Bropho v The State of Western Australia

[1990] HCATrans 28

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P34 of 1989

B e t w e e n -

ROBERT BROPHO

Appellant

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

and

WESTERN AUSTRALIAN DEVELOPMENT

COMMISSION

Second Respondent

MASON CJ
BRENNAN J

Bropho ( 3)

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 2 MARCH 1990, AT 9.46 AM

(Continued from 1/3/90)

Copyright in the High Court of Australia

ClTl/1/PLC- 46 2/3/90

MASON CJ:	Yes, Mr Churches.
MR CHURCHES:	Your Honours, I have overnight had the opportunity

of perusing the transcript of yesterday's proceedings

and I observe at pages 4 and 5 of that transcript that

His Honour Mr Justice Brennan has, in my humble

submission, gone a considerable way to putting the

finger right on the issue before the Court.

It really goes to the very heart of the appellant's argument that the presumption as is presently

existing in our legal system has the effect,
even though of course it is not phrased in terms

of a dispensing capacity, none the less that

is its effect because in the words of Justice Brennan

in his question yesterday -

MASON CJ: Well, I think we are aware of what Justice Brennan

said yesterday so there is no need to spend time

repeating what His Honour said.

BRENNAN J: Splendid argument though it may be.

MR CHURCHES:  Indeed. Thank you, Your Honour. I move

on to what is, I think, a simple proposition

that underlies the appellant's argument in this

area and that is that the law is intended to

apply equally to all persons. The depth and

the history of that intention in our legal system

may be perceived in such artifacts as the judicial

oath taken by all judicial officers in this country.

It stretches back at least as far as the CASE

OF ADDITIONS, (1465) YB (Long Quinto) 5 Ed.IV f. 32.

I have cited to you in my outline of written submissions. -
I realize it is in law French; it is also in very

difficult scripting but the point I want to make
is that both the Chief Baron Ellingworth and

the Chief Justice in Common Pleas, Danby, said

at that folio reference 34 that "a statute is

every man's inheritance which the King cannot

defeat of right without Parliament", a good

general proposition. (Continued on page 48)

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Bropho(3)

MR CHURCHES (continuing): And then I would submit to Your Honours

that there is a corollary to that simple proposition

and that is that Parliament has in its sole power the

capacity to vary the equal and even application of the

law amongst persons in this nation or, in the case of

State Parliaments, in their respective jurisdictions.

Now we move on from that simple proposition and its

corollary to the particular problem in this instant

case. And we might look at the structure of the

law in this country at present as a beautiful garden,

but we have a problem in this garden at present,

carefully tended as it is, in our submission there

has crept into this garden a weed, and that weed has

now grown lush and luxurient.	Now it is not surprising
that - - -

MASON CJ:  I really think if you come down to propositions that

we can consider, it will assist the consideration of

the argument, Mr Churches.

MR CHURCHES:  Yes, Your Honour. We say that the aid or canon

of constructions for statutes, which is expressed as

this presumption that the Crown is not to be bound

except by express words or necessary implication, is

just that and no more. It is only an aid or canon

of construction. It is not, we note, a prerogative
of the Crown and I think that is a very important
distinction to put before Your Honours. It has,

very occasionally, but not in any Australian

jurisdiction that I have been able to find, referred

to as a prerogative. It was, I only discovered this

last night, last referred to in a British case,

WHEELER V WIRRAL ESTATES, I am sorry, not on my list

of authorities, (1935) 1 KB 294 at 309, Mr Justice Talbot

did refer to this presumption as a prerogative of the

Crown in passing, but in my submission, that has never

been accepted in this country. It has not been

referred to in British jurisprudence since 1935, in

those terms.

(Continued on page 49)

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MR CHURCHES (continuing): And the reason that I use the

metaphor that I did about the canon of construction

is that I think I need to put it in general terms

to you since my submission is that it is open to

this Court to alter this portion of the law. It is

not surprising that small portions of the law occasionally

grow out of proportion to the whole legal fabric.

That is because this, the common law, is a very

complex, artificial construct and it is built up over

many hundreds of years of oral tradition and it is

hardly surprising that such a complex cultural

artifact will have the occasional anomaly that grows

through its structure and it is the submission of the

appellant that this presumption is just such an

anomaly and it is entirely appropriate for this Court

• dealing with this aspect of the common law going only

to the interpretation of statutes, in no way going

to override the will of parliaments- it is entirely appropriate that this Court deal with that anomaly.

I will put to Your Honours a hypothesis: piece of State legislation is this nation and that is, a typical

for example, swimming pool safety Acts. Most States
have such legislation. Imagine that the statute in

question says that all suburban swimming pools must

be surrounded by safety fences. The preamble says

it is with a view to the safety of children and therefore

they must have self-locking gates and so forth.

And yet, under the presumption as it is currently

argued by the Crown, when a surburban house is built

on Crown land and that Crown land, it is said in the
many reports on this subject, carries with it the

inmrunity not merely for the Crown while in occupation
but that inmrunity passing to its tenants, so we would

be talking here about housing trust land or in
Western Australia, Homeswest land, then it is not

encumbent upon the occupiers of that land to comply
with such a statute so plainly beneficial and so

important to the general populous of this country

for no other reason than that, in the submission of

the appellants,this anomaly exists in favour of the

Crown and therefore may be argued by the Crown to

undercut the plainly beneficial, crucially important
purpose of the legislation.

Not wishing to distract - - -

DEANE J:	Is it really a matter of principle at all or is it
simply that a canon of construction as to presume intention of Parliament was appropriately expressed
in extraordinarily strong language in the 19th century?
The questioniswhether that strong language is appropriate now and the second question is whether current circumstance: are such that the canon of construction should be
different as from now?

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MR CHURCHES:  I think Your Honour has moved exactly to the

point,that the presumption is no - - -

DEANE J: Flattery will get you nowhere with me, Mr Churches.

It seems to do well with Justice Brennan.

MR CHURCHES:  In the submissions of the appellant the

presumption is no more than a canon of construction.

