Byrnes v The Queen, Hopwood v The Queen

[1999] HCATrans 74

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A44 of 1998

B e t w e e n -

MARTIN FRANCIS BYRNES

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A45 of 1998

B e t w e e n -

TIMOTHY PAUL HOPWOOD

Appellant

and

THE QUEEN

Respondent

GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 APRIL 1999, AT 10.18 AM

(Continued from 8/4/99)

Copyright in the High Court of Australia

___________________________

GAUDRON J:   Yes, Mr Gray.

MR GRAY:   May it please the Court, in regard to the amendment of the outstanding special leave application of Mr Byrnes and the issue of a new special application, those matters, I understand, are being dealt with at the Registry now, or about to be, and I will have those documents for the Court shortly.

GAUDRON J:   Thank you.  Yes, Mr Solicitor.

MR BENNETT:   Your Honours, I was being asked yesterday about the presumption that the prosecution does not have any ability to appeal and the need to construe statutes in the light of that presumption.  What must be appreciated, however, is that what is really being put against me is not that we have not properly created a right of appeal but rather that one has been removed.  Immediately prior to all this legislation, all the Corporations mass of legislation in the early 1990s, an offence under the Code, which this was, was prosecuted under State law and it was a State offence, and the State DPP had the ability to appeal.

GAUDRON J:   And still has, has it not?

MR BENNETT:   And still has under section 352.

GAUDRON J:   Yes, in a context in which there was to be power sharing with respect to the Code offences.

MR BENNETT:   Yes, and then ‑ ‑ ‑

GAUDRON J:   As distinct from the arrangements under the new regime, where it was all to be done by the Commonwealth DPP.

MR BENNETT:   Yes, so the question one is asking is not ‑ ‑ ‑

GAUDRON J:   Is whether the right person appealed?

MR BENNETT:   Yes, that is part of it, but the point of view of the presumption, the question we are asking is not, do we have legislation which has done this extraordinary and unusual and presumed against step of giving rights of appeal to the Crown, the question is rather, have the transitional provisions worked so the old thing continued with the new person?  That is really the way we should look at it, in my respectful submission.

KIRBY J:   Yes, but it has been done by statute.  I mean, I think, but for that decision in, is it, Rohde ‑ ‑ ‑

MR BENNETT:   Yes, I will come to Rohde.

KIRBY J:- - -we could approach the words “enforcement” and “with respect to”, and they would be enough, but the problem is that the court has said that it is unusual, there is a presumption against it and it is very difficult, in the face of that authority, then to construe – you could have put in an appeal and you did not.

MR BENNETT:   Well there was simply no need to.  Subsection (5) is extremely wide.

KIRBY J:   But, in the light of what the court has said, I mean, one would think that you do not presume perhaps that Parliament reads it, but you do presume the parliamentary counsel is aware of this authority of the court; a very strongly worded statement that there is a presumption against it.

MR BENNETT:   Yes, your Honour, but in Rohde they found the presumption was – they found it in that case through section 68. But they found there that there was an ability in the prosecution to appeal.

KIRBY J: Section 68 refers specifically to appeals.

MR BENNETT:   Yes.

KIRBY J:   And this section does not.

MR BENNETT:   Yes.  Well, your Honour ‑ ‑ ‑

KIRBY J:   But for that, I would be inclined to say that enforcement, in the context of the Director of Public Prosecutions – you have to put it into the context of the Act and it is an enforcement power for the Director, he does not go into places with guns.

MR BENNETT:   No.

KIRBY J:   He is in the business of enforcing in courts of law, mainly, investigating and enforcing in courts of law, and therefore you have to look at it in that context.  And in that context, you would say, “Well, in that context, it means appeal where necessary”, but there is just this step that the court ‑ ‑ ‑

MR BENNETT:   But, your Honour, we ask rhetorically why one applies that sort of presumption when one is construing the transitional provision to see if the status quo in which there is such a right of appeal is preserved.  And, in my special submission, that sort of presumption ‑ ‑ ‑

McHUGH J:   Mr Solicitor, that really misstates - you are not preserving anything.  You are creating a new right of appeal in the Commonwealth DPP.

MR BENNETT:   Yes, your Honour.

McHUGH J:   You can say what you like, you have to face up to that proposition that you are seeking to say that the Commonwealth DPP has a right of appeal in respect of a South Australian offence.

MR BENNETT:   Your Honour, in my respectful submission, when one looks at that sort of presumption, one looks at its purpose and the purpose of that presumption is that one does not construe legislation lightly as giving a right of appeal to the Crown where none existed before.  The reasons for ‑ ‑ ‑

GAUDRON J:   To the DPP, not the Crown ‑ ‑ ‑

MR BENNETT:   I am deliberately using a neutral word, your Honour.

GAUDRON J:   I would have thought that it was not neutral.

MR BENNETT:   Well, I am deliberately avoiding that question because that is the next question.

KIRBY J:   Prosecution then.

MR BENNETT:   Prosecution, if one likes.  One can understand if one has a statute which is, in substance, creating a right of appeal where there was not one before in the Crown, one applies that presumption.  But where, in substance, what the statute is doing is applying a transitional provision to a status quo and changing some things, certainly it may be, as a matter of jurisprudential analysis, that it is creating a new right of appeal in the strict sense.

McHUGH J:   But you have to go beyond that because on reading of the section, not only did it give the Director of Public Prosecutions a right of appeal, but it also gives the Federal Police a right of appeal.  Subsection 91(2) says:

The Australian Federal Police –

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

whatever the State is and ‑ ‑ ‑

MR BENNETT:   They do not have a right of appeal.

McHUGH J:   Beg your pardon?

MR BENNETT:   I do not think the police force has a ‑ ‑ ‑

McHUGH J:   They may or may not have, but because the police force has not a right of appeal, it is difficult to think that matters relating to such an investigation - arrest, custody or prosecution – involve an appeal.

MR BENNETT:   But, your Honour, obviously some of the matters in subsection (5) would relate primarily to the police and, perhaps, only to the police; some would relate primarily and, perhaps, only to the Director.  There is nothing surprising about that.  Every item in (5) does not have to apply to both the police and the Director in all its meanings.  That simply emphasises the width of the section.  It is attempting to cover a full spectrum of whatever the police do and whatever the DPP does and it has tried to cover it with wide expressions.  Can I just take your Honours to subsection (5)  ‑ ‑ ‑

McHUGH J:   Before you do, why, on your argument, did the statute not adopt in respect of the DPP, the same approach as it did with respect to the Commonwealth Minister in 91(3)?  It just simply has the same:

in respect of the prosecution of offences against the co-operative scheme laws, the same functions –

as he would have –

in respect…..against a national scheme law - - -

MR BENNETT:   Because, your Honour, that is only concerned with prosecution.  It is a much narrower range of functions.  There was not the need to cover a wide range of functions in relation to the Commonwealth Minister, so that was done in a slightly different way.  Also, it was, no doubt, intended there that whatever functions the Minister had, which, I suppose, are things like – I think the only one is consenting to a prosecution after five years.  There may be others, but I think that is probably all.

McHUGH J:   Why does 91(1) contain in paragraph (b) an almost identical provision to 91(3) and yet has this 91(1)(a)?  What do you say about that?

MR BENNETT:   Your Honour, 91(1)(b) is giving the powers conferred under the Commonwealth DPP Act.  Section 91(1)(a) is giving the powers of the State DPP.  They are doing different things.  Your Honours will see from the index I have provided ‑ ‑ ‑

GAUDRON J:   You have to say, do you not, though, that 91(1)(a) impliedly amends 352(2) of the Criminal Procedure Act or the Criminal Act?

MR BENNETT:   “Amend” may not be the correct word, your Honour.  It incorporates by reference mutatis mutandis, if one likes.  In that sense amends, yes.

GAUDRON J:   Yes.

MR BENNETT:   Yes.

GAUDRON J:   And it does not refer, does it, to that Act?  It does not specify that it is amending it?  I mean, it may well be, on one view, that it was intended that the Commonwealth DPP should have the power of appeal but I think you have to go to the point of putting that that intention is carried into effect by amendment of the appeal provision.

MR BENNETT:   Your Honour, the phrase I prefer to use is not “amendment” but “adoption mutatis mutandis”.

GAUDRON J:   I do not understand that, I am sorry.

MR BENNETT:   Your Honour, there is a section which says the State DPP can appeal against sentence.  This says the Commonwealth DPP is to have whatever the State DPP has, therefore the Commonwealth DPP can appeal against sentence.  I mean, that is the sort of reasoning in abbreviated form.

McHUGH J:   You have to get a lot of work out of 91(1)(a).  You have to get a power to appeal and you have to argue that it gives jurisdiction to the Court of Criminal Appeal and, at the same time, in a Barrett v Opitz-type situation define the rights and liabilities of the parties under appeal.  It is a large proposition to get out of 91(1)(a).

MR BENNETT:   Well, your Honour, but one has the same things to get out of every other field of its application, every other section of the Criminal Law Consolidation Act, which is incorporated by reference, will involve some sort of alteration, if it refers to the State DPP.

McHUGH J:   There is no problem about investigation of an offence or the arrest in custody, or the institution or carrying on of a prosecution.  But when you seek to get into the area of granting a right of appeal and conferring jurisdiction on the court to hear an appeal from the Commonwealth DPP, it seems to me you are in another universe of discourse.

MR BENNETT:   Your Honour, in relation to prosecution, you have an Act which talks about the State DPP doing it, and this picks that up, and if one likes, amends it.  As I say, I prefer the word “adopts” mutatis mutandis, but whichever way one looks at it, it certainly does that and why does it not do it in relation to an appeal when the purpose of the section is to put the Commonwealth DPP in the same position that the State DPP was in?  That is the purpose of it, and that is made clear in the explanatory memorandum.  If I could ‑ ‑ ‑

KIRBY J:   Could you just tell me, is the Commonwealth DPP involved in the arrest and custody of persons charged, or is that an indication that (b) is relevant to the Federal Police who have enforcement powers?

MR BENNETT:   Your Honour, I am having that checked.  My understanding is - yes, is not, your Honour.

KIRBY J:   No, I did not think so and therefore the formula in (5) is just a collection of powers which have to be read as relevant to either the DPP or the Federal Police.

MR BENNETT:   Yes, your Honour.  It is intended to cover everything from beginning to end of the process.  It is done by a composite series of things with a very broad final sentence.  May I just put this, while we are looking at subsection (5), that one has a function or power relating to investigation, arrest, custody and prosecution, yet they have gone on and added, although its function or power relating to those matters:

a function or power relating to –
…..
(d)  matters relating to –

and then exactly the same four are repeated:

investigation, arrest, custody or prosecution.

McHUGH J:   Yes, but to get the full meaning of (d) you have to give the word “such” content, and it then reads:

“enforcement power” means a function or power relating to –
…..
(d) matters relating to –

“the institution and carrying out of a prosecution of an offence”.  Now, an appeal is not in relation to institution of a prosecution, and it is not in relation to the carrying on of a prosecution.  You excise the word “such”.  It is the “such” that takes you back to paragraphs (a), (b) and (c), and that is your difficulty, it seems to me.  It is very difficult to say that “this is a matter relating to the institution of a prosecution or the carrying on of a prosecution”.

MR BENNETT:   In my respectful submission, it is, your Honour.  An appeal from a prosecution is a matter relating to the prosecution.  There is a string of cases we have referred to in our submissions dealing with the width of the words “relating to”.  I will not take the Court to those.

McHUGH J:   …..relates to the conviction or the sentence; it does not relate to the prosecution.  The prosecution ends with the conviction.

KIRBY J:   It is all passed into the record with the conviction.

MR BENNETT:   It does not, your Honour, because there is sentence.  Sentence relates to a prosecution and that is after conviction.

McHUGH J:   In some very loose sense it might be said to relate to a prosecution but it relates to the conviction.  You do not get sentenced because of a prosecution.  You get sentenced because you have been convicted.

KIRBY J:   Perhaps it can be tested this way, that if the Director of Public Prosecutions does not turn up on the appeal, then all the work for the prosecution just disappears.

MR BENNETT:   Yes, that is one aspect of it, your Honour, and it disappears if he does and is unsuccessful in resisting an appeal by the person convicted.  The words “relating to” are wider than that.  In the first place, in answer to your Honour Justice McHugh, something can relate to a number of different things.  It does not merely relate to one aspect.  The fact that an appeal may relate to a conviction does not mean the appeal does not also relate to the prosecution.

McHUGH J:   You will not give content to the word “such”.  It is not relating to the prosecution; it is relating to, relatively here, carrying on the prosecution.

MR BENNETT:   No, your Honour, with respect.  It is:

matters relating to such…..prosecution.

McHUGH J:   Yes, to “such” and that takes you back to (c).

MR BENNETT:   Yes, but it does not incorporate those prior words, your Honour; “such prosecution” is the prosecution which is carried on.  “Such prosecution” does not mean such carrying on of the prosecution as a matter of grammar.

KIRBY J:   That is hard to advance because, you see, if you look at it, “investigation” is (a), “arrest and custody” is (b), “prosecution” is (c), and it cannot be the institution of the prosecution because that has already been done, so you have to squeeze it all into carrying on of a prosecution.

MR BENNETT:   No, your Honour, I do not.  A matter can relate to a prosecution within the meaning of (d) without relating to the carrying on of a prosecution.

KIRBY J:   No, I think it has to be relates to the carrying on because of the word “such”.  It takes it back to (c).  It is not necessarily fatal because you could still say it does relate to the carrying on of prosecution in today’s age.  It may not at 1900 but it does now, that we know appeal is a regular process and it is something that is part and parcel of a prosecution today.  Few of them finish at trial.  Those who sit in Courts of Criminal Appeal know that.

MR BENNETT:   Your Honour, with respect, I adopt all of that but in addition I submit that if what your Honour ‑ ‑ ‑

McHUGH J:   You may be right; I may be wrong.  It may be that “such” does not relate to institution and carrying on so much as the prosecution of an offence.

MR BENNETT:   Yes, your Honour.   Otherwise it would say, as a matter of grammar, matters related to such an investigation, such arrests, such custody or such institution and carrying on.  It is the prosecution which is instituted and carried on, but it does not have to relate to that.  Then one adds to that, that one can relate to different things, to say that – easy example – appearing in court relates to a barrister’s practice does not mean that it does not also relate to the client’s case.  One does not say, it relates to this, therefore it does not relate to that. 

And, in my respectful submission, when one looks at the phrase “relating to”, one is looking at a connection of some kind between the two concepts and the cases which talk about relating to and which say it is wide, say that there is a great width of such connection and, we would submit that, for the reasons given by Justice Kirby, and generally because of the relationship between the two things, an appeal does relate to a prosecution, in the same way as an appeal in a civil matter may relate to the law suit; it may relate to the proceedings; it may relate to the hearing; it may relate to the judgment; it may relate to the order.  It relates to all those things, but it has a relationship with each, and an important relationship; it is not a remote or distant relationship.

KIRBY J:   Well you still have to get over the hurdle that we are spending all this time trying desperately to squeeze these words out to appeal, when we have got a number of statutes here where appeal is used and why would not one then say, well, the High Court has said you have got to give this clearly, because it is something which is a departure from the old traditions that the Crown did not try to get a second go.

McHUGH J: Particularly when section 55 of the very same Act refers to appeals.

