Bropho v The State of Western Australia

[1989] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P30 of 1989

B e t w e e n -

ROBERT BROPHO

Applicant

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

and

WESTERN AUSTRALIAN DEVELOPMENT

COMMISSION

Second Respondent

Application for special leave

to appeal

DEANE J
DAWSON J
TOOHEY J
GAUDRON J

Bropho(2)

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 26 OCTOBER 1989, AT 9.55 AM

(Continued from 25/10/89)

Copyright in the High Court of Australia

PlT2/l/HS 21 26/10/89

DEANE J :  Mr McIntyre and Mr So 1 i cit or , the Court has had an

opportunity of considering this matter overnight.

Mr Solicitor, we would now wish to hear the

respondent on the general question of whether leave

should be granted in an unrestricted form.

MR PARKER:  If it please the Court, my learned friend,

Ms Wheeler, will present our submissions.

DEANE J:  Thank you, Mr Solicitor. Yes, Ms Wheeler.

MS WHEELER:  If it please the Court. Might I hand up to

Your Honour an outline of submissions.

DEANE J:  Thank you. We will just take a moment to read them.

• MS WHEELER: Your Honours, the respondents' principal submission

is that by whatever interesting path the position,

may have been reached, whether by inadvertence or

whether by a course of decisions reflecting a changing

constitutional principle, the principle of construction

is now not only clear but the established principle

has been expressed in the strongest possible terms by

this Court on a number of occasions. I do not wish to

take Your Honours to all the references in the first
paragraph of the outline of submissions but could I

very briefly read to Your Honours two passages from

BRADKEN's case, firstly that of Mr Justice Gibbs, then

Acting Chief Justice, at page 122, towards the middle of that page, having referred to Professor Hogg's

book on the subject, he goes on to say that:

It seems to me, with all respect,
tnat the rule of construction, which
without doubt is firmly established
in the law, rests on reasons which are
understandable enough.

Justice Stephen in the same case at page 127, again towards the centre of that page, says of the rule of

construction:

However dubious the antecedents ..... only statute can now alter it.

DEANE J:  If that were all we were concerned with there would

obviously be great force in what you say in the

early passages, but are there not other questions

involved in that wide compass? I mean, one is the

Full Court here appears to have applied the BOMBAY

test of the beneficial purpose being wholly frustrated.

Now, there must be, I would have thought, room for

something to be said about that and the second question

is even if one accepts or were to accept that the

statute did not bind the sovereign there would remain

the question of how this rule applies in the case of

a statutory corporation carrying on business

activities and the like?

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MS WHEELER:	Yes.	To deal with the first of those questions,

Your Honour, first - - -

DEANE J:  I am not trying to divert you from the general

thing.

MS WHEELER:  No. The BOMBAY case arises, in any event, in

the second paragraph and is, indeed, referred to in

the next of the passages which I wish to cite to

Your Honours which is the judgment of Justice Wilson

with whom Their Honours Justices Gibbs and Mason

agreed in BRISBANE CITY COUNCIL, at page 167, where

His Honour says:

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.

His Honour then cites PROVINCE OF BOMBAY and, indeed, at page 169 as part of his reasons for finding that

this particular Act in question did not bind the Crown

His Honour says:

It cannot be said that the purposes of the Act would be wholly frustrated

unless the Crown were bound.

Again, he cites PROVINCE OF BOMBAY. So in relation to the

the PROVINCE OF BOMBAY case we would say a number of
things, Your Honour; firstly, that it has been

accepted to be the law, including the test as to

whether a statute's purpose is wholly frustrated,	it has been accepted to be, as it were, a working
out of the principle of necessary implication by this
Court in its decisions. T.hose decisions referred to
in the first paragraph. of the outline of submissions cite the BOMBAY case and, indeed, a number of the
decisions referred to in the second paragraph also
rely on PROVIN_CE OF BOMBAY as a correct statement of
the principle. So that we would say two things as
to that test; firstl~ that the question whether the purposes of the statute would be wholly frustrated if the Crown were not bound is simply a statement of the principle of necessary implication giving due weight to the expression "necessary" there. It is something which must follow, we would say, from that
strong expression that the Crown is not bound unless
by express words or necessary implication, that a

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Bropho(2)

statute must be meaningless, must be wholly

frustrated, must make, as it were -

DAWSON J:  That is hard to understand, is not it, because

ultimately the question must be, "What was the

intention of the legislature?". This is just in a

particular case a method of approach, but it cannot

surely be the exclusive method of approach.

MS WHEELER:  The test as to whether the purposes of statute

would be wholly frustrated is not the exclusive test.

We would not say that, Your Honour. One also looks,

of course, to the language the legislature uses and
one looks at language and purpose generally together,
of course, and the question of necessary implication

must arise as one of construction in regard to the

words of various statutes so that we would not say that

one looks only to the test as to whether a statute

would be, the purpose would be wholly frustrated but

that it is part of the working out of the necessar

implication test; that is,it is appropriate to have

regard first to the words which the legislature has
used against the background of the established
principle of construction, but it may also be

apparent from the subject-matter, without anything

to be derived one way or the other from the words

which are used, that a statute must have been intended
to apply to the Crown, otherwise its purpose would be
wholly frustrated.

So we would see the test of whether the purpose

of a statute is wholly frustrated as being part of that
test of necessary implication and the way in which it

is applied when you come to the particular working

out of the test which involves looking at the purpose
of the statute. It does not, of course, apply when

one comes to look at the words of the statute. One

may also derive from the words of the statute an

intention that the Crown be bound, most obviously,
perhaps, if there are exceptions or exemptions which

again only make sense in the context of the Crown

already being bound. So that we would say, with respect, that the

problems of the BOMBAY case and the reliance on that
particular test by the court below presents no problem

for this reason: that it is a test which is, again,

well e~tablished, which has been accepted and stated

often and in strong terms by this Court and that - - -

McHUGH J:  But is the Court to be bound forever by it? After

all, it is only a rule of construction. Why is it

open, assuming the Court has power to overrule the

law prospectively, to hold that this rule of

construction which is no longer tenable and ought

not to be applied, at least in the future - and I

know there are some problems about this particular

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Bropho(2)

case - but why is that not an important point alone for the determination of special leave?

