Bropho v The State of Western Australia & Anor (2)

[1989] HCATrans 258

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~ -~~

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

Bropho(2)

DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 1989, AT 3.32 PM

Copyright in the High Court of Australia

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MR G.M.G. McINTYRE:  I appear with my learr.:d. friend,

MRS. CHURCHES for the applicant. (instructed by Keall Brinsden)

MR K.H. PARKER, QC, Solicitor-General for Western Australia:

If it please the Court, I appear with my learned friend, MSC.A. "WHEELER for the respondents.

(instructed by the Crown Solicitor for Western

Australia)

DEANE J:	Yes, Mr McIntyre.
MR McINTYRE:	Your Honours, if I can commence by taking

you to some relevant passages of the appeal book in which His Honour Mr Justice Wallace at page 48 of the appeal book - he was, of

course the dissenting judge - made reference

in the second part of the page to:

the original presumption against the Crown

being bound by statute which involved

depriving the King "of his prerogative",

that is to say, (rights or powers,
privileges or immunities) which were

peculiar to him.

DEANE J:	Mr McIntyre, if it will be of assistance to you,
what I would suggest you do is at this stage
direct your argument to the question whether
leave should be granted to enable you to put
an argument attacking the general principle.
MR McINTYRE:	Yes.
DEANE J:	We will then consider whether we will proceed to hear argument on the question of construction of this particular statute.
MR McINTYRE:	Yes, I was doing that. Perhaps I will do

it a little more quickly straight to -

DEANE J:	No, I was not trying to cut you short.
MR McINTYRE:	So that the point I was making quite simply

is that all of the judges in the Full Court of

the Supreme Court of Western Australia made

reference to the checkered history, if you like,

of this presumption and took it back to its

early state and referred to the communis error

which they were all aware of and, of course,

essentially they extracted that from the

judgment of Sir Ninian Stephen in the BRADKEN

case at page 129 of that report. They referred

to Sir Ninian's words- at least certainly the

Chief Justice and His Honour Mr Justice Brinsden

in the Full Court of the Supreme Court referred

to those words.

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DEANE J: Where is that in the appeal book?

MR McINTYRE:  In the appeal book it is at pages20 and 21

in the judgment of His Honour the Chief Justice,

and at page 51 of the appeal book in

Mr Justice Brinsden's judgment. There is rather

a long quote there from Sir Ninian Stephen's

judgment in which he refers to the problems of

the BOMBAY case and THE COMMONWEALTH V RHIND

and refers to what has been said by the learned

author Hogg in Liability of the Crown and

Mr Street in The Effect of Statutes upon the Rights

and Liabilities of the Crown, and concludes that
in his view only statute can now alter the position

and that the likelihood of such statutory alteration

is not great, et cetera.

Significantly he takes that view by reference

to the case of THE COMMONWEALTH V RHIND and refers
to the then Chief Justice Sir Garfield Barwick

in that case at page 598. It is useful to have

a look at the way in which Sir Garfield Barwick

dealt with that matter.

DEANE J: This is in 119 CLR?

MR McINTYRE:  Yes, that is so. The report commences at

page 584 and I am now looking at the bottom half

of page 598, where Sir Garfield Barwick says:

Regarding s.2A -

Section 2A, I thin~of the LANDLORD AND TENANT

ACT~ He was referring to there and it was a

question in that case of whether the Crown was

bound by the LANDLORD AND TENANT ACT as a

landlord. He said:

Regarding s.2A as merely denying certain

persons in the specified circumstances a

right of access to the Supreme Court, it

is necessary to consider whether the word

"landlord" in the section includes the

Crown. There seems to have been some

uncertainty as to the true rule of construction to have been applied to modern statutes in this

connection. The relevant rule has developed
over a period of time and, in my opinion,

ought not now to be expressed in terms or

with limitations which on occasions may have
appeared appropriate in earlier times. In

my opinion, the rule to be applied universally

as of this time in the construction of

statutes, is that the Crown is not included in

the operation of a statute unless by express

words or by necessary implication.

Of course that expresses the rule quite tritely and the point is, in my submission, that it is

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in fact completely trite in the sense that he

does not seek to pursue any argument about it,

he looks to no authorities. He merely expresses

it as though it is the law, always has been and

always will be, in one sense, and that is

essentially what Sir Ninian Stephen then refers

to. He said, "Well, the learned Chief Justice Sir Garfield Barwick has said this.	I now
adopt it in the BRADKEN case."

If we can go back to Sir Ninian's judgment,

and in particular it is page 129 of the report.