MR BENNETT:   Yes. Your Honour, I am going to come to section 55 when I come to section 28, but the answer to the presumption – I started saying this before, but did not quite finish it – is simply that when one is looking at a presumption one looks at the purpose of the presumption and that purpose has great application where one is, in substance, creating a new right of appeal in the Crown; it has no application where one is technically creating a new right of appeal in the Crown but, in substance, merely having a transitional provision to something which is there all the time. When that is the background situation, in my respectful submission, it would be a presumption that a transitional provision is designed to work and to continue an existing situation, is a far more relevant statutory approach than to turn to a presumption, which is applicable, where one is creating something which, in substance, is new, and not merely technically new.

If I can show your Honours the explanatory memorandum.  That is in the back of the volume of statutory materials we have provided under tab 8.  It is on pages 18 and 19.  It does not get me the whole way, but it indicates the approach and it deals with my learned friend’s submission about federalisation, because my learned friend read the bits that related to the law, not the bits that related to the Code.  These are the bits relating to the Code.  Federalisation was talking about the law.  So in the transitional parts dealing with the Code, at page 18, line 4:

Offences against co-operative scheme law will be treated for the purposes of investigation and prosecution as if they are offences against Commonwealth law and consequently Commonwealth investigations and prosecutorial powers or authorities will be exercisable according to their tenor.  However, recognising that these matters are and remain matters of State law, the corresponding powers exercisable by State bodies or persons will remain.  The exercise of those State powers will be in accordance with arrangements between the Commonwealth and the States, which will be designed to ensure an orderly transition to the new administrative scheme by providing for the continued involvement of State officers in investigations and prosecutions which are under way.

McHUGH J:   But why do we take any notice of this reading speech which is made in the House of Representatives, when we are construing a State Act?

MR BENNETT:   This is the explanatory memorandum which was the memorandum for the Commonwealth Bill ‑ ‑ ‑

GUMMOW J:   That is the point.

MR BENNETT:   Yes, but it was part of an overall scheme in which the State simply fell into line.

McHUGH J:   That may be.  It may be the Minister in South Australia said exactly the same thing, but if we are taking the explanatory memorandums, why are we not taking to the South Australia explanatory memorandum?

KIRBY J:   Which is No 9, I think.

MR BENNETT:   Your Honour, it is said by the State Minister.  Under the next tab, your Honours will see the Legislative Council speech, yes, where Mr Sumner, the Attorney-General, talks about the overall scheme and the Commonwealth component and so on and clearly adopts by reference whatever the intentions are there.

He also specifically refers to section 91, although not very helpfully, at page 128, where he simply says:

Clause 91 confers enforcement powers on the Commonwealth Director of Public Prosecutions and the Australian Federal Police in connection with offences against the cooperative scheme laws.  The Commonwealth Ministers is also given the same functions and powers –

et cetera.  So, that is very general.  But, the bit I was about to read to your Honours from the explanatory memorandum is paragraph 49 which is on the same double page that I was reading from – it is on page 19 - and your Honours see that:

In the interests of more effective enforcement and administration –

this is paragraph 49 –

the ASC, AFP and the DPP will be given statutory authority to use the powers conferred upon them by Commonwealth law…..and to prosecute co-operative scheme law offences.  However, as noted above, fundamentally these offences remain matter of State law (albeit administered by the Commonwealth), and therefore custody, bail, the procedure for bringing offenders to trial, conviction, sentencing, proceeds of crime and spent convictions will remain a matter of State law.

McHUGH J:   That is against you, is it not?

MR BENNETT:   No, your Honour.  What is interesting is some of those matters are not in 91(5) but clearly intended to be covered by it.  He is not giving an exhaustive list but ‑ ‑ ‑

KIRBY J:   Is your theory of the Act that the substance just remains State law but a new function has been given equivalent powers that the State DPP would have?

MR BENNETT:   Yes, and some of his own as well, yes.

KIRBY J:   There is a bit of a problem with that where the Act says that it is taken not to be an offence against the law of South Australia.

MR BENNETT:   No, that does not apply to the Code, your Honour, that is only talking about the law.  I will come to that.  That is nothing to do with this case.  That is all of great significance if we had a matter under the law but it is nothing to do with this case, but I will come to that.  Now, I was about to deal with the other lists, and the argument put against me is that there is a list of matters in section 28 of the Corporations (South Australia) Act and a list of matters in section 55. They both include references to appeals and section 91 does not.

KIRBY J:   I should know this, Mr Bennett, but was the trial prosecuted by the State Director of Public Prosecutions?

MR BENNETT:   No, your Honour.

KIRBY J:   So the whole thing was, from the beginning, prosecuted by the Federal Director.

MR BENNETT:   Yes, your Honour, and your Honour will see, from the index I provided to your Honours, the last – I am still on 1.a, I am afraid to say, but the last topic on that list deals with the question your Honour asked yesterday about the Queen and the DPP and shows your Honour why it was all done correctly in this case, but I will come to that when I get to it.

KIRBY J:   Is “The Queen” in or is “The Queen” out?

MR BENNETT:   “The Queen” is in in the heading but out in the body of the documents and that is the way they are all done.  There is a rule which says you have to have “The Queen” in the heading.

GAUDRON J:   Whose rule?

MR BENNETT:   The South Australian rule.

GAUDRON J:   South Australian Supreme Court rule?

MR BENNETT:   No, it is a schedule to the Criminal Law Consolidation Act.  But I will come to that, your Honour, that is the last topic I am going to deal with.

The proposition put against me, with which I am dealing at the momen, and I am still on 1.a, is that there is a list in section 28(2) and a list in section 55 and that the list in 91(5) is shorter and that that does not include appeals and so on, but those lists are there for very different purposes. The list in section 28(2) is not an exhaustive list. It is a list of examples where the draftsman has not attempted to define everything. He has simply listed a whole lot of miscellaneous examples of matters which are deemed to be or said to be included in the reference to purposes for which an offence is to be treated as an offence in the Act.

In 91(5), on the other hand, one is dealing with powers conferred on a particular set of functionaries and the draftsperson here has attempted to do it in a succinct list with very general words.  Your Honours will note, for example, that although (c) says:

proceedings relating to a matter referred to in paragraph (a) or (b) –

that is proceedings relating to such a matter.  There is no corresponding paragraph for proceedings relating to (d), (e), (f), (g), (h) and so on.  It is simply not intended to be an exhaustive list and it says that at the beginning:

The purposes…..include, for example (but without limitation) –

So one cannot really compare that with section 91 and produce a different result. Similarly, section 55, which I am going to come to in a different leg of the argument, is something dealing with jurisdiction and, again, specific matters are dealt with. In 56 where other State laws are adopted for certain purposes, again, there is a list. There was, in section 91, where one was talking merely about the powers of functionaries, it was thought more expedient to use a general phrase.

GAUDRON J:   Do sections 28 and 55 have any application in this case at all, other than for the purposes of comparison?

MR BENNETT: Section 55 does on a different part of my argument, but not on this part, your Honour.

GAUDRON J:   Yes.

MR BENNETT:   For this part of it, it is merely for resisting the expressio unius argument.  The final thing is, of course, that expressio unius, as one has had many times, is a good servant but a poor master.  It is a rule which is applied much less than was formerly the case and it should not be applied here where one has sections performing totally different functions, lists for totally different purposes and this list has a much more general phrase at the end of it.

Those are my submissions on 1.a.  1.b takes it a little further – this is 1.b of my index to oral submissions.  What is submitted here is that when one adds section 91(4) ‑ ‑ ‑

KIRBY J:   Can I just ask you, before you pass to b, if you fail in persuading us that enforcement equals appeal or includes appeal, is that fatal to your case?

McHUGH J:   You then rely on (b) in section 9(7).

MR BENNETT:   Yes, it is not, your Honour; I put it in four alternative ways.

KIRBY J:   I see.

MR BENNETT:   As you see in paragraph 1.

KIRBY J:   I follow, yes.

MR BENNETT:   When one looks at section 91(4), that provides that:

For the purpose of the exercise of enforcement powers –

and we stress, it is not a general provision like section 29(2); it is merely:

For the purpose of the exercise of enforcement powers, and other functions and powers conferred by this section –

that means section 91(1)(b) –

including the obtaining of warrants to arrest, an offence against a cooperative scheme law is taken to be an offence against a national scheme law of this jurisdiction.

So, what that says is that, when we are talking about the “exercise of enforcement powers” by, inter alia, the Commonwealth DPP, for that purpose the scheme law is taken to be an offence under the law. That takes one to sections 55 and 56. Sections 55 and 56 are both dealing with the law.

GAUDRON J:   Well, it is for the purpose of the exercise of those powers, so, yes.

MR BENNETT:   Yes, your Honour, yes. Section 55 then says that:

the several courts of each State and the Capital Territory exercising jurisdiction –

(a)  with respect to –

the trial and conviction –

and appeals arising out of such trial or conviction, have the equivalent jurisdiction with respect to –

offenders or persons charged with offences –

under the Corporations Law of South Australia.

So, if the Supreme Court of South Australia has jurisdiction to hear appeals by the State DPP against sentence, that court has the equivalent jurisdiction with respect to persons charged with offences under the Corporations Law, and it is not very hard to read “equivalent jurisdiction” ‑ ‑ ‑

GAUDRON J:   Yes, but the jurisdiction it has is still that with respect to appeals by the State DPP.  Somehow or other you have got to transform section 352, have you not?

MR BENNETT:   Yes, your Honour, and I do that with the word “equivalent”.  Equivalent means you have got to change it, you have got to adapt it.  It is not the same jurisdiction, it is an equivalent jurisdiction, and the equivalent jurisdiction to hearing an appeal against sentence by the State DPP is hearing an appeal against sentence by the Commonwealth DPP.

GUMMOW J:   This is the sort of blending operation that was involved in Kartinyeri, in a way - discussed in 72 ALJR 722 at paragraphs 83 and 84 where there is a discussion of this problem by Bennion. It is an odd sort of amendment. You will remember that the Heritage Protection Act and the Hindmarsh Island Bridge Act were not, in fact, referential one to the other in direct terms.  Somehow you had to read the Heritage Protection Act, as qualified by the Hindmarsh Island Bridge Act.  We were invited to blend them in some way, and that is what you are asking us to do.  It is a permissible fashion.  It can be done, but it is one way of achieving an amendment, so Bennion says, but it is a dangerous method.

MR BENNETT:   Your Honour, it is.  That is said also, I think by your Honour, in James Hardie v Seltsam where your Honour commented on Barrett’s Case.

GUMMOW J:   I had a colleague actually.

GAUDRON J:   There is no doubt, is there, that each State means “includes South Australia”?  I would have read this simply as referring to the courts of the other States, the Capital Territory, investing them with jurisdiction with respect to matters arising under the South Australian Corporations Law.

MR BENNETT:   Yes, but your Honour sees the heading of the Division is “Vesting and Cross-vesting of Criminal Jurisdiction”.  Your Honour sees:

This Division provides in relation to –

(a)  the jurisdiction of courts in respect of criminal matters arising under the Corporations Law of South Australia; and

(b)  the jurisdiction of the courts of South Australia in respect of criminal matters arising under the Corporations Law of –

South Australia, and each State, in my submission, would include South Australia.

One also gets it under section 56, which takes that a little further. Section 56 says:

Subject to this Division, the laws of South Australia respecting –
…..
(b) criminal procedure in South Australia in relation to such persons,

apply in south Australia, so far as they are applicable, to persons who are charged with offences against the Corporations law of South Australia or of another State –

et cetera.  So, again, the laws of South Australia respecting criminal procedure.  Then subsection (4) defines “criminal procedure” as including appeals: “the hearing and determination of appeals”.  So ‑ ‑ ‑

GUMMOW J:   What do you get out of section 56, it is a choice of law provision?

MR BENNETT:   A choice of procedural law?

GUMMOW J:   Yes.

MR BENNETT:   Which includes the law relating to appeals.  So the South Australian law relating to appeals is to apply to offences arising under the Corporations Law prosecuted in South Australia. Again, that rather indicates that section 55 is intended to make it clear that, where it is necessary to confer jurisdiction, jurisidiction is conferred for that purpose.

GUMMOW J:   But 352 is not the law with respect to criminal procedure, is it?  It is a bit more than that.

MR BENNETT:   It is a combination, your Honour.  It is a balanced combination.  It creates the jurisdiction and it confers the right and it is, in one sense, concerned with criminal procedure.  It is concerned with criminal procedure in the broad sense of “procedure” under which that word merely means adjectival.

GUMMOW J:   But it exposes the convict to a new substantive liability, namely ‑ ‑ ‑

MR BENNETT:   Your Honour says “a new substantive liability”.

GUMMOW J:   Yes.

MR BENNETT:   It is adopting a regime in which equivalent people always were subject to that liability.

GUMMOW J:   I realise that.  I am just talking about 352 in its pristine form.

MR BENNETT:   In its pristine form, yes, your Honour.

GUMMOW J:   It exposed the convict to a new form of liability.

MR BENNETT:   Yes, it did, your Honour.

GUMMOW J:   It is a bit more than procedural.

MR BENNETT:   Well, your Honour, I was going to come to this later on, but the word “procedural” can be used in a number of senses.

GUMMOW J:   You are not taking us to Breavington, are you?

MR BENNETT:   No, your Honour, there is a convenient passage in a judgment of Justice Cox of the Supreme Court of South Australia.  Your Honours have been given it this morning.  It is Suter v Farrelly (1984) 35 SASR 535. He is discussing whether statutes of limitation are procedural or substantive and going through the cases on both sides.

GUMMOW J:   There have been cases since 1984 in this Court on this question.

MR BENNETT:   I know there have, your Honour.  There is just one sentence which I have not found in this form in this Court which says at the middle of page ‑ ‑ ‑

GUMMOW J:   They might have assisted Justice Cox in the formation of what he said which you are about to read to us.  Anyhow, what did he say?

MR BENNETT:   It is the middle of page 539, your Honour, the last paragraph on the page.  It is the first sentence:

However, I do not think that “practice” and “procedure” are words of absolute meaning.  The way they are to be construed will depend upon the context in which they are used.

I do not need to go any further than that.  It is merely that general proposition.  There is a long line of cases which were referred to yesterday in this Court starting with the three recent ones of Snow’s Case, Newell’s Case, Cheatle’s Case.  I have them all collected if your Honours wish to see them but there is probably no need.  They all have dicta which were referred to yesterday saying things like, “Section 80 is not a mere procedural provision”.  The point I wish to make is that in one sense of the word “procedure” that is right, but procedure in the sense of something less important than major constitutional rights or constitution of courts and so on, but in another sense it is procedural. 

In the sense in which one is talking about the distinction between the underlying rights being litigated and the adjectival means by which they are litigated, in that sense of the word “procedural”, a sense in which the word “adjectival” is sometimes used today more accurately, the right to a jury or a right of appeal are clearly procedural.  They are matters - certainly may go to jurisdiction.  They are jurisdictional as opposed to procedural in one sense of the word but in the other sense, in the sense of adjectival, they are procedural.

CALLINAN J:   But they are not exclusively procedural in that sense.  They are procedural and going to rights as well, so it is not a complete description of them to say that they are merely procedural.

MR BENNETT:   Precisely, your Honour.  That is the point I am making.

CALLINAN J:   But if they are more than procedural, then procedural alone is hardly an apt description of them.

MR BENNETT:   Well, your Honour, where one is talking about the laws of South Australia respecting criminal procedure in South Australia, in that sense, in our respectful submission, the word is used in its broadest sense, including jurisdiction of courts, fundamental rights to a jury or to dispense with a jury, and everything else associated with the adjectival administration of the criminal law; as opposed to matters of substance like what is murder, or did the particular person commit the murder.  It is ‑ ‑ ‑

McHUGH J:   You get some support from that in the categories in the Australian Digest which defined the subject - the title criminal law into –I forget what substantive law is, but there is one for criminal law procedure.  I think from recollection, that deals with appeals and criminal matters.