MS WHEELER:  Because, Your Honour, we would say it rests on

two things; firstly because it asks the question,

"Why should the Court not overrule the previous line

of authority, why should it not take a different

direction?". We would submit, with respect, the

proper question is "Why should it?", and - - -

McHUGH J:  One reason is that because you have now got so

many corporations engaging in commercial activities

but purporting the act under the shield of the Crown and it is very difficult in many cases to think that Parliament really intended that they should have the

protection of the Crown's shield and a rule of

construction is being applied to them automatically

which might be the last thing that Parliament had

in mind. So that in future if Parliament wants to

give them exemption it should say so expressly.

MS WHEELER: Yes. There are a number of things involved in that again,

Your Honour. The first thing is that it rests on the

assumption that Parliament would not have intended the

rule to apply to these types of authorities. One

might well say that farliament has created them in a

particular form and extended the shield of the Crown

to them so that they may enjoy the benefit of that

rule, among other things.

McHUGH J:  But the purpose of rules of construction is because

it is expected that they give effect to what the

true intention of the Parliament was for the purpose

of the Parliament. One may wonder whether that is the

case in many situations these days.

MS WHEELER:  Yes. What Your Honour is putting to me in part

reflects the difficulty of establishing whether a body

comes withirt the shield of the Crown, which we would

see as being a more complex rule than this one and

that is one aspect of it. The other is though this assumption
that in relation to commercial bodies or bodies which

engage in commercial undertakings it is not to be

expected that Parliament would wish those sorts of

bodies not to have the benefit of the rule, would

wish those bodies not to be bound by the statute and
we would say to that that the rule of construction is

so clear and is so well established that if Parliament

does extend to a body the shield of the Crown that

must be one of the consequences that it should be

taken to have expected. So that, with respect, we would suggest that the assumption that these sorts of bodies should not be within the shield of the Crown,

although it is something which is commonly suggested

by, for example, the academic writers on the subject,

is an assumption which, in terms of parliamentary

intention, should not necessarily be made.

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Bropho(2)

DAWSON J:  May the answer be a little more subtle than that,

as Justice Deane suggested, that Parliament may
have intended, applying the presumption that the Crown

should not be bound, the Crown itself, in the sense

that the Crown - obviously there is difficulties

about the Crown prosecuting the Crown or the Crown

binding the Crown, and so on - that why should the

immunity in certain circumstances, perhaps the

circumstances of this Act, extend to persons who

purport to act on behalf of the Crown? Why should

you not say that the intention was that at least

those individuals should be bound?

MS WHEELER:  Because we would say, with respect, that that is

the whole point of the immunity. If the Crown is not

bound by a statute it must be able to act and it must

be able to act as it sees fit by its servants or agents

or by whomever it chooses to employ.

DAWSON J:  But is the question, "What is the point of the

immunity?", or is the question, "What is the intention

in the Act?"?

MS WHEELER:  We would submit that the intention of the Act, of

course, depends upon the rule of construction. Now,

the working out of that rule of construction and what

it means in the circumstances of a particular act is,

in our submission this, and I wish to take Your Honours
in a moment to what we would see as the relevant

authority; if the Crown is bound by a statute it is

nevertheless the case that the Crown generally cannot

be liable to prosecution and conviction under the

penal provisions of the statute as a general proposition,

and for that proposition we would rely on CAIN V DOYLE

and I will take Your Honours to that in a moment.

So that if the Crown is bound by a statute, the Crown

itself not being liable to prosecution and conviction,

it is the servants, the agents, the individuals,
depending upon the construction of the statute, who

may be liable to be prosecuted and convicted because

the Act is unlawful, because the statute binds the

Crown.

DAWSON J:  But you see the old idea that it was only the

prerogative powers of the Crown which were protected

is something like what I was just putting to you, is

it not?

MS WHEELER:	Yes, and we would submit that that is something which has long been superseded, Your Honour.
DAWSON J:	Well, it may be as a rule, but one can see the

rationale behind it and perhaps there was something

more in it than we thought.

MS WHEELER:  One can see the rationale behind that rule. One

can also, with respect, see the rationale behind what

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we would submit to be the modern rule and that 1s

something that appears in some of the cases in not

very much detail, but I want to expand on that in a

moment.

DEANE J:	But if the CRIMINAL CODE says that a person shall not
do something and the proper construction is that that
does not bind the sovereign in right of South Australia,
it does not follow that the sovereign in right of
South Australia can send an agent to do that very
thing who will be immune from prosecution for his criminal act.
MS WHEELER:	That would depend, in our submission, whether he

were doing the act properly as an agent of the Crown

or whether as an individual.

DEANE J:	Well, presuming that he has a duly notified power of
attorney.
MS WHEELER:	And we would submit again, however unlikely it may be that the Crown in right of South Australia or in
right of any State would do such a thing, we would
submit that the whole point of the statute not binding
the Crown is that that is precisely what the Crown is
entitled to do but the act, so far as the Crown is concerned, is not unlawful, whether done by the Crown itself or whether done by whatever means that the Crown
properly chooses.
If I might now turn, Your Honours, to CAIN V DOYLE 72 CLR 409, which was the decision referred to by the
supreme court.  The facts sufficiently appear
from the headnote and I regret, Your Honours, l do
not have copies of the decision for the Court. I was
not expecting to have to go into this point necessarily.
The RE-ESTABLISHMF.NT AND EMPLOYMENT ACT of the Commonwealth:

defines "employer", unless the contrary

intention appears, as including the Crown -

so the Crown was, in general terms, bound by the

statute. It provided that -

when an employer -

which included the Crown -

has reinstated a former employee in

accordance with the Division of the Act

containing that section, he shall not

without reasonable cause terminate the

employment ...... Section 5 of the CRIMES

ACT provides that any person who aids, abets, counsels or procures ..... the

commission of any offence against any

law of the Commonwealth, shall be deemed

to have committed that offence.

