the disjunctive “or” as denying any suggestion that rights of appeal arose only out of a conviction. Finally, he relied upon the emphasis placed by Dixon J in R v Williams (1934) 50 CLR 551 at 560 upon the intention of parliament having been:
“to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice.”
Cosgrove J relied in particular upon the reasoning of Dixon J just referred to, and on the fact that Barwick CJ, when he dissented in Peel, pointed out that a consequence of the majority approach was to allow an appeal to the Tasmanian Court of Criminal Appeal in the case of offences against the laws of the Commonwealth. I note that in Peel the majority of the High Court made no reference to this proposition advanced by Barwick CJ. Cox J also relied on the same observation by Dixon J (at 365), and he also relied upon the fact that s 68(2) was amended with knowledge of the state of the law of the various States as it was at the time, including the then existing Crown right of appeal under Tasmanian law. The Court adhered to this view in Sung Bo Kim (1993) 65 A Crim R at 278, holding that the decision of the High Court in Davern did not require a reconsideration of the reasoning in Sender.
These decisions on the meaning of s 68(2) should be followed by this Court, to the extent that the reasoning in them is relevant and applicable. They should be followed, in the interests of a uniform approach to Commonwealth legislation, even though I see force in the argument that the reference in s 68(2) to appeals should not be read as including an appeal against an acquittal by jury, even though such appeals were possible under the laws of Tasmania when s 68 was amended.
Does it follow, by parity of reasoning, that the provisions of the MCA permitting an appeal against an order dismissing a complaint are picked up by s 68(2) of the Judiciary Act, and likewise by s 55 of the CSA Act? Such appeals were possible, certainly under the law of this State and possibly under the law of other States, when the Judiciary Act was amended in 1932. The only obstacle to an affirmative answer to this question is a limitation flowing from the expression “such trial...”.
If s 68 of the Judiciary Act 1903 (Cth) was the only source of jurisdiction in relation to appeals against decisions made in the exercise of summary jurisdiction, I would give an affirmative answer to the question posed. I would do that because such appeals appear to be quite common, and because there is every reason to think that the Commonwealth Parliament intended in the Judiciary Act 1903 (Cth) to provide for substantial equivalence of Commonwealth and State jurisdiction. However, as it seems to me, the problem that surfaced in Seaegg, and that was corrected by amendment, was that of appeals arising out of the charging of offences on indictment. That was the issue in Seaegg. The primary argument for the existence of jurisdiction that was advanced in Seaegg was based upon s 39(2) of the Judiciary Act 1903 (Cth). That provision, as it now stands, provides as follows:
“The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restriction:
(a).... A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.
(c)The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge.
(d)... The federal jurisdiction of a Court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction, or an arbitrator on whom the jurisdiction, or part of the jurisdiction, of that Court is conferred by a prescribed law of the State, within the limits of the jurisdiction so conferred.”
Seaegg was concerned with an appeal against conviction by a person convicted in a State Court upon an indictment filed by the Commonwealth Attorney-General, in respect of an offence against the laws of the Commonwealth. The High Court expressed a doubt about whether s 39(2) could make the relevant State jurisdiction applicable in the circumstances. Their Honours said (at 256):
“It has not, so far, been decided that sec. 39 (2) can operate to increase or vary the subject matter of the jurisdiction. In the present instance, the subject matter is confined to appeals against convictions upon indictment preferred under State law. It may well be that sec. 39 (2) cannot convert the jurisdiction over that subject matter into a Federal jurisdiction over a different subject matter, viz., appeals against convictions upon indictment preferred pursuant to sec. 69 of the Federal Judiciary Act 1930-1927.”
But the decisive consideration, in the Court’s view, was the presence of s 72 to s 77 of the Judiciary Act which made provision for appeals by way of case stated after a trial on indictment, and in light of that s 39 should not be read as conferring jurisdiction to entertain appeals of the type provided for by the laws of the various States. The Court said (at 256):
“That sec. 39 (2) was not intended to introduce such a jurisdiction by way of appeal is made clear by the presence in the Act of special provisions expressly conferring a right of appeal against such convictions, although a limited right of appeal. Secs. 72 to 77 of the Judiciary Act are headed ‘Appeal,’ and contain a code of procedure for an appeal by way of case stated upon a point of law raised at the trial. These special provisions confer a different and narrower right of appeal and different but perhaps wider remedies. We think that we ought not to construe the general words of sec. 39 (2) as capable of importing a new jurisdiction by way of appeal from conviction upon indictment which, in effect, would supersede these provisions.”
They went on to say that s 68(2) made no reference to the hearing of appeals, and did not appear to confer the necessary jurisdiction. Once again, they said (at 257) that:
“The enactment of the special provisions contained in secs. 72-77 again operates to preclude such an interpretation.”