We say that it now flies in the face of the more

important general rule of interpretation of

statutes, which is that the principle that they

must apply equally throughout the community, unless

the enacting parliament indicates clearly to the

contrary. And that, I frankly and freely admit is

the appellant's case. If the Western Australian

Parliament in this case wishes to write into the

ABORIGINAL HERITAGE ACT that it does not bind the

Crown, that will be a political statement then

enshrined in statute. We accept that. But the

presumption - I would agree with what you have just

said - is now becoming entrenched in overly firm

language. That has been the course, I have said in

my outline of argument, for the last 120 years,

particularly since, what Justice Willes said in the

ATTORNEY-GENERAL V EDMUNDS in 1870, it is a short

report and it appears, frankly, as a throw-away line.

The point being, that it appears not to have been argued fully, and not reasoned at great length.

So that we say there is now language which has
become embellished, overly burnished with a view to

Crown protection, and it should be wound back. It

should be put back in the perspective, particularly a

late 20th century perspective of statutes which

now have an extraordinary range of functions, from the
merelyregulatory to the facilitative, which is, I think,

possibly the way I would describe the instant

legislation under discussion. With such a range of
legislation now being passed by numerous parliaments

in this country, we can no longer afford such a

blanket approach to interpretation, exempting out of

the operation of statutes such an important portion
of the community.	I think that goes to the heart of
our submissions.

To take a different metaphor: for what is happening

in terms of the communication of what parliaments

intend when they pass statutes, and indicate to the

community what the law is to be, we might take an analogy

with computer software, in which _Parliament inscribes on

the software what the message is for the community and
the community can read that; see what they are to do;

not to do; what they may be able to do if it is

facilitative of legi~lat~on.

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MR CHURCHES (continuing):  But this

apparent Crown innnunity, for so it is becoming

entrenched in the reports on this topic, a mere

canon of construction now being enshrined as a

Crown innnunity, has the effect of a computer

virus.

It, at random, springs into operation, perhaps

when it is least expected, and has the effect of

distorting the plain message intended by parliaments

when they speak to their communities

DAWSON J:	Why do you say· 11 at random',Mr Churches? &rery
draftsman  would know of the presumption and he could easily
put in the Act that it is to bind· the- Crown
and does in selective instances.
MR CHURCHES: Draftsman	may do so, Your Honour, but firstly,

I would say, that the average individual in the

connnunity has simply no comprehension of this

concept.

DAWSON J: Does that matter?

MR CHURCHES:	I think it does,Your Honour,because I think ordinary literate members of the community should
be able to read legislation and form a reasonable view on the face of a statute what it is about
without requiring a lawyer to interpret it for them.
I think that is - - -
M:I-Il.Xlli J :	What about,the presumption against incrimination? Should a
statute be read against the background of that presumption?
MR CHURCHES:	Well, such a statute must be for the benefit of -

presumption,rathe~ must be for the benefit of all

individuals in a community.

McHUGH J: There is statutes of approach for the presumption

against self-incrimination.

MR CHURCHES:  I am sorry, Your Honour, I have not followed this.

If there was a statute - - -

McHUGH J: Yes, it is talking about - just looking at

statutes without the guidance of a lawyer,

interpreting them without the guidance of a lawyer -

and I am putting to you that there are many

presumptions which are taken into account in the

interpretating statutes which the ordinary member of

the community would not be aware of.

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MR CHURCHES: That may be so, Your Honour, but I regard the

issue here as more than merely a presumption. It

does not go to a presumption at all, in fact, in the

submissions of the appellant, it goes to a plain

reading on the face of the statute without reference to any presumptions. That if the statute on its face says, "You may do A and B or you may not do, or

you are unable to do X and Y", then you should
be able as a member of the community to read that

and say, "Yes, and that applies to myself and all

others in the community". It is not appropriate

to find, as in the case of the New South Wales

FACTORIES SHOPS AND INDUSTRIES ACT, that nine years

after the passing of the statute, which it appears

the legislators through bound all in the community

•+	that, like the bug in the computer,nine years later a court finds, on the basis of this presumption, that
no, a portion of the community is outside the ambit
of the statute thereby confounding - I think most importantly confounding legitimate expectations which
do lie in members of the community and also lie with
the average legislator.

(Continued on page 53)

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MR CHURCHES (continuing):  When a member of Parliament is

party to the passing of a Swimming Pool Safety Act,

he does so with a good intention that this is for

the protection of all children in the community. It

is perfectly true that some members of our

legislatures are lawyers but most are not.	They cannot
expect to be attuned to this particular problem.	The

draftsman may well see the problem of swimming pool
safety legislation in terms of the minutia of what

requirements there are for the height of fences,

self-locking gates, and so forth, and may not turn

his mind to the issue of the Crown because, for a start,

one does not think in terms of the Crown operating

suburban swimming pools but the problem does arise

because the Crown owns considerable portions of

suburban land in this country and there the problem

arises.

Now, both the legislators and the general

community are entitled to assume that that protection

for their children is paramount and complete throughout

the community. I think it would come as a devastating

realization if the community were told that, "Oh no,

all these homes built on housing trust or Homeswest

land don't have to comply with safety legislation".

I think that an appalling proposition but it is

clearly, as the law is being expounded and entrenched

of recent years, the way things stand and it is the

appellant's submission that that is an unsatisfactory

position which should be reduced so that weight is

given to the true intent of the legislature which

is the general application, the even application, of

statute law.

I have indicated to Your Honours that I put this

in terms of the concept of legitimate expectations

which arise both in legislat·ors and the general

community and while I take the point that the concept

of legitimate expectation is of relatively recent

origin - it was first, I think, extrapolated by

Lord Denning in SCHMIDT's case in 1968, a natural

justice case - none the less, it has now worked its

way into a number of areas in public law but as an

example of a judicial perception of a broken

legitimate expectation. I could do no better, I think,

than turn Your Honours' attention to what

Mr Justice Starke had to say in the case of

CAIN V DOYLE, 72 CLR 409 at 421.