DEANE J: This is BRADKEN you are taking us to?

MR McINTYRE:  Yes, BRADKEN, 145 CLR. At about the

middle of page 129, he finished a discussion

of the question whether the Crown in right of the

State is bound by legislation of the Commonwealth

and he says:

If, then, the assistance of this rule

of statutory interpretation must be invoked

it is, I think, the wide view of the rule

that I should adopt. I regard it, in the

light of the authorities, as the now

prevailing view and, in the absence of

full argument, I have no occasion to do

other than accept it.

The words I want to emphasize in that quote are,

"in the absence of full argument". Quite clearly

here he accepts it and he adopts it as the

prevailing view, but he makes it clear that in

doing so he has not had the benefit of full
argument in the course of this case. Having read

that one then is drawn to look back to the

beginning of the report and try and ascertain

what argument there was in relation to the

matter.

McHUGH J: At page 129 Sir Ninian is not dealing with

your argument, is he? He is dealing with the

argument that appears at page 128, or the point
at page 128 as to whether or not the rule gave
immunity to the Crown in right of every

government.

MR McINTYRE: That may be a view to take. It would be

my submission that in any event there has

not been full argument of this particular issue

and one gains that impression from - - - .

DEANE J: But that is the only view, is it not, of what

His Honour is saying there, that is that he

is referring only to the question whether the

rule is confined to the Crown in right of the

enacting legislature?

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MR McINTYRE:  Yes, I think that is right. Perhaps

I have overstrained the words there, but I

still hold to the point I am seeking to make

by referring then to the portion of the report

which indicates the nature of the argument that

the Court had before it and that can be seen

at page 109 of the report. At the top of that

page one can see that Mr McPherson QC, as he
then was, presented the argument for the

plaintiff in the matter and about 10 or 12

lines down from the top of that page, his
argument is summarized in relation to the

BOMBAY rule, if I can describe it that way.

It says:

The Crown in right of the State of

Queensland is not bound by the TRADE PRACTICES provision or by necessary implication that

it was intended to be so bound.

Then there is reference to the cases which were

cited in support of that. That brings us to the

essence of what the applicant says in this matter.

It can be seen that Mr McPherson referred the ·
Court to ROBERTS V AHERN, which was a 1 CLR decision

and we acknowledge freely that that case is against

us. It essentially recites the same rule that

has been recited, we say, in BRADKEN. He then

goes on to a series of other cases: MINISTER FOR

WORKS (W.A.) V GULSON; AMALGAMATED SOCIETY OF

ENGINEERS V ADELAIDE STEAMSHIP CO. LTD.; THE

COMMONWEALTH V BOGLE; VICTORIA V THE COMMONWEALTH;

and PUBLIC CURATOR OF QUEENSLAND V MORRIS. It

is our submission that apart from ROBERTS V AHERN

none of the other cases go to this particular

point, and I will come back to GULSON shortly.

So that essentially what the Court in BRADKEN

had before it was that set of authorities and

ultimately it is ROBERTS V AHERN, in our submission,

which that Court must have relied on as it was

then constituted to come to the conclusion that they

did with the support of the dictum of Sir Garfield

Barwick, of course, in RHIND. The submission for

the applicant is that essentially there has

not been a thorough analysis of the concept.	One
says that, taking into account there is then a

series of other authorities which were not referred
to the Court in BRADKEN which go in the opposite

direction.

They start with the case of RYAN, which

Your Honours have with you. It is the SYDNEY

HARBOUR TRUST COMMISSIONERS V JOHN PATRICK RYAN,

13 CLR. It is a 1911 decision. I refer Your Honours

in particular to the words of Sir Samuel Griffith,

the Chief Justice at page 365 of that report.	He
says this:

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The doctrine that the Crown is not

bound by a Statute unless specially named

or included by necessary implication has

been sometimes misunderstood and extended

beyond the purposes for which it was laid down. I accept the proposition laid down

in Hardcastle on Statutes (1st ed.), p. 180

(Craies, p.361): It "does not mean that

the King, looked upon as a mere individual,

may not be in certain cases precluded by

Statutes, which do not specifically name

him 'of such inferior rights as belong

indifferently to the King or to a subject,

such as the title to an advowson or a

laded estate'; what it does mean is that
the King cannot in any case whatever be

stripped by a Statute, which does not specifically name him, of any part of

ancient prerogative, or of those rights

which are inconmi.unicable and are appropriated

to him as essential to his regal capacity."