The amendment to s 68 came quite soon after this decision.

Thus, the tenor of these remarks is that s 39(2) of the Judiciary Act was capable of conferring an appellate jurisdiction, and would have done so but for the implication to be drawn from the presence of s 72 to s 77. The relevant contrary implication arose only in relation to persons indicted for an indictable offence against the laws of the Commonwealth. Subject to the doubt expressed by the Court about converting a State jurisdiction into a Federal jurisdiction, the decision in Seaegg is consistent with the view that s 39(2) confers upon the courts of this State jurisdiction to entertain appeals from courts of summary jurisdiction dealing with Commonwealth offences when such jurisdiction exists in relation to State offences.
The existence of that jurisdiction appears to me to have been recognised by the High Court. Ah Yick v Lehmert (1905) 2 CLR 593 was a case in which a person had been convicted in Victoria by a police magistrate of an offence against Commonwealth law. He sought to appeal to a court of general sessions, relying upon the equivalent right of appeal conferred by Victorian law in the case of offences against Victorian law. The High Court held that s 39 of the Judiciary Act conferred the relevant jurisdiction upon the courts of the State. Griffith CJ said (at 605):
“In my judgment, sec. 39 confers authority on each State Court to exercise the judicial power of the Commonwealth in the enumerated classes of cases, as to all such matters as are in other respects within the limits of its jurisdiction as defined by the State laws by which it is established. And I think that that authority is conferred to the same extent, and for the same purposes, and is to be exercised in the same manner, as if the Court ;had been established as a federal Court with jurisdiction to exercise the federal judicial power to the extent, and for the purposes, for which it was actually established. That being so, it appears to me that, on the plain words of sec. 39, the Court of General Sessions had authority to exercise its appellate jurisdiction, and to hear the appeal from a Police Magistrate, with regard to an offence against the Immigration Restriction Act 1901.”
A little later he said (at 607):
“If the construction of sec. 39 of the Judiciary Act 1903 which I have given be correct, the Parliament has adopted the latter course, and has conferred upon State Courts which have appellate jurisdiction similar appellate federal jurisdiction in the enumerated classes of cases.”
Barton J agreed. He said (614):
“I am of the opinion that the words ‘federal jurisdiction’ as there used include appellate or original jurisdiction or both, as the case may be, wherever, under the laws of the State, such jurisdiction is already exercised by any of the State courts.”
As far as I am aware, the correctness of that decision has never been doubted. There are several decisions that emphasise the importance of s 39 in this context. In Adams v Cleeve (1935) 53 CLR 185 Rich, Dixon and Evatt JJ said that s 39 was “expressed in terms of perfectly general application”. In Goward v The Commonwealth (1957) 97 CLR 355 Dixon CJ, Williams, Webb and Kitto JJ, referring to s 39, spoke of:
“its basal character in matters concerning the Federal jurisdiction of State courts.”

The important part played by s 39 is emphasised in the reasons of Barwick CJ (at 233-234), of Menzies J (at 245-246) of Gibbs J (at 257-259), by Stephen J (at 272) and by Mason J (at 275) in The Queen v Bull (1974) 131 CLR 203.

And in R v Williams (1934) 34 SR(NSW) 143, in a judgment approved by a majority of the High Court when that case went on appeal, Jordan CJ said (at 148):
“It is clear that, by virtue of the general provisions of s 39(2), any appellate as well as any original jurisdiction possessed by a State court, is exercisable by it with respect to any Federal matters which are within it jurisdiction; and that this is so in relation to criminal as well as civil proceedings was decided by the High Court in Ah Yick v Lehmert (2 CLR 593) - a case of an appeal from a conviction for a non indictable offence.”
I therefore proceed on the basis that s 39(2) of the Judiciary Act confers upon the courts of this State jurisdiction to entertain appeals against decisions made by the Magistrates Court in the exercise of its criminal jurisdiction, such jurisdiction being conferred by s 39(2) by reference to s 42 of the MCA. It is not necessary to establish that jurisdiction by reference to s 68 of the Judiciary Act. In the case of offences against the Corporations Law, a difficulty arises which does not arise generally in relation to offences against Commonwealth law. The difficulty is that the CSA Act does not adopt or repeat the provisions to be found in s 39(2) of the Judiciary Act, only the provisions found in s 68.
In R v Luscombe [1999] NSWCCA 365; (1999) 48 NSWLR 282 the Court of Criminal Appeal of the Supreme Court of New South Wales held that jurisdiction to entertain an appeal against an order by a magistrate discharging a person without proceeding to a conviction, the person having been charged with an offence against Commonwealth law, was conferred by s 39(2) of the Judiciary Act 1903 (Cth). Having so concluded, and although it was not necessary to do so, the Court went on to consider s 68 of the Judiciary Act. After considering a number of relevant authorities the Court said (at [77], 297):
“There is no warrant for restricting the words ‘trial or conviction’ in s 68(1) and s 68(2) to a trial on indictment. This would be contrary to the objective of assimilating Commonwealth with State criminal procedures and of avoiding the establishment of two independent systems of criminal justice.”