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Bropho(2)

The defendant was the manager of a munition factory conducted by the Commonwealth. He was chargedwith, without reasonable cause, terminating the employment of a person contrary to the provisions of that Act. As the facts appeared, he had terminated the

employment by issuing a notice in accordance with

instructions from the Department of Munitions signed

create an offence of which the Commonwealth could

by a person on the authority of the defendant. not

be guilty; that is,because although the Commonwealth

was bound by the Act, nevertheless it requires the

clearest terms in the penal provision itself to

give rise to any indication that the Crown is

intended to be liable to prosecution and to

conviction.

So that although the Crown was bound by the Act

the Crown could not be convicted of an offence;

therefore, no offence being created of which the

Commonwealth could be guilty the defendant could

not be convicted of aiding and abetting, there being
no possible principal offender. Now, it seems to

follow from the reasoning in that case - and I do not

wish to take Your Honours to it at the moment

in detail - that it was because the

section referred to an employer, "no employer shall

terminate employment without reasonable cause", that

it was only the Commonwealth, the employer, who could

possibly have been charged and, therefore, the

defendant could only have been convicted, if at all,

as an accessory, in effect, or a party to that offence.

If, on the other hand~ the Act had provided that -

as appears in section 17 of the ABORIGINAL HERITAGE

ACT - no person shall do something, the result would seem to follow that even though the Act bound the Crown,

the Crown itself could not be convicted of the offence

b~ any person, whether having the authority of the

Crown, whether being a servant or not, could be

convicted because the Act was made unlawful by
the statute.	So that we would submit that the only

thing which distinguishes statutes which bind the

Crown from statutes which do not bind the Crown

so far as penal provisions are concerned is that

in the statutes which do bind the Crown those acting

as individuals, although with the authority of

the Crown, individuals may, depending upon the terms

of the penal provision itself, be convicted of an

offence and the Crown, of course, could be restrained

similarly from doing that which is unlawful.

If the statute does not bind the Crown we would

submit that there is no unlawful act to be restrained;
that is, it is not unlawful for the Crown, by itself,

or by its servants or agents, to do the particular

act complained of. Therefore, there is neither an

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offence nor anything from which anyone can be

similarly restrained. That we would submit to

be the correct working out of that rule, that the

Crown is not bound by a statute unless by express

terms of necessary implication.

To return to something Your Honour

Justice McHugh raised, there seems to have

been no difficulty in the past in decisions of

this Court in applying that rule to persons or bodies

undertaking activities of a generally commercial

nature. For example, in the BRADKEN case, of course,

there was the Commissioner of Railways for Queensland

who was involved in what would seem to be an

ordinary commercial transaction of purchasing rolling

stock and I have an idea that that type of point again

was raised by Justice Windeyer in DOWNS V WILLIAMS

and was not an idea which appealed to the majority
of the Court in that case.

(Continued on page 30)

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MS WHEELER (continuing): Yes, I cannot readily find the

reference, Your Honours. I will have to check that

but, in any event, we would submit that there have

been - WYNYARD INVESTMENTS is another one again,
a Commissioner of Railways - and although railways

have traditionally been run by governments in

Australia, again, that is a fairly ordinary

commercial type of activity, we would submit, and

there was no difficulty in that case in finding

that the rule applied to the Commissioner of

Railways to that type of authority and that was

the rule stated in what we would submit to be the

modern terms. The reference to it is in paragraph 2

of the outline of submissions.

I do not wish to take Your Honours in detail through the authorities referred to in that second paragraph of the outline of submissions. Might

I, however, go to ROBERTS V AHERN, 1 CLR 406. There

is a passage commencing at page 417 in which the

Court discussed what we would see as the modern foundation for the rule considering and we would

suggest respectfully rejecting the earlier views

that only the prerogative was relevant. It

commences at the foot of page 417 in that paragraph:

It is a general rule that the Crown is

not bound by a statute unless it appears on
the face of the Statute that it was intended
that the Crown should be bound by it. This
rule has commonly been based on the Royal

prerogative. Perhaps, however, having regard

to modern developments of constitutional

law, a more satisfactory basis is to be found

in the words of Alderson, B., delivering the

judgment of the Court of Exchequer in A-G V

DONALDSON -

quoting:

"It is a well established rule, generally

speaking, in the construction of Acts of Parliament that the King is not included

unless there_ be words to that effect; for

it is inferred prima facie that the law

made by the Crown with the assent of Lords

and Commons is made for subjects and not for

the Crown."

Their Honours then go on to note that that was a

doctrine well settled in the United States and to

cite a passage from a judgment of Justice Story in UNITED STATES V HOAR, which we would suggest

sets out, although in very general terms, a
satisfactory policy foundation for what we see as the modern rule. It occurs towards the centre of

that quoted passage and reads:

P 1T3/1 /SH	30	MS	WHEELER	26 /10/ 89
Bropho(2)

In general, Acts of the legislature are

meant to regulate and direct the acts and

rights of citizens, and in most cases the

meaning applicable to them applies with very

different and often contrary force to the

Government itself.

That was a passage, again, cited by Justice Gibbs

in BRADKEN's case when he said that the modern rule
appeared to him to rest upon reasons which were

understandable enough.

That is not to suggest that there are not

alternative rules which also may have a satisfactory

foundation. It is submitted that the present rule

is convenient and rests on sound principle. That

is submitted for two reasons. In CHINA OCEAN SHIPPING

COMPANY V SOUTH AUSTRALIA, 145 CLR 172, His Honour

Justice Gibbs, at page 199, said that although the

modern had been critized as narrow and technical,

it was in any event clear and simple and the first

submiss:i!m:J. we would make in that respect is that

it is very desirable for a rule of construction

of this nature to be clear and simple.

