Herscu v The Queen

[1991] HCATrans 240

..

4

"I

• -.~JA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B30 of 1991

B e t w e e n -

GEORGE HERSCU

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

GAUDRON J

Herscu(2) 1 3/9/91

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 3 SEPTEMBER 1991, AT 11.15 AM

Copyright in the High Court of Australia

MR T.E.F. HUGHES, QC:  May it please the Court, in this

appeal I appear with my learned friend,

MR P.J. FAVELL, for the appellant. (instructed by

Flower & Hart)

MR R.A. MULHOLLAND, QC: If the Court pleases, I appear with

my learned friend, MR R.M. NEEDHAM, for the

respondent. (instructed by the Office of the

Special Prosecutor)

MASON CJ: Yes, Mr Hughes.

MR HUGHES:  Your Honours, we have provided some material

which includes the outline. There are sets; I have

the outlines on top.

MASON CJ:  We have the outline and we have a reference to

the sections and we have - well, that is what you

handed up. Yes, Mr Hughes.

MR HUGHES:  Your Honours, the first count of the indictment

is to be found set out conveniently at page 302 of

volume two and on the same page and over on

page 303 Your Honours will see, set out in

convenient form, the terms of section 87, under

subsection (2) of which the appellant was indicted

on two counts.

There are two key expressions, in our submission, in section 87,the first one of which is

to be found in subsection (1) which contains the

expression:

Any person who -

Being ..... the holder of any public office, and

being charged with the performance of any duty

by virtue of such employment or office -

The second key expression is to be found in both

subsection (1) and subsection (2).	The first
expression is not repeated expressly in
subsection (2).	The second key expression is one

that make.s it requisite that the act charged or the

omission made:

be done or omitted ..... in the discharge of the

duties of -

the office holder's -

office.

Now, Your Honours, it is our cardinal

submission that the expression, "in the discharge

of the duties of the office", in a provision in an

Act of Parliament creating a serious criminal

Herscu(2) 2 3/9/91

offence must be taken to refer to legal duties, not

duties in some other sense. May I put it as

succinctly as I can in this way: one does not

discharge the duty of an office in the context of a

section like this unless one is charged with a duty

and that means charged in the legal sense.

Now, it is true or, indeed, obvious that the

first expression to which I have referred, "being

charged with the performance of any duty by virtue

of office", is not expressly carried down into

subsection (2). We would say it is by implication

and we would further say that in any event even if

it is not it does not matter because one would

treat the words "in the discharge of the duties of
his office" as carrying the denotation or

connotation to which I have already alluded.

In the Court of Criminal Appeal, Your Honours,

the two members of the court held that the Minister

concerned had no duty or power to require the

council to do that which, on the evidence, he by

one of his officers - his principal officer in the

Main Roads Department - attempted to get the

council to do. The act charged, as Your Honours

will have seen from the terms of the first count of

the indictment - and the second count is similar -

was an attempt by the Minister to ensure that the

conditions as to access to the Sunny Park shopping

centre were altered. They were conditions that had

been prescribed both as to vehicular access and
pedestrian access by the Brisbane City Council as

the town planning authority under the Brisbane Town
Plan.

But while holding that there was neither duty nor power in the Minister to require the council to

do anything by way of altering the access,

Their Honours Mr Justice Thomas and

Mr Justice Mackenzie deduced from a number of

provisions of the Local Government Act and the City

of Brisbane Town Planning Act, prints of which

Your Honours have in the material provided, that

there was a general duty on the part of the

Minister to supervise the activities of a local

authority such as the Brisbane City Council.

I shall need, Your Honours, to examine as

briefly as I can the provisions of those two Acts

that bear upon the powers of the Minister in

relation to local authorities: the Local

Government Act and the City of Brisbane Town

Planning Act. We say - this is our submission -

that in deducing that general duty from the

provisions of the Act and from the administrative

order of 1975 which marked out the sphere of

responsibility of the Minister, Their Honours

Herscu(2) 3 3/9/91

really came to a conclusion which, we submit, is

unsustainable in law, that the whole is greater
than the sum of the parts. Because if one goes to
the relevant provisions of the legislation and to

the terms of the administrative order of 1975, one

will see, we submit, that the Minister's powers in

relation to the activities or controlling the

activities of local authorities are strictly

circumscribed as may be thought - and, indeed, this

seems to be the policy of the legislature - is

proper. Proper in the sense that local authorities

should be given autonomy in the administration of

their local affairs subject to particular

exceptions that the legislation creates.

Perhaps the most important provision in the

Local Government Act, Your Honours, as bearing upon

this topic, is section 30 which, in the print that

we have provided, is at page 147. It sets out in a

number of paragraphs the functions of local

government. It starts by saying:

The Local Authority shall be charged with the
good rule and government of the whole or any

part of the Area and shall have the control of

the working and business of such good rule and

government.

The next paragraph confers:

full power to make by-laws -

and that power, if one turns over to page 148, is

expressed with generality but also specificity
without limiting the generality. Page 149 deals

with the by-law powers, until one comes to the

middle of the page and there there is a paragraph

which says:

The Local Authority may take any land and provide, acquire, construct, maintain, manage,

control, and carry on any work, service, or

undertaking with all associated or ancillary

works or services.

The power of the Local Authority to take land includes power to take, with the approval of the Minister, land outside its Area that is required by it for the purpose of any function of local government.

So, that is one example of where the

ministerial power specifically intrudes upon the

range of activity of the local authority.

Herscu(2)	3/9/91
BRENNAN J:	Am I right in thinking that the Local Government

Act was not an applicable Act in the circumstances of this case?

MR HUGHES:  Yes, it was, Your Honour, with respect, because

section 36(6) of the City of Brisbane Act makes

that Act applicable except to the extent to which

its provisions are excluded in the special Act.

Page 33:

Save as is otherwise expressly provided by this Act or any ordinance, where in any Act

reference is made to a Local Authority or an
Area of a Local Authority ..... the Brisbane

City Council -

I am leaving out unnecessary words -

shall be deemed to be a Local Authority, and

the City of Brisbane shall be deemed to be an

Area of a Local Authority -

That is the provision I had in mind, Your Honour.

BRENNAN J: Although section 30 of the Local Government Act

contains provisions relating to the functions of

local government which has correspondence in

section 36(1), (2), (3) and (4) of the City of

Brisbane Act.

MR HUGHES:  Yes, there may be overlap, Your Honour. I am

obliged to Your Honour for pointing that out.	I
can rely on either one or the other, I suggest.

We have provided, on two separate pieces of

paper, summarized references to the effect of the
provisions of the Local Government Act to which
reference is made in the reasons for judgment of

Mr Justice Thomas.	I do not want to expatiate upon
them at any length.	I shall content myself, I hope

not too summarily but in the interests of brevity,

with saying that none of those sections come any

where near conferring upon the Minister a power or

a duty to influence the council in relation to the conditions of consent imposed by the council under the Town Planning Act.

