Clyne, Peter Leopold v Scott, Eardley Murray (S.M.)

[1984] FCA 41

CATCHWORDS

Administrative Law - Judicial renew - Decision of stipendiary magistrate in committal proceedings - Valldity of reg. 42 of the Banking (Foreign Exchange)

Regulations - Same offence triable summarily or upon

lndictment - Different maximum penalties	- Whether
reg. 42 "prescribes" a penalty.

Acts Interpretation Act 1901, s s . 42, 42

Admmistrative Decislons (Judlclal Review) Act

1977, S. 5

Banking Act 1959, ss. 39, 70

Crlmes Act 1914, S . 21

Banking (Foreign Exchange) Regulatlons regs. 4 0 , 42

PETER LEOPOLD CLYNE V. EARDLEY MURRAY SCOTT (S.M.) and PAUL JIlMES HOLDING

N.S.W. No. G407 of 1983

CORAM: Bowen C.J., McGregor and Sheppard JJ.

8 March 1984

Sydney

IN THE FEDERAL COURT OF AUSTRALIA 1

1

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G407 of 1983
1

DIVISION GENERAL 1

On Appeal from a single judge of

the Federal Court	of Australia
BETWEEN

PETER LEOPOLD CLYNB

Appellant

- AND

EARDLEY MURRAY SCOTT (S. M. )

First respondent

PAUL JAWZS HULDINC

Second respondent

ORDER

JUDGES MAKING ORDER Bowen C.J. and McGregor and

Sheppard JJ.

DATE OF ORDER	8 March 1984
WHERE MADE	Sydney
THE COURT ORDERS THAT :

-	1. The appeal be dismissed.
2. The appellant pay the respondents' costs.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) No. G407 of 1983
1

DIVISION GENERAL 1

On Appeal from a slngle ~udge of

the Federal Court of Australla

BETWEEN

PETER LEOPOLD CLYNE

Appellant

AND

-

EARDLEY MURRAY SCOTT (S .M. )

First respondent

- AND

PAUL JAMES HOLDING

Second respondent

CORAM:	Bowen C.J. and McGregor and Sheppard	JJ.
DATED :	8 March 1984

REASONS FOR JUDGMENT

THE COURT: This appeal from a single Judge of

- _

the Court ralses the questlon of the valldity

of reg. 42 of the Banklng (Foreign Exchange)

Regulatlons. At first instance the appellant argued

a number of other matters but none of these was

pursued before us. It 1 s common ground between the

parties that if the regulation is invalid, as the

appellant contends it is, the charge brought against

h m under reg. 40 of the regulatlons is bad and

must be dismissed.

The proceedings before the learned primary

judge were an application pursuant to s.5 of the

Adminlstrative (Judicial Review) Act 1977 for the

review of one or more decisions said to have been

made by a magistrate (the first respondent) in the

course of committal proceedlngs. The committal

proceedings were conducted for the purpose of

determinlng whether the appellant should %e co.mitted

for trial on a charge alleging a breach of reg. 40.

Since the decision of the learned primary Judge the appellant has been committed for trial, but that circumstance makes no dlfference to the argument of the parties nor to the outcome of the appeal, subject to there being the need, if the appellant should

succeed, for dlfferent orders from those which would

have been made had he succeeded at first instance.

Although the proceedings In which the decisions

were made were committal proceedlngs,no submisslon was

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made to us on behalf of the second respondent, who respondent but not pressed. We have therefore not considered the question of dlscretion.

is the informant, that the proceedings ought not,

in the exercise of the Court's discretion, be

entertained; cf. Lamb v. MOSS (1983) 49 A.L.R. 533.

The regulations have been made pursuant to the

Banking Act 1959. Section 39 confers extensive power

upon the Governor-General to make regulations not

inconsistent with the Act and in accordance with the

section. The particular provisicn of s.39 irhich is

relevant is para. (2) (q). It is as follows:-

"39.(2) The regulations authorized to

be made by this section are

regulations (being regulations

with respect to matters with

respect to which the Parliament

has power to make laws) making

provislon for or in relation to -

. . . . . . . . . . . . . . . . . . .

(9)

prescribing penaltles not exceeding a fine of $100,000, or imprisonment

for a perlod not exceeding 5 years,

for offences against the regulations

made under this section;"

Regulation 42, the validlty of which 1 s in

question is, so far as relevant, as follows:-

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"42.(1)

A person shall not contravene or

attempt to contravene, or fail to

comply with, any of the provisions

of these Regulations.

Penalty -

(a)

if the offence is prosecuted summarily- dollars or imprisonment for a term not

exceeding six months; or
(b)	if the offence is prosecuted upon indictment - a fine not exceeding One hundred thousand dollars or imprisonment for a period not exceeding five years."

Regulation 80 pursuant to which the appellant has

been charged was also made pursuant to s.39 of the

Banking Act. It provides as follows:-

A person shall not make -

to any Commonwealth officer;

to any officer of the Bank or of an agent

of the Bank; or

to any person to whom application is made

for the issue of a money order payable

outside Australia,

any statement, whether oral or in writing, relating to any act, transaction, matter or thing to which any provision of these Regulations

applies, which he knows to be untrue, or which is

misleading, in any particular, or which is made

by him without his having first made proper

inquiries to ascertain the truth thereof."