If we might pause to examine briefly the type

of rule which appears to be contended for by the

applicants, the suggestion is that there has been

some error somewhere along the line of authorities

and that the older rule, whatever it may have been,

was more soundly based and is something to which
we should return. If I might just briefly take

Your Honours to what appears to be the content of

the older rule, if I could hand up to Your Honours

an extract from Halsbury, 4th Ed, vol 34, concerning

the application of statutes to the Crown. At the

very foot of that page - the first page, 578 - the

passage begins:

In the past, attempts were made to classify

Crown was to be inferred. It was said, for	the cases in which an intention to bind the
example, that the necessary implication would
arise in the case of any statute made for the public good, the advancement of religion
and justice and to prevent injury and wrong.

And there is a footnote; if one then turns to the authorities referred to in the footnote, one finds

the type of statutes variously classified as "statutes

made for the public good"; "made to suppress wrong,

or take away fraud, or to prevent the decay of religion";

"statutes which provide necessary and profitable remedy

for the maintenance. of religion, the advancement of

good learning and for the relief of the poor; Acts made

to suppress wrong"; and a tentatively suggested category

of "statutes passed to preserve the intentions of

founders and donors".

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Now, with respect, we would see very great

difficulty attendant upon any return to a principle

so uncertain that not only do the categories of

statutes which bind the Crown appear to be somewhat

open but their content, itself, presents great

difficulty. If I might illustrate in relation to

these proceedings, the suggestion was made on behalf

of the applicants that the particular statute in question here could be regarded as a statute for the advancement of religion. To determine that
question, of course, involves the determination

of what is a religion, whether the particular issues

here in question are issues of religion, one of

particular difficulty I would have thought, in the

context of a culture where religion and social life

are interwoven; whether a statute is for the

advancement of religion if it incidentally advances

religion or if that is one of its purposes or what

happens if the statute also allow; for the destruction

of religious objects, although it is generally for

the advancement of religion; all those sorts of

questions are opened up by - - -

GAUDRON J: But, Ms Wheeler, do not those questions really -

the problems that you point to - point to a more general

vice that goes both ways and that is the utility

of presumptions in an area where the ultimate search

must be for legislative intent?

MS WHEELER:	Yes.
GAUDRON J:	And, if you accept that, it really does go both

ways.

MS WHEELER: Certainly we would accept that there is a question

as to the utility of presumptions. We would not

would say that there has to be a presumption of

accept that it goes both ways; I am not sure that

some kind if the legislature does not - - -

GAUDRON J:	But why?
MS WHEELER:	Because the legislature does notalways .say, "This statute binds the Crown" or "This statute
does not bind the Crown" and perhaps the - - -
GAUDRON J:	But are there presumptions, for example, when you are seeking to ascertain the intention of a
testator?
MS WHEELER:	It is fortunately not an area of law in which

I am much involved, Your Honour, but I could only

think it would be desirable, whether or not there

are presumptions, I do not know but we would submit

that in the construction of a statute and the question

as to whether the Crown is bound, whether, especially

given the types of activities which the Crown now

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undertakes, the question as to whether the Crown

is bound by a statute or not. It is not enough simply to look at a statute and say, "Here is a

statute of perfectly general provisions. We are

going to work out from the words of the statute whether the Crown is bound or not". Generally,

there are no indications either way.

GAUDRON J:  But that is a task, Ms Wheeler, which is very

similar to what is done without benefit of presumption

when one applies the severability provisions of

the INTERPRETATION ACTS. You start - the Acts

assert an intention but then without application

of presumption quite a different task is undertaken

to ascertain what really would have been the

intention of Parliament if its mind had been

addressed to the particular problem.

MS WHEELER:  Well, that position, of course, is complicated

by the existence of the INTERPRETATION ACT provisions

DAWSON J:	Which raises a presumption.
MS WHEELER:	- - - which direct the Court to salvage what it

can. We would submit that in the absence of those

sorts of provisions which say, basically, that
Parliament will take anything that is valid; that

may be putting it too widely but that is, itself, a legislative direction as to a presumption. You

take what you can out of the statute.

GAUDRON J: Well, it is an expression of legislative intent.

MS WHEELER: Yes, but prior to those sorts of INTERPRETATION

ACT provisions, although there may not have been

a presumption properly so called, there were certain

tests as to whether portions of statutes could be

severed out. You searched for the legislative

purpose; you asked the question whether the statute, as with the offending portion severed, was something

may not have been a presumption as such but there quite different so that even in that area there	was certainly guidelines which assisted the Court
in the task it had to undertake.

McHUGH J:  But, that is the problem I find with this test,

particularly the test of necessary implication because

it seems to me an artificial test which may not

reflect the party's intention. Why must it be

necessary? Surely the question is: what was the
intention of Parliament how it may be supressed

or it may be inferred but why do you have to find

that it is a necessary implication which seems to

stack the cards against the person seeking to hold

the Crown bound?

MS WHEELER: It does stack the cards against the person seeking

to hold the Crown bound and, if I could answer

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Your Honour's question in two ways: as to the

particular statute in question and as to all statutes
passed to date, we would say one part of the answer

is that that presumption is a presumption which

is well known and firmly established and upon which

the legislature, one presumes, has acted.

McHUGH J: Well, I just wonder about that. Just looking

at the subject-matter of this Act and making an

educated guess about it, it would never have occurred

to my mind that members of the Parliament, when
they passed this Act, would think that some Crown

corporation could go in and destroy these Aboriginal

relics and sites when a private corporation could

not do it.

