Bond, Alan v Minister for Justice of the Commonwealth of Australia Bond, Alan v Attorney-General of the Commonwealth of Australia

[1997] FCA 91

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )       No. VG 851 of 1995
  )
GENERAL DIVISION                 )

On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Deputy President G.L. McDonald

B E T W E E N:

ALAN BOND
  Applicant

and

MINISTER FOR JUSTICE OF THE
                 COMMONWEALTH OF AUSTRALIA
  Respondent

ALAN BOND
  Applicant

and

ATTORNEY-GENERAL OF THE
                 COMMONWEALTH OF AUSTRALIA
  Respondent

CORAM:    Jenkinson J

DATE:     18 February 1997

PLACE:    Melbourne

MINUTES OF ORDER

The Court orders that:

1. The appeal be dismissed.

2. The respondent's costs of the appeal be paid by the applicant.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )       No. VG 851 of 1995
  )
GENERAL DIVISION                 )

On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Deputy President G.L. McDonald

B E T W E E N:

ALAN BOND
  Applicant

and

MINISTER FOR JUSTICE OF THE
                 COMMONWEALTH OF AUSTRALIA
  Respondent

ALAN BOND
  Applicant

and

ATTORNEY-GENERAL OF THE
                 COMMONWEALTH OF AUSTRALIA
  Respondent

CORAM:    Jenkinson J

DATE:     18 February 1997

PLACE:    Melbourne

REASONS FOR JUDGMENT

Appeal from decisions of the Administrative Appeals Tribunal that the Tribunal had not jurisdiction to determine certain applications by the applicant.

An instrument in the following terms was made and notice of its making given to the applicant's solicitors:

"COMMONWEALTH OF AUSTRALIA

CORPORATIONS LAW

CONSENT UNDER SECTION 1316 OF THE CORPORATIONS
                   (WESTERN AUSTRALIA) ACT 1990

I DUNCAN JAMES CONQUHOUN KERR, Minister for Justice of Australia, pursuant to section 1316 of the Corporations Law and subsection 91(3) of the Corporations (Western Australia) Act 1990 HEREBY CONSENT to the institution of proceedings against

ALAN BOND

for offences against section 229 and section 570 of the Companies (Western Australia) Code relating to:

×the entering into of a facility arrangement between Freefold Pty Ltd and Bond Corporation Holdings Limited on or about 29 October 1988.

×the extension of time for repayment and increase in the limit of a facility arrangement between Freefold Pty Ltd and bond Corporation Holdings Limited on or about 29 April 1989.

×the acceptance by Freefold Pty Ltd of a promissory note issued by Manchar Holdings Pty Ltd on or about 29 May 1989.

DATED this FIFTH day of January 1995

[SIGNATURE]

DUNCAN JAMES COLQUHOUN KERR

Minister for Justice of Australia"

One of the applications to the Tribunal was for review of the decision to give that consent. A request was made on behalf of the applicant for a statement of the reasons for the decision to give consent. The applicant having received notice in writing of the opinion of the Minister for Justice, expressed on his behalf by the Attorney-General of the Commonwealth, that the applicant was not entitled to be furnished with such a statement, application was made by the applicant pursuant to s.28(1AC) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), for a decision by the Tribunal as to whether the applicant was entitled to be furnished with the statement.

The Tribunal decided that no "enactment", within the meaning of that word in sub-section 25(1) of the AAT Act, had made a provision of a kind specified in that sub-section. Sub-section 25(1) provides:

"25.(1)   An enactment may provide that applications may be made to the Tribunal:

(a)for review of decisions made in the exercise of powers conferred by that enactment; or

(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment."

The definition of "enactment" in sub-section 3(1) of the AAT Act is, subject to irrelevant exclusions, in these terms:

"(a)an Act;

(b)an Ordinance of a Territory other than the Northern Territory; or

(c)an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance;

and includes an enactment as amended by another enactment."

The word "Act" refers to an Act passed by the Parliament of the Commonwealth: see s.38 of the Acts Interpretation Act 1901.

For that reason the Tribunal decided that it had no jurisdiction to determine either application.

Section 1316 of the Corporations Law provides:

"Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister's consent, at any later time." 

Section 7 of the Corporation (Western Australia) Act 1990 ("the W.A. Act") provides:

"The Corporations Law set out in section 82 of the Corporations Act as in force for the time being -

(a)applies as a law of Western Australia; and

(b)as so applying, may be referred to as the Corporations Law of Western Australia."