That, of course, is the view that the applicant

would put to you as a credible view of the law

and in fact an opposing view to that which

ultimately has been encapsulated in BRADKEN.

The Chief Justice goes on, at page 366,

in the last two lines, and says:

Applying the principle thus laid down, I am of ODinion that, when the Government

of New So~th Wales engages-y either its

own name or through the agency of a

corporation created for the purpose, in

enterprises which in former times were

only carried on by individuals, it is

subject to the same liabilities, and

is eoverned by the same laws, to and by

which individuals are subject and governed

That is a particularly :interesting dicta to the applicants under the same circumstances.	because it really sets out the situation in this
particular case. In this particular case it was
the State of Western Australia through the agency of the Western Australian Development Corporation
which was engaging in an activity of development of a site and the creation of new buildings,
et cetera. It would be our submission that if
that is the law then our case would fall well within it.

DEANE J: Except does that state it fairly? Is there not

an expressed statutory provision that this

corporation enjoys the inmi.unity of the Crown?

MR McINTYRE:  Yes, I was not meaning to suggest anything

to the contrary, and in fact it would be my

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view that Sir Samuel Griffith is in fact not

distinguishing between the Crown and any

statutory corporation of the Crown. As he

says, "The Crown in its own name or through

the agency of a corporation", I do not think

he is saying that one sets aside a corporation
and says that that does not have the same

immunity as the Crown would.

The Chief Justice is supported in that case

by Mr Justice Barton at page 370, about the

middle of the page, the third paragraph:

The classes of Statutes by which the

Crown is bound, though not expressly named,

are described in Comyn's Digest, titled

"Parliament," p.8, and Bacon's Abridgement,

titled "Prerogative,". Though Statutes are

prima facie inferred to be "made for

subjects and not for tb e Crown" -

and he refers there to Baron Alderson for the

Court of Exchequer in the case of ATTORNEY-GENERAL

V DONALDSON -

yet, if the intention of the Statute be to

provide for "the public good~" or the

advancement of religion and justice," or

"to give a remedy against a wrong," or "to

prevent fraud," or "tortious usurpation,"

it is said that the King is bound, and

examples are given in tre:tw:, Digests above

quoted.

If that were the law, again we would say that this

applicant falls well within it, that the

ABORIGINAL HERITAGE ACT is either an Act for the

advancement of religion, perhaps for justice

or it is a remedy against wrong. It would be

our submission that the protection of

Aboriginal sites of significance is a protection

extended to the protection of a religion or

an aspect of a religion, or alternatively that

it is section 17 of the Act,which creates certain

offences for breaches of the legislation,

creates a wrong and provides a remedy for it.

GAUDRON J:  Why does one not simply regard those matters

as matters from which you might take an

implication that it was intended to apply to the

Crown rather than as defining categories which

limit the doctrine?

MR McINTYRE:  That may be one way of dealing with it but it

would be our submission that in fact the doctrine

is limited to certain categories, that is areas

relating specifically to the prerogative and

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in other areas, and perhaps it is not necessary

to set out a whole range of categories because

obviously once one starts on that course one

never knows where to finish,or one is never

sure that you have included everything that
ought to be included, so that it is a question

of which side of the coin one starts the exercise

upon. Does one say it is the prerogative which

the matter is limited to, or does one say the
exception applies in relation to this range of

categories? But it is our submission that that

was a fairly sound and apparently well-sourced

statement of the law at that time.

The corrnnon law in Australia did not stop there in that sense, although that was a leading

case of this Court for a period of time and it

was one which was followed by a number of State

courts. It was followed, for instance, in the

case of LOWDEN V SYDNEY HARBOUR TRUST

COMMISSIONERS, (1920) 21 SR(NSW) 59. I take

Your Honours to page 63 where the Chief Justice

of the Supreme Court of New South Wales said:

Now it seems to me that almost every word

in the judgment of the High Court in the

case of the SYDNEY HARBOUR TRUST COMMISSIONERS

V RYAN is applicable to this case.

And then went on to apply it. So that it is our

submission that RYAN, having set up a proper

exposition of the law, it was then quite

properly followed in the case of LOWDEN. It was

followed again in the case of RV HAY, (1924) VLR 97,

which was a single judge, Mr Justice Mann. Again,

if I can take Your Honours to page 99, the last

paragraph on that page where His Honour says:

I pass, therefore, to the plea that

the Crown, not being expressly named, is

not bound by the Statute of Frauds. The

limitations to be placed upon the doctrine

here relied upon were expounded in the

judgments of Griffiths, C.J., and

Barton, J., in the High Court in THE

SYDNEY HARBOUR TRUST COMMISSIONERS V RYAN.

