F, BV v Magistrates Court of South Australia - [2013] SASCFC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
F, BV v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2013] SASCFC 1
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Vanstone)
30 January 2013
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DISCRETION NOT TO ENTERTAIN APPLICATION - REVIEW OF DECISIONS IN COMMITTAL PROCEEDINGS
CRIMINAL LAW - PROCEDURE - PROSECUTION - COMMITTAL FOR TRIAL BY JUSTICE OR CORONER - POWERS AND DUTIES OF MAGISTRATE OR CORONER - DECISION TO COMMIT OR DISCHARGE
The plaintiff was committed for trial on one count of aggravated accessing child pornography and five counts of aggravated taking a step to access child pornography ("taking a step offence") - the plaintiff seeks to review the magistrate's order committing the plaintiff to stand trial.
The plaintiff contends that on a proper construction the element for the aggravated offence is the age of the child when the image was accessed. The plaintiff further contends that the aggravating circumstance alleged is incapable of being proved in relation to the "taking a step offence", since there was no identifiable victim of the offence and therefore there can be no proof of the age of the victim at the time of the offence.
The defendant contends the proper construction of the element of the aggravated offence is the age of the child when the image was taken. The defendant further contends that the victims of a "taking a step offence" are children who feature in pornography, and that the age of the victim is the age of the child in the image that is intended to be accessed by the perpetrator.
Whether the Magistrate, when undertaking a preliminary examination under Part 5 Division 2 of the Summary Procedure Act 1921 (SA), committed jurisdictional error in “commit[ting] the defendant to a superior Court for trial” within the meaning of section 107 of the Summary Procedure Act - whether section 5AA(1)(e) of the Criminal Law Consolidation Act 1935 (SA) required the prosecution to prove that at the time the defendant committed the basic offence, the person depicted was at that time aged under 14 years - conversely, whether the age of the victim was to be determined as being the age of the victim depicted at the time when the image was created - whether the aggravated offence required there to be a victim - whether this Court should grant any relief by way of judicial review - whether it was appropriate that this Court, notwithstanding the concession of the existence of jurisdictional error, decline to grant any relief on the basis that all the points being argued before this Court could be argued as preliminary matters in the District Court following arraignment.
Held (per Kourakis CJ): The plaintiff's construction of s 63A is rejected - however, the plaintiff was not given an opportunity to make submissions on the sufficiency of evidence to prove the aggravated offence - the age of the victim for the purpose of the element of aggravation is the age of the child as depicted in the pornography which the defendant accessed or would have accessed if all of the steps to access the pornography were taken - this has caused a denial of procedural fairness - in the special circumstances of this case, order of committal set aside - information remitted to the Magistrates Court.
Held (per Gray J): The Magistrate erred in his construction of section 5AA(1)(e)(i), in particular, by reading into the legislation the word “potential” and the words “namely, the offence which resulted in the production of the child pornography” - the Magistrate committed jurisdictional error - the Magistrate was required to satisfy himself that the offences charged were offences known to the law of South Australia - the Court’s jurisdiction to grant judicial review is enlivened - the aggravated offence required there to be a victim, that is, a person described or depicted in the relevant image - Parliament intended that the victim depicted in the image be under the age of 14 years at the time of the creating of the image - judicial review should be granted - the order of committal should be set aside - the matter should be remitted to the Adelaide Magistrates Court for reconsideration - generally, such contentions as advanced in the within proceeding should be advanced within the criminal process, rather than by way of judicial review.
Held (per Vanstone J): The circumstance of aggravation described in section 5AA(1)(e)(i) could not apply to the charges against the plaintiff on the facts alleged - where the allegation is of taking a step rather than accessing child pornography it is axiomatic that no victim has been identified because no images have been alleged to have been accessed - the aggravating circumstance requires proof of the true age of the victim at the time access is obtained - no victim of any of the charges against the plaintiff has been identified - magistrate erred in finding that the circumstance of aggravation could apply to the offences charged on the facts alleged.
The step taken by the magistrate to commit the plaintiff for trial was in error - the error was one going to jurisdiction - the power to commit plaintiff to a superior court was not available as the aggravating feature could not be made out - order of the magistrate committing the plaintiff for trial should be set aside and the matter remitted to the magistrate for further consideration on the basis that the circumstance of aggravation alleged cannot apply.
Criminal Law Consolidation Act 1935 (SA) s 5, 5AA, 5AA(1)(e)(i), 25, 62, 63, 63A, 63A(1)(b), 63B, 276, 277 Div 4, Div 7A, Div 8, Div 9, Div 11, Div 11A; Acts Interpretation Act 1915 (SA) s 22; Income Tax Assessment Act 1936 (Cth) s 80A, 80B, 80C, 80D, 80E; Controlled Substances Act 1984 (SA); Summary Offences Act 1953 (SA); Criminal Law Consolidation (Child Pornography) Amendment Act 2004 (SA); Statutes Amendment (Sentencing Sex Offenders) Act 2005 (SA); Summary Procedure Act 1921 (SA) s 5(5), 22A, 105(2)(c)(ii), 107, Part 5 Div 2, referred to.
Goldsmith v Newman (1992) 59 SASR 404; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; Mountford v Magistrates Court (SA) (2006) 95 SASR 103; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; R v Di Maria (1996) 67 SASR 466; Wentworth Securities Ltd v Jones [1980] AC 74, applied.
R v Cameron [1983] 2 NSWLR 66; R v King (2004) 59 NSWLR 515; Blackwell v The Queen (2011) 81 NSWLR 119, distinguished.
Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Federal Commissioner of State Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 41 FLR 277; K-Generation v Liquor Licensing Court (2009) 237 CLR 501; Kingswell v The Queen (1985) 159 CLR 264; Luke v Inland Revenue Commissioners [1963] AC 557; Mills v Meeking (1990) 169 CLR 214; R v Hietanen (1989) 51 SASR 510; R v Young (1999) 46 NSWLR 681; Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch (2000) 48 NSWLR 548; Saraswati v The Queen (1991) 172 CLR 1; South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603, discussed.
Corporation of the City of Adelaide v Corneloup & Ors (2011) 110 SASR 334; Craig v South Australia (1995) 184 CLR 163; Director of Public Prosecutions (Nauru) v Fowler (1989) 154 CLR 627; Goodwin v Phillips (1908) 7 CLR 1; Kioa v West (1985) 159 CLR 550; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; McKenzie v Dabonde [1952] VLR 177; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Owen v South Australia (1996) 66 SASR 251; Plunkett v Smith (1911) 14 CLR 76; R v Bacash [1981] VR 923; R v Courtie [1984] AC 463; R v Salisbury [1976] VR 452; R v Carpenter (1983) 76 Cr.App.R. 320; R v Carpenter (1983) 76 Cr.App.R. 320; R v Courtie [1984] AC 463; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; R v Randylle (2006) 95 SASR 574; R v Salisbury [1976] VR 452; R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529; Romeyko v Samuels (1972) 2 SASR 529; Romeyko v Samuels (1972) 2 SASR 529; Woolworths Ltd v Crotty (1942) 66 CLR 603 ; Salemi v MacKellar (No 2) (1977) 137 CLR 396; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Brown v The King (1913) 17 CLR 570; Burch v South Australia (1998) 71 SASR 12; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Cole v Director-General of Department of Youth and Community Services (1987) 7 NSWLR 541; Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47; Commissioner of Police v Tanos (1958) 98 CLR 383, considered.