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MR CHURCHES:  I apologize that CAIN V DOYLE is not on my list

of authorities but I am aware it is on those of the

respondents. CAIN V DOYLE which, on its face, was

a decision of four Justices to Mr Justice Williams's

dissent, shou-ld rather be perceived as a decision three to two

majority because he could not find the evidence to enable Doyle, the defendant, to be convicted as· an aider and abetter with the Commonwealth in the offence of failing to continue to employ a serviceman under the appropriate RE-ESTABLISHMENT AND EMPLOYMENT ACT of the Commonwealth, an Act of the Commonwealth	dissenters because Justice Starke only found with the protection of servicemen who were to be given
preferential treatment in their employment.
On being informed by Mr Barwick of King's Counsel, as he then was, the reasons why the Commonwealth Crown
could not be bound, Mr Justice Starke at page 421 said
that:

The object of the RE-ESTABLISHMENT

AND EMPLOYMENT ACT is to provide for

the reinstatement and preference in

employment by the Commonwealth -

and so forth.	He then went on to say at the middle
of page 421:

Well may servicemen and women declare

that the provisions of s.18 and other

sections

"keep the word of promise to our ear,

And break it to our hope" -

a particularly deadly commentary on the broken

legitimate expectations of such persons, given that

that quotation comes from Macbeth, act 5, scene 8,

where the full lines are:

And be these juggling fiends no

more believ'd,

That palter with us in a double sense;
That keep the word of promise to our ear

And break it to our hope.

And I think that that is a judicial indictment of the effect of this particular argument for the Crown.

(Continued on page 55)

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MR CHURCHES (continuing): It is, I imagine, of particular

concern to this Court as to how it will deal with

a presumption of this magnitude which has, over

the years becomethis is as conceded by the appellant

in this aspect of its argument, has been progressively

entrenched in the law reports in this country, r.t is

the appellant's submission that this Court is the

ultimate appellate Court in which the care and custody

of the common law of this country is reposed, is

fully empowered to deal with an anomalous proposition,

such as this canon of construction. We further

argue that it is for the Parliament, or in this

country the various parliaments, to state the terms

of statute law. And we argue that the Court does no

damage to the fabric of the political structure of

this country by dealing with this canon of interpretation

and leaving to Parliament to vary that general principle

of the even application of statute law. And I look

particularly on the issue of precedent to JOHN's case,

a recent decision of this Court, at 166 CLR 439,440, where in the joint judgment of the Chief Justice and

Justices Wilson, Dawson, Toohey and Gaudron, we find

the considerations of the Court. with respect to
over-turning the propositions in CURRAN's case, a

taxation case, and similarly the separate, but

concurring judgment of Mr Justice Brennan, at pages

450 and 452. I particularly want to note to

Your Honours that the Court in those two judgments

addressed the issue of forward planning in respect of

what had been accepted as a proposition of law in the

past, and the Court did not shy from the concept of

being able to alter the law, even though it was known

that persons had planned their affairs as to the future

on the basis of past propositions of this Court.

(Continued on page 56)

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MR CHURCHES (continuing): Further, with respect to the issue

of precedent, I note that the general presumption

of Crown immunity in this area has been the subject

of a number of dissents. I think, most importantly,

is the dissent of Mr Justice Windeyer in DOWNS

case, (1971) 126 CLR 61 where His Honour wrote

at great length and after great consideration

as to the state of the law quoting the law back
to WILLION V BERKLEY in the mid-16th century.

His Honour was obviously anxious to give broad

general effect to that safety legislation in

New South Wales. We have another dissent in

the CHINA OCEAN SHIPPING case, 145 CLR·172, the

dissent of the then Chief Justice Barwick who

was concerned to find that the limitations of

the IMPERIAL MERCHANT CHIPPING ACT did bind the

Crown on his reading and interpretation of the

meaning and policy of that legislation.

We turn now to the issue of policy and

the principle of equality in the face of this

Crown immunity as it now appears to ,have become and I turn Your Honours' attention to the case

of GROVES V THE COMMONWE~LTH, (1982) 150 CLR 113

dealing with the Crown immunity as it appeared in

a number of cases and a number of textbooks although

this Court was not so sure that it was entrenched

as an immunity, that being the immunity from

Crown liability for torts committed by servicemen

against each other and that is to be found in

GROVES' case at pages 126 and 133 in the joint judgment of Justices Stephen, Mason, Aickin and

Wilson and specific reference is made to the

necessity of equality of application of the law.

I think there is something of a rhetorical question

raised at page 126, just above the middle of

the page, Your Honours:

The effect of the suggested exclusion

is far-reaching. It places the serviceman

To him alone the ordinary remedies of the	outside the protection of the common law.	law are to be denied, remedies which are
otherwise extended to all within the
jurisdiction of our courts -

and so forth. My point is that policy did affect

the reasoning of the Court at page 133 towards

the bottom, about three-quarters of·.the way down,

again in that joint judgment:

In such a case we see no policy considerations

which require that this Court by its decision

should deprive this serviceman of the

rights at common law which protect all

other members of the community.

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So, both a policy consideration and particularly

one going to the general principle of equality

cutting down a formerly existing Crown immunity.

Now, I turn Your Honours' attention to the decision of this Court in the TOWNSVILLE

HOSPITAL BOARD case, (1982) 149 CLR 282.

BRENNAN J: Is this citation of authority designed to show

that the governor is equal to the governed?

MR CHURCHES: 

Your Honour, it is particularly designed

to show that the Court has particularly in the
last decade adopted a certain line in its approach

• to argued Crown immunities. It is also to show

a general proposition that the Court will be

affected by policy and I cited GROVES' case to

you, particularly for those two propositions.

The TOWNSVILLE HOSPITAL BOARD case, I turn

Your Honours to page 291, the judgment of

Chief Justice Gibbs, about three-quarters of the way down that page.

(Continued on page 58)

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MR CHURCHES (continuing): That case, of course, involves

whether or not the Townsville Hospital Board

could take the shield of the Crown and the

Chief Justice said:

All persons should prima facie be regarded

as equal before the law -

and he went on to say that if they were not to be

equal before the law then it was for Parliament

to say so. He says:

unless it clearly appears that it was the

intention of the legislature to confer - such immunities. And I think that a very important

general proposition.

BRENNAN J:	He speaks of the privileges of the immunities of the Crown.
MR CHURCHES:	Yes, Your Honour.

DEANNE J: That is something distinct.

MR CHURCHES:  Not, Your Honour, is so far as we accept that

as the presumption is presently expounded it has,

in fact, de facto, become Crown iIImlunity.

DEANNE J: It is not a question of what you accept, it is a

question of what Chief Justice Gibbs said.