The Minister may do various matters and

Your Honours saw an example in section 30 of the

Local Government Act - do various things: he has

to consent to the acquisition of land outside the

council's area; he can do certain things with the

approval of the - the Governor in Council can do
certain things that trench upon the activities of
councils, but nowhere does one find - and

Their Honours in the Court of Appeal accepted

this - nowhere does one find a provision in any

Herscu(2) 3/9/91

relevant Act which gives the Minister the power or

the duty to intervene by way of attempting to

enforce his will or wishes upon a local council in

relation to a planning matter.

I should refer, in this connection, to the

Town Planning legislation itself, that is the City

of Brisbane Town Planning Act. Section 4(1),

Your Honours, says that:

Notwithstanding the repeal of the repealed

Acts the Plan under and within the meaning of

"The City of Brisbane (Town Plan) Act of

1959", as approved by the Governor in Council

shall, subject to this Act, be and continue to

be the Town Plan for the City of Brisbane and

shall have the force of law and be binding

upon and be obeyed by Brisbane City Council

and all persons whomsoever accordingly until

notification has been published in the Gazette

that the Governor in Council has approved a

new Town Plan -

And then if one drops down to subsection (2),

Your Honours, one finds in the second paragraph

this provision that:

Upon the publication in the Gazette of

notification of any such amendment the Plan -

that is an amendment to the plan, that amendment -

shall have the force of law -

and subsection (3) says that:

The Council shall proceed with the preparation

of a new Town Plan -

every seven years, apparently. The procedures for

preparing the new town plan are set out and, of

course, the new town plan would have the force of

law and it is under the town plan as it existed at

the time of the Minister's activities referred to

in each count of the indictment that was operative
in relation to prescribing the conditions of access

that the Minister, through his - not one of his

local government officials - one of his Main Roads

officials sought the council to consider altering.

DAWSON J: There is no dispute that the Minister was charged

with the administration of the whole of the Act,

that is, the City of Brisbane Town Planning Act.

MR HUGHES:  Yes. The plan, as it existed, had the force of

law and one would venture to submit that given that

the plan had the force of law so that the

Herscu(2) 6 3/9/91

conditions of access prescribed by the council had legal standing as legal requirements and given the

autonomy provisions enshrined in section 30, one

would venture to say that for the Minister to

interfere in the way that the evidence showed that

he did was the reverse of any discharge of duty;

he was doing something but having regard to those

provisions he should have stayed right away from.

TOOHEY J:  Mr Hughes, on your argument, if a Minister is

offered money to bring about some particular result which is not within his portfolio, but nevertheless

he knows someone in administration who may be able

to bring about that result and he agrees to

approach that person on behalf of the person who

has offered him the money, you would say there is

no offence committed under this section.

MR HUGHES:	I would, Your Honour.
TOOHEY J:	Was the offence committed under any other

section?

MR HUGHES:  I thought one of Your Honours would ask that

question and the answer is, probably, yes. The

section under which he could be charged, I suggest,

is the section in the Criminal Code which prohibits

secret commissions. Of course, to show that there

is another section does not really affect the

structure of my argument but it certainly would not

be unhelpful to my argument.

Can I refer Your Honours to - - -

MASON CJ: But, if in fact he accepted a bribe in these

circumstances, would he be committing an offence

under the secret commissions provision in the Code

if he said, "I have accepted a bribe"?

MR HUGHES : If he said, "I have accepted"?

MASON CJ: Yes.
MR HUGHES:	Probably, yes. Can I take Your Honours to the sections? They are to be found in our case book.
Your Honours, the case book is rather thick.
Your Honours will be relieved to know that I am
going to refer to very few of the cases in it
because this - - -
MASON CJ:	Your argument is becoming immediately more

attractive, Mr Hughes.

MR HUGHES:  I am glad to hear that, Your Honour, although

that is not - that is comforting as far as it goes.

Your Honours, this is a case which throws up a

question which has been barely considered in either

Herscu(2) 3/9/91

of the States or any of the States where there is a

Criminal Code: Queensland, Western Australia,

Tasmania. If Your Honours go to page 9 - and I am

afraid the numbering is in ink and at the bottom

right-hand corner - Your Honours will see a reprint

of the provisions of the Code dealing with secret

commissions. There is a definition of "agent"

which is relevant. I will not read it all but if

Your Honours drop about one-third of the way down

the page Your Honours will see:

the term also includes a Minister of the

Crown, and a person serving under the Crown or

a Minister of the Crown -

so the Minister of the Crown is an agent. Then, if

one goes to section 442B, on page 10, one finds

this provision - and to save time I will merely

read the offence created in the case of the giver

of the secret commission:

Any person who corruptly gives or offers to

any agent -

that would be the Minister of the Crown -

any valuable consideration -

(a) As an inducement or reward for or

otherwise on account of the agent doing or

forbearing to do, or having done or forborne

to do, any act in relation to his principal's

affairs or business; or

(b) -

I do not think I need read on. Now, on the view

which we would submit is clearly open, that the

Minister was an agent of the Crown in right of the

State, and on the view that in the broad sense

referred to by Their Honours - or at least two of

Their Honours - the business of local government,	considering that in the round, is part of the
business of government, one would say that
corruptly giving money to a Minister to do an act,
albeit not in the act of the discharge of his
duties, indeed, contrary to his duty, but an act in relation to the Crown's business - the State's
business - the State's interest in the administration of the local government statutes, then my client could have been charged.

BRENNAN J: Assuming that your client acts, has acted -

or is desirous or intending to act ..... on

behalf of -

Herscu(2) 3/9/91

in the material respect, taking that from the

definition of the term "principal", that would

raise something of the same problem as you are

agitating in the present case, would it not?

MR HUGHES: Well, it may, but can I just say this in

specific response, although it is not a complete

answer to Your Honour's question, there is another

section that is nearer the mark than section 87.

Your Honours will have noticed from the

judgments that Mr Justice Mackenzie, in the Court

of Criminal Appeal, paid considerable attention to

the common law cases. Now, we submit that the

common law cases have no useful bearing upon this
problem because if one consults the older
authorities - and I have got some extracts from

Coke and other authors here - the common law

offence of bribery reached acts that were done

under colour of office; using a pretended

authority.

This is what we say the Minister did here. pretended an authority that he did not have. He

He

pretended an authority that neither the prerogative

nor any statute conferred upon him.

BRENNAN J:	Can I just interrupt you for a moment because I am not sure that I followed exactly your earlier
statutory exegesis.  What is the specific power
which was to be exercised in order to achieve an
improved access to the shopping centre?
MR HUGHES:	I am obliged to Your Honour for raising that

because I should have referred to it before I

passed. If Your Honours would be good enough to go

to the Town Planning Act, the relevant provisions

are these. Can I just give a summary first: If

conditions are attached by the local authority,
including the Brisbane Council, to town planning

approvals which are not acceptable to the

applicant, there is an appeal within prescribed

time limits to the local government court. That

remedy was not invoked here.