Both judges accept as correct the enumeration

of classes of Statutes by which the Crown is

bound appearing in Comyn's Digest and Bacon's

Abridgement, and also the principle governing

the question as stated in Craie's Statutes.

So that again, a Victorian Supreme Court Judge

accepts the authority of Ryan and follows it.

Again, in Western Australia in DALGETY & CO

LTD V THE CROWN, (1942) 43-44 WALR 49. I refer

Your Honours to page 62, the last paragraph

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where His Honour Mr Justice Dwyer, as he then was,

said:

It is of course the rule that the

Crown is not bound by Statute unless

referred to directly or by necessary
implication: there is no such direct

reference in the Bills of Exchange Acts.

These Acts, however, are in great part

statements of rules to govern dealings

with cheques and/or monetary instruments

in common use, and a declaration of the

result to parties concerned of various

incidents arising in such dealings. The

acts do not in the ordinary sense impose

obligations or affect existing rights,

and in particular they in no way touch the

prerogative or property or rights of the

Crown. If officers of the Government in

the performance of their duties choose to

engage in transactions with other persons which are so statutorily regulated, it is

to be assumed that they accept as it stands

the system of whose facilities they take

advantage.

That, of course, was a case where fradulent cheques

had been passed by an employee of Dalgety to an
agency of the Crown and the Crown sought to rely

on the Crown immunity and His Honour Mr Justice Dwyer

said, "Well, if they've accepted those cheques in

accordance with the statutory scheme, then they

are bound"- the relevant statute said that

no person could pass a better title then they

had themselves. The Crown sought to avoid that

statute and claim the benefit of the cheques on

the basis of Crown immunity and His Honour

Mr Justice Dwyer said, "Well, no, the statute is

in general terms. The Crown, having sought to

deal in these matters, is bound by it like

anybody else." So that that, in turn, is in

line with the authorities which I have referred

Your Honours to.

That then takes us, of course, very

close to the BOMBAY case in chronology and it-is
only after the BOMBAY case that one then finds

Australian courts having to change tack, in our submission,to fall into line with the Privy Council.

It is thus our submission that the authority of

the common law in Australia is not as clear as

it might seem on first reading of the judgments

in BRADKEN, that in reality the judges who

considered the matter in BRADKEN really did not

have the benefit of argument; they did not consider

it in any particular detail. Perhaps I should

take Your Honours to His Honour Mr Justice Gibbs,

the Acting Chief Justice in this particular case -

I am referring again to BRADKEN - at page 116.

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At the top of the page, agai~ .estates it

in rather trite terms:

It is an established rule of

construction that no statute binds the

Crown unless the Crown is expressly named therein or unless there is a
necessary implication that it was

intended to be bound; there will be such

a necessary implication if it is

manifest from the very terms of the statute

that it was the intention of the

legislature that the Crown should be bound. And 0f course it quotes the PROVINCE OF BOMBAY V

MUNI :PAL CORPORATION OF BOMBAY. But it does

not chen go on to discuss it in any further

detail.

McHUGH J: What about the passage at page 122, at about

point 3:

Although Professor Hogg can discern no

clear rationale for the presumption that

general words do not bind the Crown,

and says -

His Honour goes on to say:

it seems to me, with all respect, that

the rule of construction, which without

doubt is firmly established ..... rests

on reasons which are understandable

enough.

MR McINTYRE:  Yes, that is so and he certainly refers

to United States Authority, but none other.

(Continuned on page 11)

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MR McINTYRE (continuing): The position in the United States

has become interesting. That was no doubt a

correct assertion in 1821, which is the authority

of the UNITED STATES V HALL,·. 2 i:1ason 311.
One must accept the very early- decision. There

has been some later authority in the United States concerning that. Perhaps I can bring Your Honours

back to that in a little while, but essentially

the rule in the United States appears to be

that it will only be when there is a necessity

for the Crown to be bound that the crown will be

bound unless it does in fact impinge upon one

of its ordinary governmental functions, so that

in a sense that follows, for practical purposes,

the line which the applicants would say is the

appropriate line. And certainly, whilst

the acting Chief Justice Sir Harry Gibbs says at

page 122 does put for him in rational terms - so

we are not saying it is totally irrational, it

can have a rational basis .. - wbat we say is that

perhaps it is not so well based in authority; that

it is not in contravertible. In fact there is quite

a substantial line of authority which has been

followed in Australia up until that time which various

governments have presumably tailored their activities

towards, and of course that is clearly one of the

arguments which can be and no doubt will be levelled

to suggest to Your Honours why you ought not now to

reconsider the matter and it will be said, no doubt,

that governments have changed their patterns of

behaviour to deal with the rule as set out in BOMBAY.