MR CHURCHES:  Yes, Your Honour, he is saying there that -

BRENNAN J: You are citing this authority, as I understand it,

in order to show that there is a general policy of the

law to be discovered which equates the governor and

the governed. Is that right?

MR CHURCHES:  No, Your Honour, I am sorry, I have perhaps misled

you. I am citing the TOWNSVILLE case with a view to

saying that the law is equal - not particularly am I

raising the issue of governed and the governor in this

context but that the law is equal - but that if the

law is to be unequal then it is for the legislature

to say so. It happens that in that context His Honour

was discussing those Crown immunities which the

hospital board was attempting to take.

BRENNAN J: And is there some dispute as to whether the second

respondent here is an emanation of the Crown?

MR CHURES:  No, there can be no dispute on the face of its

statute, Your Honour, but we are arguing not in
particular on all fours with the TOWNSVILLE case
but my proposition is that the statute in question

here, the ABORIGINAL HERITAGE ACT, applies equally

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and if it is not to be equal then in the context of

what Chief Justice Gibbs had to say in that case

it is for the, in this case, State Parliament to

vary that otherwise the law should apply equally to

all.

McHUGH J: It is a very drastic step to say that the Court should

abolish the rule altogether when it has been a canon

of construction. Could the Court go any further than

rewriting the necessary implication limb?

MR CHURCHES:  Your Honour, it is the submission of the appellant -

bearing in mind that this is an alternative argument -

that in fact it is not a drastic step. It may appear

so in later argument. It is not for me to foreshadow
what my learned friendswillsay but it is not drastic
in the context of the fundamental principles of the

law. It is the submissions of the appellant that the

law has drifted steadily into an anomaly on this

topic and it is for this Court to return to the pure

stream of the law. And it is not so drastic to say

that governments should adhere to the legislation

for which they are,in practical purposes - - -

McHUGH J: You say this rule started in 1870. In 1870 the

connnon law introduced a rule that you had to sue in

negligence in respect of a highway accident but nobody
would think today that you could go back to the old law and just sue in trespass. And it is the same with this

rule, is it not? It is an entrenched rule of the

connnon law.

MR CHURCHES:  In my submission, Your Honour, it is not that

entrenched partly because there is confusion as to its

application particularly indicated by dissent such as

that in DOWNS V WILLIAMS and the CHINA OCEAN case.

There is a dissent in the Full Court which is in the

instance case. In other words, the rule is confusing

in its process. It allows for uncertainty and it is

our submission that we should return to a clarity

of exposition with regard to statutes, that they apply

generally and it is for Parliament to say clearly if it

is otherwise. I do not see any drastic effect that

might follow from saying that governments should comply.

(Continued on page 60)

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McHUGH J:	Well, what about all the statutes that have been passed in the last 100 years, that is parliamentary draftsmen and departments acting on that assumption
that the Crown was not bound?
MR CHURCHES:	If it were of such primary importance that a government not have to comply with statute law which
it prescribed for the rest of its community, if that
was of such crucial importance, then I accept
there might be a brief interlude between any decision
given by Your Honours in this matter and having to
legislate to specifically exempt the Crown in the relevant jurisdiction.
McHUGH J:	We do not know what the economic consequences

of accepting your proposition might be. To apply

this rule to the Crown might result in a great

burden on the public purse for all we know.

MR CHURCHES:  Well, in my submission, Your Honour, if I might

take up that point, as presently the operating

the presumption works to undercut the beneficent

purpose of important economic legislation or

regulatory legislation in this country particularly

in the form of the TRADE PRACTICES ACT, under which

persons may ally themselves with State Crowns

notwithstanding that the Act specifically binds the

Commonwealth Crown and, in my submission, that works

quite clearly contrary to the good intention of that
Act for competitive behaviour in the market-place

and I think it behoves this Court to address that issue

and say, "It was intended by the Commonwealth

Parliament that there be a level playing field

economically but now we find people are hiding behind

the shield of State Crowns and it's inappropriate
behaviour".

Taking up your point, Justice McHugh, with regard to a rule having been present for, we will say,

120 years, do we go back prior to that? I do want to

back to the time and the express wording of the	appellant's case is not that we should wind the clock address Your Honours briefly on the point that the
MAGDALEN COLLEGE case in 1615 or WILLION V BERKLEY
in 1562. That is not the point. Rather, I wish to turn Your Honours' attention to the ethos of the courts,
particularly of interest, given that those judgments
binding the Crown were given in times of autocratic executive behaviour.

Rather than looking to what Coke had to say in

MAGDALEN COLLEGE about inclusive tests for the Crown being bound in terms of for the benefit of religion,

for education and for the poor and an exclusive test

on the basis of the prerogative, I would rather suggest and submit to Your Honours that it would be appropriate

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350 years later - nearly 400 years later - to look

at the ethos of what Coke was driving at, which was

that the State ought, as far as possible, to be

under the law and comply with the law. I do not

discount and disparage the line that Coke took and, in fact, it is curiously relevant to this

particular instant case because in MAGDALEN COLLEGE

the statute was for the protection of religious

buildings and land; it was to stop bishops, deans,

chapters and colleges from leasing out their

properties on very long term leases and thus losing

the advantage of the rent. It was, in fact, a form
of heritage legislation in its own day and it is
certainly possible within the terms of section 5

of the ABORIGINAL HERITAGE ACT, specifically referring

as it does to sacred ceremonial and ritual sites and

objects, to realize that there is a religious

connotation to that legislation. So, I certainly do

not disparage what Sir Edward Coke had to say nearly

400 years ago but I do think it should be put in a

context not of prescribing to you that that is the

point of law that we should return to but rather as

a point on the continuum, the courts having for
a variety of perfectly understandable reasons, having

lost their way in part of the intervening period.

(Continued on page 62)

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Bropho(3)

MR CHURCHES (continuing):  I do not say that disparagingly

of the curial process. It is almost inevitable

in a process of oral tradition such as this.

Your Honours, if I might conclude, by a citation

from an American judge. I think it appropriate
to look at what Mr Justice Brandeis had to say in

OLMSTEAD's case, which was a case concerning wire tapping, 277 US.