The expression "Corporations Act" is defined to mean, in the W.A. Act, The Corporations Act 1989 of the Commonwealth. Section 8 of the Corporations Law provides:

"(1)The object of this section is to help ensure that the Corporations Law of this jurisdiction operates, so far as possible, as if that Law, together with the Corporations Law of each jurisdiction other than this jurisdiction, constituted a single national Corporations Law applying of its own force throughout Australia.

1. A reference to this law is a reference to this law or the Corporations Law of another jurisdiction.

1. A reference to a provision of this Law in a reference to that provision or the corresponding provision of the Corporations Law of another jurisdiction.

1. Subsections (2) and (3) have effect:

(a)except so far as the contrary intention appears or the context otherwise requires; and

1. Without limiting subsection (4):

(a)subsection (2) does not apply in relation to a reference to this law that is expressed as a reference to the Corporations Law of this jurisdiction; and

(b)subsection (3) does not apply in relation to a reference to a provision of this Law that is expressed as a reference to this provision of the Corporations Law of this jurisdiction; and

(c)neither of subsections (2) and (3) applies in relation to a reference in this section, section 8A, 58, 58A or 58B, Division 9, 10 or 11 of this Part, Part 1.3 or 2.2, Part 3.2A (except subsection 243L(2), Part 3.5 (except section 273), Part 4.1 (except section 363), Part 5.7, Division 2 of part 7.3, section 1039 or 1042, Division 3 or 4 of part 7.11, Division 5 of part 7.12, Division 2 of Pat 8.3, or Part 9.10."

Sub-section 91(3) of the W.A. Act provides:

"The Commonwealth Minister has, in respect of the prosecution of offences against the co-operative scheme laws, the same functions and powers as he or she has in respect of the prosecution of offences against a national scheme law of this jurisdiction."

That provision is in Division 2 of Part 13 of W.A. Act.  Part 13 has for a heading the word "Transitional", and Division 2 is concerned with the Acts and Codes by which Western Australian companies had been regulated during the decade before the enactment of the corporations legislation in force since 1991.  The Companies (Western Australia) Code to which the instrument refers is within the defined meaning of the expression "the co-operative scheme laws" in s.91(3) of the W.A. Act.  The expression "national scheme law of this jurisdiction" is defined to mean, in the W.A. Act:

"(a)this Act; or

(b)the Corporations Law of Western Australia; or

(c)the ASC Law of Western Australia;

Section 85 of the W.A. Act in Division 2 of Part 13, provides:

"85.(1)   This section provides for the national scheme laws of this jurisdiction to supersede the co-operative scheme laws, which are to continue to operate of their own force only in relation to -

(a)matters arising before the commencement of this section; and

(b)matters arising, directly or indirectly, out of such matters in so far as the national scheme laws do not deal with those matters.

(2)   Where a co-operative scheme law is inconsistent with a national scheme law of this jurisdiction, the national scheme law prevails and to the extent of the inconsistency, the co-operative scheme law does not operate.

(3) For the purposes of subsection (2), a co-operative scheme law is inconsistent with a national scheme law if it would be inconsistent within the meaning of section 109 of the Constitution of the Commonwealth of Australia if the national scheme law were an Act of the Commonwealth.

Section 1316 of the Corporations Law of Western Australia confers on the Commonwealth Minister of State who made the instrument the function of giving or denying consent to the institution of proceedings for an offence against that Law and sub-section 91(3) of the W.A. Act purports to confer on him the same function in respect of the prosecution of an offence against the Companies (Western Australia) Code. Section 46 of the Corporations Act 1989 (Cth) provides:

"A Minister has such functions and powers as are expressed to be conferred on him or her by or under a corresponding law."

The expression "corresponding law" is a corresponding law defined by s.38 of the Corporations Act 1989 to mean, in Part 8 wherein s.46 is found:

"(a)an Act of a jurisdiction (other than the Capital Territory) that corresponds to this Act; or

(b)regulations made under such an Act; or

(c)the Corporations Law, Corporations Regulations, ASC Law, or ASC Regulations, or any other applicable provision, of such a jurisdiction; or

(d)rules of court made because of such an Act."

The W.A. Act corresponds to the Corporations Act 1989. Section 46 thus authorises the conferral on the Commonwealth Minister of the function conferred by s.91(3) of the W.A. Act.

One of several alternative submissions by Mr. Burnside Q.C. who appeared with Mr. Walters for the applicant, was that the instrument was - or that it gave expression to - a decision made in the exercise of powers conferred by s.46, so that the decision fell within the description of decisions indicated by s.25(1) as reviewable by the Tribunal. One of the several alternative responsive submissions by Mr. Weinberg Q.C., who appeared with Mr. Johnson for the respondents, was that no enactment made provision for review of decisions made in the exercise of powers conferred by s.46. I accept mr Weinberg's submission.