If that route is not taken, section 22AA at

page 55 of the print operates. It is page 49 as

numbered at the bottom right-hand corner. Subsection (l)(a) of that provision says:

Subject to subsections (2) and (3) where under the plan or a superseded town plan within the

meaning of section 22B an application for

consent in respect of the erection or use of a building or other structure on land or the use of land or an application for approval ..... has

been approved by the Council or its delegate,

Herscu(2) 9 3/9/91

with or without conditions, the Council or its
delegate may, upon the application of the
person in whom the benefit of the approval for
the time being vests, modify the approval
granted or any condition applicable to the

approval provided the Council or its delegate

is of the opinion that -

(i) the modification is of a minor nature;

and

(ii) the modification would not adversely

affect any person.

Then paragraph (b) says that the applicant for such

a modification must apply to the Council and -

shall set forth full particulars.

(c) The Council or its delegate shall decide the application within 30 days from the date of receipt by the Council of the application.

Then subsection (2) subject to which the general

provision is made expressly subject says:

(2) For the purposes of this section a

proposed modification shall be taken to be not

of minor nature if -

certain factual conditions are applicable. And

then there is a proviso to that - I will not read

it all. I hope that all Your Honours need to know

is the availability of prescribed statutory

procedures to seek a change in planning approval

conditions.

DAWSON J: But the approval of the Commissioner of Main

Roads is one step in establishing in the proviso

that the modification is of a minor nature.

MR HUGHES:  Yes, that is in relation to main roads.

Your Honour, with respect, is perfectly correct.

Neither of the roads in question here was a main

road.

DAWSON J: Although it is called Main Road?

MR HUGHES: Although confusingly it is called Mains Road,

yes. A rather odd twist in the situation is that

the Minister here on the evidence did not ask one

of the officers of the local government department

to write a letter to the council seeking

reconsideration of the conditions. He got the

Commissioner for Main Roads to write the letter.

Herscu(2) 10 3/9/91

The only other provision to which I would

refer Your Honours in this connection is

section 22AB on page 56:

An applicant who is dissatisfied with the

decision of the Council or its delegate on an

application -

inter alia, pursuant to subsection (l)(b) -

may apply to the Court for a review.

Those are the prescribed modes of seeking

alteration of conditions such as access conditions

to land which is developed pursuant to a consent

under a town plan.

We do put in the forefront of our argument

this consideration, Your Honours, that given the

emphasis on autonomy in section 30, given the

absence of any - and this is conceded

below - express statutory authority for the

Minister to lean, as it were, on the council, that

which the Minister did, quite contrary to being in

the discharge of any duty of his office, was

contrary to his duty. That may mean that the

section does not pick up a lot of activities which,

if not picked up by the secret commissions
provisions of the Queensland Criminal Code, are

contrary to the standards of right thinking people.

I have to live with that. But after all, this is a

criminal statute. The ordinary meaning of "duty"

in a statute is a legal duty, and our argument can

accommodate, as we have endeavoured to explain in

our outline, to the situation that the Minister or

public official may accept a bribe as an inducement
to give a perverse voidable decision, but a

decision of a kind which, if untainted by the

bribe, would be a discharge of the duties of his

office.

Our argument can accommodate to that and if it

can, as I suggest, do so ~t takes a lot of the

sting out of the thoughts which, with respect, were

obviously at the forefront of Their Honours' minds

in dealing with this matter in the Court of

Criminal Appeal; that if one does not yield to the

temptation, as it were, of writing the legal

meaning of the word "duty" and "discharge" out of

the section, a Pandora's box opens up.

We have pointed out that in Western Australia,

following two cases which are in the case book and

which are referred to in the judgments, Pense v

Hemy, and Hyman v French, the legislature grappled

with this problem and amended the provisions of the

Western Australian Criminal Code by removing from

Herscu(2) 11 3/9/91

the hitherto corresponding section the concept or

ingredient of the act or omission having to be done

in the discharge of the duties of the office.

TOOHEY J:  Mr Hughes, the relationship between

subsections (1) and (2) of section 87 is not an
entirely easy one, but I take it that the
justification for importing the notion of discharge
of duties of office into subsection (2) is a

reference to "such act or omission".

MR HUGHES:  Yes, Your Honour.

TOOHEY J: Although subsection (1) does not in express terms

use the word "act" or "omission". It certainly

speaks of things "omitted to be done" and things

done, but I take it that is the justification for

the - - -

MR HUGHES:  The key word is "such". One asks what the word

"such" refers back to and it can only be, we

venture to suggest, Your Honour, that it is a

reference back to a -

thing already done or omitted to be done, or

to be afterwards done or omitted to be done.

TOOHEY J: Well, it is rather curious to describe a thing

that is afterwards to be done as an act.

MR HUGHES: Well, it is proleptically an act.

TOOHEY J:  I agree that if it does not mean that it is very

hard to see what "such" does refer to.

MR HUGHES: 

Indeed, and it produces a total disconformity or

lack of reciprocity between the two subsections.
One would venture to suggest that in construing a
provision like section 87, it would be presumed
that the legislature intended to create reciprocity
of liability, or parity of liability, as between

the briber and the bribed. That is the way we

submit the Court ought to approach the section.

Now, I did not mention section 5 of the City

of Brisbane Town Planning Act, and I give a very

brief reference to it. It says that -

the Brisbane City Council is hereby charged

with the administration, implementation and

enforcement of the plan.

That emphasizes the concept of local government

autonomy, subject only to express exceptions.

Now, Your Honours, while I have no desire to

skimp the argument, most of what we want to say is

Herscu(2) 12 3/9/91

in that rather expanded outline. I should mention,

however, one or two more points and perhaps

endeavour respectfully to criticize specific

aspects of the judgments under appeal.

MASON CJ: Before you do so, could we just come back to

section 87. Normally, when one looks at the

expression "duty", particularly in the context of a

duty by virtue of an office, one primarily thinks

of functions, does one not, rather than a positive

legal obligation to do something, because

generally, the holding of an office, per se, does

not impose such a legal obligation? Such an

obligation may be imposed by statute, but it is not

imposed by the holding of the office.

MR HUGHES:  In the case of the Minister for Local

Government, certain duties, we would say, are imposed on him by statute but they are not

relevant. Your Honour no doubt has in mind the

decision of this Court in Canadian Pacific Tobacco

v Stapleton.

MASON CJ: Yes, I have that in mind, but that was not

immediately prompting my question to you, because

that may have a context of its own in any event.

MR HUGHES:  Your Honour, if "duty" or "duties" in this

section are to be equated as a matter of

Minister may properly do in his activities as a	construction with functions, things that the can be no part of the proper function of a Minister
to lean on a local council to make it conform to
his wishes in a matter which is entrusted by the
legislature peculiarly to them, subject only to
prescribed avenues of redress by way of appeal.