F, BV v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2013] SASCFC 1
Full Court: Kourakis CJ, Gray and Vanstone JJ

KOURAKIS CJ: The plaintiff was committed for trial on one count of aggravated accessing child pornography and five counts of aggravated taking a step to access child pornography contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The aggravating circumstance alleged was the circumstance prescribed by s 5AA(1)(e) of the CLCA, that the victim of the offence was under the age of 14. The committal was premised on a construction of s 63A and s 5AA of the CLCA which reckoned the age of the victim as the age of the child at the time the pornographic image was taken. The plaintiff contends that on a proper construction of the elements of the aggravated offence it is the age of the child when the pornography was accessed which determines whether the offence was aggravated by reason of the child’s age. For the following reasons, which differ from those of the Magistrate, I would reject the plaintiff’s construction of s 63A of the CLCA. However, I would set aside the order of committal because the plaintiff was denied procedural fairness in that he was not given an opportunity to make submissions on the sufficiency of the evidence to prove that the victims of the offence were below the prescribed age at the time the pornographic images were taken.
The questions of construction
The critical questions of construction raised on this application are:
(1)whether the child victim provision in s 5AA(1)(e) was intended to apply as an aggravating circumstance for offences against s 63A of the CLCA;
(2)if yes to the preceding question, how is the victim of the offence to be identified for the purposes of the offence of taking a step to obtain access to child pornography; and
(3)assuming that a victim can be identified for the purposes of aggravated offences created by s 63A, at what point in time is the victim’s age to be ascertained.
The Legislative Provisions
The relevant provisions of Div 11A of the CLCA provide as follows:
62—Interpretation
In this Division—
child pornography means material—
(a)     that—
(i)describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or
(ii)consists of, or contains, the image of (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in the production of which such a child has been or appears to have been involved; and
(b)     that is intended or apparently intended—
(i)to excite or gratify sexual interest; or
(ii)to excite or gratify a sadistic or other perverted interest in violence or cruelty;
disseminate—a person disseminates child pornography if the person—
(a)     sends, supplies, exhibits, transmits or communicates it to another, or enters into an agreement or arrangement to do so; or
(b)     makes it available for access by another (including access by means of a computer) or enters into an agreement or arrangement to do so;
63—Production or dissemination of child pornography
A person who—
(a)     produces, or takes any step in the production of, child pornography knowing of its pornographic nature; or
(b)     disseminates, or takes any step in the dissemination of, child pornography knowing of its pornographic nature,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 10 years;
(b)     for an aggravated offence—imprisonment for 12 years.
I will refer to an offence against s 63(a) of the CLCA as an offence of production and an offence against s 63(b) as an offence of dissemination of child pornography.
63A—Possession of child pornography
(1)A person who—
(a)     is in possession of child pornography knowing of its pornographic nature; or
(b)     intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography,
is guilty of an offence.
Maximum penalty:
(a)     for a first offence—
(i)if it is a basic offence—imprisonment for 5 years;
(ii)if it is an aggravated offence—imprisonment for 7 years;
(b)     for a subsequent offence—
(i)if it is a basic offence—imprisonment for 7 years;
(ii)if it is an aggravated offence—imprisonment for 10 years.
I will refer to an offence against s 63A(1)(a) CLCA as an offence of possession, and the offences against s 63A(1)(b) CLCA as offences of accessing and taking a step to access child pornography respectively. I will refer to the offences collectively as viewing offences.
63B—Procuring child to commit indecent act etc
(1)A person who—
(a)     incites or procures the commission of an indecent act by a child under the prescribed age in relation to that person; or
(b)     acting for a prurient purpose—
(i)causes or induces a child under the prescribed age in relation to that person to expose any part of his or her body; or
(ii)makes a photographic, electronic or other record from which the image, or images, of a child under the age of 17 years engaged in a private act may be reproduced,
is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 12 years.
…
(3)A person who—
(a)     procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity; or
(b)     makes a communication for a prurient purpose and with the intention of making a child under the prescribed age in relation to that person amenable to a sexual activity,
is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 12 years.
I will refer to offences against s 63A(1)(a), s 63B(1)(b)(i) and s 63B(3) of the CLCA as offences of procurement, and an offence against s 63B(1)(b)(ii) as an offence of production.
(7)For the purposes of this section, the prescribed age of a child in relation to a person is—
(a)     if the person is in a position of authority in relation to the child—18 years; or
(b)     in any other case—17 years.
The circumstances of aggravation prescribed in s 5AA of the CLCA, which are most closely connected to the question of construction, provide as follows:
(1)Subject to this section, an aggravated offence is an offence committed in 1 or more of the following circumstances:
…
(e) the offender committed the offence knowing that the victim of the offence was, at the time of the offence—
(i)in the case of an offence against Part 3 Division 11A—under the age of 14 years;
(ii)in any other case—under the age of 12 years;
…
(g) the offender committed the offence knowing that the victim of the offence was—
(i)a spouse or former spouse of the offender; or
(ii)a domestic partner or former domestic partner of the offender; or
(iii)a child of whom—
(A)the offender; or
(B)a spouse or former spouse of the offender; or
(C)a domestic partner or former domestic partner of the offender,
has custody as a parent or guardian; or
(iv)a child who normally or regularly resides with—
(A)the offender; or
(B)a spouse or former spouse of the offender; or
(C)a domestic partner or former domestic partner of the offender;
I will refer to subpara (e) as the child victim provision and to subpara (g) as the carer provision. I will refer to the circumstances of aggravation prescribed by those subsections as the child victim and carer aggravating circumstance respectively.
It is convenient to immediately draw attention to the significance of the different maximum age prescribed in the child victim provision for Div 11A offences. The higher maximum age prescribed for Div 11A discloses an intention to apply the child victim provision to at least some of those offences in Div 11A and a legislative judgment that those offences were aggravated even when the victims were up to two years older than the maximum age which demarcates the aggravated, from the basic, form of offences against other provisions of the CLCA.
Section 5AA(2) extends the concept of knowledge for the purposes of s 5AA to include reckless advertence:
(2)A person is taken to know a particular fact if the person, knowing of the possibility that it is true, is reckless as to whether it is true or not.