Now the case did not go off on the question of

whether the United States Federal Government had

to comply with the wire tapping legislation or

not, it went off on the point of whether the tainted

evidence collected was admissible or not - that

point of whether that legislation bound the United

. ',

States Government appeared a decade later in

NAROONE's casewhichI have cited to Your Honours in my

written submissions. But Justice Brandeis said at

the very last paragraph of his dissenting opinion,

page 485that:

Decency, security and liberty alike demand

that government officials shall be subjected
to the same rules of conduct that are commands

to the citizen. In a government of laws,
existence of the government will be imperilled

if it fails to observe the law scrupulously. Our

Government is the potent, the omnipresent

teacher. For good or for ill it teaches the

whole people by its example. Crime is contagious.

If the Government becomes a lawbreaker, it

breeds contempt for law; it invites every man

to become a law unto himself; it invites

anarchy.

If it please the Court.

MASON CJ: Thank you Mr Churches. Yes, Mr McKechnie.

MR McKECHNIE:  If Your Honours please,we want to come directly

to the matters at issue which we see as essentially,

two in number, the first being the question of

the presunmtion whether it does apply and whether,

as one mi..a:ht forgather from the appellant should no longer

apply or apply in the present form and that will

be the argument which I will address to Your Honours,

and the second,the more particular matter in relation

to the statute itself,as to whether or not, assuming
the law to be as we would say it is plainly to be,

the statute evinces a necessary intention to bind the

Crown. That argument will be presented by my learned

friend and will present it notwithstanding as

Your Honours have seen, an undertaking by the Government

in Western Australia, in due course, to introduce

legislation to specifically, or expressly, provide

ClT12/l/JL	62
Bropho(3)

that this Act will bind the Crown. That undertaking

was before the Full Court bu~ in our submission,

correctly,they paid no heed to it, it was not
accepted by the appellants,and so we will address

Your Honours on that issue as well. But the primary

issue, as we see it, is the questionof presumption.

Just before I go directly to that, as a matter of information could I answer something that

Your Honour Justice Toohey raised yesterday

as to the status of this land. Under the WESTERN

AUSTRALIAN LAND ACT by section 29 the G,overnor

in Council may declare certain areas of land to be

reserves and under section 33 that land may vest

in certain persons for a specified purposes. The

land in question here- by Government Gazette dated

10 April 1987, page 13 to 17 - I have not provided

Your Honours with a copy and, in fact, my friend

Mr Mcintyre,expressed the position yesterday. Perth

Reserve No 39980 set aside for Government require~::aents

is, in fact, the lot of land which has been the

subject of the litigation.

(Continued on page 6~)

ClT12/2/JL	63
Bropho(3)

BRENNEN J: Is it vested in trustees?

MR McKECHNIE: 

It is vested - I was coming to that, Your Honour.

The creation of the reserve is under the hand of the
governor published in that issue of the Government
Gazette of 10 April, and in the same Gazette, not only

is the reserve created, but it is vested in this form

that:  ·

Reserve No. 39980,(Perth Lots 706, 983 and

98~ should vest in and be held by the Minister

for Works in trust for the purpose of

"Government P..equirements".

DAWSON J:  Can you provide us with copies of that?

MR McKECHNIE:  I can, indeed, Your Honour. It was faxed to

me this morning. Your Honours, two questions -

TOOHEY J:  Can I just interrupt you, Mr McKechnie? Do you then

say that this land is reserved for a public purpose within the terms of section 19(6) of the ABORIGINAL

HERITAGE ACT?

MR McKECHNIE: That is an interesting question, Your Honour, and

I am not, with great respect, sure whether the public purpose in the LAND ACT is the same, but it may well

be. Could I say, in relation to section 19 itself,

it certainly· would appear to contemplate that

reserves, whether this or other reserves are able to

be declared. Whether this one - - -

TOOHEY J: Is" public purpose" a term of art?

MR McKECHNIE:  It is not a defined term within the LAND ACT,

and so it is not a term of art, it is a term to be

ascribed to a particular purpose. Now, government

requirements - it may well be a public purpose and it

is not necessary for me to finally submit to

Your Honour one way or another, but I am happy enough

our submissions. if Your Honours proceed that it is for the purpose of

BRENNEN J:  Mr McKechnie, does that have the consequence, if I

understand your concession correctly there, that this

site is a site to which section 5 applies?

MR McKECHNIE: Well, yes,. Your Honour, section 5 applies to any

place and section 5 can certainly apply to Crown land.

We see, in this case, the question as to whether the

Crown is bound by the statute. not answered simply by

determining whether or not the land upon which any

site is, is or is not Crown land, particularly in

relation to section 17, which speaks of acts done,

and the definition of "person".

ClT13/l/FK	64
Bropho(3)
DAWSON J:	No doubt you are going to develop the effect of section 17.

MR McKECHNIE: Well, I am to some degree, and my learned

friend will as well, Your Honour, but, yes.

DAWSON J: But do you say - if I can ask you that question

now - do you say that section 17 would prevent any

individuals from doing the acts which are prohibited,

whether or not it could be said that they were

employed to do them on behalf of the Crown?

MR McKECHNIE:  No. We would say that the true reading of the

Act, assuming that it is not expressed to bind the

Crown, would mean that individuals who are

relevantly the Crown, and I will develop that,

could do such acts, if they are doing it as the Crown

or the agent of the Crown.

(Continued on page 66)

ClT13/2/FK	65
Bropho(3)

MR McKECHNIE (continuing): While I am on that particular

point, before returning to Justice Toohey for a

moment, I understood my friend, Mr Churches,

yesterday to speak in terms of the Crown, its

agents or contractors, and saying - I understood

him to concede that the Crown and its agents would

be bound, but he addressed a submission that

contractors could not be bound. If necessary, I

will take Your Honours to the authority - - -

DAWSON J:  Let me just get this quite - You say the

Crown could authorize an individual to destroy a

sacred site?

MR McKECHNIE:  Yes. Just on the question of authority,

Your Honours, as to contractors, could I just mention, because it arose.-that this case ~it is not necessary

or within the appeal to determine whether or not
contractors of the Crown may or may not be the persons
mentioned in section 17 and may or may not have the
protection or are not bound by the Act, because

the pleadings which are at page 3 of the appeal book

speak at paragraph 4 - they are set out in the judgment of

the Chief Justice,nthe first defendant: through the

agency of the second defendantn. There is no

allegation of works beyond the agency of the second

defendant, now the second respondent, who is,within

the Act, the Crown.