It would appear clear, that at least for the

first half of this century they were changing their

pattern of behaviour to deal with another rule.

There is another part of the acting Chief Justice Gibbs

judgment which I refer Your Honours to and that is

at page 121 and about 20 lines down he again refers

to RHIND and he says:

Finally in THE COMMONWEALTH V RHIND
BARWICK CJ	and MENZIES J, without

discussion, held that the rule of construction

that the Crown is not bound by a statute except

by express mention or necessary implication
applied to a State Act with the consequence that
the Act did not apply to the Crown in right

of the Commonwealth.

Now, my submission to you would be that essentially

Sir Harry Gibbs in that judgment was concerning

himself with the issue of a Crown statute binding a

State and that the majority of his judgment devotes

itself to that issue, but he makes the point again

which I have already made .to Your Honour.s that really

the recitation of the rule by Sir Garfield Barwick

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in the RHIND case was no mor	than a recitation
and as he says, without dis	sion, and he indicates
of course, also that Mr Just	Menzies again
recited it without discussion.

DEANE J: And Mr Justice McTiernan agreed with the

Chief Justice in RHIND which means it was in effect

the Court speaking?

MR McINTYRE:	Yes.
DEANE J:	So am I righ4 RHIND is the case which after BOMBAY
laid down that rule of construction for Australia?

MR McINTYRE:  Yes. I think that

DEANE J: There is nothing significant in between the

PROVINCE OF BOMBAY and RHIND?

MR McINTYRE:  Yes, my learned junio~- tells me that in the

WYNYARD case the proposition was again asserted

and that is - - -

DEANE J: That is the WYNYARD HOLDINGS cas~ is it?

MR McINTYRE:	Yes, that is perhaps by a majority of three of the Judges. There is perhaps only one other case
which I should refer Your Honours to and that is
the case of GULSON because it may be suggested that
that is against us. That is reported in
(1944) 69 CLR.  The report commences at -page 338 and
I would refer Your Honours to page 352 and going on to
353.  The last se~tence on page 352 that
Chief Justice LaL .am ..... as part of his
judgment when he says:

The question as to whether a Commonwealth

statute applies to a State or whether a

State statute applies to the Commonwealth

should be determined in each case as a

matter of construction by reference to its

object and purpose as ascertained by a

consideration of the specific provisions of the statute concerned, independently of any

presumption as to the Crown prima facie not

being bound in either case.

And the relevent words are:

This view makes it unnecessary for me to consider

tr~.:: contention of the Commonwealth (intervening)

based upon SYDNEY HARBOUR TRUST COMMISSIONERS

V RYAN, that even if the rule of construction

did apply, it was applicable only to the

prerogative or regal rights of the Crown, and

not to such matters as a weekly tenancy, in

relation to which (it was contended) the Crown

should be regarded as being in exactly the

same position as any other landlord.

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Of course essentially they are avoiding dealing

with the issue and so that it cannot be said

that that case is authority which runs against

the applicant in this matter.

If I can now take Your Honours·· just briefly to

other jurisdictions. I mentioned this morning

very briefly the case of STATE OF WEST BENGAL V THE

CORPORATION OF CALCUTTA, (1967) AIR. It is the

equivalent of the Indian Supreme Court. Your Honours

probably cannot read your copy any better than I

can read mine. I only wish to refer Your Honours

to a very small passage at page 1007 in the far

right-hand column about two-thirds of the way down,

where it says that:

There are many reasons why the said rule of construction is inconsistent with and

incongruous in the present set-up. We have

no Crown: the archaic rule based on the

prerogative and perfection of the Crown has

no relevance to a democratic republic; it

is inconsistent with the rule of law based on

the doctrine of equality. It introduces

conflicts and discrimination.

Obviously that is in a rather different context, but

another short passage on the next page 1008 towards

the top of the page:

On the other hand

I will start at the bottom of the previous page -

There is, therefore no justification for

this Court to accept the English cannon of

construction for it being about diverse

results and conflicting decisions.

which, perhaps I have been trying to

illustrate to Your Honours -

On the other hand, the normal construction,

namely, that the general Act applies to

citizens as well as to State unless it

expressly or by necessary implication

exempts the State from its operation, steers

clear of all the said anomalies. It prima

facie applies to all States and subjects

alike, a construction consistent with the

philosophy of equality enshrined in our

CONSTITUTION, This natural approach avoids the

archaic rule and moves with the modern trends.