BRENNAN J: It is a very broad proposition, Mr Hughes. For

example, if there should be a planning decision to

be made by council which has some budgetary

implications, one would have thought that the

Minister who may have to respond to the budgetary

requirements would have every reason to seek to
have the decision made which is conformable to the

interests of the State.

MR HUGHES: It is difficult, with respect, however, to deal

with these matters in the abstract.

BRENNAN J: But if one puts the notion of duty as the duty

owed to the community at large, do the problems not

then disappear?

MR HUGHES:  The problem does not disappear unless one - and

I submit this would not be legitimate as a matter

of construction - writes out of the Act the word

Herscu(2) 13 3/9/91

"duty", replaces it with some other expression that

is not there, and confuses - this is the third

step - duty with capacity.

Now, I should refer in this context to the one

case to which I shall refer, that is, a decision of

the Privy Council. The name of the case is

Attorney-General of Hong Kong v Ip Chiu,

(1980) AC 663.

MASON CJ:  It is on page 27 of our book of authorities,

Mr Hughes.

MR HUGHES:  I am obliged to Your Honour. I can invite

Your Honours to read the headnote to get the

context in which the case was decided.

The respondents, a police sergeant and a

constable, approached CK and accused him of

selling heroin. He admitted that he had done

so two months previously. After

unsuccessfully searching CK, the respondents

indicated that they wished to take him to a

police station. In order to avoid being
beaten up, the planting of evidence on him or

possible future harassment by the respondents,

CK then gave them $2000. The respondents were

charged under section 4(2)(a) of the

Prevention of Bribery Ordinance that being

public servants they had accepted an

advantage, namely $2000, on account of their

abstaining from performing an act in their

capacity as public servants, namely taking

police action in respect of an alleged

dangerous drugs offence. The magistrate ruled

that the payment was made on account of the
respondents' abstaining from taking any

further action against CK and they were

convicted. The Court of Appeal of Hong Kong

allowed their appeal holding that since the

payment did not relate to the offence

of a possible future allegation of an offence	previously committed, but was made in respect
which would be proved by planted evidence and
as the fabrication of evidence was no part of
a police officer's duty, the respondents had
not acted in their capacity as public
servants.

Their Lordships held -

"duty"; that the true test of

that "capacity" in section 4(2)(a) of the equivalent of

whether an advantage had been solicited or

accepted by a person in the capacity of a

public servant was whether the gift would have

Herscu(2) 14 3/9/91

been given or could have been effectively

solicited if the person in question were not
the kind of public servant that he in fact
was; if the answer to that question were in
the negative, then the person had taken the
gift in his capacity as a public servant,

provided that the embarrassment sought to be avoided by the gift could not equally easily

have been caused by any person not holding

that office.

The relevant passage in the opinion of the Privy

Council, Your Honours, is at page 671, where Lord

Edmund Davies for Their Lordships said:

It has to be said respectfully that the Court

of Appeal never really dealt with Leonard J's

test.

That was the test adopted by the Privy Council. Indeed, however, unwittingly, they in effect

discarded it, for more than once they equated a public servant's "capacity" with his "duty"

and thus considerably narrowed the former

word, which is the only one contained in

section 4 ( 2 ) (a) .

Here, in one sense it can be readily enough said

that what the Minister did was done in his

"capacity" as a Minister in the sense that were he
not the Minister he could not have made the attempt

to influence the council with any prospect of

success. But that particular activity was neither

a performance of a legal duty, indeed it was the

negation of it, and it was the negation of the

performance, it was the opposite of performing any

function that the Minister was entitled to

undertake. That is the way in which we would seek

to answer the problem put to me by Your Honour
the Chief Justice.

MASON CJ: At the moment I do not see it as a complete

answer to the problem because if you take the view

that it is function, not duty in the narrow sense

for which you contend, why is it then not possible

to take the view that his functions include the

administration of local government responsibility,

and that where he sees something that arises in a

particular town plan it is part of his function, if

he is so minded, to say to the local authority,

"Here is a situation that requires remedy.	Would
you give it consideration?"

MR HUGHES:  First of all, there is nothing in the Act which

says he can do that, or should do that.

Herscu(2) 15 3/9/91

MASON CJ:	No, but one has to spell out the boundaries of the functions of the office by reference to a whole
series of instruments.

MR HUGHES: Well, including the administrative arrangements

order.

MASON CJ: Yes.

MR HUGHES:  And including, so far as it be relevant, his oath of office.

MASON CJ: Yes.

MR HUGHES:  The latter does not throw any light on the range

of his duties or functions. Indeed, it says he

will faithfully perform his duties and functions

and authorities according to the law, so that it

throws one back always to what his proper functions

are.

The principal argument in favour of importing

into the section, or reading the plain words of the

section, as importing a reference to duties that

are legally binding, is the word "discharged" and

the word "charged" in subsection (1).

MASON CJ: Yes, but I would have thought that that is

equally susceptible of the interpretation of
discharge of the functions of the office, discharge

of the responsibilities of the office.

MR HUGHES: Well, if that was what was intended, it would

have been very easy to replace the word "duty" with

another word.

MASON CJ: Yes, but, of course, it would be easy to solve

all questions of interpretation with that answer.

MR HUGHES:  Yes, but it is not the word chosen. The

administrative order which is set out in two of the

judgments says that the Minister is responsible

for - I think I can get the exact terms easily

enough - the oath of office is at page 384.	The
Minister swore to -

honestly, zealously, and impartially discharge

and exercise the duties, powers and

authorities appertaining -

to the office. And then the notification of

administrative arrangements, he is -

charged with the business connected

with ..... local government matters.

Herscu(2) 16 3/9/91

But that throws one back, with respect, to what

that business is, so it is not very helpful. That

would allocate to the Minister the duty of

answering questions in the House, if he chose to

answer them.

MASON CJ:  I can only say, Mr Hughes, on your view of the

means or mode of ascertainment of a Minister's

authority, if you decided to resuscitate your

political career I can see you would not be

particularly hard-pressed.

MR HUGHES:  Your Honour, that might not be entirely so

because the Attorney-General -

MASON CJ: In other words, one would be looking to

particular statutory provisions in order to

ascertain whether a minister had a positive duty to

do something.

MR HUGHES:  Or an authority, and let me concede for the

purposes of argument a legitimate function to do a
particular matter. If one equates duty with

function, one still has to grapple with the import

of the word "discharge" and "charged". It is a

highly contentious question, Your Honour. No doubt

if one went back one could find things to do which

would be legitimate exercises of authority.

MASON CJ: It might be hard to find them.