Another submission for the applicant postulated the instrument -or the decision to which the instrument gave expression - as having been made in the exercise of power conferred by s.91(3) of the W.A. Act and s.1316 of the Corporations Law of Western Australia. Section 45E of the Corporations Act 1989 provides:

"(1)For the purposes of a law of the Commonwealth or of a law of the Capital Territory, an act, matter or thing arising under or in respect of the applicable provisions of a jurisdiction other than the Capital Territory:

(a)is taken to be an act, matter or thing arising under or in respect of 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 act, matter or thing arising under or in respect of the laws of that jurisdiction.

1. Subsection (1) has effect for the purposes of a law:

(a)only in so far as it is within the authority of the Parliament to provide in relation to that law as mentioned in paragraph (1)(a); and

(b)except as prescribed by regulations under section 73."

The expression "applicable provision" is defined, in s.4(1) of the Corporations Act 1989, thus:

"`applicable provision', in relation to a jurisdiction, means a provision of:

(a)the Corporations Law, or Corporations Regulations, of that jurisdiction; or

(b)the ASC law, or ASC Regulations, of that jurisdiction; or

(c)in the case of the Capital Territory - a Commonwealth law as applying, of its own force or because of another
Commonwealth law, in relation to:

(i)an offence against; or

(ii)an act, matter or thing arising under or in respect of;

a provision that, because of any other application or applications of this definition, is an applicable provision of the Capital Territory or any other jurisdiction; or

(d)in the case of a jurisdiction other than the Capital Territory - a Commonwealth law as applying, because of a law of that jurisdiction, in relation to:

(i)an offence against; or

(ii)an act, matter or thing arising under or in respect of:

a provision that, because of any other application or applications of this definition, is an applicable provision of that or any other jurisdiction."

It was submitted that the making of the instrument - or the decision to make it - was "an act ... arising under" s.1316 of the Corporations Law of Western Australia, which was said to be "applicable provisions of a jurisdiction other than the Australian Capital Territory", and therefore "is taken to be an act ... arising under ... the laws of the Commonwealth, in the same way as if those applicable provisions were laws of the Commonwealth." Section 1316 of the Corporations Law of Western Australia, being within the defined meaning of "applicable provision", was said to be a provision under which the instrument - or the decision to which the instrument gave expression - arose, because that section afforded the content of the functions and powers conferred by s.91(3). Therefore, it was submitted, for the purposes of the AAT Act (which is "a law of the Commonwealth") , the instrument - or decision - is taken to be an "act, matter or thing arising under ... the laws of the Commonwealth, and the decision is one "made in exercise of powers
conferred by" s.1316, which is to be taken for the purposes of the AAT Act to be an "enactment", within the meaning of that word in s.25(1). Like s.1316, s.1317B of the Corporations Law of Western Australia, which provides that application may be made to the Tribunal for review of a decision made under that law by the Commonwealth Minister, is to be taken to be an "enactment" within the meaning of that word in s.25(1), because the reviewability by the Tribunal of the decision is a matter or thing arising in respect of the provisions of the Corporations Law of Western Australia, according to the submission.

Mr Burnside referred also to paragraph (d) of the definition of "applicable provision". But the definition of "Commonwealth law", the application of which law in Western Australia because of a law of Western Australia paragraph (d) contemplates, does not comprehend the Corporations Law of the Capital Territory. The definition of "Commonwealth law", in s.4(1) of the Corporations Act 1989, reads:

"`Commonwealth law' means any of the written or unwritten laws of the Commonwealth, including laws about the exercise of prerogative powers, rights and privileges, other than the Corporations Law of the Capital Territory, the ASC Law of the Capital Territory or provisions prescribed by regulations under section 73."

Nor can any of the provisions of the Companies (Western Australia) Code be identified as "a provision that, because of any other application or applications of this definition, is an applicable provision of" Western Australia.

Neither the making of the instrument nor the decision to give the consent which it expresses was in my opinion "an act, matter or thing arising under or in respect of" s.1316 or any other provision of the Corporations Law of Western Australia. The use in s.91(3) of the words "the same functions and powers as he or she has respect of the prosecution of offences against a national scheme law of this jurisdiction" as a means of compendiously identifying the powers and functions granted and conferred does not in my opinion have the effect that acts done in exercise of any of the powers or functions granted or circumstances attending their exercise have, with s.1316, or with other provisions of the Corporations Law of Western Australia, either of the relationships expressed by the words "under or in respect of" in s.45E of the Corporations Act 1989.