Finally, s 22 of the Acts Interpretation Act 1915 (SA) (the AIA) provides:
22—Construction that would promote purpose or object of an Act to be preferred
(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability.
Approaches to Statutory Construction
The common law had developed a purposive approach to the construction of legislation before the enactment in 1986 of s 22 of the AIA.[1] The purposive approach involves an identification of the mischief to which the statute is directed and the adoption of a construction of its provisions which addresses that mischief. An allied approach to statutory construction is one which gives legislative terms meaning by reference to the legal and social context in which the statute is enacted. I will refer to both approaches as contextual construction.
[1] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Cole v Director-General of Department of Youth and Community Services (1987) 7 NSWLR 541 at 549 per McHugh J; Woolworths Ltd v Crotty (1942) 66 CLR 603 at 618 per Latham CJ.
In K-Generation v Liquor Licensing Court[2] French CJ said:
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes "the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy".
[2] (2009) 237 CLR 501 at 521-522 [52].

Contextual construction does not depend on the prior identification of an ambiguity or absurdity in the literal meaning of the statutory text. In Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch[3] Spigelman CJ observed:
The use of the word ‘ambiguity’ in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is for whatever reason, doubtful.
[3] (2000) 48 NSWLR 548 at 577-578.
In Mills v Meeking[4] Dawson J said of s 35 of the Interpretation of Legislation Act 1984 (Vic):
[T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v. The Commonwealth; Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.
(emphasis added and citations omitted)
[4] (1990) 169 CLR 214 at 235.
Notwithstanding the words “reasonably open to more than one construction”, which, in s 22A(1) of the AIA, condition adoption of the purposive approach, the better view is that it is permissible to have regard to the purpose of the statute and other contextual matters to identify the alternative available constructions. Section 22A(1) of the AIA was intended to give greater latitude than the common law to depart from the literal meaning of a statute in order to give effect to its purpose. It should not be applied in a way which is more restrictive.[5]
[5] Burch v South Australia (1998) 71 SASR 12 at 18; Owen v South Australia (1996) 66 SASR 251; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, cf R v Di Maria (1996) 67 SASR 466.
Contextual construction is founded on the same principle as the golden rule of construction but has a significantly greater field of operation. The golden rule provided that the literal meaning of a statutory provision could be departed from when it was necessary to do so to avoid “absurdity, or some repugnance or inconsistency with the rest of the instrument”.[6] The golden rule allowed that the words of a statutory provision may be “modified” so as to avoid the absurdity, but no further. Transposing the golden rule into the contextual construction approach, it can be said that the courts should not attribute to the legislature an absurd or irrational purpose unless no rational construction is available. When a statutory provision, read literally, has an absurd or irrational operation, the courts should strive to find a construction which removes the absurdity or irrationality.
[6] Grey v Pearson (1857) 6 HL Cas 61 at 106.
However, there is a limit to which the ordinary, natural or literal meaning of a statutory provision can be narrowed or extended. In Luke v Inland Revenue Commissioners,[7] Lord Reid advocated interpreting legislative provisions consistently with the statute’s manifest purpose unless the words used were absolutely incapable of carrying that meaning. His Lordship said:[8]
The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail.
[7] [1963] AC 557.
[8] [1963] AC 557 at 577.
In Newcastle City Council v GIO General Ltd,[9] McHugh J explained:
If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. As Brennan CJ and I said in IW v City of Perth (1997) 191 CLR 1 at 12, even when a court adopts a purposive construction to remedial legislation it ‘is not at liberty to give it a construction that is unreasonable or unnatural’.
Nevertheless, when the purpose of a legislative provision is clear, a court may be justified in giving the provision “a strained construction” [Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422 per McHugh J] to achieve that purpose provided that the construction is neither unreasonable nor unnatural.
[9] (1997) 191 CLR 85 at 113.
In Bermingham v Corrective Services Commission (NSW),[10] McHugh J said:
The Interpretation Act 1987, s 33, directs the Court to give legislation the construction which promotes its purpose or object. In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, I set out in some detail (at 421-424) the principles applicable in giving legislation a purposive construction. The passage is too long to set out at length. But in the course of that judgment I pointed out that the grammatical meaning of a provision is not to be taken to represent Parliament’s intention as to its meaning when the context or the purpose of the provision raises a real doubt about the applicability of the grammatical meaning. If purpose or context do raise a real doubt as to whether Parliament intended the grammatical meaning to apply, a court is entitled to depart from that meaning. Moreover, if the grammatical meaning gives rise to injustice or anomaly, it may strengthen the conclusion that the Parliament did not intend the grammatical or literal meaning to apply.
Once the court concludes that the grammatical meaning does not accord with the purpose of the legislation, “… it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used”: Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201. But as the cases to which I referred (at 422-423) in Kingston v Keprose Pty Ltd show, it is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.
In Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 this Court applied the principles formulated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 concerning the circumstances in which a court may read words into a legislative provision to give effect to its purpose. Lord Diplock said that a court may read words into a statutory provision when three conditions are fulfilled. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
[10] (1988) 15 NSWLR 292 at 302.
The three conditions, which must be satisfied before a court may read words into a legislative provision, identified by Lord Diplock in Wentworth Securities Ltd v Jones[11] were also applied by Doyle CJ in R v Di Maria.[12]
[11] [1980] AC 74.
[12] (1996) 67 SASR 466.
The differential application of a legislative phrase is an accepted tool of construction. In R v Young,[13] Spigelman CJ explained:
… The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.
… If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text – using consequences to determine which meaning should be selected – then the process remains one of construction.
[13] (1999) 46 NSWLR 681 at 687-688.
I acknowledge that it is one thing to read down the words of a statute and quite a different thing to not give the words any effect at all. As a general rule, all of the words of a statutory provision must be given effect, however, it is recognised that Parliament is sometimes guilty of surplusage and even tautology. Occasionally words are included out of an abundance of caution.[14] However, I acknowledge that if the words “at the time of the offence” are ignored all together, the meaning of the child victim provision is changed radically.
[14] Leon Finke Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679.
The operation of one provision of a statute may be limited or extended by another express provision or by an implication drawn from other provisions. The issue in those cases is often framed as one of construction of the words of the provision which is limited or extended. In my view, the question can also be framed in terms of reading one provision as being subject to an express or implied qualification or extension found in the other provisions of the statute.