I unreservedly acknowledge the force of that comment, and the practical reasons for reaching that conclusion. However, for reasons that I have indicated, I am not of the same opinion, and as the view expressed was not necessary to the decision reached, I do not consider that the interests of a consistent approach to Commonwealth legislation requires that I take the same approach.
For those reasons I conclude that s 55(1)(b)(ii) does not confer jurisdiction with respect to an appeal against the dismissal of a charge of a summary offence.
Can the necessary jurisdiction be found in s 55(1)(b)(i) or s 55(1)(b)(iii)? I consider that it cannot. In my view, such an appeal cannot be described as proceedings connected with the hearing or dismissal of the charge in the present case. In my opinion, an appeal against the dismissal of a charge cannot be regarded as an appeal arising out of proceedings connected with “any such trial or conviction”. First of all, I doubt whether a dismissal can be said to be a proceeding connected with a trial or conviction. A dismissal is not a separate proceeding in any sense. It is part of the process of trial and, if conviction is read broadly, part of the process of conviction. But in any event the relevant proceeding must still be connected with “any such trial or conviction”, and so the difficulty which I earlier identified again stands in the path of conferring jurisdiction under this provision.
I must say that I am reluctant to reach this conclusion. I am confident that the gap was not intended. However, the Court must decide the matter according to the statutory language, and that is what I have done.

Power to appeal

As the case may go further, it is appropriate to deal with this aspect of the matter as well.
In Byrnes the High Court referred to the dangers inherent in the blurring of two discrete legal functions into a single provision. There the court was referring to s 352(2) of the Criminal Law Consolidation Act 1935 (SA) which confers a right of appeal on the Director of Public Prosecutions, and at the same time must be taken to confer jurisdiction on the Supreme Court to entertain the appeal.
If I had concluded that s 55 of the CSA Act conferred jurisdiction to entertain and to dispose of the appeal, I would have found it necessary to consider whether the conferral of jurisdiction should be taken to confer a power to appeal on ASIC. I doubt whether it would. Functions and powers in relation to the prosecution of offences against the applicable provisions is separately dealt with in Division 2 of Part 8 of the CSA Act. This suggests that provisions in the CSA Act conferring jurisdiction on courts should not be read as also dealing with power to appeal.
The prosecution was instituted by ASIC. The complaint is in its name. The fact that the complaint is signed by a delegate for ASIC raises a slight doubt about the identity of the complainant: see s 1315(1)(b) of the Corporations Law. But nothing turns on that. The powers of the CDPP under the CSA Act, considered by the High Court in some detail in Hughes, do not fall to be considered in this case. By s 58(1) of the CSA Act, the Australian Securities and Investments Commission Act 1989 (Cth) (“the ASIC Act”) applies as a law of South Australia. References in s 58(1) to the ASC Act are to be read as a reference to the ASIC Act: see s 268(1) of the ASIC Act. Section 29 of the CSA Act does not apply the ASIC Act as part of the law of South Australia: see the definition of Commonwealth law in s 3(1) of the CSA Act.
The functions and powers of ASIC are to be found in s 11(1) of the ASIC Act. Section 11(1) provides as follows:
“[Functions and powers conferred on Commission] The Commission has such functions and powers as are conferred on it by or under the following:
(a).... the Corporations Act 1989;
(b)the Corporations Law of the Capital Territory;
(c).... this Act (other than section 12A and Division 2 of Part 2).”

This provision is not applied as a law of South Australia by s 58(1) of the CSA Act. It is an excluded provision: see s 58(2). No doubt the reason for this is that because ASIC is established by Commonwealth law, what one might call its basic powers and functions are to be conferred on it by Commonwealth law alone. State law assumes the existence of ASIC, and gives ASIC a part to play in the administration of the State law. This is reflected by s 11(7) of the ASICAct, which provides as follows:

“[Law of other jurisdiction] The Commission has any functions and powers that are expressed to be conferred on it by a national scheme law of another jurisdiction.”