If that be so, the conclusion must be firmer that neither the instrument nor the decision falls within the words in s.25(1): "decisions made in exercise of powers conferred by" s.1316. The relationship expressed by those latter words is more confined than that expressed by the words "an act ... arising under or in respect of" s.1316. In the course of argument the question whether the Minister's decision to give consent was made in exercise of powers conferred by s.1316 or s.91(3) or s.46 was debated. It was submitted by Mr Weinberg that I should apply the reasoning of the Full Court of this court in Hong Kong Bank of Australia Ltd v. Australian Securities Commission (1992) 40 F.C.R. 402, in disregard of Burns Philp & Co. Ltd v. Murphy (1993) 29 N.S.W.L.R. 723. I accept the submission. Sub-section
91(3) is expressed as what is called in the Hong Kong Bank case a dispositive provision and the reference in that sub-section to s.1316 (by means of the words "the same functions and powers as he or she has in respect of the prosecution of offences against a national scheme law of this jurisdiction") is by way merely of description.  The decision was made in exercise of power conferred by s.91(3), in my opinion.

Reliance was sought to be placed by Mr. Burnside on sub-section 91(4) of the W.A. Act, which provides:

"For the purposes of the exercise of enforcement powers, and other functions and powers conferred by this section, including the obtaining of warrants to arrest, an offence against a co-operative scheme law is taken to be an offence against a national scheme law of this jurisdiction."

The reference to "enforcement powers" is explicable by the other sub-sections of s.91, not previously quoted.  They are:

"(1)The Commonwealth Director of Public Prosecutions -

(a)has the same enforcement powers in relation to the co-operative scheme laws as has the Crown in right of the State of Western australia acting by the Attorney General or such other person as may be prescribed by regulations; and

(b)may, in relation to an offence against a co-operative scheme law, perform the functions and exercise the powers conferred on the Director of Public Prosecutions by the Director of Public Prosecutions Act 1983 of the Commonwealth as if the offence were an offence against a national scheme law of this jurisdiction.

1. The Australian Federal Police -

(a)have the same enforcement powers in relation to the co-operative scheme laws as has the police force of Western Australia; and

(b)may, in relation to an offence against a co-operative scheme law, perform the functions and exercise the powers conferred on the Australian Federal Police in relation to offences against the laws of the Commonwealth as if the offence against the co-operative scheme law were an offence against a national scheme law of this jurisdiction.

...

1. In this section, "enforcement power" means a function or power relating to -

(a)the investigation of an offence; or

(b)the arrest and custody of persons charged with an offence; or

(c)the institution and carrying on of a prosecution of an offence; or

(d)matters relating to such an investigation, arrest, custody or prosecution."

Mr Burnside submitted that sub-section 91(4) had the effect that the consent was "taken" to be a consent given in exercise of the powers conferred by s.1316.  But the deeming operation of the sub-section is expressly limited by the words "For the purposes of the exercise of ... functions and powers conferred by this section".  Such a provision cannot in my opinion have the effect that the source of the power being exercised is deemed to be a provision other than the section.

The references in the instrument to s.1316, preceding in each case reference to s.91(3), cannot in my opinion vitiate the exercise of the function which s.91(3) confers.  See Mercantile Mutual Life Insurance Co. Ltd v. Australian Securities Commission (1993) 40 F.C.R. 409 at 412-413, 423-425, 435,437. Mr. Burnside did not submit otherwise.

My conclusion is that, the instrument and the decision having been made in exercise of powers conferred by s.91(3), with the authority which s.46 of the Corporations Act 1989 supplies, no enactment is found which provides for review of that decision
by the Tribunal.  The decisions of the Tribunal were therefore correct and the appeal will be dismissed with costs.

The parties were in dispute as to whether the decision had that quality or characteristic which is required if it is to be admitted to be within the meaning of the word "decision" in the AAT Act.  If in that Act the word comprehends only a decision which is "final" or "operative and determinative" or "substantive rather than procedural", I should be inclined to think that this decision was of that character.  It vitiated an immunity from prosecution for each offence of a description comprehended by the instrument.  Such a decision seems to me to answer the descriptive expressions to which I have referred.  But, like the Tribunal, I express no concluded opinion.

I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment of his Honour Justice Jenkinson.

Dated:

Associate

Appearances

Counsel for the applicant:       Mr J W K Burnside QC and Mr B E Walters

Solicitor for the applicant:     Galbaly, Fraser & Rolfe

Counsel for the respondent:      Mr M S Weinberg QC and Mr G Johnson

Solicitor for the respondent:     Australian Government Solicitor

Date of hearing:                 13 September 1996