MS WHEELER: It is one thing to imagine that the Parliament

contemplated that Crown corporations would go in

and destroy relics; it is another, we would submit -

and this is the sort of thing that the presumption

covers - to imagine that the Parliament may have
thought there are going to be competing considerations -
this runs into the construction point and I want
to, perhaps, go to it very briefly at the moment -

but there may be competing considerations in the

development of any particular site. There may be

general reasons of social utility why, notwithstanding

that a site is of significance under the Act, that

certain things should be done in relation to it;

there may be overwhelming considerations of

community convenience which make it necessary to

undertake work in those circumstances. There may,

indeed, in some circumstances and, to take the site

the subject of this action for one, a busy road
in a metropolitan area where accidents and damage

of an unforeseen nature could occur, there may be

circumstances which would make it necessary for

the Crown to act, and act quickly, in the public

interest without going through the procedures set

out in the Act. So that, in our submission, what is to be

considered is not whether the Parliament would have
contemplated that the Crown would go out and do
inevitably the very things forbidden by the Act

but whether the Parliament would have contemplated

that it·should be left up to the Crown in each

particular situation to decide whether or not to

abide by the provisions of the Act in letter or

in spirit and, indeed, as to this Act, there has
been a general practice - a general policy directive,

indeed - that since 1978 all develooment proposals

by government agencies ~re vetted_ by the Museum

although the formal application procedure is not

necessar~ly followed. So, the question as to

whether to comply and how far to comply and whether

to comply with the detail of the procedures in the

spirit of the Act is something which Parliament

PlT3/5/SH	34	26/10/89
Bropho(2)

may well have left up to the Crown in each case.

Certainly, in 1972, the year in which this statute

was passed, Parliament did in a number of cases

see fit expressly to bind the Crown which would,

in our submission, suggest, again, that the rule

was well known and was acted upon in the case of

this statute which is silent as well as in the case

of those statutes.

Most of the 1972 statutes were amending ones so the question as to whether it would bind the

Crown or not did not apply but if I could just briefly

note for Your Honours the CONSTRUCTION SAFETY ACT No 13

of 1972, by section 5 provides "This Act binds the

Crown". The ABORIGINAL AFFAIRS PLANNING AUTHORITY ACT,

dealing with a number of matters of significance
to the Aboriginal community, No 24 of 1972, by

section 5 provided the same thing and, similarly,

for the FRUIT GROWING RECONSTRUCTION ACT No 99 and

the NOISE ABATEMENT ACT No 100, I think, of 1972,

so the rule certainly appears, in our submission,

to have been acted upon by Parliament, at least

to the extent that where they did want the Crown
to be bound, those express words easily found their

way into the statutes.

So that, in our submission, given that we

would assert there is a need for a presumption in

this type of case, the type of presumption can be

of three kinds: the present well-established law

which is that the Crown is not bound unless by express

words or necessary implication; the type of approach

which seems to have been reflected in the very much
older cases, the cases from the 1600s and the like,
which we would submit is the worst possible approach

from the point of view of parties knowing their

rights and where they stand in relation to any

particular type of activity or standing the present

rule precisely on its head and having a rule which

says, instead, the Crown is bound by a statute unless

it expressly enacts to the contrary.

Now, there are, as a matter of policy, some

reasons to suggest that that rule may be a preferable

one in the sense that it may be desirable for the Crown

and citizens to stand on a footing of equality in

all cases so far as possible. The difficulty with

it, we would iubmit, is that the present rule

equally rests on a basis of policy and a sound one;

that is, that it may well be appropriate, depending

on the subject-matter of the legislation and

circumstances of the case, for the Crown which,

generally, has the role of balancing the interests

of different community groups not to be bound by
the particular legislation, not itself to be a

player in whatever field is concerned. That is

putting it at its highest. Of course, a reversal

of the present rule may mean, no more than mere

PlT3/6/SH	35	26/10/89
Bropho(2)

inconvenience; may mean no more than, in the case
of fees and licences and the like, papers being

shuffled endlessly from one department to another unless Parliament reverses the presumption either

by a general INTERPRETATION ACT provision or by

going through all the statutes and expressly
enacting that they do not bind the Crown.

But, in our submission, given that both clear rules have something to commend them and given that

the present rule is the one which has found its

way into the decisions of this Court throughout

the life of the Court, subject, I should say at
this point - there is one decision which presents

a difficulty; the judgment of Justice Williams in

GULSON's case apparently follows SYDNEY HARBOUR

TRUST COMMISSIONERS V RYAN and that judgment and

the SYDNEY HARBOUR TRUST COMMISSIONER's case might

be thought to present a difficulty because of certain dicta which are found in it. If I could very briefly

deal with that case, which, to turn to it, because

apart from that case, we would have submitted to

Your Honours that the principle has never been

departed from in the life of this Court. However,

there are certain dicta in that case which would

appear to go back to the· MAGDALEN COLLEGE case

in 1615 and the older rules.

It dealt with the interrelationship of two

DEANE J: Except - I do not think you need trouble about this

on the leave question in that it is before RYAN

and BRADKEN and so on.

MS WHEELER:  Yes, and we would submit just briefly, as we

have in the outline, that it was concerned in any

event with the interrelationship of the CLAIMS AGAINST

THE GOVERNMENT AND CROWN SUITS ACT in the particular

legislation. It is the forerunner of section 64

of the JUDICIARY ACT, as it were.

DEANE J:  I think, Ms Wheeler, you have brought out as clearly

as could be the considerations against granting

leave in a way which would leave these matters to

be re-opened. Do you want to develop the submission

that the construction for which the applicant contends

is not arguable?

MS WHEELER:  The construction being that the Crown is bound by the statute under the existing rules, as we - - -

DEANE J: Well, while it may not end up that way, I would think

you should probably approach it on the basis that

the existing rule is there but that the BOMBAY approach

of wholly frustrated is open to question.

MS WHEELER:  Yes. We would, of course, submit that the

BOMBAY approach is - - -

P1T3/7/SH	36	26/10/89
Bropho(2)

DEANE J: Might I, in an endeavour to help, say I think you

can assume that the members of the Court are all

aware of the arguments against the construction

on that basis but the question is whether it is

arguably open.