The implication of a limiting term in a statute is not uncommon in the construction of the scope of a statutory grant of power. The scope of the power and the conditions of its exercise may be limited by necessary implication from other statutory provisions and the statutory context generally. By ‘necessary implication’ is meant an implication which clearly emerges from the statute. The implication need not be one which is absolutely necessary to give efficacy to the legislative scheme. The implication will often arise when, if the implication were not drawn, an express statutory grant would, in effect, have no work to do. The rules of construction often employed in such cases are expressum facit cessare tacitum,[15] expressio unius est exclusio alterius,[16] and generalia specialibus non derogant.[17]
[15] Plunkett v Smith (1911) 14 CLR 76; R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550 per Dixon J: “[A]n enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course”; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; Corporation of the City of Adelaide v Corneloup& Ors (2011) 110 SASR 334 at 356-361.
[16] Salemi v MacKellar (No 2) (1977) 137 CLR 396.
[17] Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 at 50.
The application of the principle at a constitutional level is illustrated by the decisions in Nationwide News Pty Ltd v Wills,[18] Australian Capital Television Pty Ltd v Commonwealth[19] and Lange v Australian Broadcasting Corporation.[20]
[18] (1992) 177 CLR 1.
[19] (1992) 177 CLR 106.
[20] (1997) 189 CLR 520.
The necessary implication test is also applied in the context of construing a statute to determine whether rules of procedural fairness have been excluded.[21]
[21] Commissioner of Police v Tanos (1958) 98 CLR 383; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Kioa v West (1985) 159 CLR 550.
Identifying a necessary implication from express statutory provisions also occasionally arises in the context of the implied repeal of earlier inconsistent legislation by a subsequent statute.[22]
[22] Goodwin v Phillips (1908) 7 CLR 1 at 7.
In Saraswati v The Queen,[23] Gaudron J said:
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there was a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.
[23] (1991) 172 CLR 1 at 17.
In South-Eastern Drainage Board (SA) v Savings Bank of South Australia,[24] Dixon J contrasted the task of construing inconsistent provisions in different statutes for the purpose of deciding whether there has been an implied repeal with the construction of inconsistent provisions in the same statute:[25]
… it must be remembered that, when two apparently inconsistent provisions occur in one Act of Parliament, to reconcile them by interpretation is the only course open. They cannot both receive their full meaning as it is expressed. In other words no-one can say that two provisions cannot live together when the legislature which gave them life found room for them in the one enactment.
[24] (1939) 62 CLR 603.
[25] (1939) 62 CLR 603 at 626-627.
Occasionally it has been necessary, in order to avoid an absurd result, to read down a statutory provision in a way which substantially alters the effect and operation which it would otherwise have had if it were applied literally. The origins of the, now predominant, contextual approach to statutory construction are often traced to the decision in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation.[26] At issue in Cooper Brookes was the proper construction of ss 80A to 80E of the Income Tax Assessment Act 1936 (Cth) (the Act) as they stood between 1966 and 1973. The purpose of the provisions was to allow natural persons and private companies to bring to account, in a particular tax year, losses in the seven preceding years. To prevent the benefit of the provision extending to companies in which shares were freely traded, the Act imposed certain qualifying conditions. They were found in s 80A to s 80E of the Act. Section 80A(1) required, as a condition of eligibility for that tax benefit, that at least two-fifths of the shares, and their associated voting and dividend rights in the tax paying corporation, were beneficially held by the same persons during the tax year and the preceding loss years.
[26] (1981) 147 CLR 297.
Section 80C(1) of the Act was enacted to prevent avoidance of s 80A(1) by corporate structures in which the shares of a tax paying subsidiary were continuously held by a holding company in which the shares were freely traded. Section 80C(1) provided that a subsidiary was only entitled to the tax benefit if two-fifths of the shares in the holding company were beneficially owned by the same persons in the tax year and the preceding loss years.
Cooper Brookes (Wollongong) Pty Ltd was a subsidiary for the purposes of the provisions and was entitled to claim previous losses subject to the operation of s 80B(5) of the Act. Section 80B(5) of the Act allowed the Commissioner to disregard the qualifying shareholding of a subsidiary corporation if the criteria prescribed by subparagraphs (a) to (c) of s 80B(5) of the Act were satisfied. The criteria in each of the subparagraphs may be summarised as follows:
(a)a shareholder owned shares in the tax paying company in both the loss and tax years;
(b)the holder entered into contracts dealing with that shareholding; and
(c)one of the purposes of the dealing was to ensure that the company in which the shares were held was able to take advantage of its previous losses.
To catch similar dealings in the shares of the holding company, which were designed to avoid s 80C(1) of the Act, s 80C(3) of the Act applied s 80B(5) of the Act to the holding company “as if references in those subsections to the company were references to the holding company”.
The Federal Court found that a shareholder of Cooper Brookes’ holding company (“Wellington Holdings”) had entered into an arrangement affecting his shares in Wellington Holdings and that a purpose of the arrangement was to allow the subsidiary, Cooper Brookes, to claim its previous losses. However, the agreement was not one which could be disregarded if s 80B(5) were to be picked up by s 80C(3) and applied literally because the purpose of the arrangement was to ensure that Cooper Brookes, and not Wellington Holdings, was able to claim the tax losses.
Section 80C(3) of the Act effectively applied subparagraphs (a) and (b) of s 80B(5) of the Act to dealings in the shares of the holding company, but on a literal and unmodified transposition of step (c) to the holding companies, the dealing could only be disregarded if the purpose of the agreement was to maintain the tax advantage of the company in which the shares were traded. However, the very purpose of the holding company restrictions was to ensure that the tax advantage would not be enjoyed by a privately held subsidiary of a public company. On the literal construction of the provisions, the Commissioner could never disregard the qualifying shareholding of a holding company because the purpose of the avoidance arrangement would always be to bestow a tax advantage on the subsidiary and not the holding company. The majority of the High Court held that s 80B(5) evinced a draftsman’s error which could be corrected by departing from the literal meaning of the words of s 80B(5): “as if references in those subsections to the company were referring to the holding company”. The approach of Mason and Wilson JJ appears in the following passages:[27]
[27] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321-322.
Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.
In this case the choice with which the court is confronted is between a literal and comprehensive application of s. 80C (3) and the acceptance of an implication which would restrict its application in the manner already discussed. In one sense the function of s. 80C (3) is similar to that of a statutory definition. As such it is subject to any contrary intention, though this qualification is not expressed in s. 80C (3).
To our minds the decisive factor in making this choice is that the literal interpretation of s. 80C (3) results in an operation for s. 80B (5) (c) which in our opinion is capricious and irrational. It does not make good sense to relate the arrangement dealt with in s. 80B (5) to the purpose of enabling the holding company to take into account its past losses when what is in question is the deductibility of the past losses of the subsidiary. So read, s. 80C (3) would permit the subsidiary to deduct its past losses, notwithstanding the existence of an arrangement in relation to the beneficial ownership of shares in the holding company which had as its purpose the enabling of the subsidiary to take account of those losses. Conversely, and irrationally, it would prevent the subsidiary from deducting its past losses by reference to an arrangement which had as its purpose enabling the holding company to take account of its past losses, though it had no purpose relating to the subsidiary and its losses.
