Herscu v The Queen

[1991] HCATrans 191

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B20 of 1991

B e t w e e n -

GEORGE HERSCU

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J
GAUDRON J

McHUGH J

Herscu 1 6/8/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 6 AUGUST 1991, AT 9.32 AM

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Copyright in the High Court of Australia

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

matter I appear with my learned friend,

MR P.J. FAVELL for the applicant. (instructed by

Flower & Hart)

MR D.P. DRUMMOND, QC: If the Court pleases, I appear with

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

respondent.	(instructed by the Director of Public
Prosecutions)

DAWSON J: Yes, Mr Hughes.

MR HUGHES: 

Your Honours, by arrangement with my learned

friends we took the course of submitting an outline
of our argument, or a summary of our argument some

days ago on the basis that they would get a copy at

the same time. There are some additional documents

I would like to hand up, if I may. First of all,

three copies for Your Honours use of the Local
Government Act of Queensland; three copies of the

City of Brisbane Town Planning Act;  a book of

cases, a very few of which we propose to make any

reference but they are there just in case. Then we

have endeavoured to summarize, in two documents

that I have supplied to my learned friends, the particular sections of the Local Government Act

referred to in the judgments as being relevant in

Their Honours' opinion, or at least in the opinion

of Mr Justice Thomas and Mr Justice Mackenzie, to

the existence of what they described as a general

duty in the Minister to supervise local government.

The other piece of legislation upon which

Their Honours drew to support that conclusion was the City of Brisbane Town Planning Act, and we have

endeavoured to summarize the sections to which at least Mr Justice Thomas referred in the course of
his judgment. I hope that will relieve the Court
of the necessity of reading every one of the

sections referred to in detail.

In our outline we have said at page 4,

Your Honours, in which we endeavoured to deal with

the judgment of Mr Justice Thomas, that neither the

Local Government Act nor the City of Brisbane Town

Planning Act confer upon the Minister any such general duty of supervision as His Honour postulated in relation to the Brisbane City

Council, that is in paragraph (a) on page 4, and we

continue to say that the Minister's powers are

specific and circumscribed. It will appear from a

perusal of the sections to which two of

Their Honours refer, particularly

Mr Justice Thomas, that those powers are specific

and circumscribed in the sense that they relate to

particular aspects of local government.

Herscu 2 6/8/91

Now, at the foundation of our argument and in

support of this application for special leave is

what we submit to be a conceptual difference

between the use by a minister of his official

position to persuade a local government authority

to do an act which he is under no legal duty to

require or ask the authority to do and the doing by

a minister in his official capacity of an act which
he is legally required to do, or in terms of the

section required to omit to do.

The particular section in the legislation is

to be found set out conveniently in the leading

judgment of Mr Justice Thomas at page 3 of the

application book. Subsection (1) creates the
relevant offence by what I shall describe

generically as the recipient of a bribe, and the

elements of the offence that apply to the

recipient, in this case allegedly the Minister, are

imported referentially into the description of the

offence in subsection (2), that is the offence

under which the applicant was charged in this case

of having given a benefit - money - on account of

the Minister doing something in the discharge of

the duties of his office.

In our submission, it is important to observe

that in the statement of the offence in

subsection (1) it is an essential element that the

person charged should be:

charged with performance of any duty by

virtue -

of his office. That comes in the opening four

lines of the subsection. In construing a criminal

statute, we would submit, one would treat those

words as referring to a legal duty which is cast

upon the public officer by virtue of his office.

But that merely sets the stage for the concluding

words of the subsection which are imported

referentially?? into the next following subsection.

The act done, or omitted to be done, must be

done by the Minister in the discharge of the duties

of his office, that is to say, the duties with

which, in terms of the earlier words of the

subsection, he is charged. So that the two words

"charged" and "discharged" read in conjunction with

duties of office, we would say, necessarily import

a specific legal duty - - -

DAWSON J:  You say that "charged" means "specifically

charged"?

MR HUGHES:  Yes, either by statute or it could be by common

law.

Herscu 6/8/91

DAWSON J: Why, if he has duties of office why is he not

charged with the performance of those duties?

MR HUGHES:  Yes, but then it becomes a question of whether

the particular act was agreed to be done or done in

the performance.