MR BENNETT:   Yes.  In any event ‑ ‑ ‑

GAUDRON J:   One of the difficulties I have is I do not really see how 91(4) brings sections 55 and 56 into play. Sections 55 and 56 are concerned with offences against the Corporations Law.

MR BENNETT:   Yes.

GAUDRON J:   Do they effect a vesting and cross-vesting of jurisdiction with respect to offences against the co-operative scheme law?

MR BENNETT:   No, your Honour, they do not.

GAUDRON J:   And section 91(4) opens with the words:

For the purposes of the exercise of enforcement powers –

relevantly,

conferred by this section –

Now, it does not seem to me that you can make section 55, in that context, confer jurisdiction on the Court of Criminal Appeal, in respect of co‑operative scheme laws. It may be you can make it clear that if the DPP has power to lodge an appeal under the Corporations Act, he also has power, if there is jurisdiction in the court, to do it under a co-operative scheme law.  But I do not see how you make the two operate together at this stage.

MR BENNETT:   In this way, your Honour:  that section 352 conferred jurisdiction by in the language of giving a power.  It says the DPP has a right to appeal against sentence.  Then one implies from that a jurisdiction in the court to hear it.  In the same way here, where you have an Act which says, by putting together 91 ‑ ‑ ‑

GAUDRON J:   Yes, I understand the way you put it, but my difficulty is this. Sections 55 and 56, in terms, operate with respect to offences against the Corporations Act so that they do, in fact, confer jurisdiction with respect to those offences.

MR BENNETT:   Yes.

GAUDRON J:   Section 4 deals only with the exercise of powers conferred by this section which are enforcement powers.

MR BENNETT:   Yes, yes.

GAUDRON J:   You have to find something else to give the Supreme Court jurisdiction. What I am putting to you is you cannot pick up the jurisdiction from section 55.

MR BENNETT:   Your Honour, I would do it this way.  Suppose section 91 had said, “The Commonwealth Director of Public Prosecutions has the same right to seek leave to appeal that the State DPP has under section 352”.

GAUDRON J:   Yes, then that would be a clear amendment of it.

MR BENNETT:   Yes, conferring jurisdiction.

GAUDRON J:   Yes.

MR BENNETT:   This Act would then confer jurisdiction.

GAUDRON J:   And you have to make section 91(4) do that.

MR BENNETT:   Yes, your Honour, and if an enforcement power ‑ ‑ ‑

GAUDRON J:   But that is not what 91(4) does.

MR BENNETT:   Your Honour, one of the things it does is say that for the purpose of exercising enforcement powers which, you say, includes ‑ ‑ ‑

GAUDRON J:   Where is the appeal right, where does the appeal right come from?

MR BENNETT:   On this – I am sorry.

GAUDRON J:   Yes.  On the Corporations Law.  Does it come directly from 55?  No.  Does it?

MR BENNETT:   It comes through a route, your Honour, by putting together a range of sections.

GAUDRON J:   Yes.

MR BENNETT:   The route is that one starts on – and I have given four alternatives.  The one I am dealing with at the moment is 91(1)(a) plus 91(4) plus 55 plus 352 and one steers through those to get that the Commonwealth DPP is given the powers of the State DPP.  The courts are given whatever jurisdiction they need to be given.

GAUDRON J:   But they are not.  The point I am making is that they are not.  They are given jurisdiction with respect to Corporations Law offences.  Anyway, that is simply the difficulty I have with it.  Let me not detain you.

MR BENNETT:   Yes.  And the DPP is given the same power as he would have in relation to Corporations Law offences, that power being one which carries with it jurisdiction in section 352.

GAUDRON J:   Well then, in that case, if you put it that way, sections 55 and 56 have nothing much to do with it.

MR BENNETT:   It is a makeweight, your Honour.  The essential argument is the first one.

GAUDRON J:   What you have to do is really say section 4 says the DPP has the same power to lodge appeals under 352 of the Criminal Law Consolidation Act as the State Director of Public Prosecutions.

MR BENNETT:   Yes.

GAUDRON J:   Let us assume it says that.

MR BENNETT:   Yes.

GAUDRON J: Sections 55 and 56 have nothing to do with it.

MR BENNETT:   If I succeed on the simple 91(1)(a) argument which is my 1.a argument, what your Honour says is perfectly correct.  What I submit is that as an alternative one can get there through a 91(4) and 55 and 56.

GUMMOW J:   The more alternatives, the greater one’s suspicion.

KIRBY J:   Justice Barwick would be very upset at that.

MR BENNETT:   I am sorry, your Honour.

KIRBY J:   …..only possible, you can only have two alternatives.

MR BENNETT:   Yes.

GUMMOW J:   The more possibilities, the less the probability.

MR BENNETT:   Your Honour, I do not accept that, with respect.  In Rohde v DPP 161 CLR 119 there is a passage dealing with the words “like jurisdiction” which, we submit, is applicable to the phrase “equivalent jurisdiction” in section 55 where Justice Brennan, as he then was, at page 126 adopts the views of Justice Dixon in Williams and the quotation at the bottom of the page is this – that, of course, was a 3:3 decision but that judgment is accepted in this case:

The New South Wales section gives the right of appeal against sentence to the Attorney-General of the State. It gives it to him in virtue of his office. He is the proper officer of the Crown in right of the State for representing it in the courts of justice. When sec. 68(2) –

of the Judiciary Act –

speaks of the ‘like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth,’ it recognizes that the adoption of State law must proceed by analogy.  The proper officer of the Crown in right of the commonwealth for representing it in the Courts is the Federal Attorney-General.  I do not feel any difficulty in deciding that, under the word ‘like’ in the expression ‘like jurisdiction’, the functions under sec. 5D of the State Attorney-General in the case of State offenders fall to the Federal Attorney-General in the case of offenders against the laws –

and that is a case dealing with a Crown right of appeal or prosecution right of appeal.  Much the same is said in the majority judgment at page 25.  It is significant ‑ ‑ ‑

GAUDRON J:   So, you are back to section 55, are you?

MR BENNETT:   Yes, your Honour, I am dealing with 1.b at the moment still. It is significant that section 55 was seen by the legislature as being a corresponding provision to section 68(2). If your Honours go to the explanatory memorandum which I took your Honours to earlier ‑ ‑ ‑

KIRBY J:   This is the Federal one or the State one?

MR BENNETT:   Yes, your Honours have it separately. It is the explanatory memorandum to the Commonwealth Legislation Amendment Bill 1990, and it is page 70 of that memorandum. I have not reproduced this in the folder. It is really just one sentence in relation to section 64 which became section 55 in the State Act:

This new section will enable the conferring of jurisdiction on the several courts of the States –

and Territories –

with respect to the summary conviction –

et cetera.

This provision is based on sub-s. 68(2) of the Judiciary Act 1903.

So, the similarity to that section is not accidental and we would submit that makes the Rohde reasoning applicable in relation to it. In that case, of course, section 68(2) was held to carry with it the conferring of jurisdiction in relation to Crown appeals.

GAUDRON J:   I can well see that that might be the case in respect of a Corporations Law offence.

MR BENNETT:   Yes, well, your Honour, I have dealt with that. The third route, 1.c., is to go back to section 91(1)(b), which I have not yet taken your Honours to, and this is the one that adopts the powers of the Federal Director and it says:

The Commonwealth Director….. –

(b)  may, in relation to an offence against a –

Code –

law, perform the functions…..conferred on the Director of Public Prosecutions by the –

Commonwealth DPP Act –

in relation to offences against the laws of the Commonwealth as if the offence…..were an offence against a national scheme law of this jurisdiction.

Now, picking up what your Honour Justice Gaudron just said to me, that section 55, in the light of Rohde, confers jurisdiction to hear Crown appeals against sentence in relation to offences against the Corporations Law, 91(1)(b) with section 55, picks it up in relation to the Code because the DPP is given all the powers that the Commonwealth DPP has as if it were an offence against the national law.

If it were an offence against the national law, the DPP would have the powers in section 55 and that refers expressly to appeals and, of course, results in the conferring of jurisdiction, because section 55 clearly picks up section 352, on any view of it.

GUMMOW J:   That still has within it the problems about section 55.

MR BENNETT:   Well, it does not have the problem in the words in section 91(4) of “for the purpose of exercising”.  I have got around that ‑ ‑ ‑

GUMMOW J:   Well, precisely; it still has with it the problem of somehow blending into section 352 a conferral of fresh jurisdiction or national jurisdiction.

MR BENNETT:   Yes, it does that, but, your Honour ‑ ‑ ‑

GUMMOW J:   You still have to rely on section 55 to put that in the mix, do you not?

MR BENNETT:   Yes, your Honour, I do, but that must come from the word “equivalent”, otherwise, one asks rhetorically, what meaning does the word “equivalent” have? It must require that sort of adjustment of section 352 and if it does so in relation to the law, section 91(1)(b) picks it up in relation to the Code. Now, it does it by giving the DPP the power rather than by referring to jurisdiction, but we are dealing with a section which confers jurisdiction by giving the DPP the power; that is the very thing we are dealing with. So, in my respectful submission, that third route, section 91(1)(b), section 55 and section 352, is a route which gets to the result.

The fourth one is perhaps the hardest of the four, and it may come within the comment of your Honour Justice Gummow a few minutes ago, and I will deal with it briefly. This argument is put as an alternative to a number of other arguments I put, because it is inconsistent with them, but it is simply added as a fourth way one can, if one is against me on the other arguments, get to the result, and that is to take section 91(1)(b) and read that with section 29 – and I am going to have, as I have said, some detailed submissions on section 29 later – and say, well, section 29 then picks up the, among other things, Commonwealth DPP Act, in which section 9(7), which says that he has whatever rights of appeal he may otherwise obtain, and you add that to section 24 of the Federal Court Act, which gives, in criminal matters as well as civil matters, a right of appeal by the Crown to the Full Court of the Federal Court.

What one then says is, one characterises what that section does as being the conferral of a right of appeal against sentence rather than a conferral of a particular – one looks to that aspect rather than to the particular court aspect and says, that is adopted by section 29 for the relevant purpose of conferring a right of appeal.

GAUDRON J:   Then you are rewriting ‑ ‑ ‑

MR BENNETT:   Yes, it involves a lot of rewriting.  I do not propose to address ‑ ‑ ‑

GAUDRON J:   You do not wish to argue that section ‑ ‑ ‑

MR BENNETT:   I do not wish to argue it any further, your Honour.  I have given it to your Honours as an alternative route by which one might get there.  It is harder to argue than the others and it does involve characterising the Federal Court provision as something conferring a right of appeal by the prosecution in general terms rather than as something more specific.

KIRBY J:   Well, d is your orphan child.  Which is your beloved child?

GAUDRON J:   And you will not object if the judgment issues saying it was not strongly pressed, will you?

MR BENNETT:   No, your Honour.  Before I got to my feet this morning I just said a.  Having argued the matters, I would probably say c.

KIRBY J:   So it is c, a, b?

MR BENNETT:   c, a, b, d.

KIRBY J:   And then a little mention of d.

MR BENNETT:   A little mention of d.  Those are my submissions about the route by which one gets there.  The second matter I need to deal with I can deal with very briefly.  It is the distinction between leave to appeal and a right of appeal.  My friend goes to cases which say that in dealing with section 352 it is of significance that the leave is not lightly given, that it is an important separate question and so on.

The difficulty with that is that it is irrelevant to the present situation.  My learned friend is not, although one might think the contrary having heard his argument, entitled on this appeal to argue that some procedural injustice was done to him by the Court of Criminal Appeal in relation to the application for leave and the way it was treated.  What was done of course is what is done by this Court every day.  The court heard an application for leave to appeal, it treated it as the hearing of the appeal, it dealt in its judgment in a number of places with the fact that it was granting leave and that leave had to be obtained and at the end was careful in its orders to say, “One, leave granted; two, appeal allowed”.  So, the criticism that in some way the process was unfairly truncated does not arise.

The case my learned friend referred to is quite different – Malvaso.  That was a case where the Court merely allowed the appeal without adverting at all to the question of leave.  That is very different to this.  I will not take your Honours to it; I will just give your Honours the references.  The orders allowing the appeal at pages 49 and 52 both grant leave and then allow it.  In the court’s judgment there are a number of references to the fact that it is an application for leave to appeal.  At the end of the judgment on page 48 at lines 18 and 33, each of the judges says “I would grant leave to appeal, allow the appeal” as part of the judgment.  On page 46 lines 20 and 30 there are references to factors causing the Court to grant leave and things that must:

be borne in mind that applications such as those now before the court necessarily place the respondents in double jeopardy.  That being so, leave to appeal ought only to be granted in relatively rare and exceptional cases.

So the Court applied its mind do those matters.  It is not like Malvaso where the Court failed completely to consider whether leave should be granted.  Now, I do not need to deal with those matters, but I do because my learned friend took such time on them.  But his submission is that to confer a procedural right to appeal does not give one a right to seek leave to appeal.  Section 352(1)(a)(iii) says that the DPP:

may appeal…..on any ground with the leave of the Full Court.

The same appears in the previous section which is, I think, the one strictly applicable, as my learned friend says.

Now, if one is given a power to appeal with the leave of the Full Court, that must, as a matter of incidental power, carry with it the ability to seek such leave.  It can hardly be suggested that one could have conferred on one a right of appeal.  The appeal is only by leave and one does not have the right to seek leave to appeal.  The proposition really has to only be stated, in my respectful submission, to be dismissed with some ridicule.  It is not an arguable proposition, in my submission.  There is no authority on it because no one has ever suggested it before.  We have given in our written submissions a list of cases starting with D’Emden v Pedder about incidental powers.  One could hardly have a more incidental power than that one.  However much it is a separate question, it would be meaningless to have a right of appeal without it.

Now, the third area I want to deal is section 29, and there are a number of aspects of this.  First, subject to argument 1.d., it does not seem to apply at all in relation to Code offences.  It is dealing only with laws and nothing in 91 has language appropriate to pick it up.  It is dealing in general terms with laws ‑ ‑ ‑

GUMMOW J:   That comes out of the term “applicable provision” does it not?

MR BENNETT:   I am sorry, your Honour.

GUMMOW J:   The term “applicable provision” is defined and you say it is defined in relation to the law.

MR BENNETT:   Yes, your Honour, it is, yes, and it just does not pick up 91.  Neither 91(1)(b) nor 91(4) picks it up.  As I say, if your Honours reject that when they get the Federal Court submission.  But that is certainly my primary submission about it.

There are a couple of other aspects of it too. My learned friends submit that it picks up section 80 – and that, of course, is a subject matter of the new applications for leave. My learned friend says that in two ways. He says first, it is picked up via section 68 of the Judiciary Act and secondly, it is picked up directly.  So far as directly is concerned, I only need to remind your Honours of Sankey v Whitlam 143 CLR 1. I will not take your Honours to it, I will merely give your Honours the references. But that case very clearly held that the Constitution was not a law of the Commonwealth, which - if one needed authority for that proposition. The passages are the judgment of Acting Chief Justice Gibbs at page 31, the judgment of Justice Stephen at page 74 and the judgment of Justice Aickin at page 105. The issue does not appear to be discussed by Justice Mason or Justice Jacobs.