This will not cause any hardship to the State.

The State can make an Act if it chooses,

providing for its exemption from its operation.

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Though the State is not expressly exempted

from the operation of an Act, under certain

circumstances such an exemption may necessarily

be implied.

So that that is the direction in which Indian courts

would seem to be going and there is of course the

STRATHCLYDE case which is a case of the court of

session in Scotland and that is reported in

~988)SLT 546 and I refer Your Honours in particular

to page 552 on the right-hand column of that page

the final paragraph, which commences:

The formulation of the rule of universal

application on which the petitioner relies

is said to be rooted in principle. As counsel

put it on behalf of the petitioner:(l) the

king can do no wrong, and (2) legislation is

for the subjects of the Crown. As to the

first maxim my understanding is that it

applied and applies to the monarch personally.

As to the second proposition, I question its

accuracy since in modern times the Crown
legislates not only for its subjects but for

the Crown itself in all its modern manifestations

and activities. However that may be counsel was

no doubt correct when he told us that the rule

of construction of universal application emerged

in an age when the Crown was virtually unfettered
in the exercise of arbitrary power and when
anything enacted in a statute would be likely to

constitute a derogation of its position. In

these times there was, to use the words of

the Lord President (Dunedin) in MAGISTRATES OF

EDINBURGH V THE LORD ADVOCATE at p. 1091 an

"antecedent improbability" that the Crown

meant to be bound by any statutory provision.

The special rule of construction of universal

application was, it appears to me, designed to

protect the Crown against divestiture of any of its rights, privileges or interests. In	the centuries since that rule was formulated
however, enormous changes have taken place in
the position of the Crown which today personifies the executive government of the country in all
its activities and no longer exercises arbitrary
power in all things. That being so, I can see
no justification in principle for the universal application of the special rule, designed for
the protection of the Crown in 17th centuey circumstances, in the quite different circumstances of the 20th century. These are
no longer an "antecedent improbability" that
the Crown would agree to be bound by any
statutory provisions. Such an "antecedent
improbability" can only be identified where

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particular statutory provisions would bind the

opinion, the application of the special rule is	Crown to its prejudice. In modern times, in my
only required for the protection of the Crown
where it is necessary to construe statutory
provisions which would be likely, if applied to the Crown, to encroach upon its rights, interests
and privileges.

DEANE J: That, of course has great force in it if one is

starting ab initio. Your main problem here is that

this Court lay down not a fundamental principle,

but a rule of construction of statutes more than 20 years ago, on which all the parliaments of the country have acted. That is really for me the

critical question on whether we should at this

stage say we will go back, abolish that and leave

it to all the parliaments to amend their interpretation

Act to put it back in, if they so wish.	I do not
think there is much you can say about it.	It is
obviously something that is there and - - -

J:1R McINTYRE: Yes, I suppose the point that we make for

the applicant is that really it is not right to

say that history has gone on in one direction;

that really it has gone on and it has chopped and

changed and it is not really all that long since

the line of authority has been in existence following

the RHIND case. It is really the Australian courts

have been pulled up, if you like, by the BOMBAY case and

f'elt constrained, quite properly, to fall into

line with it. This Court is now no longer bound
to follow precedent of the Privy Counci 1 and it
has an opportunity , if it sees fit, to re-examine

the law in the light of its full history and do as

Sir Isaac Isaacs suggested and Sir Garfield Barwick

perhaps had little joy in quoting from him in the

case of QUEENSLAND V THE COMMONWEALTH which is in

the list of authorities at number eight. I hope

it is handed up to Your Honours and I will only

refer briefly to the words that Sir Garfield Barwick

said, "It is not better to be consistently wrong,

than ultimately right". He was a dissenting judge

in that case and followed his view on the matter

which he then adopted in a later case and became

part of the majority. So that is essentially the

kind of thing that we are putting to this Court,

that in fact it is well recognized - Sir Ninian Stephen

well recognized it in the BRADKEN case that it had

been an error in the way in which the common law had

developed.