BRENNAN J:  That raises a difficulty · though, does it not,

because what is said in paragraph 4 to be done through

that agency, isnextensive tunnelling and excavation'.'

MR McKECHNIE:	Yes.
BRENNAN J:	So that there are physical acts alleged in

paragraph 4, which must mean that the second defendant

has engaged.-it matters not by what terms- but has

engaged some person or persons to do those acts.

MR McKECHNIE:

Yes.

BRENNAN J: Well then that raises sharply the question of the

application of section 17 to those persons and the authority of the second respondent to secure those

persons to do those acts.

MR McKECHNIE:  Well it certainly raises the question of the

authority of the second respondent to secure those

persons, for reasons which I would like to develop in

a little while, Your Honour, by reference to the

authority. We would say that the authorities clearly

would extend- if the second respondent has authority,

it would extend to those persons who do that work,

and I will take Your Honours to that authority directly.

ClT14/l/CM	66
Bropho(3)

Could I just finish advising Your Honour

Justice Toohey of the answer to the question about

public purposes. Section 33 of the LANDS ACT refers

or defines the word the designated"purpose" as

meaning "the purpose for which the land is reserved"

under this Act and any purpose ancillary and

beneficial to that purpose .. And an order made

under the section shall describe the land affected by the order and specify the purpose for which the

land affected by that order is reserved under this

Act or may be granted or leased in fee simple .

Your Honours, it would seem from the oral

submissions of my friends to be little doubt as to

the existence of the present rule, although they would

question its parentage and the origin of the present

rule within Australia, in our respectful submission,

appears as early as ROBERTS V AHERN, and if I can

take Your Honours to ROBERTS V AHERN, because it

directly relates to, in its factual situation, the

matter which Your Honour Justice Brennan raised with

me.

(Continued on page 68)

ClT14/2/CM	67
Bropho(3)

MR McKECHNIE (continuing):  ROBERTS V AHERN, 1 CLR 406,

was, in· one sense, the paradigm case of a contractor.

A case could hardly be more imagined where the sovereign personally would not undertake the acts which .the contractor did and the factual basis of the case is set out on page 406 and page 407.

Roberts was ch~rged by a local borough

inspector of nuisances for carrying away night-soil

from a post office and at page 407, as the facts appear:

It also appeared that on the hearing
of the information, the appellant had

said, "I was employed by one Appleby,

who has a contract with the Commonwealth,

and I was acting as his servant on behalf

of the Commonwealth through the Postmaster". After such an answer one might wonder why he needed

professional advice, but he asked for it and was

refused. The Chief Justice - and I do not propose

to trouble Your Honours by extensive citation or

reference to the citations we have given as to the

cases but as we .see this as the acknowledgment of the

pre-existing rule within the High Court, at page 417

Sir Samuel Griffiths said at the bottom of the page,

last paragraph:

·It is a general rule that the Crown is

not bound by a Statute unless it appears

on the face of the Statue that it was

intended that the Crown should be bound

by it.

McHUGH J:  That formulation is quite different from the modern

formulation, is it not?

MR McKECHNIE: It is indeed, Your Honour.

McHUGH J:  Then why is that not the true formulation, the Crown

is not bound by statute unless the statute does so

expressly or by implication?

MR McKECHNIE: Well, one has to read on, Your Honour, to find

that His Honour, after ·stating it, carried on stating

at page 418, after speaking as to whether it was the

prerogative, or not - saying at the top of page 418:

The moderri sense of the rule, at any

rate, is that the Executive Government of

the State is not bourid by Statute unless

that intention is apparent.

McHUGH J:  He then goes on to cite Mr Justice Story, but

Mr Justice Story uses "necessary implication" and

the express concept, but he then goes on to say,

"Well, you can also draw it out from the subject-matter",

and so on.

ClTlS/1/HS	68	2/3/90
Bropho(3)

MR McKECHNIE:  Yes, and we would not quarrel with that in this

sense, Ybur Honour, that the subject-matter might,

in a particular situation, supply the answer as to

whether or not it is a necessary implication that

the Crown was bound within the statute. Your Honour

yesterday raised with my friend the question as to whether
or not in the latter part of the 20th century the

present rule might be regarded as a norm but subject

to other norms we would, with great respect to

Your Honour, take some issue with that. We do not

regard the present rule as having the status of a

norm but of settled law but the test is always what

is the intention of the legislature and that test

might be applied to determine, in the absence of

express words, whether there is a necessary

implication. Now, the method by which that

applies might be the subject of change.

McHUGH J:  But it has been said that the test of necessary

implication, particularly as expounded in BOMBAY,

means it is almost an irrebuttable presumption in

favour of the Crown.

MR McKECHNIE:  Yes,. for reasons which I will develop- it follows,

in our respectful submission, that if the basis of

the principle is that the Crown is not bound by a

statute unless express words bind it, it follows

necessarily and logically from that, and if it is

bound either expressly or with the implication that

is irresistible to equate, as it were, with expressly

bound.

(Continued on page 70)

ClTlS/2/HS	69	2/3/90
Bropho(3)

GAUDRON J:  But is not the real problem that under the BOMBAY

test and accepting that there may be some tautology

in it that there is only necessary implication if

the enactment would be wholly frustrated.	I would
have thought if you looked in a very similar

area, for example, severence clauses where the

Parliament expresses its subsidiary intention in

certain events, the test is quite different but

none the less has some bearing on the same problem.

The test is whether it has the same substantive

operation as it would have had. It seems to me that tmless

you look to the operation of the law, rather than

in terms of as they have come to us, the presumption

may if applied, as you concede, almost as .an irrebuttable

presumption, result in either words being read into

the Act, words being read out of the Act and

possibly the Acts being given quite a different

substantive operation, and that really all you should

look to to determine the implication is how the Act

will or will not operate.

MR McKECHNIE: I do not think I disagree with much of what

Your Honour has said. The purpose of the exercise

is always to determine the intention of the legislature

and if express· words are used'this Act does not

bind the Crown", is not a formulation, it has always
been 'this Act binds the Crown", then, of course, the

purpose is easily achieved. When those words are not

used the question is,the principle being that the

Crown is not bound, whether the statute overall

by necessary implication leads to the conclusion that

the Crown is bound. When BOMBAY goes on to talk

about the Act being wholly frustrated, in our

respectful submission that is a useful method for

determining the question but the question remains

has the statute by necessary implication sought to

bind the Crown. And it may be one method and often

a useful method and a method adopted in the Court

below here to say is the statute wholly frustrated?