So far as picking it up indirectly is concerned, we say two things: first, contrary to the learned Solicitor for South Australia, we submit that the reason section 68 is not picked up by section 29 is that the legislature specifically inserted sections 55 and 56, indicated that they are to serve, at least in part, the same purpose, and where something is done specifically, there is a well-known canon of statutory construction that you do not construe it as coming within general provisions, so one would simply not construe section 29 as picking up Commonwealth laws, which have been duplicated and adapted into this Act itself. The authority for that proposition is two cases – again I will merely give your Honours the references: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at pages 20 to 21 and ‑ ‑ ‑

McHUGH J:   Pages 20 to 21; 7 and 10 are the references that are usually quoted, are they not?

MR BENNETT:   I cannot assist, your Honour.

McHUGH J:   You may be right.

MR BENNETT:   Your Honour, if that is so, I respectfully amend the ones I have given.

McHUGH J:   I may be wrong.

MR BENNETT:   There is also a reference in the Westpac Banking Corporation Case (1995) 184 CLR 265 at page 276.

GUMMOW J:   In David Securities too, I think.

McHUGH J:   And Leon Fink Holdings.

MR BENNETT:   Yes, it is a well-known principle of statutory interpretation. The other aspect is this, that it has been said a number of times by my learned friend that section 80 can be picked up through section 68, which in some way incorporates it, but section 68 does not do that at all. What section 68(2) says:

The several Courts of a State.....shall, subject to this section and to the section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences –

That does not incorporate section 80. All that does is say, subject to the application of section 80 if it is applicable. It does not make it applicable if it is otherwise inapplicable. So, in my respectful submission, one does not get to section 80 through section 68. One certainly does not get to section 80 directly, because they are not Commonwealth offences. One can only get there by saying they are deemed to be, or treated as, for certain purposes.

GAUDRON J:   But may not section 29(2)(a) do that work:

For the purposes of a law of South Australia – - -

MR BENNETT:   Your Honour, all that says ‑ ‑ ‑

GAUDRON J:   Well, I know, but one is never too clear exactly what – one knows what it says.  It is how it operates.

MR BENNETT:   But, your Honour, what is important is what it does not say.  It does not say, “for all purposes an offence against the applicable provisions”, et cetera; it does not say that.  It says, “For the purposes of a law”.  In other words, when you are construing it ‑ ‑ ‑

GAUDRON J:   Well it would be all the laws of South Australia though, would it not?  I mean, for example, what I am getting at here, Mr Bennett, is there was clearly an intent that there should be a uniform operation of offence laws, and uniform methods of dealing with it.  Now we know South Australia has the Jury Act, which may enable a jury of 10 - New South Wales does not.  Why would you not, looking at section 29(2), take the view that throughout all the States – you are assuming they all have equivalent legislation – make them, for the purposes of their law, as if they were a law of the Commonwealth, thus requiring, in the case of indictable offences, juries of 12 people?

MR BENNETT:   Because that would be inconsistent, your Honour, with the specific provisions in sections 55 and 56.

GAUDRON J:   Well, with what?

MR BENNETT:   Well, your Honour, section 56 says “the laws of South Australia” concerning “criminal procedure” apply, et cetera, and criminal procedure includes the trial and conviction on indictment, and the hearing of appeals, and so on.

KIRBY J:   Picking up Justice Gaudron’s point, one would not want to, as it were, facilitate the circumvention ‑ ‑ ‑

GAUDRON J:   That is subject to this division.

MR BENNETT:   Yes, and that division commences with section 53.

GAUDRON J:   Yes.

MR BENNETT:   Yes, and subsection ‑ ‑ ‑

GAUDRON J:   I do not know if “criminal procedure” relates to a right to jury trial either, and it is “so far as they are applicable”. You see, section 56 sort of does the job in relation to Corporations Law offences that section 79 of the Judiciary Act does, but it is “so far as they are applicable”.  What if 29(2)(a) has rendered the Jury Act inapplicable as it clearly has, one would imagine, rendered the Evidence Act inapplicable?  The South Australian Evidence Act.

MR BENNETT:   Your Honour, in my submission, that is not the way one would read 29(2).  One would read it merely as saying that when one is applying a law of South Australia, one treats the offence as being a Commonwealth offence, and if South Australian law says Commonwealth offences shall be treated one way and State offences another way, then the Commonwealth offence provision applies.

GAUDRON J:   It does, that is the point I am making.

MR BENNETT:   But that is not adopting all Commonwealth law and making it applicable.

GAUDRON J:   No, but it has taken not to be an offence against the laws of South Australia which would bring in the South Australian Jury Act which allows for juries of less than 12.  It is deeming it for the purposes of the law of South Australia, to be a Commonwealth offence, and for the purposes of the laws of South Australia, at least, a Commonwealth offence requires that the Jury Act not apply and that there be a jury of 12.

MR BENNETT:   With respect, no, your Honour. That is not a law of South Australia, that is the effect of the Constitution and the Commonwealth law, and the paramount force ‑ ‑ ‑

GAUDRON J:   It may be, yes.  You can look at it that way, but once it is taken not to be an offence ‑ ‑ ‑

KIRBY J:   It has to be some form of offence and, therefore, it is a sort of hybrid Commonwealth offence which attracts the Constitution, and why should we read down section 80?

MR BENNETT:   Your Honour, it is not reading down section 80.

KIRBY J:   This will just become yet one other means to circumvent and drive a camel and horses through the constitutional guarantee.

MR BENNETT:   Your Honour, one can do that simply by not making the offence indictable, of course, with any offence.

KIRBY J:   Well, query.

MR BENNETT:   That has been said, I think.

KIRBY J:   It has been said and been doubted.

GAUDRON J:   Let us look at it this way.  It is taken to be an offence against the law of the Commonwealth.

MR BENNETT:   Yes, for the purposes of South Australian law.

GAUDRON J:   For the purposes of South Australian law.

MR BENNETT:   Yes.

GUMMOW J:   And, if I can add, in each of the other jurisdictions, they will have their own version of 29.

MR BENNETT:   Yes.

GUMMOW J:   So when you apply 56 and it talks about other laws, other States, they come, as it were, with an extra leg given them by their 29.

MR BENNETT:   Yes.

GUMMOW J:   You see.  In other words, if 29 works as has being put to you in relation to South Australia, it will work in the same way, uniformly, because the other State and Territory Acts will have their own section 29.  Right?

MR BENNETT:   Yes.

GUMMOW J:   Then that work having been done by all the section 29s, you then apply 56.

GAUDRON J:   For what residue there is.

GUMMOW J:   Yes.

GAUDRON J:   For where there is no Commonwealth law, but in terms of 29, for the prosecution of a law of the Commonwealth in South Australia, South Australia has to gather together and empanel a jury of 12.  It may be that is because of the operation of Commonwealth law, but it is still up to South Australia, for the purposes of its law, to do that for any Commonwealth offence.

MR BENNETT:   Yes.

GAUDRON J:   Why does 29(2)(a) not require exactly the same?

MR BENNETT:   Because, your Honour, the reason South Australia does that is not a law of South Australia.  That is not for the purposes of the law of South Australia.  The only thing the law of South Australia says is that you have the Juries Act.  It is only where one has a law of South Australia that itself creates some differentiation that 29(2) can have any operation.

GUMMOW J: Section 56 would be a law of South Australia, would it not, for the purposes of 29(2)?

MR BENNETT:   No, your Honour, because section 56 is a specific provision and section 29(2) is a more general provision, so one would read section 56 as prevailing over section 29.

GAUDRON J:   You would, but why, because it says “so far as they are applicable”. I would read it really as doing exactly the same work as section 79 of the Judiciary Act.  It comes into operation only when there is no Commonwealth law operating in the field.

MR BENNETT:   Your Honour, all “so far as they are applicable” does is take out provisions which are inappropriate to persons charged with corporate offences. If one had a rule which operated only in relation to motor vehicle offences, for example, that would be laws which were not picked up by section 56.

GAUDRON J:   Well, it is a question of which comes first, is it not, section 29 or 56, really?

MR BENNETT:   The words, so far as they are applicable of course, appear in ‑ ‑ ‑

GAUDRON J:   And then the question is, of course, too whether criminal procedure is really adequate to refer to trial by jury of 12, for example.

MR BENNETT:   Yes. Your Honour, I have made my submission. That is simply not a matter of the law of South Australia. I am reminded that section 56 is based on section 68(1) of the Judiciary Act.  In Browns Case, there are two passages: one in the judgment of Justice Deane at page 206 and Justice Dawson at page 218.  That case is Brown v The Queen (1985) 160 CLR 171. The passage at page 206, and this is also a section which has the words “so far as they are applicable” in it. It says:

The direction of s. 80 of the Constitution also precludes the Parliament of the Commonwealth from enacting a valid law making the provisions of s. 7 of the Juries Act indirectly applicable to the trial on indictment of Commonwealth offences in the South Australian courts. In fact, the parliament has not attempted to enact any law having that effect. To the contrary, the provisions of s. 68(2) of the Judiciary Act –

and, we say, section 56 -

vesting jurisdiction in State courts in relation to such offences are expressly made “subject … to section 80 of the Constitution” while the provisions of s.. 68(1) of that Act apply State laws of procedure to the trial of such offences only “so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth …” –

and there are similar remarks by Justice Dawson at 218 and Justice Brennan at 200.  So that shows the view which has been taken in relation to that section which, we submit, applies.

The final matter in relation to section 29 is validity.  My learned friend refers to section 29(1) as if it was picking up the entire 100‑odd volumes of Commonwealth legislation and applying them all the willy‑nilly.  Of course, it is not doing that.  It is picking up adjectival criminal law in relation to certain offences.  It is doing something far, far narrower than anything my learned friend is referring to.  Obviously it is not picking up legislation about bounties on beetroot crops.  It is not picking up Commonwealth taxation legislation.  It is not picking up 99.9 per cent of legislation.  It just has nothing to do with it.  It is just picking up the things like the Crimes Act and the DPP Act, and a couple of other adjectival criminal statutes, and making them applicable.  That is all it is doing.  My learned friend’s description is simply inapposite when one reads the subsection as a whole, rather than reading it individually.

CALLINAN J:   You say it does not pick up section 80 of the Constitution?

MR BENNETT:   Yes, your Honour, we say it does not, because that is not a Commonwealth law for the reasons given in Sankey v Whitlam.  But we stress the primary submission in relation to section 29 is that it just does not apply at all to Code offences, it is only applying to the law.

KIRBY J:   The question may be not whether it picks up section 80 of the Constitution, but whether it creates this federalised offence, the better construction for which is that it then attracts all the paraphernalia of federal law, because you would not want to be construing State statutes that will provide a way of getting around the obligations of section 80. If you go federalising them, it may well be that if there is an ambiguity, that the better line to take, the better journey for the court to take, is to say, “Well, you federalise them, you pick up the Constitution, section 80, and you pick up the Evidence Act, and you pick up the Crimes Act for the punishment”, and so on, because that will then have the benefit of the national approach but, more importantly, it will not just take right to jury trial as a mere matter of procedure but will treat it as the Constitution of the Commonwealth treats it.  It is a very important fundamental right of the people of Australia.

MR BENNETT:   Well, your Honour, we submit that is not what 29 says and, in any event, on no view is it applied to section 91, to Code offences.  Section 29 is not picked up by anything in section 91, which is only concerned with the enforcement powers and the other powers of the DPP.

McHUGH J:   The appellant sought to make it apply through section 91.

MR BENNETT:   Yes, I know the appellant does, and our submission is that that just does not arise.  There are two references to the national scheme law in section 91.  One is in 91(1)(b), one is in 91(4).  Both are limited.  Section 91(b) simply says that the Director performs the functions conferred on him by the DPP Act in relation to Commonwealth laws as if the offence was a national scheme law.  So, that is merely the functions of the DPP in the Commonwealth DPP Act, nothing else, and 91(4) is:

For the purposes of the exercise of enforcement powers, and other functions and powers conferred by this section –

which is 91(1)(b) for relevant purposes, the –

co-operative scheme law is taken to be an offence –

Again, neither of those have anything to do with section 29 which is taking a far broader approach in relation to the law.  Remember, the purpose of this, your Honours, is that in relation to transitional provisions, one is not going as far as one is going ultimately.  To the extent that there was an aim of federalising – if I may use that unfortunate term in a general sense – that intention is limited to the law.  So far as the Code was concerned, the aim was to have a smooth transition with a far greater degree of State involvement than there was in relation to law offences, and that is clear from section 91.

CALLINAN J:   Mr Solicitor, what about the punishment provisions of the Crimes Act, are they picked up by section 29?

MR BENNETT:   They are picked up, I think, your Honour, also by sections 55 and 56.

KIRBY J:   They were not complied with here.

MR BENNETT:   Yes – I am sorry, your Honour?

CALLINAN J:   They were not complies with here, were they?

MR BENNETT:   No, your Honour, it is done under State law by virtue of section 55 and 56.

KIRBY J:   If they were not complied with, is that not a serious deprivation from the obligations that follow from the legislation?

MR BENNETT:   No, your Honour, they are not complied with because the State ones are complied with, which is what sections 55 and 56 require in relation to Code offences.

CALLINAN J:   Which parts of sections 55 and 56?

MR BENNETT:   I am sorry, I am jumping a step; I may not be quite right in the answer I gave a moment ago.  In relation to Code offences, if there is no provision in section 91 dealing with sentencing and punishment, it is simply a matter of the application of State law.  The Code, which is a State law, continues to apply ‑ ‑ ‑

GUMMOW J:   By virtue of section 85, is it, or ‑ ‑ ‑

MR BENNETT:   Yes, your Honour.

GUMMOW J:   Section 85(1)(a), I suppose?

MR BENNETT:   Yes, section 85(1)(a) and perhaps (b), but certainly (a).

GUMMOW J:   And the concluding words of section 85(1)(a) – I do not know – would that pick up section 91?

MR BENNETT:   That refers to section 91, your Honour, yes, and whatever 91 picks up. So, one does not need to go to section 55. There is nothing in section 91 that takes away the provisions in relation to sentencing and the like from the State in accordance with the Code.

GUMMOW J:   But in the future as to the law, what will happen?

MR BENNETT:   As to the law, it is ‑ ‑ ‑

GUMMOW J:   As to sentencing regimes, for example?

MR BENNETT:   That is dealt with at section 55(1)(a)(iv).

GUMMOW J:   Yes.

GAUDRON J:   That is jurisdiction. What is the law to be applied? Does that come in through section 56?

MR BENNETT:   I am sorry.  Then one goes to section 28(2)(e) ‑ ‑ ‑

GUMMOW J:   Well, that is an object.

GAUDRON J:   Well, section 29.

MR BENNETT:   Yes, the approach which is taken is that, because of section 28(2)(e), in relation to matters arising under the law, sentencing is done under the Commonwealth Crimes Act, but in relation to matters arising under the Code, they are dealt with under the State regimes.

GAUDRON J:   And the prosecution is done as if under the Commonwealth Crimes Act?

MR BENNETT:   Yes, your Honour.

GAUDRON J:   With a jury of 12?

MR BENNETT:   Yes, your Honour; under the law that is the practice.  We would take the view that is for more abundant caution, but it is the practice, but it is not under the Code.

GAUDRON J:   No, but that takes us back to section 80.

MR BENNETT:   Yes.

GAUDRON J:   So the Commonwealth concedes, does it, that at least for offences under the South Australian Corporations Law, there has to be a jury of 12?

MR BENNETT:   No, your Honour, I do not make that concession.  That is, in fact, what is done because we are acting for more abundant caution as a matter of safety in relation to that.