The appellant seeks to overcome this consequence by making the point that s. 80C (3), by applying s. 80B (5) to the holding company, recognizes the reality of commercial life in that ultimately for the purchaser it is the impact of the deductibility of the subsidiary's tax losses on the shares of the holding company that is all-important. No doubt this is true, but it does not make the operation of s. 80B (5) (c), on this hypothesis, the less capricious or irrational. Furthermore, the argument overlooks the fact that s. 80C (3) gives s. 80B (5) an operation not only in relation to a holding company but also in relation to an interposed company.
When we consider the legislative scheme contained in ss. 80, 80A, 80B and 80C we find that there is an exact correspondence between the provisions of s. 80A read with s. 80B as applied to the past losses of companies which are not subsidiaries and the provisions of s. 80C and s. 80B as applied to the past losses of subsidiaries, save that in the latter case we are looking at the beneficial ownership of shares in the holding company. As Brennan J. said;
The symmetry of the provisions suggests that sub-ss. (3) to (8) of s. 80B are to provide a common dictionary for the operation of the condition relating to continuity of beneficial ownership of shares in the taxpayer company when s. 80A applies, or of shares in a holding company of a taxpayer company when s. 80C applies.
In this context it is impossible to resist the conclusion that par. (c) of s. 80B (5) was intended to have the same operation in relation to a subsidiary’s loss under s. 80C as it had in relation to a company’s loss under s. 80A. Section 80C (3) should therefore be read as referring in its application to s. 80B (5) (c) to the company which was to be enabled to take into account the loss. This unquestionably is what Deane and Fisher JJ. had in mind when they used the expression “where appropriate” and “mutatis mutandis”.
(Citation omitted, emphasis added)

The passages in the judgments of Deane and Fisher JJ to which Mason and Wilson JJ referred warrant reproduction. Deane J said:[28]
The implication of words such as “where appropriate” in a legislative direction to substitute words in another legislative provision so as to apply that legislative provision to circumstances to which it would not otherwise be applicable does not involve doing violence to the words which the Parliament has used. Where, as in the present case, the direction to substitute the different words is given in respect of a variety of different legislative provisions, the implication can be made almost as readily as can the implication of the qualification “subject to a contrary intention” in a definition section. In my view, the qualification “where appropriate” should be implied in the provisions of s 80C (3).
Fisher J said:[29]
In circumstances such as in the present case, and particularly where the intention of the legislature is as clear as in my opinion it is, the terminology of the machinery provision is not so intractable as to deny a reasonable as opposed to a literal construction. In my opinion the words “reference in those subsections to the company were references to the holding company” in s 80C (3) should be read as though the words “where necessary or appropriate” were inserted after the word “references” secondly appearing. Alternatively s 80C (3) should be read as if the words “mutatis mutandis” were inserted after the word “apply”.
[28] Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 41 FLR 277 at 282.
[29] Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 41 FLR 277 at 297.
The particular interpretative device applied in Cooper Brookes was considered closely by Spigelman CJ in R v Young.[30] Spigelman CJ insisted, in my respectful opinion correctly, that the majority of the High Court had not read words into the Act. Spigelman CJ explained the device as one of reading down rather than one of reading in the words “where appropriate”. His Honour explained that the majority in Cooper Brookes had read down the statutory direction in s 80C(3) to apply s 80B(5), “as if references in those subsections to the company were references to the holding company”, so that it did not apply to the company mentioned in subparagraph (c). The company therein referred to remained the taxpaying company. Even though the end result in Cooper Brookes was to read down words, they were read down on the basis of an implication from their statutory context which required the word company, whenever it appeared in s 80B(5) of the Act, to be construed mutatis mutandis, or “as appropriate”, in the extended operation given to s 80B(5) by s 80C(3) of the Act. The result was that the disqualifying purpose in the case of dealings in the holding company’s shares was a very different purpose to the one which would have been prescribed on a literal construction of s 80C(3) of the Act.
[30] (1999) 46 NSWLR 681 at 688-689.
In R v Di Maria,[31] this Court considered an oversight in making amendments to the Controlled Substances Act 1984 (SA) (the CSA). When the CSA was first enacted, it provided a higher maximum penalty for offending involving an amount equal to or exceeding a prescribed amount and a lower maximum penalty “in any other case”. An amendment to one of the sections changed the form of the penalty provision so that the higher maximum applied to amounts equal to or greater than the prescribed amount, and the lower maximum applied to amounts less than the prescribed amount. The phrase “in any other case” was not used. The problem which arose in Di Maria was that no quantity had been prescribed for amphetamine, which was the drug in which Di Maria had dealt. Literally read, neither the higher nor lower penalty could be applied to Di Maria because there was no prescribed amount. Doyle CJ read the penalty provision for lesser quantities as if they included the words “in any other case” so that the lower maximum applied when no quantity had been prescribed. Doyle CJ explained his reasons for so holding as follows:[32]
[31] (1996) 67 SASR 466.
[32] (1996) 67 SASR 466 at 473.
The question which arises is whether the words of s 32(5)B(b)(ii) are reasonably open to the construction that they mean “in any other case”, or whether it is reasonably open to the court to read those words into the provision, either at the beginning of subcl (ii) or immediately before the penalty is specified.
In my opinion it is. It is only rarely that a court is at liberty to do so. But in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 the High Court corrected a drafting oversight in a provision of the Income Tax Assessment Act 1936 (Cth), and did so before the enactment of the purposive approach by s 15AA of the Acts Interpretation Act 1901 (Cth). The High Court applied accepted common law principles of construction. Gibbs CJ was prepared to do so because (at 304):
... the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case ...
…
In any event, founding myself upon the approach taken in Cooper Brookes it is my opinion that the necessary words can here be supplied.
The legislative history reveals to my satisfaction an unintended departure from the original scheme, which used “in any other case” to govern situations in which an amount was prescribed, and the penalty referred to then became the lower penalty, and situations in which no amount was prescribed and the penalty referred to was then the only penalty. There is, I consider, no other rational explanation for the departure other than that it was intended to provide a penalty “in any other case”, although those words were not used. Giving the provision its literal interpretation will cause the legislative intent to fail, because it will leave unpunished (other than by conviction) what is clearly regarded by Parliament as a serious offence — the manufacture of a drug of dependence and of a prohibited substance (and also sale and possession for sale). In the words of Mason and Wilson JJ in Cooper Brookes (at 321), the construction contended for by the appellants will produce a result which is “capricious and irrational”. To borrow the approach of Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106, first of all I am satisfied that Parliament intended to punish manufacture of the relevant substances in all cases, and to enable the Executive to do no more than by regulation identify substances which would attract a higher penalty if more than a specified quantity was involved. I am satisfied that Parliament did not intend to penalise manufacture only if the Executive prescribed an amount in respect of a given drug of dependence or prohibited substance. Secondly, I am satisfied that when Parliament amended the provision it overlooked the significance of removing the words “in any case”. Thirdly, it is possible to specify the words that would have been inserted if the omission had been identified. The words are to be found elsewhere in s 32, they were previously used in s 32(5)B itself. They are, “in any other case”.