The CSA Act is a national scheme law: see the definition of “national scheme law” in s 51 of the ASIC Act. Accordingly, ASIC has any functions and powers expressed to be conferred on it by the CSA Act. Mr Game submitted that the words “expressed to be” meant that the reference in s 11(7) is to functions and powers that are conferred in express terms, or conferred explicitly. I disagree. In my opinion, it suffices that the intention is found in the relevant national scheme law to confer a function or power.

By s 49(2) of the ASIC Act, ASIC has power to prosecute. That provision provides that in certain circumstances ASIC may cause a prosecution for an offence “to be begun and carried on”. Section 49 is not an excluded provision, and accordingly is applied as part of the law of South Australia: s 58(1) of the CSA Act. In any event, s 66(1) of the CSA Act provides that ASIC “has the functions and powers conferred or expressed to be conferred on it under a national scheme law of this jurisdiction.” Finally, to complete the picture, s 1315(1) of the Corporations Law provides that in any proceedings for an offence against the law ASIC may lay or make “any information, charge, complaint or application.”
Counsel on the appeal did not identify any provision specifically referring to the power to appeal or the function of appealing from the dismissal of a charge. Mr Kourakis QC relied upon s 11(4) of the ASIC Act which provides:
“The Commission has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions.”
In considering power to appeal, the issue is whether power to appeal is conferred by the conferral of power to cause a prosecution to be begun and carried on, or by the power to lay or make a charge or complaint, or by the power to do anything reasonably incidental to the performance of ASIC’s functions.
In considering this question it is relevant to bear in mind that by s 1(2)(g) of the ASIC Act, in performing its functions and exercising its powers ASIC must strive to:
“[T]ake whatever action it can take, and is necessary, in order to enforce and give effect to the laws that confer functions and powers on it.”
In my opinion, ASIC does have the power to institute the appeal that it has instituted in this case. In instituting the appeal ASIC purports to exercise a right of appeal available under State law, which law is part of the body of law regulating the prosecution of summary offences. I refer here to the right of appeal conferred by s 42 of the MCA. Of course, that right of appeal is available only to a party competent to exercise it. However, in my view, the exercise of that right of appeal is reasonably incidental to the performance by ASIC of its function of causing a prosecution to be begun and carried on, and it can also be said that the exercise of the right of appeal is action that can be taken and that it is necessary to take to give effect to the law that confers on ASIC the function and power of prosecuting offences.
In Byrnes the High Court considered the power of the CDPP to appeal to a Court of Criminal Appeal against a sentence imposed by a State court for an offence under the Code that preceded the present national scheme. In relation to Code offences s 91 of the relevant legislation conferred on the CDPP the same “enforcement powers” as were vested in the Crown in right of South Australia acting by the Attorney-General or the Director of Public Prosecutions of South Australia. The term “enforcement power” was defined by s 91(5) and relevantly included a function or power relating to:
“…
(c).... the institution and carrying on of a prosecution of an offence; or
(d)matters relating to such an investigation, arrest, custody or prosecution.”

The majority noted at [49] that the terms of s 91(5) made no reference to appeals. They said that the power to carry on a prosecution was insufficient to confer power to institute an appeal. That was because the former power concerned the conduct of the prosecution at trial. The function or power conferred on the CDPP relating to “matters relating to such [a] … prosecution” was also insufficient. The majority said that an appeal against sentence did not relate to “matters relating to such [a] …prosecution;” [50]. They referred with approval to observations by Barwick CJ in Peel at 454 to the effect that neither an appeal against acquittal nor an appeal against sentence was an appeal “arising out of the trial” which resulted in a conviction. Barwick CJ was there referring to the language found in s 68(2) of the Judiciary Act. They also relied upon the principle that a general statutory provision should not ordinarily be construed as conferring on the prosecution a right of appeal against an acquittal or against sentence: at [51]. That same reasoning was again applied in Bond at [20] in relation to s 91 of the Western Australian equivalent of the CSA Act.