GUMMOW J:   It sounds as if you only do these things if they are wrung out of you.

McHUGH J:   Well, worse than that.  You seem to me to have almost completely abandoned the written submissions that were filed in this case.  Very difficult.  The argument you have put here today does not seem to bear much relationship to the submissions, Mr Bennett.

MR BENNETT:   It is basically the same, it is just in a different order, your Honour.

McHUGH J:   For instance, it seems fairly fundamental to your case that 29 has nothing to do with it except in paragraph (1)(d) which you say is – you do not really press the argument but, if you read your submissions, paragraph 2A, paragraph 4D, one could be pardoned for thinking that you accepted that section 29 applied to this particular offence.  I was certainly misled.  I had a feeling this morning that I had been led up the garden path by Mr Gray, but if I have it is not by Mr Gray so much as a combination of his submissions and your submissions.

MR BENNETT:   Your Honour, the reference in paragraph 2A to section 29 is only in the context of the law, not in the context of ‑ ‑ ‑

McHUGH J:   But the law has nothing to do with it, on your submission.  We are dealing with the Code.

MR BENNETT:   Yes, your Honour.

McHUGH J:   So why mention it.  The same in respect of 4D.

MR BENNETT:   4D is dealing with the Code.  No, 4D is only talking about the scheme law and it is discussing the effect of the scheme law.

McHUGH J:   It may be, but I find it all very confusing.  Your argument today to my mind is much clearer than the written submissions.

MR BENNETT:   Your Honours, the fourth of the five ‑ ‑ ‑

McHUGH J:   I had not appreciated until your oral submissions this morning that section 29, on your view, has nothing to do with this case, really.  Am I right in thinking that, that is what the effect of your submission is today?

MR BENNETT:   Yes, your Honour.

GAUDRON J:   Except for ‑ ‑ ‑

MR BENNETT:   Except for (1)(d).

GAUDRON J:   Yes, which you do not press.

McHUGH J:   Which you do not press.

MR BENNETT:   I did not say I do not press, but which I leave as an alternative to your Honours.

McHUGH J:   But so far as Mr Gray is concerned, 29 is rather pivotal.  Having regard to your written submissions and his submissions, I must say I deceive myself.

KIRBY J: May I add to that that for a case with such complexity of the interrelationship of the statutes and, at least on one view, of the Constitution, the author of the written submissions confining them to four pages has really not helped me to come to grips with your argument. I know sometimes we get written submissions which are too long but this is too compressed for really quite difficult interrelationship of statute law. Anyway, that is how I reacted to the written submissions.

MR BENNETT:   Yes, I am indebted to your Honour.

KIRBY J:   It assumed a knowledge and a time to acquire knowledge of the statutory provisions that, speaking for myself, I did not have.

MR BENNETT:   If your Honour pleases. In relation to section 45 I can be much briefer. Again, it does not apply to Code offences. It is not picked up by anything appearing elsewhere, and that really is the answer. In relation to section 80 of the Constitution we say the same things that I have said in relation to the other provisions. It simply does not pick them up because the Constitution is not a law of the Commonwealth. I do not propose to go in detail to the matters that were dealt with yesterday, but in addition to that it does seem that it is in a portion of the Act which is confined to the reciprocal obligations of the Capital Territory rather than the more general matters.

GAUDRON J:   Do you accept it is the choice of law rule?

MR BENNETT:   Yes, your Honour, substantially.

GAUDRON J:   Well, what else is it?

MR BENNETT:   Well, your Honour, that is basically what it does.  It enables one where there is a matter involving elements of New South Wales and elements of the Australian Capital Territory.  It enables the smooth working of the two together in the same way as the other laws do between the States and the Territories.  It is part of that structure, and of course it is an Act passed under section 122.

GAUDRON J:   You do not seek to support it at all as an Act under the corporations power?

MR BENNETT:   For present purposes, your Honour, I would prefer not to answer that question if I may.  It is a very broad question that goes far beyond this case and it does not arise, we would respectfully submit, for decision in this case.

GAUDRON J:   Very well.

MR BENNETT:   The final matter is a very brief matter.  That concerns the question your Honour Justice Kirby asked about the use of the name of the Queen.  If your Honours go to the joint appeal book, your Honours will see that there has been not inconsistency but consistency.  The title “The Queen” is used in most of the documents but not all in the headings.  In some of the documents the heading is simply “The Commonwealth Director”, but the heading is ‑ ‑ ‑

KIRBY J:   In the documents emanating from this Court, the heading is “The Commonwealth Director of Public Prosecutions”.

MR BENNETT:   Yes.  Your Honour, if your Honours go to page 3 which is the first information, your Honours see it is headed “Commonwealth Director” and “The Commonwealth Director of Public Prosecutions informs the Court that”, and it is signed on behalf of the Commonwealth Director.  That applies to each of those.

KIRBY J:   But when the jurors are sworn, are they sworn to try the matter between the Commonwealth Director and the accused, or are they sworn to try the matter between Her Majesty the Queen, or our Sovereign Lady the Queen and the accused?

MR BENNETT:   I do not know, your Honour, but I will come to the sections of the Act in a moment, if I may.  The documents emanating from the Court tend to have the letter “R”.  For example, the judgment at page 9 says, conveniently, “R (Commonwealth)”.  The judgment at page 22 is simply “R”.  If one goes to the orders of the Court, at page 49, they have the Director as the party.  That, of course, is the Court’s document.  The order of this Court at page 55 has the heading, “The Queen”.

KIRBY J:   Yes, I correct myself.  I was looking at the South Australian orders.  They are in the name of the Director, and our orders have been intituled in the name of “The Queen”.

MR BENNETT:   Yes.  Now, I have given your Honours the sections of the Criminal Law Consolidation Act which deal with this question.

GAUDRON J:   Yes, but so far as this Court is concerned, it is on appeal from an order from the South Australian Court of Criminal Appeal in which the party is the Commonwealth Director of Public Prosecutions.  Should it not be so here?

MR BENNETT:   Yes, your Honour, but may I just show your Honour the sections first ‑ ‑ ‑

GAUDRON J:   Yes.

MR BENNETT:    ‑ ‑ ‑ before answering that.  Your Honours will see section 275, on the front of the four pages I have provided, provides that:

Any person may be put upon his trial at any criminal sessions…..for any offence, on an information presented to the Court in the name and by the authority of the Director of Public Prosecutions.

That is, of course, the State Director, but made applicable by our legislation. 

If I can skip a page, two pages in, section 362:

The Director of Public Prosecutions or counsel on his behalf shall appear for the Crown on every appeal –

so the assumption there is that it is the Crown involving.

If one goes back to the second page, there is a provision about rule of court which have effect as if enacted in the Act, and Schedule 3 on the last page sets out rules and rule 2 at the bottom of that page says, “The commencement of an information shall be in the following form:  SOUTH AUSTRALIA - The Queen v. A.B”, and then, “Information of the Director of Public Prosecutions”.

KIRBY J:   I can understand this in the context of the South Australian Act which, as I recollect it, has something “shall be brought on behalf of the Queen”, whereas the Commonwealth Act does not contain that in the Director of Public Prosecutions Act.

MR BENNETT:   The reason it may have some significance, I suppose, your Honour, is that if I am correct about section 55, and in particular about the State nature of this prosecution, other than to the extent that section 91 authorises the Commonwealth Director to do it, it may well be that matters such as the intitulation of the proceedings are procedural matters which are dealt with under State law, and therefore that it is appropriate under State law to treat the Director as prosecuting on behalf of the Crown.

I am instructed that that is certainly the view taken by the South Australian Supreme Court, which takes the view that the Commonwealth Director should use the words “The Queen”.  Your Honour can see, of course, in the Court’s internal documents, that has been done.

KIRBY J:   I am not trying to be difficult here, and I am understanding of the view of the Supreme Court of South Australia.  But if the federal statute is empowering, by the authority of the Parliament of Australia, the Director of Public Prosecutions to issue proceedings, and there is no mention of Her Majesty in the Act, then, except by tradition, there would be no warrant to include, or even trouble the Queen, to be mentioned in the matter.  It is brought by the Director of Public Prosecutions for the Commonwealth by the authority given to him or her by the Parliament of the Commonwealth.  I must say, I am a bit with Justice Gaudron, if the orders of the Supreme Court of South Australia were intituled in the name of the Director of Public Prosecutions for the Commonwealth and the present appellants, it would seem appropriate that our record should be so intituled.

MR BENNETT:   Yes.  Your Honour, we have no objection to that course being taken.  What I do submit is that it does not affect the substantive matters in this case.  The information was certainly brought by the Director, whether one then heads the matter in the traditional way or on the basis that any public prosecutor brings proceedings in the name of the Queen, rather like an American prosecutor brings them in the name of the people and ‑ ‑ ‑

KIRBY J:   I hope we never have that.  But in the Court of Criminal Appeal of New South Wales I endeavoured to persuade my colleagues to change it to say Hopwood v Regina, putting it as some of the English reports did in the past in the proper accusative case, but they were unmovable and so it stayed R versus, or The Queen versus, and that was true for federal as well as State offences, and that seems to be the practice in South Australia.  Perhaps if you have a court of 150 years, that has been doing something this way for 150 years, they just do not like to change.

GAUDRON J:   We will not go into the Latin declensions and so forth today.  Have you finished your submissions, Mr Solicitor?

MR BENNETT:   Only to answer this.  I was asked about the oath.  Section 33 of the Juries Act provides that:

The Sheriff must cause all jurors…..to take an oath or affirmation in the form of schedule 6.

That schedule says – that is an inquest, I think that is the wrong one.

KIRBY J:   That is the word used in Juries Acts.

MR BENNETT:   Is it?  Well, in that case it simply says:

I (or we) do swear…..that I (or we) will honestly, conscientiously –

et cetera –

try the issues at any inquest at which I (or we) may be required to serve and will render a true and honest verdict in accordance with the evidence.

So it does not answer the question.  May it please the Court.

GAUDRON J:   Yes, thank you.

KIRBY J:   Could I just ask one last question?  Apart from the one matter you mentioned, is there any other difference between your submissions and those that we are about to hear on behalf of South Australia?

MR BENNETT:   I have not compared them line for line but I understand they are to be the same except for section 68 of the Judiciary Act.  One other case I did not mention to your Honours, I am sorry, was in relation to the question of the status of an appeal and the extent to which an appeal is regarded as adjectival or carried with the reference to proceedings or relates to proceedings.  I simply remind your Honours of what was said in the Electric Light and Power Supply Case 94 CLR 554 at page 559. It is the familiar passage which says that where you confer a new jurisdiction on an existing court you are deemed to take with it the appellate rights from that court.

Now that, of course, is not quite this case although it is close to it.  If one applies that principle literally in this case, the mere conferral of a new jurisdiction on the Supreme Court of South Australia in criminal matters would take with it any existing rights of appeal.  We use the case in a rather more general way than that to show that appeals are something which relate to the proceedings and are treated that way for other purposes.

McHUGH J:   I looked at Anthony Hordens?.  There is a passage at pages 20 and 21 that supports you but the better passage is at pages 7 and 8.

MR BENNETT:   I hope that supports me as well, your Honour.  If the Court pleases.

GAUDRON J:   Yes, Mr Selway.

MR SELWAY:   If it please the Court.

GAUDRON J:   You may wish to comment on the correct title at some stage, it being your jurisdiction.

MR SELWAY:   Yes.  I was going to leave that till last.

GAUDRON J:   Yes, thank you.

MR SELWAY:   Your Honours, the South Australia Attorney’s primary interest is the validity of section 29 of the Corporations (South Australia) Act.  Obviously, to consider that question one has to know what it means and how it operates.  We have two fundamental differences with the interpretation put forward for the appellant.

McHUGH J:   I have to say the argument this morning has thrown me out completely because, I have to say at the moment, it seems to me there is much force in what Mr Bennett said that 29 has got nothing whatever to do with this particular appeal.

MR SELWAY:   Could I perhaps say this, your Honour – I will come to it in more detail in a moment. It is not often that South Australia is swayed by the oratory of the Commonwealth, but in this case we would say that section 55, at least in respect of jurisdictional issues, seems to be the appropriate provision in respect of the Corporation Law, rather than section 29. But I will come to that in a moment and consequently, what we will put is our argument as to how section 68 operates should probably be seen as an alternative to my learned friend. It may be that it makes no difference in practice in this case, because the reality is, whichever way you get there, you do not get to a constitutional issue in respect of the Corporation Code, you may in respect of the Corporation Law and it is in that context that the difference ‑ ‑ ‑

McHUGH J:   Well, Mr Gray relies on section 91(1) and section 91(4) to incorporate section 29(1), and up until this morning he was well on the way to persuading me that was so, but having listened to the argument today – that would seem to be reinforced by the Commonwealth’s submissions, which I thought tended to accept that, but I was obviously wrong about it – when I say submissions, I mean their written submissions.

MR SELWAY:   Yes. We did not understand the Commonwealth’s written submissions to go that way; we understood that there was a difference between the approach they were taking and the approach we took, and we have been thinking about it for a couple of days, and that is, as I say, been resolved by my learned friend’s submissions, that we think he is probably right, that at least in respect of jurisdiction you do not go to section 29, you go to section 55.

McHUGH J:   Yes.

GAUDRON J:   But do you go to either of them for a co-operative scheme law, that is the real question, I think?

MR SELWAY:   Well only if you have gone to section 91(1)(b). On section 91(1)(b) the Commonwealth DPP has the same powers as he would have in respect of Corporations Law.  So, in that context, it is necessary to determine what powers he has.

GAUDRON J:   He may have the same powers, but section 91(1)(b) does not say that jurisdiction is conferred.

MR SELWAY:   I understand that, your Honour, and I will come to that in a moment, if I may.  Your Honours, we say that there are two fundamental problems with the submissions that have been put about the meaning of section 29:  the first of them is that the appellant says that section 29 applies generally to Code offences in the same way it does to Corporation Law offences, and you can see that in the second paragraph of paragraph 4.13 of his written submissions, and we say the basic argument, if you like, flows from that proposition, and, for the reasons that have been discussed this morning, which we do not need to repeat, we say that proposition is fundamentally wrong.

The second fundamental disagreement we have is that the appellant says that section 29 turns a State law into a Commonwealth law and that is set out at paragraph 4.8 of their written submissions and again flows right through them.  We say that also is fundamentally wrong.  What section 28 does is adopts and applies Commonwealth law as State law.  The proper approach, we say ‑ ‑ ‑

GAUDRON J:   You mean 29, do you. 29(2)?

MR SELWAY:   I am sorry, 29.

GAUDRON J:   And what do you say the effect of 29(2) is?

MR SELWAY:   We say it probably has the same effect, but it has the further explanation, if you like, that State law is not applied in determining what the meaning of Commonwealth law is; convoluted, I know, but when you turn the law back into a State law and apply it, you do not interpret it by then applying State law in working out its meaning as you would normally do for any other State Act.

GAUDRON J:   Do you say its effect is limited to that?

MR SELWAY:   Yes, your Honour, and I will perhaps could I come to the ‑ I will detail in the course of our submissions, I hope relatively shortly, what we say section 29 does, even though it may end up having no application to the case anyway, but we will say how it works.

Your Honours, given that the matter has also now raised the question of how these matters work in relation to the trial, it may be at least convenient to deal with that issue as well and the way we say the Corporations (South Australia) Act operates.  We say that section 85(1) has the effect that the Corporations Code has continuing effects in relation to offences that occurred prior to the date of operation of 1 January 1991 and on the face of it, ordinary State laws continue to have meaning and effect subject to the provisions of sections 85 to 92.  The only relevant one for these purposes being section 91.