In so concluding I have used the purpose of the legislation to test the consequences of the possible meanings of the provision. I have not, to affect the legislative purpose, made provision for a situation to which Parliament did not direct its mind, relying upon purpose as identified by me to remedy the oversight. I have added the words which, I consider, Parliament did intend to add to cover a situation to which it had adverted. Its error was mere oversight, the omission of the intended words: cf Tokyo Mart Pty Ltd v Campbell (at 283), per Mahoney JA.
(emphasis added)
The origins of the dilemma
The literal meaning of the child victim and carer provisions can readily be applied to procurement offences. That is not at all surprising. Procurement offences are generally committed by offending directly against the person of the child. When the Bill to introduce s 5AA was before Parliament, conduct involving child pornography was proscribed by the Summary Offences Act 1953 (SA). There was no Div 11A. The proposed child victim provision of s 5AA of the CLCA readily applied to offences like those found in Divisions 4, 7A, 8, 9 and 11 of the CLCA in which the conduct which is proscribed is inflicted directly against the person of the victim. The offences constituted by s 63B of the CLCA are also direct offences against the child. I will refer to offences of this type as direct offences against the person. The application of the child victim provision by reference to the age of the child “at the time of the offence” operates rationally for direct offences against the person.
When s 5AA was eventually enacted, Div 11A of the CLCA had already been enacted[33], however provision had not been made for the offences against Div 11A to be prosecuted as aggravated offences. The penalty provisions for Div 11A offences were amended to include a higher maximum penalty for aggravated offences in 2005.[34] In introducing the Bill to provide for aggravated forms of the offence, the Attorney-General described the failure to do so when Div 11A was first enacted as an “oversight”.
[33] Criminal Law Consolidation (Child Pornography) Amendment Act 2004 (SA).
[34] Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA).
However, in its literal meaning, the application of the child victim provision to viewing offences is problematic because viewing does not involve any conduct directly against the person of the child and may be committed a long time after the child pornography has been produced by more direct offending against a child.
It can not be doubted that the legislative intention was to constitute viewing offences, committed knowing that the pornography depicted children under the age of 14 years, as an aggravated offence and to do so irrespective of the actual age of the child at the time that the pornographic images were viewed. There is no sensible reason to impose a more severe punishment on an offender who views a pornographic image depicting a young child under the age of 14 before the child turns 14 than on an offender who views the same image at a later time when the child has attained the age of 14 years. I am certain that the problematic application of the child victim provision to accessing offences was an oversight.
A legislative design that the viewing of child pornography depicting a child under the age of 14 years be an aggravating circumstance only whilst the child depicted remained under that age, but not thereafter, enacts an irrational distinction between basic and aggravated forms of the viewing offences. The circumstance which constitutes the aggravated offence can not rationally be considered a circumstance of aggravation because the actual age of the person depicted is a matter of happenstance which does not make the viewing of the image any more culpable than it is by reason of the age of the child at the time the image was made.
Moreover, given the nature of the child pornography offences and the methods by which they are committed, the prosecution would rarely be able to prove that knowledge. The literal meaning of the child victim provision would therefore largely deny the child victim aggravating circumstance any effective application to viewing offences. The literal meaning of the child victim provision would, in its application to viewing offences, lead to results which are repugnant to the very purpose of Div 11A. For all practical purposes the legislative intention to especially punish and deter possession and dissemination of pornographic images of very young children would be defeated.
The literal meaning leads to manifest absurdity at every level of its application. The question is whether or not the language actually used by Parliament to express its intention is so intractable as to preclude a construction which conforms with the manifest intention of Div 11A as a whole.
Construction of Division 11A
It is important to recognise that s 5AA CLCA does not itself proscribe conduct nor does it constitute the aggravated forms of offences. Rather, the offences are constituted by the penalty provision at the foot of the basic offences in respect of which provision is made for a higher penalty if the basic offence is attended by circumstances of aggravation. This application raises incidentally the question whether an aggravated offence is different to its cognate basic offence. The question was not fully argued before us. I attach my tentative views on the issue as an appendix to these reasons only to adumbrate the issues which should be considered in the pleading of aggravated offences.
It follows that the applicable provision of s 5AA CLCA must be read together with the provision constituting the basic offence to identify the elements of the aggravated offence. In construing the terms of the basic offence and the applicable subparagraph of s 5AA CLCA together, the primary objective must be to give the aggravated offence, so created, a rational and coherent operation. That process of construction must be undertaken recognising that the provisions of s 5AA CLCA were designed for application to a wide range of basic offences and that the circumstances of aggravation might not be perfectly expressed for ready application to all of the basic offences to which they apply.
I acknowledge the force of the argument that, the legislature having enacted a generic set of aggravating circumstances, the provisions of s 5AA CLCA should be given a uniform and literal application whenever it is incorporated by reference. The interests of certainty are advanced by that approach. I would place greater weight on avoiding irrationality in the operation of the criminal law.
It is as well to commence the process of construction by identifying the elements of the basic offences for which the plaintiff was committed for trial.
The offence of accessing child pornography presents the least difficulty. The offence of accessing does not require the degree of control over the pornographic images which is required for the offence of possession. A person can obtain access by viewing child pornography without exercising control over the medium on which the images are displayed. It is a nice question whether a person who obtains access to an electronic, or hard copy, folder or book, obtains access to all of the images in the folder or book even if he or she does not view all of the contents. Be that as it may, the offence of taking a step to obtain access to child pornography makes that question largely one of academic interest only.
The basic offence requires proof of a specific intention to obtain access. Recklessness is not sufficient.
I turn next to the alternative limb of s 63A(1)(b) CLCA. The conduct proscribed is taking a step towards obtaining access to child pornography. The step must advance, in a sufficiently material way, the offender along the path of obtaining access to pornography. If the step is not a material step, in a series of steps, which if all taken would yield access to child pornography, the conduct element has not been proved.[35]
[35] R v Randylle (2006) 95 SASR 574 at [41].
The conduct element, as I would define it, requires more than taking a step which is apt to yield access to child pornography. The basic offence is not one of engaging in conduct which is calculated to yield access to child pornography. To “take[s] a step towards obtaining access” implies the existence of child pornography which can be accessed by a series of steps of which the conduct engaged in by the offender is one. In most cases a step which is apt to access child pornography will be such a step. An obvious case in which the difference may be material is the case of a decoy, electronic or otherwise, established by police. An offender who mistakenly believes that he is taking a step to obtain child pornography but is actually being entrapped by the decoy may be guilty of an attempt, if the conduct is sufficiently proximate, but is not guilty of the completed offence. In this respect, s 63A of the CLCA can be contrasted with s 63B(3)(b) of the CLCA.