In the present case, at the first stage the issue is not whether a power to appeal is a power relating to matters relating to a prosecution. It is whether a power to appeal can be regarded as incidental to the function of prosecuting an offence. I consider that it is. I consider that the notion of what is incidental to a prosecution is a wider one than the notion of what is a power relating to a matter relating to a prosecution. I consider that the exercise of a right of appeal conferred by the law of a State can be regarded as incidental to the function of prosecuting an offence. Granted, an appeal is a further and distinct stage in the process of prosecuting an offence. But surely if a convicted person were to appeal, it would be incidental to the performance of ASIC’s function for it to appear at the appeal to resist the appeal. Once again, that is not the same as instituting an appeal, but I consider that similar reasoning applies.
Next it is necessary to consider whether the principle that general words are not readily construed as conferring a prosecution right of appeal stands in the way of the conclusion for which ASIC contends in the present case. In Bond the CDPP had, by s 17 of the Director of Public Prosecutions Act 1983 (Cth), power to:
“institute and carry on, in accordance with the terms of the appointment [that is, the appointment to prosecute offences against the law of a State], prosecutions for such offences.”

The terms of that power are similar to the terms of the power conferred by s 49(2) of the ASIC Act. That was held not to confer a power to appeal against sentence. There were two reasons. First of all, in other provisions of the Act a distinction was drawn between the conduct of a prosecution and of an appeal. In the light of that distinction, the failure to refer to power to appeal in s 17 was significant: at [28]. As well, “the exceptional nature of prosecution appeals” led, applying the reasoning used in Byrnes, “to the conclusion that s 17 should not be construed as permitting a State to confer power on a member of the staff of the office of the Commonwealth DPP to institute an appeal against sentence:” at [29].

In the present case, the legislation is relevantly different. The power to perform incidental functions, found in s 11(4) of the ASIC Act, was not available in Byrnes or in Bond. Nor, in the present case, are there textual reasons which would lead one to conclude that a power to appeal is not conferred. All that is left is the exceptional nature of prosecution appeals. But, as Mason and Brennan JJ said in Davern at 52, “courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings.” In this respect the case is finely balanced. In the absence of any textual indications that a right of appeal is not conferred, and bearing in mind the approach generally taken to rights of appeal in summary matters, I conclude that ASIC does have the power to appeal that it has exercised in the present case.
ASIC cannot rely upon s 42 of the MCA as directly conferring the power upon it, because the MCA is not a law referred to by s 66(1) of the CSA Act.
In Australian Securities Commission v McLeod [2000] WASCA 101; (2000) 34 ACSR 135 the Court of Appeal of the Supreme Court of Western Australia considered whether ASIC had power to appeal against a decision of the Supreme Court, on appeal from a magistrate in Western Australia, overturning a conviction recorded by the Magistrate, the conviction being for an offence against the Corporations Law. Western Australian law provided that, in the circumstances in question, a party to an appeal to a single judge could appeal to the Full Court: at [94]. The situation was similar to that considered by the High Court in Davern. That is, a prosecutor had been successful before a magistrate, had been unsuccessful on an appeal by the defendant to a single judge, and now sought to invoke a further right of appeal conferred in general terms by State legislation. The court concluded that ASIC had power to institute the appeal. The court applied the reasoning of the Full Court of the Supreme Court of Tasmania in Australian Securities and Investment Commission v Hosken [1999] TASSC 120, which reasoning it followed in the interests of uniformity in the interpretation of uniform national legislation. I consider that the decisions in McLeod and Hosken are distinguishable. In those cases there had been a conviction by a magistrate, and the exercise by the defendant of an undoubted right of appeal. The decision of the Supreme Court, in disposing of that appeal, attracted the operation of a right of appeal conferred by State legislation in general terms. Davern establishes that in such circumstances there is no reason why the generally expressed right of appeal should not be considered to be available to the prosecution as much as to the defence. In the present case ASIC has to establish that it has the right of the appeal from the decision of the Magistrate, not from a decision made on an appeal by a convicted person.
If McLeod and Hosken are not distinguishable, then I too would take the view that this Court should, in the interests of uniformity, apply the reasoning in those cases. However, I must say, with respect, that there is one aspect of that reasoning about which I have doubts, even though I would, in the interests of uniformity, apply that reasoning. My doubt relates to the reliance in Hosken and McLeod on s 56 of the relevant State legislation, which section is identical to s 56 of the CSA Act. Section 56 of the CSA Act applies the laws of South Australia respecting “criminal procedure in South Australia” to persons charged with offences against the Corporations Law. “Criminal procedure” is defined to include the procedure for summary conviction, trial and conviction on indictment and:
“(d). The hearing and determination of appeals arising out of any such trial or conviction or out of any related proceedings.”