It is open to this Court to correct that error

if it sees fit and it is our submission that you

ought to consider that and that certainly - at

the level of considering a special leave application

it may well be that this Court would take the view

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that it is a matter for which leave ought to
be granted so that the Full Bench of this Court

could consider it in its full context, the

complete context of the law, be prepared to

consider the prospect of changing decisions which
grante~were made by members of this Court some time

ago, but as we submit without the full benefit of

reasoning and argument and perhaps by way of mere

recitation of the rule as adopted from an authority

of the Privy Council, which incidentally is a

decision which is typically poetic of the Privy

Council in that it is short and and it is simple

and it is precise, but it does not go into an

awful lot of detail in terms of supporting the

concept which it arrives at.

GAUDRON J:  Mr McIntyre, I have a small problem with what you

have said. If you put aside the rule for the moment,

the ultimate search must be for the legislative

intention behind the Act which is now in question.

The rule was simply, it would seem to me, a mechanism by which the courts ascertained the

legislative intention in days gone past, but now

the rule as expressed in the various decisions of

this Court would seem to be a matter which itself

must bear on the intention which informs the Act

in question. That is to say, in this area above all,
you come to something approaching the impossibility

of doing anything other than prospective overruling

if you were minded to overrule, not by reason of

any principle of law, but by reason simply that the

law having been so stated, must be something which

itself is relevant to ascertaining the legislative

intent.

MR McINTYRE:  Is Your Honour suggesting to me that perhaps

the Commonwealth enacted the TRADE PRACTICES ACT

having the rule in mind understanding that the

Commonwealth would not be bound? Is that - - -

GAUDRON J: Yes, something like that.

MR McINTYRE:  Yes. I suppose we come before this Court,in

the particular circumstances of this case, to say
that if the rule is to continue as it has for the

last 49 years, perhaps 40 years, in Australia, then

it has the ability to work injustice to persons

such as the applicant in this case and other citizens

of the States and of the Commonwealth, in some

instances, in that the Crown is enabled to walk

away from responsibilities which it would otherwise

have to the original rule of the common law as we -

GAUDRON J: No, because that puts it, I should have thought, quite

wrongly. The question must always be, what was the

legislative intent. It is not a question of walking

away from responsibilities.

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MR McINTYRE:  Is Your Honour saying that there will be

instances where that presumption will not be
applicable because of the proper construction of

the legislation?

GAUDRON J: Well that ultimately must be the question in

every case, must it not?

MR McINTYRE:  Yes.

GAUDRON J: And what is in issue, I should have thought from

your point of view, was the utility of the presumption

in terms of identifying legislative intent, but none

the less the existence of the presumption and

the application of the presumption must bear upon

what is the intent of the legislature, no matter

what test you apply.

MR McINTYRE:  I am having some difficulty with that, I - - -

McHUGH J: Let me illustrate it. A parliament passes two

successive Acts. The first one says this Act

shall bind the Crown. The second Act says nothing.

Now is it not a reasonable presumption that in

passing the second Act parliament has acted upon
the basis that there is a rule of. construction and

that the Act will not bind the Crown. And it is as

though it was written in an interpretation Act.

MR McINTYRE:  I suppose our answer to that would be that it

depends upon the statute and what its purpose is. and whether it is, in its terms an Act of general

application seeking to prohibit a mischief which

ought to be prohibited generally and whether in

fact the Crown ought to be treated any differently

from any other citizen and in what circumstances

will it be treated differently and it is our

submission that it will only be treated differently

from any other citizen in the application of

the legislation if it is performing one of its

prerogative privileges.

McHUGH J: The problems is that for the last 50 years or so

one can be reasonably confident that when parliament
wants to bind the Crown it says so expressly and

when it says nothing about the subject then one

accepts or assumes that the Crown was not intended
to be bound unless by necessary implication from

the terms of the Act you were driven to that

conclusion that it was, despite the silence.

MR McINTYRE:  Yes. I suppose implicit in this line of

argument is, in fact, the kind of view which is

espoused in the Scottish case, that is that times

have moved on and that in fact the Crown operates

in quite different realms and that there is· no longer

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a King on horseback parading around the countryside,

but a whole range of government departments doing

a whole range of things, particularly things which

are more and more not	traditional activities
of the Crown.

McHUGH J: But when it does it expressly binds itself in

many cases. For instance in New South Wales the FACTORIES AND SHOPS ACT says this Act shall bind

the Crown, because if the Crown is· engaged in

factories and shops activities then it is proper

that it should be bound and it is intended to be

bound.

MR McINTYRE:	Yes.
DEANE J:	Mr McIntyre, I think in view of the time, the
preferable course would be we will sit on until
half past four. If you could get us launched on your
construction argument  then we can consider
where we go overnight.
MR McINTYRE:	Yes.