The only other provision of the legislation to

which it is necessary to refer is s.70 of the Banking Act.

4.

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That sectlon, so far as material, is as follows:-

"70. (1) Subject to the next succeeding sub-

section, proceedings for an offence

against this Act or the regulations

shall not be instituted without the

consent in writing of the Treasurer.

( 2 )	An offence arising -
(a)	under regulations made under section
39; or
(b)	under Part IV,

may be prosecuted summarlly with the consent

in writlng of a person authorized in writing

by the Treasurer to consent to the summary

prosecution of offences under those

regulatlons or that Part."

The essence of the appellant's submlssion is that

reg. 42 does r,ot in terms of para. 39 ( 2 ) [q) of the

Bankinq Act prescribe penalties. That is said to be

because, and only because, the regulation confers upon

a prosecutor, and by reason of the provisions of s.70,

perhaps the Treasurer, a discretion to proceed summarlly

or upon indictment. If the offence is prosecuted

summarily, very much lower penalties are prescribed than

If It is prosecuted upon indlctment. Thus, so the

submission runs, the maximum penalty is made to depend,

not on the declsion of the Governor-General, as was

envisaged by Parliament, but upon the decision of

another person, that is the prosecutor and/or the

Treasurer. Thus it follows, accordlng to the appellant,

.

that the Governor-General has delegated, at least in

part, his power to prescribe penaltles for offences

agalnst regulations made under S. 39.

It has long been the case that the legislatures

of the Commonwealth and the States (and other places

as well) commonly make provisions whereby the same

offence may be tried either upon indictment or summarily.

Usually the maximum penalty which may be mpos d will

be less if the offence is tried summarily than is the

case where it is tried on indictment. An example In

the federal sphere is to be found in the provisions of

the Bankruptcycc - 1966. Part X I V of that Act makes

provision for offences and for the penalties which are

to be imposed In respect of them. For instance, S . 269

creates a number of offences in relatlon to a bankrupt

obtalning credit without dlsclosing hls bankruptcy. Sectlon 272 creates offences in relation to leaving Australia with intent to defeat creditors. The penalty

for offences under ss. 269 and 271 1 s In each case

imprisonment for 3 years.

Section 273 provldes for the trial of offences.

They are punishable either on Indictment or on summary conviction. Sub-section 273(2) provides that where

proceedings for an offence are brought In a court of

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summary jurisdiction the court may either determine the proceedings or commlt the defendant for trial, but shall not, if it determlnes the proceedings,

mpose a period of imprisonment	exceedmg one year
in respect of the offences.

The Bankinq Act expressly recognises that an

offence arising under regulations made under S . 39 may

be prosecuted either upon indictment or summarlly; see

sub-ss. 70(1) and ( 2 ) earlier set out. Yet there is

no provision of S. 39 itself expressly dealing with

this questlon. It 1s left to the Governor-General to

prescribe the appropriate penalties which are not to

exceed those mentioEed in para. 39(2)(q).

The regulation recognises two modes of trial. It

provides different maximum penalties depending on

whether offences are trled summarily or upon indictment.

In neither case do the penaltles exceed the maximum speclfied in para. 39(2)(q). In substance the regulatlon prescribes maximum penalties not exceeding those which

are permitted and then prescribes lower maximum penalties

if an offence is prosecuted summarlly. Notwithstanding

that the penalties are less if the offence is prosecuted

summarlly, the regulation nevertheless prescrlbes the

maximum penalties whlch may be lmposed. These do not

I

exceed the maximum provrded for in para. 39 ( 2 ) (4)

of the Act. Thus the maximum penalties are as

specified but, if a prosecutor proceeds summarily,

the penalties will be the lower ones for	whxh the
regulation provides.

In our opinion reg. 42 is withrn the power

conferred by para. 39 (2) (4) . The well recognised

practice of providing for the same offence to be tried either upon indictment or summarlly and the

recognition of that practice in S. 70 of the Bankinq

Act reinforces us in that conclusion.

Before concludlnq we should mention ss. 42 a d

4 3 of the Acts Interpreratron Act 1901 acd S. 21 of

some reliance. The former sections provide that

offences against any Act which are punishable by

imprisonment for a period exceeding six months shall,

unless the contrary appears, be indictable offences.

the Crimes Act 1914 upon which the appellant placed punishable by imprisonment, but not for a period exceeding six months, shall, unless the contrary intention appears, be punishable on summary convictlon. Section 21 of the Crimes Act provides that a prosecution

in respect of an offence against any l w of the

Commonwealth may be commenced, where the maximum term of

a

imprlsonment exceeds six months, at any tune after

the commlssion of the offence; where it does not the

prosecutlon may be commenced at any time wlthin one

year after the commission of the offence.

These provisions may operate to make it unlawful

for a prosecutor to commence summary proceedings for

an offence created by the regulations made pursuant

to S. 39 of the Banking Act more than twelve months

after the commission of the offence; see, however,

In re Burley (1932) 47 C.L.R. 53. The fact that that

may be so does not in our oplnion touch the question

sf the validity of the regulation. If the provlslons

of S. 21 of the Crimes Act apply there will be a time

bar in respect of summary proceedings. That is the

only effect the provisions can have.

In the result we are of oplnion that reg. 42 is

valid. The appeal is dismissed with costs.

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