But by s 56(1) the laws of criminal procedure apply to persons “in respect of whom jurisdiction is conferred on a court of South Australia by this Division.” Accordingly, the vesting of jurisdiction must first be established, before it can be said that the defined laws of criminal procedure apply. To my mind, that means that one must first establish the existence of the jurisdiction under s 55. In Hosken and McLeod that was able to be done because the convicted person had appealed. Jurisdiction in respect of that appeal was conferred by s 55(1)(b)(ii). But it is important to bear in mind that s 56 does not confer jurisdiction, it deals with matters of procedure in a court which already has jurisdiction.

However, to the extent that the courts in Hosken and McLeod relied upon the incidental power, I respectfully adopt their reasoning.
For all those reasons I conclude that ASIC has power to institute the appeal, should I be wrong in concluding that the Court lacks jurisdiction to entertain the appeal.

Aiders and abetters

If all of the above difficulties are overcome, I would have no difficulty in concluding, with respect, that the Magistrate erred in holding that s 5 of the Crimes Act cannot be invoked in the present case.
Section 29(1) of the CSA Act applies s 5 of the Crimes Act 1914 (Cth) as a law of South Australia. It applies that provision in relation to an offence against the Corporations Law.
Turning to s 5, one finds that it refers to persons who aid, abet, counsel or procure the commission of an offence against any law of the Commonwealth. It is one thing to apply s 5 as a law of South Australia. But how is it to be so applied, bearing in mind that it refers to procuring (I use that term alone for convenience) an offence against a law of the Commonwealth, and Mr Vis was charged with an offence against the law of South Australia?
The first answer may lie in s 29(1) itself. Section 5 of the Crimes Act is applied in relation to the offence against the Corporations Law “as if” the offence provision were a law of the Commonwealth and not a law of South Australia. That is a basis for reading the reference in s 5 to procuring an offence against a law of the Commonwealth, to procuring an offence against a law of the State which is to be treated “as if” it were a law of the Commonwealth.
A second answer, and one about which I am more confident, is found in s 29(2) of the CSA Act. The effect of that provision is that for the purposes of South Australian law, the offence charged against Mr Vis “is taken to be an offence against the laws of the Commonwealth” and not to be “an offence against the law of South Australia”. As applied, s 5 is a law of South Australia. Accordingly, for its purposes, the offence charged is taken to be an offence against the laws of the Commonwealth. Thus, the reference in s 5 to procuring an offence against a law of the Commonwealth is to be read as procuring an offence against the Corporations Law.
Mr Game SC resisted this construction but I am satisfied that it is correct. He also placed reliance on s 32 of the CSA Act. That section provides as follows:
“A reference in a Commonwealth law to a provision of that or another Commonwealth law is taken, for the purposes of section 29 or 30, to be a reference to that provision as applying because of that section.”

Mr Game submitted that the reference in s 5 to procuring an offence against a law of the Commonwealth is to be taken, for the purposes of s 29, to be a reference to that provision as applied by s 29, without, as I understood him, any change of the language. Thus, if s 5 had referred to, say, a section of the Director of Public Prosecutions Act 1983 (Cth), s 32 would ensure that the reference was read as a reference to the relevant section of that Act, as applied by s 29, with its language unchanged. I do not accept the submission. I agree that the purpose of s 32 is to ensure that when an applied Commonwealth law refers to another Commonwealth law, the applied Commonwealth provision is taken to refer to the “referred provision” as applied by s 29. That is, it is taken to refer to a Commonwealth law applied as State law, and not to a Commonwealth law simpliciter. But s 29(2) has a quite different but essential function. As I have already attempted to explain, what it does is, in a sense, change the language of applied provisions, so that when they are applied as laws of the State, they will operate on laws of the State. Section 29(2) does this by, in effect, directing the reader to treat offences against the laws of South Australia as if they were offences against the laws of the Commonwealth, when one is applying Commonwealth law as the law of South Australia.

As I understand it, this is what the High Court was saying in Hughes at [22] - [25]. Accordingly, I reject this submission by Mr Game.
For those reasons, were I satisfied that the Court had jurisdiction to entertain the appeal, I would allow the appeal.

The Judiciary Act

I return to this Act briefly. Mr Kourakis QC submitted that the Judiciary Act is applied by s 29(1) of the CSA Act, and accordingly he invokes s 68 of the Judiciary Act to confer jurisdiction on this Court.
I do not accept that submission. In the face of s 55 of the CSA Act, dealing specifically with the conferral of jurisdiction, my view is that one cannot treat s 29(1) of the CSA Act as applying s 68 of the Judiciary Act, dealing with the same matter.
In any event, my view is that the same difficulties in relation to the vesting of jurisdiction arise under s 68 of the Judiciary Act.
The same difficulties might not arise in relation to s 39 of the Judiciary Act, but in my opinion s 55 of the CSA Act stands in the way of its application in the present case.