So if one looks then at the trial, the trial before the District Court, I think we have handed up to the Court the relevant provisions of the District Court Act, section 9, which gives the court:

jurisdiction to try a charge of any offence except treason or murder –

and that is subject to subsection (3) which refers to “summary offences” and limits the power to hear a summary offence.  There has to be a charge and the matter has to get before the court.  That is done under section 275 of the Criminal Law Consolidation Act.  I think we have also handed up that though the same section is on the sections that my learned friend, the Solicitor for the Commonwealth, handed up this morning as well.  But section 275 says:

Any person may be put upon his trial at any criminal sessions of the Supreme Court or District Court, for any offence, on any information presented to the Court in the name and by the authority of the Director of Public Prosecutions.

In terms of how section 91 operates, if you like, in respect of that relatively simple system, section 91(5) defines an “enforcement power” as including:

the institution and carrying on of a prosecution of an offence –

and section 91(1) says that the Director of Public Prosecutions for the Commonwealth:

has the same enforcement powers in relation to the co-operative scheme laws as has…..the Director of Public Prosecutions –

So, we would say, by that very simple method, effectively amending by implication section 275 of the Criminal Law Consolidation Act, which limits the power to issue an information to the State DPP, the Commonwealth DPP clearly has that power to issue an information in respect of a breach of the Corporations Code, and the District Court has jurisdiction to hear it. No issue of section 29 arises, no issue about section 80.

The question about appeal is much more complicated, for two reasons.  The first is the complication arising from section 352(2), which not only confers the power upon the State DPP to appeal, but also confers the relevant jurisdiction upon the Supreme Court, and as discussed this morning, may also have a procedural aspect.  Your Honours, we acknowledge the drafting inelegance in dealing with section 352 of the Criminal Law Consolidation Act and section 91 of the Corporations (South Australia) Act together.  Nevertheless, we say that the parliamentary intent is clear enough to the effect that if, for example, and from whatever source, the Commonwealth Director of Public Prosecutions has the same power to institute an appeal, or to seek leave to appeal, as does the State Director of Public Prosecutions under 352, then it is a necessary implication from that that the Supreme Court has jurisdiction to hear that appeal, and for that purpose that section 91 must necessarily amend section 352(2) of the Criminal Law Consolidation Act to achieve that result.

KIRBY J:   Can you say anything more than the Solicitor for the Commonwealth said about how one would approach the construction of the provisions against the background of (a), the fact that the Crown did not previously bring appeals and that such power – I mean, appeal itself is a creature of statute, but the tradition for a long while was that the Crown did not bring them and that it has to be specifically granted and, in particular, clear language by the authority of the court?  Is there anything else you can say on that?

MR SELWAY:   Your Honour, that is the next step in my argument, but, as to that, what we will say is that we cannot add to what my learned friend has put and we adopt it, that it is an enforcement power for the reasons he has given.  Now, if we are wrong in that ‑ ‑ ‑

GUMMOW J:   Section 91 would still have a lot of work to do.  As you have indicated, it would amend section 275.

MR SELWAY:   Yes, and we say it must necessarily do that, your Honour.  It has no effect whatever if it does not do that.  That is its clear purpose and intent.

GUMMOW J:   Yes, the question is, does it have any further operation?

MR SELWAY:   Your Honour, we understand the difficulty and the sensitivity about dealing with jurisdictional issues through this sort of provision.  But the fact of the matter is, as I say, looking at the intent of the provision, if one inserted at the end of 352 “and the Commonwealth Director of Public Prosecutions also has a right of appeal, full stop”, there would be a peculiar result.

GAUDRON J:   You would do it only in relation to offences of a particular kind – State offences.

MR SELWAY:   Yes, your Honour.  But if one has that provision there and we have gone through the section 91 process and identified the relevant power in the Commonwealth DPP, it would be a very peculiar result if that was entirely ineffective because though the DPP had the power, the court did not have the jurisdiction to hear it.

GUMMOW J:   You also have an advantage at the lower level of section 9 of the District Court Act which is so ambulatory in its form.

MR SELWAY:   Yes.

GUMMOW J:   It is so different from 352.

MR SELWAY:   Yes, your Honour.  That was one of the reasons for bringing it to the Court’s attention, because it does not raise the same problems that 352 obviously does.

KIRBY J:   You also have in the same statute in 55 the specific mention of “appeals” which you do not get in 91.  It could have been drafted in such a way as to make specific reference to “appeal”. 

MR SELWAY:   True, your Honour, and that is the problem with enforcement powers.  We acknowledge that, the Court has been through that with my learned friend.  We adopt his submissions on it, as they are, and I think they ended up turning into his second choice.  So be it, but we adopt his submissions on that.  We say that is the first complexity, the problem of dealing with jurisdiction through section 91.

The second complexity in relation to appeals under the Code is whether the South Australian appeals are enforcement action for the purposes of section 91(1)(a) and, as I say, we adopt the submissions of the Commonwealth in that regard. If they are not enforcement action, then we would say the Commonwealth Director of Public Prosecutions can only institute an appeal if it comes within section 91(1)(b), that is he has the powers that he would have if the offence were an offence against the Corporations Law.

So the issue then is what powers does the Commonwealth have in that regard? There are two possible approaches, we say. The first is the one in our written submissions, which I will deal with in more detail, which is that section 29 picks up section 68(2) of the Judiciary Act and that is where the power comes from.  The second proposition is that ‑ ‑ ‑

GAUDRON J:   There is nothing specific in the Commonwealth DPP Act upon which you rely?

MR SELWAY:   There is, but Rohde effectively says it is not sufficient to give a right of appeal by itself.  You have to do it through the jurisdictional provisions, and we certainly not arguing Rohde is wrongly decided in that regard. So that being the case, we have to find some other provision giving that right. The second argument is that proposed by the Commonwealth – we would make a slight variation to it – that section 55 of the State Act is the power and section 29 does not arise at all. This is their argument, I think 1.c.

GAUDRON J:   And how do you make section 55 apply?

MR SELWAY:   Only this way: if the Commonwealth is right and section 55 is to the same general effect as section 68(2) ‑ ‑ ‑

GAUDRON J:   With respect to the applicable provisions?

MR SELWAY:   Yes, conferring of jurisdiction and so forth.  The High Court in Rohde has identified that section 68(2) carries with it a power, which, through the Commonwealth DPP Act, gives the Commonwealth DPP a right of appeal. Given that that is the effect of section 68(2), it would then seem to be the same effect of section 55. Consequently, section 55 does not solely confer jurisdiction. It also confers a right of appeal.

GAUDRON J:   With respect to offences against the applicable laws?

MR SELWAY:   Yes, Corporations Law.

GAUDRON J:   Yes.  How do you get into those?

MR SELWAY:   Only through 91(1)(b) because the Director of Public Prosecutions has the same power as he would have if it were a Corporations Law offence.  So if he could appeal in respect of the Corporations Law, he can appeal in respect of the Corporations Code.

GAUDRON J:   But that refers to powers conferred by the DPP Act.

MR SELWAY:   Yes, which includes a right of appeal.

KIRBY J:   It takes you to 9(7) of that Act.

MR SELWAY:   Yes.  There is a right of appeal in the DPP Act.  It is just that it has been held not to be sufficient to enable you to appeal.

GAUDRON J:   Yes.

McHUGH J:   It has to find a home.

MR SELWAY:   Exactly, your Honour.  So the only place we would ‑ ‑ ‑

GAUDRON J:   So you rewrite section 55, in effect?

MR SELWAY:   In effect, your Honour.  It requires some rewriting.

GAUDRON J:   Yes.

MR SELWAY:   And the rewriting can be – my learned friend suggests 91(4) – we would say 29 would also do that job. But that interpretation avoids the need to go to section 68.

Having said that, your Honours, given the submissions have been made about the meaning and effect of section 29, we say that the only application that section 29 could have – as with section 91(4) if it applied – is for determining the extent of the DPP’s powers.  In that regard, what section 29 requires to be done, we say, is almost a three-step process.  Firstly, you treat the State offence as if it were a Commonwealth offence; second, you determine what Commonwealth laws would apply in respect of that offence and you determine their effect; and third, you then apply that effect as a law of the State.

To pick up your Honour Justice Gaudron’s comments yesterday, that necessarily requires redrafting but, we would say, only to the extent of treating laws of the Commonwealth as laws of the State.  That is the redrafting that section 29 clearly requires.

GAUDRON J:   Yes. So it does not pick up section 68?

MR SELWAY:   The problem with section 68, we would have said, is “the laws of the Commonwealth”.

GAUDRON J:   Yes.

MR SELWAY:   If you read into section 68 “laws of the State” instead of “laws of the Commonwealth”, it then applies. The Commonwealth would not have power to pass it, but the Commonwealth has not passed it. South Australia has. We say that is its effect. That approach, though, does preclude ‑ ‑ ‑

GUMMOW J:   I am not sure how…..the text of section 68. How would it read? How would section 68(2) now read, if it is being given this operation by virtue of section 29?

MR SELWAY:  

The several courts of a State –

in this case, South Australia – - -

GUMMOW J:   So you would say “The several courts of the State of South Australia”?

MR SELWAY:   Yes. Effectively, we would have said, but for section 55 – assuming section 55 was not there, section 29 would have the effect of reapplying State jurisdiction through section 68(2), because in the absence of using section 29 there would be nothing that would confer jurisdiction on our courts.

GUMMOW J:   I was just wondering how the word would work, that is all, and:  “The several courts of the State of South Australia with respect to (a) (b) and (c) of offenders charged with offences against the laws of that State”.  It would still read “that State”, would it?

MR SELWAY:   Yes.

GUMMOW J:  

and with respect to the hearing and determination of appeals.....
shall, subject to –

the rest of section 68?

MR SELWAY:   Yes.

GUMMOW J:   Which will require some ‑ ‑ ‑

GAUDRON J:   Rewriting.

GUMMOW J:   Rewriting -

and to section 80 of the Constitution – - -

MR SELWAY:   Yes.

GUMMOW J:   What does that mean? “Subject to section 80 of the Constitution”. Section 80 of the Constitution, by definition does not speak to this situation.

MR SELWAY:   No, your Honour, but what it does do is have an effect on section 68(2). It means that certain courts cannot be conferred jurisdiction or, if they are conferred with jurisdiction, they have to exercise it in a particular way.

GUMMOW J:   Yes.

have the like jurisdiction with respect to persons who are charged with offences against laws of the Commonwealth.

That stays, does it?

MR SELWAY:   Well, except you would not read in “applicable provisions for the purpose of section 29”.

GUMMOW J:   Well, “charged with offences against the applicable laws”, which is, in accordance with the definition, limited to the law, basically.

MR SELWAY:   For these purposes that is a sufficient description, yes, your Honour.

GUMMOW J:   Yes.

MR SELWAY:   The conclusion we come to about that, assuming that section 68(2) is the relevant source of the jurisdiction and power, is that, in respect of a Corporation Law offence, section 80 applies, not by virtue of section 80, but by virtue of State law.

GUMMOW J:   Yes, but you differ from the Solicitor for the Commonwealth in this respect.

MR SELWAY:   Yes. If the Solicitor for the Commonwealth is right and that section 55 is the source of the jurisdiction and the DPP’s power, then it is not obvious to us that that conclusion would follow that section 80 applies. We would see section 80 only applying by virtue of that qualification in 68(2).

GAUDRON J:   But what effect do you give to the words in 29(2)(b), “is taken not to be an offence against the laws of South Australia”?

MR SELWAY:   We say that section 29 is basically a provision telling you what laws apply and what they mean.  We see section 29(2)(b) as a direction that interpreting ‑ ‑ ‑

GAUDRON J:   Yes, “For the purposes of a law”, which I presume means any law or all laws ultimately.

MR SELWAY:   Yes, but the purpose of it is in determining the meaning and effect of an offence against an applicable provision, you do not interpret it, you do not treat it as if it is an offence against the law of the State.  The reason for that is because you have applied Commonwealth law to fill those gaps.

GUMMOW J:   Excluding the State Interpretation Act, for example?

MR SELWAY:   Yes.

GAUDRON J:   But the question is:  does it do more?

MR SELWAY:   I understand that, your Honour, and what we would say is, given its purpose and effect, that is what it does, that is how it operates; it is clear enough.

GAUDRON J:   What about the Commonwealth Evidence Act?

MR SELWAY:   Your Honour, we would say that if section 29(2) applies in the way we would say it does, yes, the Commonwealth Evidence Act applies.

GAUDRON J:   And the Sentencing Act?

MR SELWAY:   We would agree – for a Corporations Law offence, yes.

GAUDRON J:   And what about your Jury Act?

MR SELWAY:   On the view we would take, that is to say, assuming we are using section 29, then the Juries Act would not apply because, if for no other reason, it is inconsistent with section 68(2). But our understanding is that the Commonwealth DPP ensures that there is compliance with section 80 in respect of Corporation Law offences, and always has.  So as a practical matter it is not likely to be a problem.

But as we understand the Commonwealth’s submissions which, as I say, seems to us to have considerable force, it is probably not section 29, it is sections 55 and 56, and that raises different problems and different issues. In particular, you avoid section 68(2), if you can use section 55 and, on the face of it, it looks like section 55 was intended to achieve that result.

GAUDRON J:   Then you have to relate section 29 to section 56.

MR SELWAY:   Yes, which has its own complexities. Your Honours, what we say is that whatever approach one uses ,and even assuming that the court came to the view that section 68(2), read with section 91(1)(b), is the source of the Commonwealth DPP’s power to appeal in respect of Code offences, that still does not mean that section 80 has any application, and that is for two reasons.

First, the only issue here is appeal. We have already taken the Court to the jurisdiction to hear the offence. The only jurisdiction here is an appeal and section 80 of the Constitution, including its application through section 68(2), has no application to an appeal. My learned friend argues that there can be no appeal if there has been no compliance with section 80, and we say that is simply a wrong statement of the law and we adopt the comments of your Honour Justice McHugh about Crane v DPP (1921) AC 299, but also make the point that the appeal that I understand my learned friend is about to institute would, on that analysis, be invalid on his own argument.

GUMMOW J:   Malvaso is a prime example.

MR SELWAY:   Yes, exactly. Thank you, your Honour. The second reason that section 80 cannot apply in respect of a Code appeal is that the only issue for which you go to section 29 is the powers of the Commonwealth DPP. Those powers have nothing whatever to do with section 80. The jurisdiction, if there is one, comes out of 91(1)(b) in due course.

Your Honours, we say that the other possible approach is that suggested by the Commonwealth in paragraph 1C and we have already conceded we think that is the preferable approach, and for that purpose we would be obliged if the Court would view our submissions about section 68 as an alternative submission, in particular to answer the matters raised by the appellant. On that basis, we say section 80 simply does not arise and has nothing to do with the matter.

As to the issue of abrogation, we say that under the scheme the State Parliament has retained the power at any time to repeal the legislation and to withdraw such authority and discretion as has been vested by the legislation in the Commonwealth Parliament.  We would just refer the Court to Cobb & Co Ltd v Kropp (1967) AC 141 at 156. We would say, generally, that co‑operative schemes of this type are not an abdication by State Parliaments of their powers. Rather, they are an achievement of the legislative policy of introducing a national scheme whilst reserving for each State the power to remove itself from it. That is what these schemes are designed to do. It is the reason why these schemes are used rather than a referral of power.