I turn next to the terms of the child victim provision.
I acknowledge, and indeed it is important to appreciate, that the first part of s 5AA(1)(e) and the word “knowing” in particular, imposes a contemporaneity between the knowledge of the victim’s age and the commission of the offence. The word “knowing” and the rest of the paragraph form an adverbial phrase which qualifies the way in which the basic offence must be committed to constitute the aggravated offence.
The phrase “at the time of the offence” is a subordinate clause which speaks to a different issue. The circumstance the offender must know when committing the offence is that the “victim of the offence … was under the age of 14”. The time phrase, “at the time of the offence”, is an adjectival clause which qualifies the subject matter of the offender’s knowledge. I will refer to it as the time adjectival clause. The time adjectival clause qualifies the subject matter of the offender’s knowledge by specifying how the child’s age is to be reckoned.
The draftperson’s concern to address the inexorable march of time and its effect on a person’s age is understandable, but the qualification is largely unnecessary. Even in the absence of the adjectival clause it could hardly have been thought that the victim’s age at some time before the offence was committed could be the relevant time for the purposes of an offence against the person. I acknowledge that in the case of a procurement offence a question might arise as to whether the relevant time was the time of the conduct procuring the child or the time that the child is ultimately involved in some indecency. The time adjectival clause resolves that ambiguity by reference to the time of the completion of the offence. For the purposes of s 63B(1) that time is probably the time of the involvement of the child in the indecency. It is probably otherwise for the purposes of s 63B(3) because an offence against that subsection is complete when the communication is made.
The time adjectival clause has, in my view, been used to avoid doubt. Indeed, it does not appear in the child carer provision in s 5AA(1)(g) CLCA. The time adjectival clause is plainly unnecessary for the spouse/former spouse and domestic partner/former domestic partner elements of s 5AA(1)(g) CLCA. A person who was a partner or spouse at any time before the offending will thereafter always be a partner or spouse or former partner or spouse. However, the same is not true with respect to the custodial status of the children included within the scope of s 5AA(1)(g)(iii). There is a real question as to whether it is their status at the time of the offence, or at any time before its commission, which is critical. However, the legislature chose not to employ the adjectival clause “at the time of the commission of the offence”. Instead, the child carer provision applies, compressing the language a little, to “a victim who was a child of a domestic partner who has custody”.
My initial impression was that the tenses employed in the phrases “was a child” and “has custody” were inconsistent but that is not so. The child carer provision like many of the other aggravating circumstances speak to an offence “committed” in the past on a victim who “was” a person of the described kind at that point in time in the past. However, the present tense is used for the purposes of the adjectival clause, which describes the custody status of the child, in order to convey that it is the child’s status, at the time of the commission of the offence, which is relevant. The point I make is perhaps better illustrated by that part of the child carer provision which applies to a victim who “was a child who normally resides with” a spouse or former spouse. It follows that the literal application of the child carer provision to viewing offences will result in a similarly absurd operation as the child victim offence. On a literal application of that provision, offenders who view or disseminate pornography depicting a child as he or she was when in their partner’s care, but after the child is no longer in that care, commits only the basic form of the offence.

R v Hietanen (1989) 51 SASR 510 was an appeal against sentence for two offences of causing bodily harm by dangerous driving. The appellant had been sentenced on the basis that one such offence involved grievous bodily harm, attracting a higher maximum penalty. This Court considered whether s 19a(3) and (4) of the CLCA, read together, created one offence, with the maximum penalty dependent on the presence of the factors enumerated in subsection (4), or multiple offences. King CJ, with whom Mohr and Prior JJ agreed, held (at 512) that Parliament had plainly intended to create just one offence.
I note that the form of the relevant parts of the current equivalent provision, s 19A, is all but identical to the legislation as it was at the time Hienanen was decided.
Section 5AA provides a catalogue of circumstances which may aggravate offences committed against various sections of the CLCA. The terminology of s 5AA(1), in particular the words “… an aggravated offence is an offence committed in one or more of the following circumstances …” does not suggest to me that such circumstances as are then set out, in combination with penalty provisions from other sections of the Act, are intended to create separate aggravated offences. On the contrary, the interaction of s 5AA with those other provisions of the Act which do create offences, coupled with the terminology used to define “aggravated offence”, suggests that Parliament intended to create only the basic offences in the various sections of the CLCA, including s 63A, which could then be coupled with any one or more applicable circumstance of aggravation to give rise to a higher maximum penalty.
In saying so, I rely on the scheme of the CLCA, with the separate Divisions dealing with offences of differing types, and the clear terminology used, in a form common throughout the Act, to create specific offences. The opposing argument must assert that the separate, aggravated offence is to be defined partly by the statement of the basic offence and partly in any applicable circumstance of aggravation in s 5AA.
I also rely on the fact that whereas Parliament has provided for alternative verdicts to be available in respect of some offences dealt with in the Act (for example, s 25, s 290), no alternative verdict of the basic offence is provided for a charge of an aggravated offence. On my analysis, that is because it is unnecessary. A failure to find proved a circumstance of aggravation leaves available a verdict on the basic offence. Offences such as those created by s 63A are statutory offences; unless Parliament provides for an alternative verdict, none is available. The Parliamentary Counsel has recognised as much.
I am fortified in that view by the presence in s 5AA of subsections (3) and (4). Subsection (3) provides that “the circumstances alleged to aggravate the offence must be stated in the instrument of charge”. If it were intended, by the combination of s 5AA and, for example, the penalty provision in s 63A to create separate, aggravated offences, then it would hardly be necessary to require the stipulation of the aggravating circumstance in the charge. Plainly it would have to be there in order to correctly identify the offence charged. Subsection (4), similarly, seems to me to be inconsistent with the creation of a number of separate, aggravated offences. It provides as follows:
5AA—Aggravated offences
…
(4) If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating factors are alleged in the instrument of charge, the jury must state which of the aggravating factors it finds to have been established (but a failure to comply with this subsection does not affect the validity of the jury's verdict).
…
Subsection (4) plainly contemplates that two or more circumstances of aggravation might attach to a basic offence, and be pleaded in the charge. However, if an aggravated offence is taken to be a separate offence comprising the basic offence plus the circumstance of aggravation, then it would not be possible to allege two circumstances of aggravation in relation to one charge. It would be duplicitous to do so. On the other hand, if s 5AA merely provides what are a range of circumstances of aggravation, then there is no impediment to pleading as many as are applicable in the one charge and requiring the sentence to reflect whichever of those circumstances are found proved by the jury.