McHUGH J:  But using the necessary implication test is more

likely than not to defeat the intention of Parliament

because in many cases you might say,on the probabilities,

looking at the statute as a whole, there is an

implication that the Crown will be bound. But then

you have got to say it is a necessary implication that

the Crown is bound,particularly as is interpreted in

BOMBAY,. then you come to an opposite conclusion

even though a consideration of the statute as a whole

you take the view that it was the implied intention

of Parliament that the Crown should be bound.

MR McKECHNIE:  Your Honour is taking it, with respect, in two

steps and it is the first step with which we would

disagree. If the policy,or the principle rather,

is that the Crown is not bound by the statute

then it follows that it can only be bound either

expressly or on a true construction - - -

ClT16/l/LW

70   2/3/90

Bropho(3)

McHUGH J: Or by implication?

:t1R McKECHNIE:  By implication.

McHUGH J: Well then, why use the word "necessary"? It only

misleads. It is an invitation to error.

:t1R McKECHNIE:  With great respect,we disagree, Your Honour.

It is not an invitation :intoerror. If one starts with

the presumption that the Crown is not bound one needs
to find very clear indications within the statute,

in the absence of express words, that it is by

necessary implication we would say. We do not,

with great respect, submit to Your Honours

that there is a difficulty with the present test

and before one gets to the question of whether the

present test is in any event so settled that only

Parliament can change it, because if the test is that the Crown is not bound then, as we keep saying,

it follows it can only be bound either expressly

or in words which have that effect to say that
the Crown must have been intended by the legislature

to be botmd.

McHUGH J: Well, take the FACTORIES AND SHOPS ACT in New South

Wales. It would be surprising for printers in

the Printing Office not to get the benefit of

fencing provisions of the FACTORIES AND SHOPS ACT

and yet that is the result of the cases in the

necessary implication test. If you did not have the

word "necessary" as expounded in BOMBAY it would be

fairly easy to reach the conclusion that in that

situation the Crown was bound by the FACTORIES AND

SHOPS ACT.

(Continued on page 72)

C1Tl6/2/LW	71	2/3/90
Bropho(3)

MR McKECHNIE: Well, Your Honour's analysis on one view

is right, it you accept as, with great respect,

Your Honour appears to do, that there is, in

fact, to be or is a second test; that is, when

it is not expressed but it is merely on balance.

McHUGH J: No, it is a question of finding what the intention

was and you may do it expressly or you may do

it by implication. It is the word "necessary"

that seems to me to cause the problem.

MR McKECHNIE:  Yes. Well, Your Honour, we do not resile

in our submissions from the use of the word

"necessary".

• McHUGH J: No.

MR McKECHNIE: Perhaps, as I proceed, I will explain why:

we continue to respectfully submit this Court

should maintain the test.

I had taken Your Honours to ROBERTS V AHERN

for two purposes; one to show the basis of the

rule and the fact that the rule was part of the

common law before the High Court stated it and,

secondly, in answer to Your Honour Justice Brennan

as it gives some indication of the way that a

statute might operate to exempt from what -would

otherwise be unlawful activity that some activity

by a contractor.

Another example of that, Your Honour, is

from Canada and it is not necessary for me to

take Your Honours to the case; just to tell

Your Honours briefly about it, THE CANADIAN

BROADCASTING CORPORATION V THE ATTORNEY-GENERAL

FOR ONTARIO, (1959) SCR 188. There, the question

involved was the broadcast by the Canadian

Broadcasting Corporation on a Sunday and whether

the LORD'S DAY ACT was breached.	The LORD'S
DAY ACT incorporated by reference from the Criminal	Code the definition of "person" which could include
the Crown and the Supreme Court, by a ~ajority, held that the Act did not apply to bind the Crown
or its servants and this is really - I am citing
this case just in answer to the point
Mr Justice Brennan raised. Justice Rand, with
whom Justices Cartwright and Fauteux agreed,
at page 199, concluded:

If the Sovereign is free to broadcast on

Sunday, those who do the acts necessary

to that service are immune from prosecution

because the act they do is the lawful act

of the Sovereign, attributable to him and

untainted with criminal character.

ClT17/l/SH	72	2/3/90
Bropho(3)

A similar expression or a similar conclusion

is reached in other cases such as CAIN V DOYLE.

BRENNAN J:  The problem may be to determine what is meant

by the Act not applying to the Sovereign because

if the terms of the Act are couched universally

to apply to every person doing an act, then the

problem may be different from that as to whether

a direction or a prohibition is directed to the

Sovereign or not and there may be some difference,

for example, in the ROBERTS V AHERN case~ At
the top of page 419, the argument seems to have
been accepted that the provision relating to

the removal of night soil was not intended to

apply to government establishments, prisons,

hospitals, the like, because, it is said, the

function of the executive government could not be subordinated to the discretionary powers of

the local authority but that may be a different

kind of case from one that we are dealing with

here in section 17 and the Canadian one may be

different. What the difference is, I must confess,

I do not know but it seems to be a different

sort of a problem.

One starts with the immunity and then says,

"Given the immunity, what can its servants do?".

The other starts with the prohibition to everybody

and says the Crown cannot authorize it.	Which
way does it go?

(Continued on page 74)

C 1Tl7 /2/SH	73	2/3/90
Bropho(3)

MR McKECHNIE:  If section 17 does not bind the Crown,

then it would follow, in our respectful submission,

that the doing of any acts mentioned in section 17

would not be unlawful by the sovereign - or the Crown, I should say - or those who act with the

authority of the Crown. It is simply that the Act

does not apply and does not render them ever coming

within its terms.

If the Act is held to apply to the Crown, then

the question of immunity does not arise and it is

a point that my friend, with great respect, blurred

somewhat as to whether this is an immunity of the

Crown or rather simply that the statute never

extends to the Crown or persons acting under Crown

authority.