MS WHEELER:  Yes, if it please Your Honour. Then, that would

complete my submissions as to the re-opening of

what we would see as the present principle and I

would wish, then, to move on to the question of

construction.

We would say, of course, that question being

the application for what we would describe as the

settled principle to a particular West Australian

statute which has, so far as we have been able to

ascertain, no identical counterpart elsewhere, is

the only question which now arises.

DEANE J: But, you see, that is not really quite accurate

because if the construction is arguably open where the Full Court dealt with the question on what I have been calling the BOMBAY approach, the case

squarely raises whether even if the present rule

be accepted, the BOMBAY approach is a correct one

which is a question of considerable importance.

MS WHEELER:  Yes. As to that, we would say two things,

Your Honour. Firstly, that even on the principle

without what has been described as the BOMBAY case,

the wholly frustrated limb, then it is still the

case, in our submission, that it is not arguably

open that the ABORIGINAL HERITAGE ACT binds the

Crown. However, we would submit that in the same

way that what has been described as the general

principle that statutes do not bind the Crown unless

by express words or necessary implication, in the

same way that that has been accepted as a clear

and settled rule by this Court, so, indeed, has

that additional working out of the test in the BOMBAY

case that a statute, when you come to look at the

purpose and purpose alone, unassisted by additional

implications that might be drawn from the words

of particular sections, that if you just rely on

the purpose, then the purpose of a statute does

need to be wholly frustrated for the necessary

implication to arise. To do otherwise, we submit,

gives not enough weight to the expression "necessary"

as part of that expression and to regard that question
as open, with respect, is to disregard, in our
submission, the decisions of this Court which have

adopted the BOMBAY case and, in particular, BRISBANE

CITY COUNCIL V GROUP PROJECTS PTY LTD, in which,

apparently, as part of his reasons for deciding

that the Act in question did not bind the Crown,

His Honour Justice Wilson with Justices Gibbs and

Mason agreeing, found that the purposes of the Act

would not be wholly frustrated with

P1T3/8/SH	37	26/10/89
Bropho(2)

DEANE J:  But that, of course, if part of the problem,

is it not? If the BOMBAY test is going to be in

issue, it necessarily gives rise to the query whether

even accepting a rule of construction to this extent

one treats it as ~ sort of statute and because somebody

said "necessary implication", you treat that as

immutable and from that proceed to say, "It is not

'necessary implication' unless something is wholly

frustrated" which, really, raises the whole query

of the content in this regard.

What you say may well be right in relation

to it but it seems to me it is a question to be

looked at.

• MS WHEELER: Yes. We would submit as to that, with respect,

that it is not a question to be looked at_ any more
than the other part of the rule, the necessary

implication part is to be looked at in the sense

that it is something as is the rest of the rule,

already well established by the decisions of this

Court. So, W9 would say that to look at that rule,

at that part of the rule, involves also a re-opening,

a re-arguing of those decisions, just as much as

relooking at the question of whether the necessary

implication principle is the correct one. In any

event, although - I can move now on to the construction

point - I do propose briefly to address Your Honours

in - to make submissions to Your Honours in terms

of that test, it is clear in my submission from

the terms of the Act generally, that even without
that limb of the test, this Act could not be said

to bind the Crown.	So, if I might now move to that
matter. -

DEANE J: Well, now, on the construction of the Act, you

can assume that all members of the Court have looked

at the Act and read the judgments including the dissenting judgment. Unless there is something

you see as a killer point as it were, I do not really

know if there is much point on the leave application

to be served by going into it in any detail.

MS WHEELER:  No. There are a couple of matters which perhaps

need to be raised briefly which are not brought

out sufficiently in the judgments below and some
provisions of the Act that I would wish to pull
together for Your Honours but I think I can promise
to be extremely brief on those points.

If I might first mention, it appears in paragraph 6 of the outline, a factor which may be

relevant but Your Honours perhaps need to be aware

also that the STRAIT ACT is not the only means,

of course, of protecting this site or providing

a remedy for the applicants in this case.

PlT3/9/SH	38	26/10/89
Bropho(2)

McHUGH J:  But that does not help you in construing the Act.

The Commonwealth Act was passed 12 years later.

MS WHEELER:  No, not in construing the Act, Your Honours,

but as to the special leave question, it is simply

something that we would wish Your Honour to be

aware of; that the aJplicants would not be entirely

without remedy if this matter went no further.

I would refer to section 6 which provides

that:

This Act binds the Crown in right of the
Commonwealth, of each of the States, of the

Northern Territory and of Norfolk Island

which is the sort of provision, of course, that
we say appropriately., adapted, ought to be bound

in the ABORIGINAL HERITAGE ACT, for it to bind the

Crown. Sections 9 and 10 allow the relevant federal

minister to make declarations in relation to

significant Aboriginal areas preventing certain

types of work from being carried out on them. If

I might just advise Your Honours in relation to

the particular site in question here, there was

a declaration under section 9 on 12 April this year.

It was extended on 11 May and was a declaration

then under section 10 which is a more permanent,

not an emergency declaration and which is made

after certain reports have been received, was

made on 21 June this year and then that declaration

was revoked on 19 July.

DAWSON J:  The declaration affecting?

MS WHEELER: Affecting this particular - the site in question

in these proceedings.

TOOHEY J:	I do not understand, Ms Wheeler, the significance of that submission. Is it that if in all other
of special leave, the existence of this Commonwealth respects the case was one appropriate for the grant legislation is of itself a reason why special leave
should be refused?

MS WHEELER:  No, Your Honour. No, certainly not. The reason

that is put before Your Honour is simply that we

submit, in any event, it is not an appropriate case

for special leave, for the reasons that the principles

are plainly established and not in. doub.t and- that. there

is not sufficient doubt attending the decision below

but, in any event, we simply wish the Court to be

aware that no great injustice, in our submission,

would be worked in this particular case; that is,

that there would be other remedies available to

the applicants simply to complete a picture of the proceedings that is before the Court, if it please

Your Honours.