Legislative Power

Mr Game did not submit that, if jurisdiction were vested in this Court and power to appeal were conferred on ASIC, the Commonwealth Parliament lacked legislative power to authorise the conferral of the power on ASIC. As the High Court said in Hughes, if there is a challenge to power it is necessary for the Court to be satisfied that the Commonwealth law which consents to the conferral on ASIC of State powers is itself supported by a head of power: at [110]. No challenge on this basis having been advanced, no facts have been placed before the Court on the basis of which the Court could determine constitutional validity. In those circumstances it is neither necessary nor appropriate for me to express any view on this matter.

Other remedies

No submissions were addressed to the Court on the possibility of ASIC proceeding by way of judicial review to obtain an order in the nature of mandamus requiring the Magistrate to proceed to determine the matter of the complaint, on the basis that the Magistrate had erroneously declined to exercise his jurisdiction when determining that the complaint did not disclose an offence: cf Craig v South Australia (1995) 184 CLR 163 at 177. It is not necessary to decide whether judicial review is available, nor to decide whether the error apparently made by the Magistrate was an error that amounts to a wrongful declining of jurisdiction. However, it should not be assumed that the error made by the Magistrate is beyond correction.

Conclusions

For those reasons I would dismiss the appeal on the grounds that it is incompetent.

PRIOR J: I agree with the Chief Justice that the magistrate erred in holding that s 5 of the Crimes Act 1914 (Cth) cannot be invoked in this case. The dismissal of the complaint was erroneous. It should be set aside by this Court, either in these proceedings or in proceedings by way of judicial review.
I think that ASIC has power to institute this appeal and that the order of dismissal should be set aside. I agree with what the Chief Justice has written with respect to ASIC’s power to appeal. As for the correctness of these proceedings, I acknowledge the difficulties so clearly and carefully outlined and considered by the Chief Justice in his reasons but conclude that the words “any such trial or conviction” in s 55(1)(b) should be construed to include the hearing and determination of summary complaints. I agree with the submission put by the respondent that Parliament did not intend to have a right of appeal against dismissals for other summary offences and deny it for summary offences against the laws enacted by the Corporations Law. I decline to restrict the words quoted to trials on indictment[1]. In the context of the legislation they can and do refer back to the exercise of jurisdiction with respect to summary convictions. The coexistence of s 39 and s 68 in the Judiciary Act 1903 (Cth) should not be used to deny Parliament’s clear intention when enacting s 55 in similar terms to s 68. The structure of s 55 is such that a proper inference is that both jurisdictions identified in (i) and (iii) of s 55(1)(a) are embraced by the words “any such trial or conviction” in s 55(1)(b). The first three subparagraphs within s 55(1)(a) identify the jurisdictions with respect to summary trials, preliminary hearings and trials on indictment. The three subparagraphs within s 55(1)(b) reflect an intention to confer supervisory jurisdiction with respect to preliminary hearings and appeal rights with respect to both summary trials and trials on indictment.
[1] R v Luscombe (1999) 48 NSWLR 282 at 297[77]
In my opinion, s 55(1)(b)(ii) confers jurisdiction with respect to an appeal against the dismissal of a charge of a summary offence. The generous interpretation preferred by the New South Wales Court of Criminal Appeal in Luscombe[2] supports this view.
[2] (1999) 48 NSWLR 282 at 297
I would therefore allow the appeal, set aside the order of dismissal and remit the matter for determination in the court below.