MR HUGHES:  One could look at statutes, and one could look

at the administrative order in relation to

Commonwealth departments which, in my dim

recollection, is much more specific than that which

is - - -

MASON CJ:  I think that is true. I think it is more

specific than - - -

MR HUGHES:  - - - because as I recall it, for example, the

Attorney-General is given responsibility for the

administration of listed Acts - - -

MASON CJ: Particular statutes, that is right.

MR HUGHES:  - - - as well as the administration of the

department, as is any minister. And it is readily

to be conceded that the Minister for Local

Governrnnent in Queensland would have authority to

attend to and intervene in the administration of

his own department in such matters as staffing, the decision-making process within the department. All

that would be embraced within the utterly general

words of the administrative order here, and also

embraced within the ministerial order here would be

the parliamentary responsibility for answering

Herscu(2) 17 3/9/91

questions about local government matters. But all

that said, it still is difficult, in our respectful

submission, to assign what the Minister did here to

the performance of any function that would have

been legitimate had it been untainted by the bribe.

That is the ultimate point I seek to make. It has

to be a function that would have been a legitimate

function, a lawful function, if untainted by the

bribe.

MASON CJ: Yes, but you are always looking for a specific

function, whereas the argument against you, I

imagine, is that the Minister's area of functions

includes the total administration of the various

statutes that fall within the area of his political

portfolio.

MR HUGHES: Well, I can live with that because the word

"total administration" is itself one that requires

further definition in the light of what the

statutes say local authorities may do and what he

may do. This activity on the part of the Minister

was a rank intrusion upon the local authority's

turf in a matter where they should be left to
exercise autonomy without ministerial interference.

That is the way we would put it, descending to the

particular.

BRENNAN J: Put it to the test. If the decision had been

made in accordance with the ministerial
representation, in this case, by the local

authority, would that decision have been open to

challenge by an objection through a ratepayer on
the grounds that the council had been affected by

taking into account a consideration which was

illigitimate to be taken into consideration?

MR HUGHES:  The answer to that question must be yes,

subject, Your Honour, to any statutory provisions

which would preclude a challenge by way of

mandamus. If the council bowed to the entreaties

of the Minister, and if that was a significant

factor in their decision to alter the terms of the

conditions of approval, then mandamus would lie,

because the council would not have determined the

matter according to law.

BRENNAN J:  I was not suggesting that they had bowed to it

but that these roads giving on to the Pacific

Highway, the Minister for Main Roads makes the

representation, it seems to me that it is something

that the council would be likely to take into

account.

MR HUGHES:  Yes, indeed, and that I can use in aid of my

argument, because it was such an egregious and

unauthorized thing for the Minister to do because

Herscu(2) 18 3/9/91

of his capacity for influence in the pretended

exercise of his office. This was something done

under colour of his office, not in discharge of any

function.

DAWSON J:  Why do you say that, Mr Hughes? Would it not be

the duty of the Minister to bring his influence to bear on those who function under the Act to ensure that they perform their functions properly?

MR HUGHES:	No, Your Honour, not in the light of section 30, which says that the local government authority is
charged with the government of the area.

DAWSON J: That is right, but it is not beyond the influence

of the Minister, and it would be right for the achieved by bringing influence to bear, to bring his influence to bear.

MR HUGHES: Well, Your Honour, that, with respect, ignores

the force of section 30.

DAWSON J: It does not remove the autonomy of the local

authority, the fact that the Minister attempts to

influence its decision, does it?	Many people
attempt to influence its decision.

MR HUGHES: It trenches upon it, Your Honour.

DAWSON J:  No, it does not. He may not be successful, but

he is likely to be more successful than an ordinary

citizen.

MR HUGHES:  Because he exercises a pretended authority.

DAWSON J: Because he is acting in his capacity as Minister.

MR HUGHES: Well, if that, Your Honour, is the criterion of

liability -

DAWSON J:  No, it is not. He has a duty to act in his

capacity as Minister, to bring about results which

he sees as desirable, in ways which are available

to him under the Act.

MR HUGHES:  He has a duty, Your Honour, to act in the proper exercise of his capacity as a Minister.

DAWSON J:  Now, that is a different thing, Mr Hughes. I

thought you conceded that if the Minister had a

duty to do something properly, but did it

improperly, that may still fall within the section.

MR HUGHES:  If the act is of a kind that the Minister may

lawfully discharge under a lawful authority, but he

Herscu(2) 19 3/9/91

yields to corruption, that would still be the

discharge of the duties of the office.

DAWSON J: Yes.

MR HUGHES:  But the centrepoint of the whole problem is:

what is embraced within the concept of the

discharge of the duties of the office.

DAWSON J: Exactly, and what you are trying to say about a

Minister of the Crown is that either he has

specific duties to which you can point in an Act of

Parliament, or he has none.

MR HUGHES:	No, Your Honour - - -
DAWSON J:	A Minister has duties which you will not find,

except in the most general sense, in an Act of

Parliament, that are none the less duties of his

office.

MR HUGHES:  I do not say - Your Honour, the way the case was

argued below may correctly be summarized by what

Your Honour has just said. I have never said - I

do not intend to say as part of my argument in this

Court that the Minister's duty can only be found in

an Act of Parliament. That would be going too far.

For instance, the Minister may have duties under

the prerogative which could include, by way of one

suggestion, the appointment of senior officers in

his department. That may not depend on any

statute.	I disclaim, if I may, any intention of
tying my argument to statutory duties.	But I still
say that you have to find a duty.

DAWSON J: But can you not say there is a general duty which

is imposed upon a Minister of the Crown to ensure

that the departments, agencies, authorities who are

under his general administration perform their

functions in a proper manner.

MR HUGHES:	that are marked out to autonomous local councils. Your Honour, no, in relation to those functions
There one looks at the statute and sees that there is a distinct line of demarcation between what the
Minister may do and what the council may do, and for the Minister to try to intervene in a matter in
which the council has legal autonomy, to bring the
force of his office to bear in a pretended exercise of his office, is not within section 87.

DAWSON J:  Can you test it this way? If the Minister

genuinely believed, not with the aid of a bribe,

that it was desirable that there be alterations

made to this plan with respect to the means of
egress or ingress of pedestrians and vehicles, that

he would be acting outside the duties of his office

Herscu(2) 20 3/9/91

if he attempted to bring his influence to bear upon

the council to make the necessary alterations?

MR HUGHES:  Yes, Your Honour. Even an honest exercise of

that judgment would be outside the duties of his

office because the legislature in this case says

the council shall be autonomous.

DAWSON J: If he believed that the council was doing this

quite wrongly?

MR HUGHES:	Yes.
DAWSON J:	And that, for instance, to take an extreme case,

if they did it it would warrant - I assume there
are powers to sack the council and put in an

administrator or something of that sort.

MR HUGHES:  There are, exercisable by the Governor in

Council.

DAWSON J:  And that he believed that, if they did it, it

would warrant the exercise of that power, it would

be his duty to attempt to dissuade them, would it

not?

MR HUGHES:  No, Your Honour.

DAWSON J: Well, that is odd.