KIRBY J:   Are there other schemes apart from the cross-vesting scheme and this scheme?  Are there any other schemes of this kind, co‑operative schemes?

MR SELWAY:   Yes, there are, your Honour.

KIRBY J:   In marketing and in recognition of different qualifications and ‑ ‑ ‑

MR SELWAY:   As a simple example, in Fisheries there was a co‑operative scheme that was considered in Port McDonald Fisheries.  Some part of that was ‑ ‑ ‑

GUMMOW J:   Mutual recognition is a referral of powers, is it not?

MR SELWAY:   Yes, it is.  Some of them are referrals.

GUMMOW J:   You were not afraid you could not get that back, were you?  Likewise, exnuptial children.  Do not worry about them.

MR SELWAY:   The reality, your Honour, is that it is about negotiating positions.  That is the political reality of why you use this scheme rather than that, whether you want to be at the table when there is an amendment.  Whether there is any point in bringing it to the table is a matter about which my masters can argue, but that is the reason why you choose one against the other.  We would just say simply about that that the reasoning of Justice Kirby in Gould v Brown 151 ALR 395 at 491 is correct.

KIRBY J:   I think the majority in Kartinyeri also said something about this in the context of the power of the Federal Parliament to retrieve that which it had enacted.  I thought there was something in that.

MR SELWAY:   I have to say, your Honour, I cannot recall it but there may have been.

GUMMOW J:   I think it is really all about negotiations, Mr Solicitor, and I think this “can’t get it back there” is a furphy, frankly.  We keep hearing it from Solicitors‑General; I do not think they believe it.

MR SELWAY:   The problem here is we have some poor drafting, that is the problem.  The question is:  what does it mean?  Poor drafting is not per se a basis for constitutional invalidity.

McHUGH J:   I am not sure it is fair to describe it as poor drafting after, to use words of Sir Owen Dixon in the Bank Nationalisation Case, it is the product of much ingenuity on the part of those who thought it up.  It is obviously a scheme so complex there is going to be an odd hiccup here or there.  The whole scheme is quite ingenious really.

MR SELWAY:   I may have been unfair.  Perhaps I would put it this way.  The draft, as I understand it, was the basis of work by a lot of people, some of them working in committees.  Some inelegance in wording.

KIRBY J:   Say no more.

GUMMOW J:   And working quickly, I think.

MR SELWAY:   Yes, exactly, thank you, your Honour.  Other than that, could we perhaps adopt our written submissions with the following qualifications:  first, paragraph 3 of our written submission apparently contains an error about whether there was in fact a separate appeal instituted which was raised by my learned friend yesterday. We apologise for that and withdraw paragraph 3, if we can.  In paragraph 13 we refer to section 352(1) of the Criminal Law Consolidation Act as the source of the relevant power to appeal and for the reasons given by my learned friend yesterday, that is wrong, it should be 352(2) as it was prior to the last amendment.  Thirdly, paragraph 23 of our submissions are based upon section 62 of the Judiciary Act being the relevant source of the DPP’s power and as I have already pointed out, that should be seen as an alternative to the argument put by the Commonwealth.

Your Honours, the final matter is the question of whether it should be the Crown or the Director of Public Prosecutions as the appropriate party.  Your Honours, we say that the Crown is the appropriate party that prosecutes offences and that the DPP is the relevant officer to represent the Crown in that regard.  We say that in accordance with usual practice, the proceedings can be entitled either in the name of “The Queen” or “The DPP”, depending upon whether there are any rules that are applicable or any practice that is applicable.  Historically, the relevant officer to represent the Crown, particularly in prosecution, was the Attorney-General.  Your Honours may recall there was some discussion, I think, in the special leave application in Larrakia between – I think Justice Gaudron and Justice Gummow and the Acting Commonwealth Solicitor, Mr Burmester about ‑ ‑ ‑

GUMMOW J:   Yes, he wanted another Minister of State.

MR SELWAY:   Yes, and your Honour has pointed out that, that was not the usual practice.  I should point out that there has been a recent amendment to the Judiciary Act, which does not touch directly on this issue but on the more general one which, as I understand it, does give power of other ministers to instruct Australian Government Solicitor’s officers.  We would say that the ‑ ‑ ‑

GAUDRON J:   It does not purport to give them intervention rights in this Court.

MR SELWAY:   No, your Honour.  We would say that the Director of Public Prosecutions Acts – not all of them – are clear, as to the relationship of the Director of Public Prosecutions ‑ ‑ ‑

KIRBY J:   You say it is just an assumption on the basis of which they have been drafted.  Given the long history of 800 years, that that is the assumption.

MR SELWAY:   We would say that the Director of Public Prosecution generally steps into the shoes of the Attorney, and not into the shoes of the Crown.  The Acts, we say, generally deal with the relationship of the Attorney to the DPP and not the DPP to the Crown.

KIRBY J:   That does not seem to be important in this case anyway; it is only a matter of title.

MR SELWAY:   I will come to that in a moment, your Honour, but we would say another reason for maintaining, if you like, maybe the fiction of the Crown is the relevant party and not the DPP, is that some of the obligations upon prosecutors may be sourced, at least historically, from the position of the Crown as a fountain of justice and not just from the obligation that the prosecutor owes to the court and we would say that there would be some caution about assuming that that had been changed without it happening expressly.

KIRBY J:   Yes.  We had a case in Melbourne recently where the Director of Public Prosecution’s counsel indicated that he could not support the decision of the Court of Criminal Appeal of Western Australia.  Now, speaking only for myself, I thought that was a very proper stance for him to take, and it was one entirely in conformity with the old tradition.

MR SELWAY:   Certainly, and I would have thought all Directors of Public Prosecutions would be aware of and would certainly attempt to live up to those expectations.  But we would say, for practical purposes, the only real issue is what title the proceedings are brought in.  And, as I say, if there is not a practice or procedure specified, we would have said it makes no difference if they are bought in the name of the Queen or the Director, because the Director should be understood as the relevant officer carrying out the function on behalf of the Crown.  If it please the Court.

GAUDRON J:   Thank you, Mr Solicitor.

KIRBY J:   Do you agree that the only point of difference between your submissions and those of the Commonwealth relates to section 68 of the Judiciary Act?  That was the only one?

MR SELWAY:   It is certainly the primary one, your Honour.  We certainly would not adopt routes (b) and (d).

GUMMOW J:   You would not?

MR SELWAY:   No, your Honour. Our route (a) differs. No, I will withdraw that. Our route (a) is the same, that is the enforcement powers. Our route (c), we would say, as, if you like, the preferred option and we would put in before, somewhere in there, our fallback position of section 68(2).

KIRBY J:   You mentioned in passing the affidavit which was handed up yesterday, which was only read as the first 11 paragraphs.  There is a sort of general description in that.  Do you know if that has been sorted out?

MR SELWAY:   No, your Honour, I was not referring to ‑ ‑ ‑

KIRBY J:   Maybe Mr Gray will sort that out for me.

MR SELWAY:   I was not referring specifically to that.  Mr Gray said from the Bar table yesterday that there had not been an appeal instituted as a formal step.  Our paragraph 3 referred to it.  We were not there.  I am perfectly happy to accept Mr Gray’s assertion in that regard.

KIRBY J:   Yes, thank you.

MR SELWAY:   If it please the Court.

GAUDRON J:   Thank you.  How long do you require in reply, Mr Gray?

MR GRAY:    If the Court pleases, something less than an hour, hopefully.

GAUDRON J:   That much.

MR GRAY:    If the Court pleases, we have listened with interest to Mr Bennett’s change of position and we do want to think that through and see the way we can assist the Court in that respect.

McHUGH J:   Mr Gray, I am a little bit confused now about your submissions.  I thought they were heavily dependent on section 29 - maybe they are - and what you said yesterday seemed to me a bit persuasive.  I have to tell you that I lean to the view at the moment that section 29 does not seem to have much to do with this, so I want to understand to what extent your argument is totally reliant on section 29.

MR GRAY:   Indeed, and obviously, noted your Honour’s interest and we want to reflect on that and think that through.  That is the primary matter.  There are certain other areas that we do wish to address.  For example, there is relevant material regarding the explanatory memorandum that when one looks at the history of the South Australian legislation, that memorandum was not relevant to ‑ ‑ ‑

McHUGH J:   You may be able to reconvince me that 29 is the operative provision, but if it is not, and that tends to be my present thinking on the subject, which is a very provisional view, I want to know whether you have an alternative argument.

GUMMOW J:   Do you really need 29?

McHUGH J:   Yes.

MR GRAY:   On a number of the arguments we put, no, we do not.

McHUGH J:   Yes.

GAUDRON J:   Well, we will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GAUDRON J:   Yes, thank you, Mr Gray.

MR GRAY:   May it please the Court.  There are a number of documents that are before your Honour.  If I could just explain them.  There is a document headed “Byrnes & Hopwood:  Summary of Applicants’/Appellants’ Contentions”.  It is the document that your Honour Justice Kirby spoke of, perhaps, being assisted by yesterday.

KIRBY J:   Yes.

MR GRAY:   It is a two-page document.  Your Honour Justice McHugh inquired which of our arguments stood separate and distinct from section 29.  By reference to this document, your Honours, it is arguments 2 to 5.  Contentions 1, 6 and 7 have some reliance on section 29; 2 to 5 do not.  I want to come back to deal with a few of those in a moment.

Secondly, we have provided, as has been issued, an amended application for special leave by Byrnes in application No A17 of 1994 and the amendment has been underlined and we have issued a special leave application over Mr Hopwood which is to the same substantive effect as the application amended by Mr Byrnes. They are designed to deal with, if the Court thought it appropriate, the issue of section 80 and the convictions and, if the Court pleases, there are some minutes of order that we have provided to deal with those matters.

GAUDRON J:   Do you require the orders now?  I am just looking at that an extension of time be granted.

MR GRAY:    That is simply because we issued them this morning from Registry, but at a convenient time the orders could be made.

KIRBY J:   Is the only point raised in it the points that have been argued before us relating to section 80?

MR GRAY:    Yes, it is.

KIRBY J:   We are not concerned with all the other issues?

MR GRAY:    No, and the only factual matter that is relevant, as we perceive it, is that there was no jury.  The text of the amendment in regard to the Byrnes existing application has been amended by ‑ ‑ ‑

GAUDRON J:   Perhaps the easiest way, is there any objection from the Bar table, firstly, to leave being granted to amend the application for special leave in the matter of Byrnes v The Queen in the manner contained in the document that has been handed to the Court?

MR BENNETT:   We…..accept it, your Honour.

GAUDRON J:   Thank you.

McHUGH J:   Well, it may be consented to, but is the application against the right order?  In the case of Hopwood, it is:

special leave to appeal against the judgment of the court consisting of Justices Bollen, Prior and Olsson -

but that judgment was set aside and it was sent back, was it not, to the Court of Criminal Appeal and a different judgment was ‑ ‑ ‑

MR GRAY:   We believe we have the right judge, if the Court pleases.  Amongst the papers there are two chronologies:  one a short form that deals with matters up to 2 May 1996 and one a long-form chronology up to October 1998, just dealing with matters before the courts.  The Court can see the history in regard to each count and what has happened in each court set out, so, for example, in regard to Mr Byrnes, concerning count 1, his appeal was dismissed by the first Court of Criminal Appeal, his application for special leave has been stood over and we would seey that we need special leave to appeal against a dismissal by CCA No 1; that is, the Justices Legoe, Mohr and Bollen court.

The other thing:  Byrnes is the 229 matter and the relevant order we would see would be the order of CCA No 2, which is the order of the court ultimately dismissing the appeal by Byrnes.

McHUGH J:   Yes.

MR GRAY:   It is a bit of a jigsaw, but we certainly think we have identified the right orders.

McHUGH J:   Yes, I think you have, yes.

GAUDRON J:   Well now, is there any objection to the orders sought in the matter of Hopwood?  Yes, very well, leave will be granted, Mr Gray, to amend the application for special leave in the matter of Byrnes, and orders will be made in accordance with the draft minutes of order, as is set out in the document handed - - -

GUMMOW J:   Why are we going to need all these further written submissions?

MR GRAY:   We expect them to be short, but just to address the matter now that attention has been focused on the conviction aspect of the matter.

GUMMOW J:   Well, we do not want a rerun of the last day and a half.

MR GRAY:   No, that is not intended, may it please the Court.  The chronologies, I understand from Mr Bennett, are agreed factually and are simply designed as a convenient point of reference for the Court on the history of the matter.

GAUDRON J:   I take it at some stage, however, you will get a joint application book with all the relevant documents in it.

MR GRAY:   I understand we will be speaking to the Registrar on the adjournment.

GAUDRON J:   Thank you.

MR GRAY:   Could I deal by way of reply with what ‑ ‑ ‑

KIRBY J:   Could I just ask you, getting the material out of the way, you remember the affidavit and you read the first 11?  You are not seeking to read the other paragraphs?

MR GRAY:   No.

KIRBY J:   This chronology is supposed to in its place, is it?

MR GRAY:   Yes, the chronology ‑ ‑ ‑

KIRBY J:   It is just that that was stated in a narrative form.  It is rather helpful.

MR GRAY:   We will be happy to ‑ ‑ ‑

KIRBY J:   Perhaps we can peep into it to understand anything in the chronology that we do not quite understand.

MR GRAY:   We would be happy, if the Court pleases, to read the affidavit in so far as it deals with events before the Court but not other matters. 

I am just wondering whether your Honour formally made the order in respect of Mr Hopwood.  Your Honour made it in respect of Mr Byrnes.

GAUDRON J:   I granted leave to amend the application for special leave.

MR GRAY:   And the ancillary orders, your Honour, in regard to Mr Hopgood in the minutes of order?

GAUDRON J:   Yes, thank you.  Yes, those orders will be made.

MR GRAY:   I am indebted to your Honour. Is it convenient, if the Court pleases, now to start the reply proper, and if I could deal with the question of Mr Bennett’s argument that the route through to jurisdiction is what he described as his (c) route, his preferred route, which involves a consideration of section 91, both (1)(b) and section 91(4). It involves a consideration of sections 55 and 56 and then 352.

Now, if the Court pleases, when one starts on that route, the provisions of 91(1)(b) and 91(4) are dealing with, as far as the offence is concerned, the offence and not the law. Both speak about the offence under the Code being treated or “taken to be” or as if – both expressions are used. They are “an offence against a national scheme law”. My learned friend then contends that section 55 has application because of those words in section 91. In section 55, if the Court pleases, one does not find a reference to “national scheme law”. There is reference to “Corporations Law of South Australia”, and “Corporations Law of South Australia” is defined to mean the law being enacted by section 7, that appears in the definitions section. So if one stopped there, one cannot see any ready connection between section 55 and section 91. There must be something more.

The only way that that link could be possibly forged is by looking at the definition of “national scheme law” of this jurisdiction, and that definition includes three Acts, one only of which is the Corporations Law of South Australia, and so one does not have a correlation. Our primary submission is that when that is followed through, one cannot link section 55 to section 91. Now if that link fails, and if our learned friend’s argument is right that section 29 has no application, and he abandoned 68(2), as he has, then there simply is no relevant jurisdiction. Our primary submission about section 55 is that it does not, on its terms, apply or seek to apply to a national scheme law. It can only do so if one takes a view that the national scheme law, because it includes the Corporations Law, in that way it is linked.