DAWSON J: Yes, but if he has duties of office they need not

be duties that are specifically laid down but which

may be derived from the nature of the office?

MR HUGHES: That may be so.

DAWSON J:  And then if that is so, he is charged with those

duties no less than he is charged with the duties

which are specifically laid down.

MR HUGHES: They may be implied duties, implied by the

statute.

DAWSON J: Yes, implied by his office.

MR HUGHES: 

Implied from the nature of his office, but one

must get back, Your Honour, to the question whether
what was done or agreed to be done by the office

holder was done in the discharge of those duties or

that duty.

DAWSON J: 

You see, you keep coming back to a duty as if you have to be able to find it laid down in black and

white somewhere, but duties of office are not of

that kind.  Indeed, Sir Owen Dixon pointed out that

really when you are dealing with a phrase like that, in this context, it is nothing more than

functions.

MR HUGHES: 

That was in a particular statute which was not a

statute imposing heavy criminal liability of this

kind.

DAWSON J: Certainly.
MR HUGHES:	And it will always depend on the particular

statute what you read into the concept of duty.

DAWSON J: This is the problem, is it not. Would you

concede that what was said to have been the act or
omission of the Minister was within the functions

of his office?

MR HUGHES:  No, I would not, Your Honour. It was not within

the functions of his office because he had neither
the power nor a duty to request or require the

local council to alter the conditions attaching to

the development approval for - - -

Herscu 4 6/8/91

DAWSON J:  No one is saying that, but the question is if he

brought his influence to bear, was he acting within
the functions of his office, having regard to the

fact of the entity on which he brought his

influence to bear was set up under an Act which he,

generally speaking, had the duty to administer.

MR HUGHES: 

He had, if I can take issue respectfully with

the last proposition, he had a duty in particular
respects to administer and the duties he had are

laid out in the sections which - - -

DAWSON J: 

You probably want to develop that?

MR HUGHES:  Yes. Now, there must be, we venture to suggest,

in a statute or a section that requires to be

strictly construed - and we would rely on what was

said in that regard in Murphy v Farmer -

Your Honour Justice Dawson - - -

DAWSON J:  We said it was evenly balanced there I think, did

we?

MR HUGHES:  Yes, and the factors being evenly balanced, the

Court by majority inclined to a view of the section

that favoured the subject, and we would submit that

the same approach is appropriate here.

Now, there must be a conceptual difference, we

submit, between a minister using the name or

ambience that attaches to his office to try to

persuade somebody to do something, when he is under

no duty that he has to discharge to reach that

result by requiring the person he tries to persuade

to do that act and, on the other hand, accepting

money for doing something that the Minister is

legally required to do as a matter of legal duty,

including the exercise of a discretionary judgment.

The common law in relation to bribery, of course, developed very largely in the 18th century

when the evil to be stamped out, whether it was is,	perhaps, a matter of doubt, was paying money to
highly placed people to procure an office of a sinecure, that is the classic example of common law bribery. But what was hit at was the acceptance of
a bribe, or the giving of a bribe, for doing that
which the recipient was under a duty to do, namely,
make an appointment to a particular office. That
sort of element - I do not say that the law is exclusively devoted to stamping out that particular evil - but that sort of element is absent here.

Now, there are two judgments to which I wish

to refer briefly in the first place, perhaps go on

to one other. In part A of this book there is a

print of a decision of the Supreme Court of Western

Herscu 6/8/91

Australia, Hyman v French. Now, I need not trouble

Your Honours with the details of this case, but I

do want to cite a passage from the judgment of

Chief Justice Malcolm. The particular passage is

at page 223, perhaps I should just etch in the

essential details. The accused were charged with

respectively corruptly giving and corruptly

receiving sums of money in exchange for

information, the recipient was a police officer,

and the charge was preferred under section 82 of

the Criminal Code of Western Australia which is, in

all respects, the same as section 87 of the

Criminal Code of Queensland. And the passage from

which I would rely is in the middle of the page, in

particular the penultimate paragraph on page 223,

Your Honours:

In my view, there is much to be said for the construction adopted in that case -

That was Pense v Henny, a previous decision of the

Full Court - - -

MCHUGH J:  Or was it David?