MR HUGHES:  No, it would not. The council is autonomous.

If the view taken by the council is disagreed with

by the Minister - - -

DAWSON J: Being autonomous does not mean being beyond

influence or argument.

MR HUGHES: Well, it should be beyond argument deployed by a

person who has de facto influence in a matter in

which the duties or functions of his office are not

involved. And one other point I should make is

office. It is very difficult, in our respectful	this: the section, Your Honours, strikes at acts and omissions in discharge of the duties of the	submission, to attach any meaningful significance
to the part of the section or parts of the section which prohibit omissions made in the discharge of
the duties of an office if, as the Court of
Criminal Appeal concluded, the concept of
dischargi~g the duties of an office applies to things done or omissions made, particularly the latter, when they are acts without authority or legal sanction. All the judges below held that there was no legal power or duty in the Minister to require the council to do what he sought to get
them to do.

Herscu(2) 21 3/9/91

TOOHEY J: But that argument, Mr Hughes, I think, tends to

overlook the fact that section 87(1), or the

conduct referred to there is qualified by

"corruptly".

MR HUGHES:  Yes.

TOOHEY J: In other words, the failure to do something

cannot lead to a successful prosecution under

section 87(1) unless the omission is accompanied by

some form of corruption.

MR HUGHES:  Yes, but the point I would seek to make,

Your Honour, is a rather different one, and that is

that it is difficult to see how a public official

can omit, within the meaning of the section, to do

something in the discharge of the duties of his
office, if he has neither legal duty nor legal

power to do the relevant act or make the relevant

omission.

That was a point that developed in the course

of discussion on the special leave application when

Mr Justice McHugh raised it. And when one comes to

think of it, it is difficult to conceive how an

omission can be made in the discharge of the duties

of the office - whatever meaning one gives to

duties - if an omission can relate to something in

respect of which there is neither legal duty nor

legal power.

And if that difficulty is applicable to

omission, the omission part of the subsections, it does, in our respectful submission, throw light on

the meaning of "in the discharge of the duties of

the office in relation to acts".

BRENNAN J: That is really only the obverse of the argument

about function, though, is it not?

MR HUGHES: Well, maybe.

BRENNAN J: If there is no legal duty, no legal power, but

there is legal freedom to do something in the

course of discharging the functions of an office,

then there is no problem about omissions there.

MR HUGHES:  Yes, there is, Your Honour, because a function

must be something that the Minister - if one is

going to write down the word "duty" to mean

function, that function must be something that the

Minister has to discharge, and that connotes a

legal obligation to perform the function. How can

there be, one asks, a legal obligation to perform a

particular function where an omission is involved,

if acts and omissions in the discharge of the duty

Herscu(2) 22 3/9/91

of the office can be things done or omitted where

there is no duty, power or authority.

BRENNAN J:  But if one defined his function as keeping an

eye on local authorities and their performance of

their duties?

MR HUGHES:	Your Honour, yes, but not to the point of intruding one's ministerial weight in a matter
which is outside the proper bounds of his
authority. But I suppose I can go on saying what I
am trying to say in various different ways at
increasing length, and I - - -
MASON CJ:	I think you have made the argument perfectly clear, Mr Hughes.

MR HUGHES: Well, in that case, I now complete my submission

to the Court.

MASON CJ: Thank you. Yes, Mr Mulholland. Now, you will

have divined from the course of argument and the

exchanges that have taken place so far that it is

the concept and content of the argument presented

on duty that is critical.

MR MULHOLLAND:  Yes, Your Honour. Could we hand up to the

Court our outline?

MASON CJ: Yes.

MR MULHOLLAND:  Your Honours, in relation to the first

matter raised in the outline, that is to say the

language of the section, we would submit that

section 87 is in very wide terms. It uses phrases

such as "any person employed in the public

service -

being charged with the performance of any

duty -

and then, in relation to the receipt - this is

taking subsection (1) - of the reward:

corruptly asks, receives, or obtains, or

agrees or attempts to receive or obtain, any

property or benefit of any kind for himself or

any other person -

that is to say, it does not need to go to the

official himself -

on account of any thing already done or

omitted to be done, or to be afterwards done

or omitted to be done -

Herscu(2) 23 3/9/91

that is to say, extending the offence beyond the

common law, which only referred to rewards to

influence future behaviour, but here extending it

to rewards as well for past behaviour.

The phrase "such duties" in subsection (2)

picks up, in our submission, from the words:

on account of any thing ..... done -

in subsection (1), to the end of that subsection.

And the use of the phrases:

and being charged with the performance of any

duty by virtue of such employment or office -

and -

in the discharge of the duties of his office

the way in which those phrases relate are, in our

submission, important because they do not, in our

submission, refer one to the other. If they did,

it could be expected that the second phrase would

refer to "such duties of the office", and this is

one indication, we would submit, that they are two

expressions emphasizing that the conduct must occur

while the official is acting in the official

capacity of his office.

One must, therefore, we would submit, find

what the duties of the office are - and they can be

express or implied, by statute or otherwise, in our

submission - and then the second phrase:

in the discharge of the duties of his office -

we would submit, indicates that the phrase is

referring to the functions of his office or whilst

discharging official responsibilities.

That is to say, our submission is,

Your Honours, that the word "duty" is not used in a

technical sense but in its ordinary or popular

meaning, and including functions, not limited to a

legally binding obligation.

DAWSON J: Who has to find this - I neglected to raise this

with Mr Hughes - the jury?

MR MULHOLLAND:  Your Honour, we would submit that in the

first place it would be a question of law for the
judge as to whether the act did come within the

duties of the office of the relevant officer.

DAWSON J:	Or could come?
Herscu(2)	3/9/91
MR MULHOLLAND:	Or could come, yes, was capable of being

within it; and then for the jury to say whether

they were satisfied beyond reasonable doubt.	And
that is what occurred in the present case.	It was
left to the jury to make that determination.

DAWSON J:  So that we are really confined here to the

argument that on no proper view could - and this is

Mr Hughes's submission - it be said that what the

Minister did here was within the duties of his

office.

MR MULHOLLAND:  Yes, as we understand it, Your Honour, as we

apprehend the argument, it is that here it was

incapable of falling within the duties of the

office of the Minister. The words -

DAWSON J: But the jury were entitled to find in this case

that it in fact did not fall within his duties, but

they found the opposite.