Now, if the Court pleases, if that linking occurs in that way then, equally, section 29 must apply.  Because the method to link section 91 to section 29, which was the subject of the judgment in Craven’s Case, is to do so through the use of the definitions “national scheme law” and “applicable provisions”.  If, in Craven’s Case, 126 ALR 668 - the court can see this at page 697 - and the manner of linking is as follows: 91 says “the offence”, and we underscore that is to be treated as the offence against the national scheme law. The “national scheme law” is defined to include the Corporations Law.  The definition of “applicable provisions” includes “Corporations Law”, so because of the encompassing of the same legislation in the two definitions, the linking is made.  That appears at page 126, lines 13 to 17, and that is the way in which ‑ ‑ ‑

GAUDRON J:   Page 697, line 7?

MR GRAY:    Page 697, lines 13 through to 17. Now, our submission is this: if my learned friend is right that section 55 can be linked to section 91 by the use of commonality of definitions, equally, so can section 29 be linked to section 91.

Once section 29 is linked then, of course, the concessions that my learned friend of South Australia made apply and that is that the effect of saying that the matter is not a law of South Australia excludes the operation of the Juries Act and hence, with respect, the conviction and the appellate process is a nullity.  So that is the immediate answer we give to your Honour Justice McHugh’s inquiry as to, with respect, why is Mr Bennett wrong.

Now, if the Court pleases, another matter of difference, with respect, is that the language of 91 and the language of 29(2) is the same in a sense that both address offences, whereas sections 55 and 56 are not addressing offences directly, and so one would see a much easier linkage between 91 and 29(2) than one would 91 through to 55.

In the course of the debate reference was made to section 85 and, in particular, Justice Gummow made reference to section 85 that, importantly, section 85 is not making reference to offences.  It is dealing with the law and, in particular, there is nothing in section 85 that acts against the submissions we put.  The point about it is that section 91 is in the same Act and section 91 is providing a deeming and, in so far as that may conflict in any way with the co‑operative scheme laws, it is to prevail.  Section 85 has the effect that that would prevail over any other provision.

In our respectful submission, either section 55 does not apply because there is no relevant linking and my friend’s argument fails or, alternatively, if it does apply through linking, the case for linking 91 and 29 is a fortiori the stronger case because of the closer connection.

Now, your Honour Justice Gaudron said it is very clear what section 29(1) and (2) say.  The question is what is their effect or purpose or import and we would say that one finds that in section 28.

If one is looking to say, in what way is section 29 to operate?  The answer is section 28.  Relevantly, for purposes of the case at bar, to operate in regard to the trial.  So, if I might summarise our argument, it is this:  it was intended – and it is the effect of section 91 – and when the Commonwealth DPP exercises powers and, for that matter, any powers that might be conferred under 91(1)(b), the exercise by him of those powers is conditioned, and it is conditioned that he can only act as though the offence were an offence against the national scheme law. 

So he can do nothing that does not meet that condition.  If one simply stopped there and said, “Without access to 29, what does that mean?”, the answer would be, as it be true to the national scheme law it is to be federalised.  If that means that all the attributions of protections of federal law apply, then they would apply, and we say that is what it does mean.  Clarity is given to that when one works with the definitions and, in particular, through to section 29.  It provides a scheme, with respect, that is practical and that works and it has the object at a point of time that is post‑1991 of having what is effectively the same offences as far as content is concerned being treated uniformly throughout the country.  We say that is plainly and clearly the intent.  So that is our submission in response.

Now, could I move to a discrete point.  When the Court was being invited to interpret section 91(1)(a), my learned friend, Mr Bennett, was putting the submission that the Court could gain assistance from the explanatory memorandum.  It is important that the Court understands that when the Corporations (South Australia) Act was enacted in South Australia, 91(1)(a) was not in it, so that whatever may have been in the explanatory memorandum, it was not relevant to the passage of the then Bill.

GUMMOW J:   Yes, I was wondering about that.

MR GRAY:   We provided to the Court earlier a history of section 91(1) and if the Court would turn that up, with it we had an extract from the relevant facts.  The Court will see that the first of the Acts assented to on 20 December 1990, which is the one to which the explanatory memorandum, if it was applied, would apply, is No 66 of 1990 and the Court will see that section 91 did not have a 91(1)(a).  The relevant provision, 91(1)(a), came in in Act No 79 of 1991 and was further ‑ ‑ ‑

GAUDRON J:   And it was realised that he could not prosecute.

MR GRAY:   Yes, if the Court pleases, yes.

GAUDRON J:   It could not lay an information until he got 91(1)(a) in.

GUMMOW J:   Well that is not quite right, is it?  As initially enacted, section 91(1) said –I think I referred to this yesterday:

The Commonwealth Director of Public Prosecutions –

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

GAUDRON J:   But he had to be able to lay an information with respect to State law.

MR GRAY:   Then, your Honour, section 91(1)(a) comes in in Act No 79, and it is further amended by Act No 6 of 1995.  Now we just wish to make the point that when one is having regard to explanatory memorandum of secondary speeches, obviously one has to have the relevant one but, secondly, one has to make quite sure one is dealing with the section as…..enacted.

GUMMOW J:   Is there any speech for the 91 amendment?

MR GRAY:   I cannot answer that, your Honour.  No doubt there would have been ‑ ‑ ‑

KIRBY J:   There would surely have been a speech.

GUMMOW J:   It is rather crucial.  It might tell us what the hiccup was that produced this change.

KIRBY J:   Seeing as you have bombarded us with all the other speeches, I assume that you will get this one and help us with whatever the Minister had to say and read what his officials said were the reasons for the amendment in 91.

MR GRAY:   Can we provide that to the Court on the adjournment?

GAUDRON J:   Yes.

MR GRAY:   We regret it is not available presently.

GAUDRON J:   I think the Solicitor for the Commonwealth will give it to you.

KIRBY J:   A present from the vast resources of the Commonwealth.

MR GRAY: We will have a copy provided to the Court. If the Court pleases, could I turn to the other route that does not rely on section 55 as far as the Commonwealth are concerned, and that was the first of the routes which is simply an application that is devoid of section 29. It is on the construction of section 91(1)(a) and section 352(2). Section 352(2), as a matter of construction, is a little unusual. The jurisdiction of the court is implied from the grant of an entitlement or power. One would then contend that it would be a technique used to accord the narrowest jurisdiction. What is being said is that there is a power in a particular office, person, and that is all, and consequently the jurisdiction implied is limited to that.

So we say that this is a technique that has been used to cause a minimum erosion in regard to the common law principles against double jeopardy.  It is making it plain that that is it.  If that needed to be underscored, the section originally started out giving the entitlement to seek leave to the Attorney and he was removed and in his place substituted the State DPP.  So we would say at the outset that this is not a question of poor drafting at all; it is a question of drafting in a way that it has made it plain that the jurisdiction of the court is restricted and it is restricted to the holder of the office.

Now, if the Court pleases, in the decision in Williams [No 2] that has been referred to, there was much discussion about the work of section 68(2) in picking up for the Commonwealth Attorney the jurisdiction granted by section 5D of New South Wales Act. But little attention was paid as to the proper construction and width or extent of the New South Wales Act, because that was not directly in issue. But in the joint judgment of Justice Evatt and Justice McTiernan, the matter was dealt with explicitly. This is in 50 CLR 56, perhaps, first at page 562 and then through to 566. At 562 in the second paragraph of the joint judgment this is noted:

It will be observed that the notice indicates that the appeal is brought by His Majesty’s Attorney-General for the Commonwealth and is not expressed to be given on behalf of the Crown.

Then, moving through to 566, point 5 on the page:

In our opinion, the nomination of the Attorney-General of New South Wales as the person authorized to apply to the Court under sec. 5D of the New South Wales Criminal Appeal Act, is an essential ingredient of the jurisdiction thereby created.

So, we would, with respect, cite that in support of the construction we contend for of section 352, that ‑ ‑ ‑

GUMMOW J:   Was that the opinion that prevailed?

MR GRAY:    Well, the majority did not consider specifically the scope of section 5D because, on that argument, 68(2) would give a like jurisdiction to the appropriate Commonwealth officer.  So, the opinion of the majority does not delve into this precise issue.  We would respectfully contend that Justice Dixon was in agreement on that point in so far as he touched on it at the foot of page 561.  It is point 8 of the page.

CALLINAN J:   What about Mr Justice Starke at page 542?  It seems to refer specifically to section 5D – about point 4.

MR GRAY:   I am sorry, I missed the page, if the Court pleases.

CALLINAN J:   Page 542.

MR GRAY:   I think your Honour must be in Williams [No 1].

CALLINAN J:   You are right.

MR GRAY:   I was wishing to refer to Williams [No 2].

GUMMOW J:   Is there nothing in Williams [No 1]?

MR GRAY:   I had understood not, your Honour, but I will have to, obviously, with respect, have that checked.

CALLINAN J:   I think there is specific reference to 5D in Williams [No 1] at 542.

MR GRAY:   If I might just deal with Justice Dixon for a moment.  At the foot of 561:

The New South Wales section gives the right of appeal against sentence to the Attorney-General of the State.  It gives it to him in virtue of his office.

In that case –

He is the proper officer of the Crown –

If the Court pleases, Justice Starke in Williams [No 1] at page 542 is not addressing his attention to the exact scope of the jurisdiction under 5D.  What was there being considered was, granted that jurisdiction, is there a comparable jurisdiction by analogy in the Commonwealth Attorney and when one is looking at that question, the issue of the precise jurisdiction does not matter.

For example, in this case, were this to be a Commonwealth offence in the ordinary way, section 68(2) would operate to give to the Commonwealth Attorney and through him, the Commonwealth DPP, a like jurisdiction to that of the State DPP and that is the point being considered by all other Justices in Williams – I think in both Williams [No 1] and [No 2].  It is only Justices Evatt and McTiernan who come to look critically at the true nature and extent of the section 5D jurisdiction and identify it as being limited to the repository and nobody else at the State level, not to say that the Commonwealth Attorney cannot pick it up under 68(2).

So, we would respectfully say that the short passage from Justice Dixon recited confirms that although, obviously, it is not seeking to reason the matter through, but, again, the case at bar is a fortiori because the construction of the New South Wales section is not as clear as the South Australian section where the whole of the office is identified as the person who can apply and the jurisdiction is the corollary of that and only that.  Now, if the Court pleases, I did want to go to the State DPP Act if I could.

That Act was assented to in November 1991, and that might provide an explanation, if the Court pleases, for the late introduction in South Australia of 91(1)(a).  But, relevantly for the present purposes, by section 4 the Office of the Director is created, it is an appointment by the Governor.  The office is then defined in section 6.  Paragraph 7 deals with powers, and the Court has been taken to that.  Paragraph 9 deals with independence and provides:

Subject to this section, the Director is entirely independent of direction or control by the Crown or any Minister or officer of the Crown.

And then there is an ability for the Attorney to give directions but the Court will see the way in which that is constrained and, in particular, been gazetted and laid before the Houses of Parliament.

The Directors are able to give guidelines and directions to the Commissioner of Police.  Under section 12 there is an annual reporting process which is a report to the Attorney that must then be laid before Parliament.  Section 13 is of interest, perhaps to come to in a moment, and that is:

This Act does not derogate from the right of the Attorney-General to appear personally in any proceedings on behalf of the Crown.

So we say that that Act is creating a separate and distinct office and an office separate and distinct from the Crown to the point where, when there is a substitution in section 352 of the State DPP for the Attorney, one can see that the Attorney has no entitlement to seek leave to appeal.  The only entitlement rests in the State DPP and the only jurisdiction of the court is in regard to such an application, and that the State DPP is acting in his own office and not as part of the executive on behalf of the Crown. 

GAUDRON J:   That Act, did it amend section 352(2) or whatever was the equivalent provision?  Was it then ‑ ‑ ‑

MR GRAY:   No, that Act amended it but there is a schedule to the Act.

GAUDRON J:   Yes, it was then section 352(2), was it?

MR GRAY:   Yes, section 352(2) is in that schedule, but the schedule goes through a whole series of Acts in which there is a substitution of the DPP for the Attorney in some places, the Crown in others and the Crown Prosecutor in others, so it is designed to be, we would say, a separation of function to a separate office.  Understood in that way, we would say the construction of section 352 as being a very limited and narrow import of jurisdiction is understood.

GUMMOW J:   As initially enacted, section 352(2), which was brought in by section 9 of Act 67 of 1980, conferred this power on the Attorney-General.

MR GRAY:   Yes, and then this Act effects a substitution, so he no longer has the power.  So, if one was to compare it to section 5D, for example, at that time, in Williams’ Case, the court was considering the repository as being the Attorney, but in right of the Crown.  In this Act, it is a much narrower grant of jurisdiction.  When that is understood, we would say, it makes my friend’s task in bridging section 91(1)(a) to 352(2) very difficult, we would say impossible, because section 91(1)(a) is not a section about conferring jurisdiction on a court; it does not even indicate the content of the power.  So, in our respectful submission, that matter is an important background against which to interpret section 352(2).

Might I say that in Rohde’s Case, when Justice Deane is considering the approach to the Victorian legislation, he uses the line of reasoning that the Victorian legislature was well aware that it was eroding the common law rule against double jeopardy and, as a result, one would read the section in that way.  We would say the same matter is evident in the approach to section 352; for example, the requirement that the leave application be dealt with by the Full Court, in contradistinction of other leave applications.

Now, in a sense that may have some relevance and importance when one considers the status in which the Commonwealth DPP has sought to act in this case.  As the Court has seen in the appeal book, he initially lays the information in his own name.  Now, if the Court pleases, that is contrary to the form prescribed under the Criminal Law Consolidation Act that the standard form has it in the name of the Queen, and that is a schedule to the Act.  So that at the outset, the Commonwealth DPP chose to create something that did not accord with the expressed standard form of the court.

My learned friend, Mr Bennett, in his submissions to this Court, said that in seeking leave to appeal, the Commonwealth DPP was acting for and on behalf of the State and we, with respect, would challenge that.  We would say the Commonwealth DPP is exercising powers he has under 91(1) and that is what he is doing; and that nowhere has my learned friend identified a provision in which the Commonwealth authorises the Commonwealth DPP to act as agent for the State in regard to a prosecution, to act on behalf of the State, the DPP or the State Crown, nowhere has that been identified.  My learned friend was driven to that because of the difficulties he faced in trying to bridge between 91 and section 352 by any route.  We say that that is simply a status and an agency that is not made out and not justified.  Even if one was to say – from the States perspective it is difficult enough to find any worth or making the agent of the State. 

Now, if the Court pleases, they are our submissions in reply.

GAUDRON J:   Thank you, Mr Gray.  Yes, Mr Solicitor.

MR BENNETT:   I am instructed that there are some minor matters in relation to the chronology which we disagree with.  Your Honour, might we have leave to try and sort that out between the solicitors and then, if necessary, file an amended chronology.  I said earlier that I accepted everything in it, but I am now told that there are matters that ‑ ‑ ‑

GAUDRON J:   Yes.  This is in the chronology relevant to the special leave applications?

MR BENNETT:   Yes.

GAUDRON J:   Yes.  Very well, if you ‑ ‑ ‑

MR BENNETT:   We will do that in the next week, your Honour, if we may.

GAUDRON J:   Yes, and it should be incorporated then in the joint applications books that will emerge, yes.

MR BENNETT:   Yes, if the Court pleases.

GAUDRON J:   Yes, very well.  The Court will consider its decision in this matter and also in relation to the special leave applications which are to be the subject of further written submissions.  The Court now adjourns until 10.15 next Tuesday.

AT 2.56 PM THE MATTER WAS ADJOURNED