P1T3/10/SH	39	26/10/89
Bropho(2)

If I might now turn to the ABORIGINAL HERITAGE ACT, the long title sets out the purpose. It is

noteworthy, in our submission, that it is to make

provision for the preservation on behalf of the

community of certain places and objects of interest

which the whole community is perceived to have in

the preservation of these particular types of places

and objects.

(Continued on page 41 )

P1T3/ll/SH	40	26/10/89
Bropho(2)

MS WHEELER (continuing):  Those places and objects may be

of present significance to particular Aboriginal
people, as indeed is alleged in these proceedings,

and sections 7 to 9 of the Act particularly recognize

that that may be the case. They provide for objects

to be made available for traditional use; they exempt

traditional custodians from disclosing information

if it is inappropriate under tribal law to do so, and

so on. But the objects may also be of purely historic

interest, that is they may be of no interest to any

living Aboriginal person other than as a matter of

interest to the general community.

That is clear from the application section,

section 5, for example, which provides in paragraph (a)

that the Act applies, among other things, to:

any place of importance and significance

where persons of Aboriginal descent have,

or appear to have, left any object .....

used for, or made or adapted for use for,

any purpose connected with the traditional

cultural life of the Aboriginal people,

past or present.

The next paragraph clearly deals with matters of

present special significance and again paragraph (c)

deals with places associated with the Aboriginal

people but of historical, anthropological,

archaeological or ethnographical interest and which

should be preserved because of their general significance

to the State. So they may or may not be of present

interest to any Aboriginal p.eople.

The Act seeks to achieve its purpose by a

mixture of provisions allowing co-operation with

land-owners and provisions of a coercive nature and

if I could just mention as a co-operative one

section 12(2) and section 27. Section 12(2) allows

the trustees to manage a place or control a place

by agreement with the person owning it, section 27

allows for an owner to enter into certain covenants

with the trustees.

McHUGH J:	Does section 27 bind the Crown?
MS WHEELER:	It is not a matter of binding the Crown 1n

section 27.

McHUGH J:	No doubt it can take advantage of it.
MS WHEELER:	Yes.
McHUGH J:	But the section would have to bind it, would it

not, because there would be covenants on the land?

MS WHEELER:  It would be the covenants then that would bind,

we would submit, so that the Crown would not take

PlT4/l/HS	41	26/10/89
Bropho(2)

advantage of the permission to enter into covenants.

McHUGH J:  But what about the provisions that bind the trustees

then, that is the trustees can give up their rights

to do things under - - -

MS WHEELER:  Provisions which are expressed to bind the trustees

must bind the trustees just as - to deal with the

point which Mr Justice Wallace raised in his

dissenting decision below and it might be convenient

to mention here - just as the provision in section 10

which expressly mentions the Minister is obviously

intended to impose a duty on the Minister. That
says nothing, we would say, as to the construction

of the Act as a whole in relation to the Crown in all

its various capacities, but obviously where someone

is expressly mentioned by a statute, be it the

Crown in one manifestation or be it someone else,

the statute is intended to bind that person in that

respect.

TOOHEY J: It may not be difficult, Ms Wheeler, to point to a

number of provisions which it would be difficult to

apply to the Crown,butiam not sure that that really

touches the fundamental question. You have an Act

which in Part II, which is headed'¼pplication and

Traditional Use", is expressed in really the broadest	of terms and it is expressed to apply to "any place 11
and in the later section, section 6, to "all objects
wherever found". So certainly in its opening
provisions it is given a very wide sweep. Now, that
is not to suggest that that is the beginning and end
of it, but it may be that one has to look at the
particular relief that is being sought in any given
case and ask then whether the Act is applicable to the
Crown in respect of that relief, rather than to try
to conclude whether, in its entirety, or not at all, the Act binds the Crown.

MS WHEELER:  Yes, there are two matters arising out of that,

Your Honour.	As to the first, the definitions and
the application sections, the fact that it applies on

its face to any site, any object, and so on, of course,

does no more than reflect that the Act is couched in

terms of generality, as statutes usually are, and it

is that generality which gives rise to the question

of the application of the presumption and if there is
any express reference to the Crown one way or

the other, that would, of course, determine the

question. It is no different in that respect, for

example, from the merchant shipping legislation which

was referred to in the CHINA OCEAN SHIPPING case.

That is set out at page 193 of the judgments and, if

I recall correctl½ referred to liability for any

loss or damage however occasioned, or something along

those lines. So, again, it was very general. So

that we would say as to that that Your Honour is

correct, with respect, in saying it does not mean

PlT4/2/HS	42	26/10/89
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anything one way or the other.	You then have to
look to particular sections.

DEANE J:  But is that so? I mean, do we need to get involved

in particular sections? The question here is whether

the intention could be discerned that no public servant,

State authority, or what have you, can interfere with

these things without it at least going to the

responsible minister?

MS WHEELER:	Yes.
DEANE J:	Your contention is that the result of the rule is that while all these sites are identified any public servant or any other person performing any
proper function for the Crown, be it building a railway
bridge, be it building a building for any department
of State, or what have you, can simply disregard all
these things without the minister concerned ever
even finding out about it. Now, what you have to
persuade us is that if the qualified view is taken of the rule of construction the view contrary to what
you are putting is not reasonably open. All I am
trying to suggest to you is I do not think you are
going to do that on a leave application by referring
to particular provisions of the Act when we have
all read it.

MS WHEELER:  Yes. The point I was wishing to make about the

Act is that when you come to consider its purpose it

itself balances a number of interests, in particular

section 18(3) which directs the minister to have

regard to the community interest; section 21 which

again allows the minister to consider the community

interest in response to representations from the owner

of land declared a protected area; section 18(5) which

allows an aggrieved land-owner to appeal to the

supreme eourt. All those recognize that there may

well be interest which outweigh in a particular case

the need to preserve a particular site. So that

all I am putting to Your Honours in relation to

the broad sweep of the Act is that it is an Act which

itself recognizes that the preservation of sites

described in it is not an absolute value, but that

there are other interests.