MR MULHOLLAND:  Yes, Your Honour. The word "charged", we

would submit, simply means entrusted with certain

responsibilities, and here it was the general

supervision of local authorities, and that also was

a question which was left to the jury. The other

important matter is that if the argument be

accepted, on the part of our learned friends, it

would mean, we would submit, that a wide range of

misconduct would be beyond the reach of the

section: a minister, for example, who accepted a

bribe to procure legislation, benefiting the giver

of the bribe, or omitted to bring to Cabinet

recommended legislation on the basis of having

received some reward from a person who would be

disadvantaged by that legislation; a minister who

was directed by Cabinet to investigate and then

make a recommendation to Cabinet as to what action

should be taken, who accepted a bribe for making

that recommendation or who, having decided upon the

proper course of action, omitted to make a

which he had received; various exercises of the recommendation to Cabinet because of the reward prerogative would not fall within the section. The

pardoning of offenders, which is expressly

preserved by section 672A of the Criminal Code; the

conferring of honours; and perhaps, in our

submission, no better example can really be given

than the present case.

Ministers could, if the argument be correct,

be bribed with impunity to influence decisions

within their area of responsibility provided that

one was not able to find a duty written down

somewhere. We have, in our outline and in the

cases referred to, a number of common law

decisions. We would not propose to go to those

Herscu(2) 25 3/9/91

decisions - we have given Your Honours the relevant

references in them - perhaps with the exception of

Gill v R, which was referred to in the Privy

Council decision of Ip Chiu. That is 1948 Indian

Law Reports 542.

That was a decision, Your Honours, in which

official sanction, the sanction of the Governor-

General, was required as a procedural safeguard

before a prosecution brought against the public

servant in that case, and this was referred to by

Lord Edmund Davies, speaking for the Judicial

Committee, in Ip Chiu, but when one goes to the

decision it can be seen that even the phrase that

was referred to there, that is to say which appears

at page 550:

"in respect of any act "done or purporting to

be done in the execution of his duty as a

"servant of the Crown" -

that is at the foot of that page, Your Honours -
that it was interpreted widely. Lord Simonds said,

at page 551 point 3:

A public servant can only be said -

and this was in relation, can I say, Your Honours,

to the charge of conspiracy; the conviction on the
bribery offence had been overturned -

A public servant can only be said to act or to purport to act in the discharge of his

official duty, if his act is such as to lie

within the scope of his official duty. Thus,

a Judge neither acts nor purports to act as a

judge in receiving a bribe, though the

judgment which he delivers may be such an act:

nor does a Government medical officer act or

purport to act as a public servant in picking the pocket of a patient whom he is examining,

though the examination itself may be such an

act. The test may well be whether the public servant, if challenged, can reasonably claim

that, what he does, he does in virtue of his

office.

And that - although it is appreciated that the

words "purporting to be done" clearly extend the

phrase - that test, we would submit, is applicable

to each of the alternatives. And if that test were

to be applied in the present case, we would submit

that clearly it could be said that the Minister was

acting by virtue of his office; that is to say,

acting by virtue of being charged with the

administration of local authorities, including the

Brisbane City Council.

Herscu(2) 26 3/9/91

The activities of local authorities under the relevant legislation were closely monitored and

regulated by ministerial supervision. The Minister

here was responsible for administering the three
Acts - the City of Brisbane Act; the Local

Government Act, which has now been repealed and replaced by the Planning and Environment Act; and

the City of Brisbane Town Planning Act.

Under the 1975 administrative arrangements he

was charged with the business connected with local

government matters and responsible for the

supervision and control of the local government

department and main roads department. And when one

goes to the provisions of these statutes, it can be

seen that it was a very limited autonomy that the

Brisbane City Council had. Under the Local

Government Act there was power for the Minister to

direct the director of local government to make
inspections, investigations and inquiries;
section 4A(3).

The Governor in Council was able to suspend or rescind any resolution or order of a local

authority under section 4(5)(i)(a), and that had

some importance in the present case where the

decision had been made by a board which had

delegated to it the relevant power. And that was

under section 39B(l) of the City of Brisbane Act,

which empowered the council by resolution to

delegate any of its powers, functions or duties to

a board consisting of officers of the council and,

under subsection (4), when so acting the board is

deemed to be the council. The fact that it is

clear that that occurred - it is made clear by

Mr Alexander's evidence who was a relevant officer

in the Brisbane City Council, which appears in

volume 1 of the record at pages 101 and 103.

That, we submit, has the result that the

Governor in Council could have overturned the

decision made by the board in this particular case.

And the person with the primary responsibility in

relation to making a recommendation to the

executive council was the Minister who received the

payment.

MASON CJ:	Mr Mulholland, we will adjourn now until 2.15.
MR MULHOLLAND:	May it please Your Honour.

AT 12.49 PM LUNCHEON ADJOURNMENT

Herscu(2)	27	3/9/91
UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Mulholland.

MR MULHOLLAND:  Thank you, Your Honour. Your Honours, I was

referring to a number of the provisions of the

relevant legislation. Our learned friends referred

to section 36 of the City of Brisbane Act and, in

particular, the ordinance making power in that

section, subsection (2), in which:

The Council shall have full power and duty to

make ordinances.

It is important, we submit, to note that in relation to the ordinances, again that is subject

to the approval of the Governor in Council. In

section 38 of the Act, subsection (2) provides:

Every resolution making an ordinance shall be

passed at a special meeting of the Council

called for that purpose.

Subsection (4), the Council is required to

advertise; subsection (8):

A person may object -

And then subsection (9):

After the Council has ..... considered every objection ..... and resolves to proceed with

steps for its implementation, it shall submit

the ordinance for the approval of the Governor

in Council.

Subsection (11):

The Governor in Council shall consider every

ordinance ..... and may reject the ordinance or

may approve of the ordinance wholly or in

part.

And then it goes on to say that there is:

power to make all such amendments -

as are necessary. And following that, there is a

publication in the Gazette. Section 39 allows for

the repeal by the Governor in Council.

In this way, it is the same situation with

by-laws of local authorities so far as the Local

Government Act is concerned. Under section 4(8) of

the Local Government Act the Governor in Council

Herscu(2) 3/9/91

may repeal any by-law and section 4(9) allows the

council to be dissolved by the Governor in Council.

There is a wide range of things that the Minister may do. The Minister may appoint an

auditor to investigate the accounts of a local
authority, under section 29(10); there is the power

also, under section 4(5), for the Governor in

Council to intervene in relation to extravagant

expenditure of the council and so on.

What, we submit, is very important to this is

the fact that it is the Minister who has the

responsibility for making recommendations to the

Cabinet concerning these matters. He is the person

charged with administering the relevant Acts.

We have referred in our list to FAI Insurances

Limited, that case, and the relevant references.

What it comes down to, in our submission, Your

Honours, is this: that in the provisions that we

have referred to, giving powers to the Governor in

Council, the Governor in Council is the body which

gives legal operation to decisions made by the

local government Minister who has the

responsibility for making recommendations to

Cabinet.

When it was said, in the present case, that

there was a general duty to supervise, it was, we

submit, the same thing as saying that there was a

general duty in the Minister to administer the Act

and that included responsibilities in relation to

local authorities and particularly the Brisbane

City Council.