DAWSON J:  It is not as clear-cut as that,· -is it? ~_mean,

in a sense it does apply to the Crown in the sense

that the statute operates upon Crown land and it is

then a question of whether, looking at section 17,

the Crown can modify that situation, as it were, by

authorizing certain acts.and that is a very different

situation, to the situation of:the NIGHTSOIL case.

case.

MR McKECHNIE:  Well, can I take Your Honours then, to BRADKEN,

which has relevance for a number of propositions in
partial answer to Your Honour's question. But,

some things that we say later on in our submissions

about, first of all, the existence of the rule, to

come back to something I said a moment ago, whether

or not the BOMBAY rule is too wide and clearly

expressed, it is, in our respectful submission, the

situation that it has been accepted without question

by this Court since there is now, in our respectful

submission, a_part of the settled law.

If I can take Your Honours to volume 145 of CLR

because three cases of relevance appear therein.

The first at page 107 is BRADKEN and the point at issue

of BRADKEN,as Your Honours will remember, was

an action against the COMMISSIONER FOR RAILWAYS as

to,first of all,whether he was the Crown and, sPcondly,

bound by the TRADE PRACTICES ACT, would have seem to

if he was the Crown, as the Crown in.right of the

State, whether he was or was not bound by a

have been unlawful acts, that is, within_

of the statute.~ The Court held in the end that there

was no presumption within the Act that the Crown

in_ right of the State was bound._Eut they applied the

test of BOMBAY and I will not take Your Honours to the

particular passages because we have set them out in

the outline and it was the same test which was

accepted again without doubt by the Court in the

ClT18/l/JH	74	2/3/90
Bropho(3)

other two cases, BRISBANE CITY COUNCIL, where

justice Wilson, at page 167, was disposed to say:

The common law principle is not in doubt.

It is that, as a matter of construction,

a statute does not bind the Crown unless

an intention that the Crown be bound

appears either expressly or by necessary

implication from the words of the statute.

The test of necessary implication is not

easily satisfied. It must be manifest,from

the very terms of the statute, that it was

the intention of the legislature that the

Crown should be bound.

McHUGH J:  That gives the term, "necessary implication"

more liberal construction than appears in the

BOMBAY case, does it not, because what His Honour is

saying is, that if it was the intention that the

Crown should be bound, then it is a necessary

implication? If it is manifest from the terms of

the statute that it was intended to be bound,

then that is a necessary implication.

(Continued on page 76)

C1Tl8/2/JH	75	MR McKECHNIE,	2 / 3 / 9 0
Bropho(3)

McHUGH J (continuing): It is manifest, from the terms of

the statute that it was intended to be bound

and it is a necessary implication.

MR McKECHNIE:  Well yes, I am not sure, with respect,

whether in the end Your Honour and I are

debating a· question of semantics over the

actual terms of the test. His Honour, at

least, with whom then Justice Mason agreed, thought that the principle was not then

in doubt and similar statements, at which I

will not take Your Honours to are found in

CHINA OCEAN SHIPPING.

MASON CJ: You are only relying on these authorities to

establish the principle rather than its content

at the moment,are you, because there was no

debate about what the accurate formation of the

principle was in those cases, was there?

MR McKECHNIE:  It was not raised as it is in these proceedings,

Your Honour. At the same time we would regard them as something more than just establishing the

principle when the principle appeared to be not in

doubt. Each Justice who approached the matter, in

each of the cases, approached the matter on the

basis that the principle in BOtIBAY was a correct

formulation of the law and in our respectful

submission, that alone provides powerful support

(a) for proposition being the correct formulation,

both then and now,and (b),against an alteration

of the formulation by this Court which, perhaps,

is the matter which I should turn to now in

generally speaking to my submissions from 4 on.

Perhaps a little wide to say that the law is

a part of the constitution of Western Australia,

and I note at page 201 Professor Hogg in his second

edition would not agree with that proposition.

GAUDRON J: Well, there is a third party in the equation

anyway, is there not; if that is right the

courts are in there too?

MR McKECHNIE:  Yes.

GAUDRON J: And there would be a question to ·what.

extent the courts could fetter the exercise of

their judicial power if this presumption were

applied as an irrebuttable presumption and

automatically?

MR McKECHNIE:	Yes, on the other hand, Your Honour, accepting of course that the third part is the courts, it
is where the principle has been stated so clearly
for so many years that both the executive and the
ClT19/l/JL	76
Bropho(3)

legislatures can have acted on it and that it

is LINKLETTER V WALKER, (1965) 381 US 618. If the

Court pleases.

MASON CJ:  Thank you, Mr Solicitor. Yes, Mr McIntyre.

MR McINTYRE:	Your Honours there are only a few very short things I would wish to say by way of reply.
MASON CJ:	Yes.

MR McINTYRE: It is our submission that the word "necessary"

in the usually known test is a value-laden word.
It implies some need but then does not go on to

assist any court with any guidelines as to how

one assesses that need and so that it is perhaps

a word which could very properly be left out of

any rule and one goes, then, to the more general

questiGn of what the implication is. It is also

the appellant's submission that the Court ought

not to adopt the view of the respondents that

to change the rule would not be appropriate with
the limited material before it. Of course, this

Court is only making a decision in this particular

case. We could all be here again, arguing it again,

in another factual circumstance. Naturally, of

course, the decision is being made for this case

and this factual situation and it would appear

clear from listening to the variety of views

presented by the interveners that whilst they

seem to be keen to preserve the rule, there are·

a number of views about what the rule is and

it probably does appear to be necessary for this

Court to reconcile those views and to assist the

legislators and the parliamentary draftsmen and

those who are bound by these varieties of law

throughout the States as to what the rule is.

(Continued on page 146)

C1T60/2/SH	145	2/3/90
Bropho(3)

MR McINTYRE (continuing): And finally, just a quick reference

to the parliamentary debates. I should point out

that the word "developers" is used in the parliamentary

debates as to identify one group to whom the

legislation was intended to apply and of course,

in this situation, the WA Development Corporation is

in fact a developer, carrying out a development and

it would seem it may have been contemplated by the

parliamentary debates.

MASON CJ:  Thank you, Mr McIntyre. The Court will consider

its decision in this matter.

2.45 PM THE MATTER WAS ADJOURNED SINE DIE

ClT61/1/CM	146	2/3/90
Bropho(3)