DEANE J: In other words, for the sake of where we are going

now, proceed on the basis that we are not going to

grant leave on what we have been dealing with to

date, which will mean if we do, of course, we will

adjourn the matter after we have heard the Solicitor,

but on that basis you could just acquaint us with

the nature of the construction argument and how it

arises and so on.

MR McINTYRE:  Yes.

DEANE J: Which means, I presume, we need the Act.

MR McINTYRE:  Yes, Your Honours do have it there. I think

it is - obviously one starts this argument by

adopting the words in the BOMBAY case and that

can be found at page 22 of the appeal book about

two-thirds of the way down where His Honour the

Chief Justice Mr Justice Malcolm quotes from the

Privy Council at page 63 of that report:

Their Lordships prefer to say that the

apparent purpose of the statute is one element,

and may be an important element, to be

considered when an intention to bind the

Crown is alleged. If it can be affirmed that,

at the time when the statute was passed and

received the royal sanction, it was apparent

from its terms that its beneficent purpose

must be wholly frustrated unless the Crown
were bound, then it may be inferred that the

Crown has agreed to be bound.

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And they then go on to say something which Your Honours

have been paraphrasing to me about it being easy

to state it in the legislation. But the relevant

words that require some consideration are the words

"wholly frustrated". Now that was grappled with

by the Full Court of the Supreme Court in this matter

and perhaps I can take you again to part of the
judgment of the Cheif Justice Mr Justice Malcolm

at page 34 and going on to 35. I am not giving a

lot of lead in, but perhaps if anything is unclear

Your Honorus can tell me, but he says:

In my view the evidence shows that the

purposes of the Act would be at least significantly

frustrated if not substantially impaired if

the Act does not bind the Crown. This is
unfortunate, having regard to the extent of

vacant Crown land in respect of which the

Crown would not be bound.

The evidence also shows, however, that the

purposes of the Act would not be wholly frustrated

if the Act were held not to bind the Crown.	It
follows that the provisions of the Act do not
make "manifest" any intention to bind the Crown by necessary implication.

DEANE J:	Am I correct that what the Full Court has effectively
held is that the Act applies to Crown Land, applies to the activities of people other than the Crown or acting in right or under the shield of the Crown, but does not apply to the Crown itself or those
so acting?
MR McINTYRE:	Yes.
DEANE J: Which means that there are two questions.	One is

where a section says no person shall do something and

applies to Crown land. One question is whether the

Act applies to the Crown itself in the sense that

the Crown could be convicted of an offence if it

did it. The other question is even if the Act does not apply to the Crown in that sense, it applies to people purportedly acting in the name of the Crown,

in that what they did would be an offence by them

to which they could not plead as a defence, we
have the authority of the Crown. Those two questions

might be the same. Is that the area of the problem?

MR McINTYRE:  That is part of it. I would have thought in

relation to the second aspect" that is a person

acting in the name of the Crown,,that really the

authority of BRADKEN and others would suggest that

any person acting.in the name of the Crown has all

the same immunities as the Crown, so that if the
immunity applies to the Crown, then it also applies

to all its public servants; all its agents, for

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instance the Western Australian Development

Corporation which - - -

DEANE J: Except it would not follow that the Crown could,

for example, be convicted of an offence.

MR McINTYRE:  No, it certainly would be the applicant's position

and the same position taken before the Full Court

and the supreme court, that whilst the Crown may

be bound by prohibitions which are set out in the
legislation, because of its nature as the Crown it
could not be prosecuted and it could not be fined

or the only penalty is a fine in section 17 and

really that flows, we would say, from authorities

such as PAYNE V DOYLE and that is a seperate issue

and it may well still be open and in fact the

majority of the court in the supreme court.I think,	took the view - that is Mr Justice Brinsden and
the Chief Justice Mr Justice Malcolm seemed to
take the view that it may well be open to take
injunctive and declaratory proceedings against the
Crown, using the ABORIGINAL HERITAGE ACT as one's
basis, if in fact that Act was binding upon the
Crown. And that was what the action was about.

So that one puts aside the questions of penalties

and looks to the question of whether the Crown is

bound and if the Crown is bound whether any of

its agents or instrumentalities are also bound because

they might be able to bring themselves under the

umbrella of inununity.

DEANE J: If that is a convenient time to stop, Mr McIntyre.

MR McINTYRE:	Yes.
DEANE J:	We will adjourn until a quarter to ten tomorrow
morning.
AT 4.35 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 26 OCTOBER 1989

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