There is one of the common law cases on our

list to which we would briefly like to take

Your Honours to, and that is Patel. I do not think

that Your Honours would have a copy of that. Could

I pass it up and perhaps at the same time could I

also pass up copies of the administrative

arrangements which are referred to in the judgments

of the Court of Criminal Appeal?

Patel's case, Your Honours, was concerned with

the accused having offered money to a detective in
order to influence the police prosecutor to

withdraw a charge, and it was held to fall within

the definition of common law bribery. The judgment

of Mr Justice Feetham, with whom the other members

of the South African Supreme Court agreed, is at

page 519, where His Honour said:

A detective, when discussing with a public

prosecutor the evidence which is available, or

which may be required for the purpose of

Herscu(2) 29 3/9/91

supporting a prosecution in any given case,

may naturally and properly indicate his view

as to the value of any evidence obtained or

likely to be obtained, and the prospect of

success in proving a charge by means of such

evidence; in so doing he is exercising, or

seeking to exercise, influence which his

official position gives him a legitimate

opportunity of exercising, and is thus

performing an act in his official capacity and

in the exercise of his official functions,

though he may not be discharging any duty

specially imposed upon him by law, or obeying

any direction expressly given to him by his

superiors in respect of the execution of his

office.

And later His Honour discusses the Transvaal

statute - this is at page 521 at the foot of the

page - where the words are used:

in his official capacity".

And after approving a passage from a judgment

referring to discretionary duties, at page 522,

goes on to say, at the foot of the page and on to

the next page that:

the common law offence of bribing a public

official, should be given the same meaning -

as the meaning to be given to the words in that

Transvaal statute.

We would submit that "duties" in section 87

has the meaning of functions and refers to acts in

the discharge of the functions of the office held

by the public officer. Here, we would submit, Your

Honours, that it was within the scope of the

responsibilities of the office of the Minister to

seek a review of a council decision on a planning

consent matter. In the particular case it was the

developer who had made the representations, through

the Minister, to the council but it might just as

easily have been, in our submission, ratepayers

calling upon the Minister to intervene in relation

to a town planning matter with which they found

objection. And indeed, in that case, we would

submit, if the Minister, having been called upon by

ratepayers to act in relation to the council, did
not do so, bearing in mind his responsibilities
under the legislation, he would be omitting to

fulfill the duties of his office.

Our submission then is, Your Honours, that the

duties of his office, in section 87, concerns

conduct of the office holder within the general

Herscu(2) 3/9/91

scope of his official responsibilities as opposed

to conduct within some private capacity. Those are

our submissions.

MASON CJ: Yes, thank you, Mr Mulholland. Mr Hughes?

MR HUGHES:  I shall be very brief in reply, Your Honours.

The question really is this: in a criminal statute should the word "duties", when used in collocation

with the expression "in the discharge of those

duties", be read down to embrace duties that are

not legal duties and to embrace some wider or

so-called popular meaning of that word?

There is, Your Honours, a presumption, but it

is certainly not a strong one but it is a

presumption I suggest, that where one finds in a

statute the same word used several times, the

legislative intent is that it be understood in the

various places in which it is used in the same

meaning and if one goes to various - not numerous -

but various other provisions of the Code which
seize on the concept of duty, they would provide, I

suggest, some guidance to what "duties" means in

section 87. And may I just illustrate, briefly,

section 84 of the Code:

Any person who, being employed in the Public

Service, communicates to any person otherwise than in the course of his official duty any plans, documents ..... is guilty of a

misdemeanour.

Duty there, I suggest, means legal duty.

Section 86 - the "Disclosure of other Official

Secrets" section - interestingly enough embraces

the very phrase that my learned friend wishes to

translate by substitution into section 87:

Any person who, being employed in the Public

Service, publishes or communicates any fact

which comes to his knowledge by virtue of his

office and which it is his duty to keep

secret -

there again it would be a legal duty. Section 88:

Extortion ..... Any person who, being employed

in the Public Service, takes or accepts from

any person, for the performance of his duty as

such officer, any reward ..... guilty of -

an offence. Section 93:

Corruption of Surveyor and Valuator. Any

person who, being duly appointed under any

Statute to be a valuator for determining the

Herscu(2) 31 3/9/91

compensation to be paid to any person for land

compulsorily taken from him under the

authority of any Statute ..... Acts as such

valuator while he has, to his knowledge, an

interest in the land ..... is guilty of a

misdemeanour.

There again, the concept is one of legal duty appointed under a statute. Then, finally, sections

199 and 200. Section 199 relating to:

Resisting Public Officers. Any person who in

any manner obstructs or resists any public

officer while engaged in the discharge or

attempted discharge of the duties of his
office.

Section 200:

Refusal by Public Officer to Perform Duty.

Any person who, being employed in the Public

Service, or as an officer of any court or tribunal, perversely and without lawful excuse

omits or refuses to do any act which it is his
duty to do by virtue of his employment is

guilty of a misdemeanour.

All those references, I suggest, connote legal

duty. So that there is strong reason for not

watering down the concept of discharging the duties

of the office in section 87.

A brief reference was made to Stapleton's

case.	Of course that was a very different sort of
statute.	Your Honours will recall that in
Stapleton's case, 86 CLR 1, at page 12.	The words

"in the execution of the duties of his office"

appeared by way of exception to a general liability

to keep information secret, so that they have been

words of exception to the creation of criminal

liability, there was some good reason for

construing the word "duties" broadly. Here, the

situation is obviously different because one is

dealing with a statute which imposes the criminal
liability by reference to the expression "the

discharge of the duties of the office".

BRENNAN J:  Was this section in the original Code, do you

know, Mr Hughes?

MR HUGHES:  As I understand it, yes, Your Honour.

BRENNAN J: In its present form or substantially in its

present form?

Herscu(2)	32	3/9/91
MR HUGHES:	Yes, in its present form.	I think amongst the

documents in the case book Your Honours have at

pages 2 and 3 the original print - - -

BRENNAN J:	The draft Code, yes.
MR HUGHES:	- - - of the Code with Sir Samuel Griffiths'

comments on the side and the wording is exactly the

same, and the side note is:

Misdemeanour at Common Law.

I am sorry, it is not exactly the same:

Being employed in the Public Service -

the draft says -

and being charged with the performance of any

duty by virtue of such employment.

So, it leaves out a reference to public office, I

was wrong, I am obliged to my learned friend. But

the concept of the discharge of the duties of the

office is expressed in the original draft.

My learned friend, and this is the last thing

I want to say, has invoked common law cases. That

is not an appropriate approach to the

interpretation of the Code. One approaches the

interpretation of the Code without preconceptions

based on the common law. It is clear that what was

done in this case would have been an offence at

common law, the question is whether the Code with

its narrower language catches it, and we say it

does not. If the Court pleases.

MASON CJ:  Thank you, Mr Hughes. The Court will consider

its decision in this matter.

AT 2.32 PM THE MATTER WAS ADJOURNED SINE DIE

Herscu(2) 33 3/9/91