The way in which this question is resolved has consequences for the way in which informations such as the one before the magistrate are framed. In the present instance the odd numbered counts of the original information contained the charges of the basic offence with the circumstance of aggravation alleged as required by s 5AA(3). The even numbered counts were apparently alternative charges of the basic offence only. On my analysis it was never necessary to charge the even numbered counts, as, had the circumstance of aggravation fallen away, the charge for the basic offence would have remained.
I note in passing that s 5(5) of the Summary Procedure Act, which I mentioned earlier, provides some further support for the opinion I have reached. It is in the following terms:
5—Classification of offences
…
(5) If a law prescribes differential maximum penalties, then for the purposes of classifying the offence in accordance with the above rules, it will be taken to create separate offences which are (where necessary) to be separately classified in accordance with the above rules.
…
The subsection contemplates that even though differential maximum penalties may be provided for offences, that will not necessarily create separate offences. The purpose of subsection (5) is to ensure that when classifying offences in terms of being major indictable, minor indictable or summary, the impact of the circumstance of aggravation on the maximum penalty will be taken into account. That classification then informs how charges are processed.
I consider that the elements of the offence of taking a step towards obtaining access to child pornography (s 63A(1)(b)) as they stood at the time of the alleged offences are as follows:
1.that the accused took a step towards obtaining access to child pornography (being material describing or depicting a child under or apparently under the age of 16 years); (The words “towards obtaining access” mean that the step taken would have to be apt to lead to access to child pornography.)
2.that he did so intending to obtain access to child pornography.
Was the circumstance of aggravation applicable
I turn to the question of whether the circumstance of aggravation described in s 5AA(1)(e)(i) could apply to the charges against the plaintiff on the alleged facts as I have taken them to be.
In my view it could not. I say that for these reasons. I consider that the use of the word “victim” in s 5AA(1)(e) is incongruous in terms of the offence of taking a step towards obtaining access to child pornography provided by s 63A(1)(b). Neither the word “victim” nor the word “child” appear in s 63A(1)(b), although I acknowledge the definition of “child pornography” does refer to “a child”. In other sections within the CLCA the identity of the victim of an offence is readily ascertainable, for example, s 23 causing serious harm, s 56 indecent assault, s 59 abduction. In those cases it is not difficult for the prosecution to prove the age of the victim at any particular time. Here, at least where the allegation is one of taking a step rather than accessing child pornography, it is axiomatic that no victim has been identified because, it would be expected, no images have been accessed. If no image has been accessed then there can be no question of proving the age of a victim. In my view it is not enough to say that the victim is the person whose image would have materialised had further steps been taken. That, along with the assertion that all children from whom pornographic images have been produced are potential victims, seems to me to provide insufficient nexus between any particular person and the actus reus of the charge.
I am fortified in this view by the reference in s 5AA(1)(e)(ii) to the victim’s age “at the time of the offence”. In other sections of the CLCA where that formula is used, it is used in respect of a victim with whom the accused has dealt. The offence is said to be committed against that person, in the same way as is the offence of producing child pornography (s63(a) CLCA) committed against a specific victim. In those cases it is used, presumably, to make clear that the age of the victim is to be reckoned, not by age at the time of the trial, but by age at the date of the offending. When used in relation to an offence of taking a step towards obtaining child pornography, it is quite incongruous. It is difficult to interpret “at the time of the offence” as meaning “at the time the image was produced” or “as depicted”. Even if an image is accessed by the accused, it is likely to be impossible to identify the person depicted and so to establish the present age of the person shown, especially when the image may have been produced some years previously. Again, I do not think it is legitimate to, in effect, treat the offence created like an attempt to access pornography showing children under a particular age.
A further odd feature of the prosecution’s argument on the combination of s 63A(1)(b) with s 5AA(2) is that, if it is sufficient for the prosecution to say that the age of the victim is a product of the accused’s intention, and given the wide definition of “knowledge” in s 5AA(2), then all offences of taking a step would likely be aggravated ones, because any step taken towards obtaining child pornography (under 16 years) would likely be one taken with recklessness as to whether the victim was under the age of 14 years. On Mr Hinton’s analysis, almost inevitably, all offences of taking a step towards or accessing child pornography would be aggravated ones.
I agree with Mr Abbott’s argument that, notwithstanding s 5AA(2), to make out the circumstance of aggravation the true age of the victim would have to be proved. No victim of any of the charges against the plaintiff has been identified.
I conclude that there are difficulties in reconciling the circumstance of aggravation set out in s 5AA(1)(e) with the offences of taking a step towards obtaining access to child pornography and obtaining access to child pornography in the circumstances pertaining in this matter. Those difficulties should be resolved by a finding against the prosecution’s argument. The circumstance of aggravation may apply to other offences created by Part 3 Division 11A, most clearly that created by s 63a, the offence of production.
Consequently, I find that the magistrate erred in finding that the circumstance of aggravation could apply to the offences charged on the facts alleged.
Consequences of the magistrate’s error
It is now necessary to turn back to the Summary Procedure Act.
Because the information charged, on its face, major indictable offences, the magistrate was correct in embarking upon a preliminary examination in accordance with sections 104 to 107 of the Summary Procedure Act. Further, the magistrate was correct in hearing and ruling on the submissions on behalf of the plaintiff to the effect that the prosecution had not produced evidence which could make out the circumstance of aggravation. As is evident, I consider that the magistrate erred in finding that there was evidence going to each count sufficient to prove the circumstance of aggravation.
Had the magistrate determined that there was a case to answer on the basic offences only, then in accordance with s 107(3) the magistrate would have reviewed the charges, and, there being no election by the plaintiff for trial in a superior court, the magistrate would have been obliged to “proceed to deal with the charge[s] in the same way as a charge of a summary offence”: 107(3)(b)(iii). In my view, the next step taken by the magistrate, to commit the plaintiff for trial, was in error and the nature of the error was one going to jurisdiction. The power to commit the plaintiff to a superior court was not available. I would classify it as misconstruction of the CLCA, leading to a misconception of “the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case”: Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531, [72], referring to the third example of jurisdictional error provided in Craig v South Australia (1995) 184 CLR 163 at 177-178. In any event the Solicitor-General conceded jurisdictional error on a basis more confined than that found by me.
Conclusion
The error which I have found that the magistrate made has the result of enlivening the Director’s duty under s 276 CLCA and, in all probability, leading to the charges being dealt with in the District Court. It could be argued that no disadvantage accrues thereby to the plaintiff. Nonetheless, in this matter I would not decline to exercise the discretion reserved to the Court.
For the foregoing reasons I would set aside the order of the magistrate committing the plaintiff for trial and remit the matter to the magistrate for further consideration on the basis that the circumstance of aggravation alleged in each instance cannot apply.