McHUGH J:  But the point you make seems to me to be one of the

strongest points against you, that is that the Act

contemplates that the minister will not make that
decision unless the trustees, who are a specially

selected body, evaluate the importance and significance

of the site and your argument comes to this, that for

a great deal of the land in this State the minister

nor the trustees are to be consulted about it.

MS WHEELER:  That is mixing a factual issue into it. If I

could just address that factual issue very quickly,

PlT4/3/HS	43	26/10/89
Bropho(2)

it is not the submission with respect to most of

the land in the State that that is the case.	The
question relevantly, we would submit, is - -

DEANE J:  I think it is even a little bit worse against you,

is it not? It is for all of the land in the State?

MS WHEELER: It is for all of the land in the State. The

question is by whom the act is done?

DEANE J:  Anybody at all who can, no matter how lowly

he be, say, "I am acting for a State purpose as part

of a State instrumentality", can simply disregard
everything in this Act without it ever going above

third clerk level in the Department of Railways?

MS WHEELER: 

That is assuming that - yes - that those are the

types of people who make decisions about development
of land in the State.

DEANE J: 

They may be the people who make decisions in the field

about whether they will bring a bulldozer in to clear

some land for a Department of Education building.

MS WHEELER: 

That is against the background, Your Honour, of an Act which directs the responsible minister to register

and evaluate all sites within the State. It is also

against the background where parliament has clearly expressed a view that this is an important purpose.

It is not, with respect, we would submit, to be assumed that the Crown is then going to totally

disregard the Act, not to issue any instructions to
its servant, not to take any steps whatsoever to

ensure that sites or objects of significance
under the Act are preserved. In fact, there has been

a general direction in principle. It matters not

that that is the case really, we would submit.

The main point that I am wishing Your Honours

to accept is that it is to be assumed that the Crown

is going to act with good faith and to attempt, so

far as possible, to comply with the purposes of the

statute where reasonable. Now, theoretically -

McHUGH J: Why should you assume that if the intention is that

the Crown is not to be bound? I am not talking about good faith,

that you assume that the Crown will act in accordance

with this Act?

MS WHEELER:  Where appropriate, Your Honour. I am not asking

Your Honours to assume that the Crown is always going

to act as if it were bound by the statute. If that

were the case it would have been just as easy to say

this Act binds the Crown. The test, we would submit,

is not whether it is just as easy for the Crown to

comply with the statute as not in most cases. The

test is not whether at some level as in section 18

there is a ministerial or a Crown decision anyway.

PlT4/4/HS	44	26/10/89
Bropho(2)

That is to confuse the rule of construction with the possible application in any particular case. Now,

in our submission, it is not appropriate to assume

that the Crown is going to disregard the Act just

because it can, but the Crown is going always to find

other purposes more important.

DEANE J:  Ms Wheeler, I think under the barrage to which you

have been subjected you have got over the point very

well and we do see the strength of the arguments,

but having said that, am I correct that there is,

to repeat the phrase I used earlier, no king-hit

that you have if we are not convinced that the

argument against you is not one that is reasonably

open?

MS WHEELER:  No king-hit, Your Honour. One matter I wish to

mention in relation to the construction of a section

which was referred to below and which may well not

be relevant and, in our submission, is not, but just

in case Your Honours were misled by the reference to it could I just refer briefly to section 19(6) which we submit is of no relevance which provides that:

An Aboriginal site may be declared to

be a protected area whether or not it 1s

on land that is in the ownership or

possession of any person or is reserved

for any public purpose.

Could I just ask Your Honours in considering that

section if Your Honours would happen to turn to it
which,we submit, there is no reason to do so, but it

is to be read in conjunction with the provisions of

the LAND ACT, in particular section 33, which allow

land reserved under that Act to be vested in any

person. It can be leased to any person, or the fee
simple can be granted to any person. It is nevertheless
land reserved for a public purpose within the meaning

of that section. It does not have to be owned by

the Crown. If I could just hand that to Your Honours.

DEANE J:	Thank you.
MS WHEELER:	Just two other matters briefly, Your Honour. The

first is again a factual one, looking at section 18(1)

which~ of course, recognizes that lessees from the

Crown and holders of mining tenements and mining

privileges will not be under the shield of the Crown

although doing relevant acts on Crown land. Might

I just remind Your Honours of those passages in the

judgments which set out clearly the facts that, for

example, 43 per cent of the State is held from the

Crown under leases and licences, and so on. Could

I very briefly return to the point which seems to

be concerning some of Your Honours in the application

of this presumption to this type of legislation and could I submit that the presumption being as firmly

PlT4/5/HS	45	26/10/89
Bropho(2)

established as we submit it is, the very question as
to whether the Crown should be allowed to disregard

the Act should be allowed if its procedures

relevantly were such to let class 3 clerks in Mai~

Roads make these sorts of decisions,is something

which the· legislature,having regard to the status of

the presumption, must be assumed to have faced when

it deliberately, we would submit, left the Act silent

on this point, although dealing in section 18(1) with

the interests of those, not the Crown, who were

doing certain activities on Crown land. If it

please Your Honours.

DEANE J:  Thank you, Ms Wheeler. Mr McIntyre, you may

have your leave.

MR McINTYRE:	Thank you, Your Honour.
DEANE J:	Mr McIntyre, Mr Solicitor, if there is some urgency

in this matter the Court should be able to arrange
for it to be listed in the March sitting. If there

are particular reasons that would justify something

being displaced in the earlier sitting in February
representations could be made but we give no

assurance that they would be successful.

AT 11.10 AM THE MATTER WAS ADJOURNED SINE DIE

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