WILLIAMS J: I agree with the Chief Justice that this appeal should be dismissed as incompetent. I also agree that ASIC does have power to pursue appeals in circumstances where a right of appeal is available to the prosecutor under “a national scheme law”; that power is an incident of ASIC’s prosecutorial function.
Whether the question of competency of the appeal should be decided before the more general question of ASIC’s powers as abovementioned may be debatable. Therefore, I am prepared to express a view upon both questions. However, as a matter of principle I decline to deal with the merits of the appeal itself, as it appears to the majority of the Court that the Court’s appellate jurisdiction has not been validly invoked.
The record of the Adelaide Magistrates Court discloses that on 15 November 1999, a Magistrate dismissed a complaint which charged the commission of offences against the law of South Australia by the respondents. The offences were alleged to have been committed between 16 November 1993 and 31 December 1997, and in accordance with s 1311 of the Corporations Law carried a penalty not exceeding imprisonment for one year. The offence in each case fell to be classified as a summary offence within Summary Procedure Act 1921 (SA) (“the SPA”) s 5 (and also as a summary offence within s 4H of the Crimes Act 1914 (Cth) if this were a Commonwealth offence). The matter was dealt with by a Magistrate who assumed jurisdiction in accordance with s 68 of the SPA leading to dismissal of the complaint under s 69.
The jurisdiction of the Courts of the State to entertain criminal proceedings at first instance and upon appeal with respect to offenders or persons charged with offences against the Corporations Law is conferred by s55(1) of the Corporations (South Australia) Act 1990, (the “CSA Act”). Section 55(1) addresses separately the jurisdiction with respect to the topics of “summary conviction” and “trial and conviction upon indictment”.
The procedure of trial upon indictment involves two steps; firstly, trial by jury leading to verdict and secondly, the consequential formal entry of judgment of conviction or acquittal. This is to be compared with the indivisible summary process. This distinction is reflected in the drafting of s 55(1).
After authorising the disposal of charges by one or other of the procedures abovementioned, the CSA Act s 55(1) then provides an appellate jurisdiction arising out of “any such trial or conviction”. This specific reference to a “trial” must be a reference back to the only trial previously mentioned, namely a trial upon indictment whereas “conviction” aptly refers to one resulting from either the summary process or from indictment. It seems to me to be significant that an appellate jurisdiction is expressed to arise out of a conviction, but that there is no mention of a jurisdiction to appeal against acquittal. In so far as the appellate jurisdiction is extended by reference to trial, this is limited in its context to a trial upon indictment. Although the power to proceed at first instance to summary conviction will include the ancillary power to conduct a hearing, this does not detract from the language of s 55 itself where, in dealing with appeals, the reference to a “trial” is so plainly referable in its context to trial upon indictment. The presumption against conceding an appeal against acquittal may not be so strong in the case of summary dismissal as it is in the case of a jury verdict but, nevertheless, the presumption cannot be ignored. It reinforces me in my conclusion.
The CSA Act s 55(1) adopts in a modified form the language of s 68(2) of the Judiciary Act 1903 (Cth) but, I have reservations about drawing upon that comparison and upon the case law with respect to s 68. That latter section along with s 39 and other sections of the Judiciary Act provide the framework for a legislative scheme. In interpreting such legislation, the Court may be expected to take account of the Act as a whole and its legislative history and purpose. I do not consider that the construction of s 55(1) of the CSA Act is advanced by now seeking to resolve the differing opinions which have been expressed in another context as to the effect of s 68 of the Judiciary Act.
I reject the argument which would notionally recognise a summary hearing (separate and apart from any conviction), as providing a basis for an appeal under the CSA Act s 55(1). To take such a step would be inconsistent with the indivisible nature of a summary hearing and its outcome. Parliament has provided an appeal only in the event that the summary hearing results in a conviction but, it has made no provision for an appeal if the hearing results in a dismissal of the complaint. The absence of a right of appeal in this instance, (which otherwise would be generally available in South Australia), may be attributable to the fact that CSA Act is part of a national scheme which carries its own policies.
There is a lack of consistency throughout Australia as to the circumstances in which an appeal may be generally brought by a party who is dissatisfied with a Magistrate’s decision in the exercise of criminal jurisdiction. Counsel’s researches showed that, for example, in the Northern Territory there is no right of appeal against dismissal of a complaint. In some jurisdictions apparently, (New South Wales and Victoria), there is an appeal only upon a question of law. In South Australia, (as already observed), there is a general right of appeal against a Magistrate’s decision in criminal proceedings.
Corporations (South Australia) Act s 55(1) deals with some other aspects besides those to which I have referred. I find nothing in those other references which would affect my opinion. It is unnecessary now to discuss the circumstances to which s 55(1)(b)(i) and (iii) may apply.
I would give no encouragement to the view that, upon the facts of this case, judicial review might be available as a remedy to the prosecutor in the absence of a right of appeal. It seems to me that there is a substantial argument that the Magistrate’s error, (if there be one), was made within the exercise of jurisdiction, and that the record itself discloses no relevant error. The Magistrate’s “jurisdiction is not a jurisdiction only to decide rightly” (see Parisienne Basket Shoes Pty Ltd & Ors v Whyte [1937-38] 59 CLR 369 at 377 and 392). In my view the matter deserves the attention of Parliament if it be the case that there is an intention to provide an appeal against summary dismissal of a complaint in circumstances such as the present.

[2000] SASC 258

29 August 2000