MR HUGHES:  And David too. I think the reference is perhaps

to both cases but certainly to David and probably
to Pense v Henny:

In the present case Hyman may well have been in breach of a negative duty under reg 607,

buts 82 seems to be directed to cases where

the actions are of a kind which fall within
"the discharge of the duties of his office" in
respect of which a corrupt payment is asked
for or received. That is to say actions which

fall within a positive duty to act.

Now, I freely avow, Your Honours, that that is

obiter - - -

DAWSON J: And too narrow, it must be, if it comes to

discretion, must it not.

MR HUGHES:  I would concede for the purposes of the

argument, and we have it, as Your Honours will have

seen in our written outline, that the exercise of a

discretionary judgment, if that is a judgment which

the· officer holder is under a duty to exercise,

would fall within the section.

But what the Chief Justice said in that case

is in line with the main thrust of the argument

that we wish to advance, as of course what was said

many years ago by Mr Justice Macrossin in the

Supreme Court of Queensland in David's case.

David's case is the case next following in the book

Herscu 6 6/8/91

and that is the case in which the accused was

charged with having corruptly given to one:

McGreevy, then being a person employed in the

Public Service of Queensland, a travelling rug

in consideration that the said McGreevy would

in the discharge of the duties of his office

aforesaid get rid of a jar of petrol found on

the premises of the -

accused -

The evidence disclosed that a fire had broken

out in premises occupied by the prisoner, that

after the fire had been extinguished by the

fire brigade a police officer had found

thereon a jar of petrol, and that the prisoner

had offered a travelling rug to the police

officer in order to induce him, it was

alleged, to do away with the jar of petrol.

and Mr Justice Macrossan said:

The act referred to - the getting rid of the

petrol - did not come within the proper
discharge of the officer's duty. It was not
the carrying out of a duty which he had.

Section 87 applies to cases where the act,

sought to be performed or omitted arises out

of a duty already incumbent on the official -

as in the granting of licences. The chairman

of a Board which grants licenses might be offered money to grant a certain license.

His Honour referred to Gurney's case.

That would come withins. 87 - "in the

discharge of his duty." In my view, the indictment

should have been framed under s. 121 -

that is a section prohibiting acts tending to

pervert the course of justice.

DAWSON J: It is a pretty shaky ruling, that one, is it not,

and I know you are using it to indicate the

tendency of your argument?

MR HUGHES: -Yes.

DAWSON J: But really it surely was the duty of the

policeman to preserve the evidence, that is a

positive enough duty is it not?

MR HUGHES: That may be so, I do not - - -

DAWSON J:  You merely say that what is being said there is

you have to be able to point to some specific - - -

Herscu 7 6/8/91

MR HUGHES:  Some specific duty, and in Your Honour's

criticism just uttered Your Honour has pointed to a

specific duty.

DAWSON J: Yes. Can I just interrupt you for a moment,

Mr Hughes, we seem to be arguing the question in

the abstract here. Did the trial judge charge the

jury in relation to this?

MR HUGHES:	Yes, Your Honour.
DAWSON J:	Why are we not arguing about his direction rather

than the abstract question?

MR HUGHES:  I am perfectly prepared to do that but His

Honour's direction follows the reasoning that was

adopted in the Court of Criminal Appeal. I can

take Your Honours to the charge. Unfortunately it

has not been set out in the application book. We

have adopted the course of focusing our argument on

the judgments in the Court of Criminal Appeal

because Mr Justice Thomas described the point, we

would submit - - -

DAWSON J:	He considered it in the abstract too?
MR HUGHES:	Yes, as a short demurrer point.

DAWSON J: Yes, which is - it is after all a criminal

appeal.

MR HUGHES:  Yes. But that was the way he characterized it.

DAWSON J: Perhaps if you could just tell us what the charge

was, it can be done shortly.

MR HUGHES:  His Honour referred to various sections of the

Local Government Act, it starts at page 923 and he

said:

Before discussing the evidence relating to

what the prosecution alleges Mr Hinze did, it	is necessary to discuss what are the duties of
the office of Minister for Local Government.
I will tell you now some things which are
contained in the Local Government Act, it is an Act of Parliament, section 7(1) says: the Minister for Local Government and Main Roads
is charged with the administration of this
Act. The responsibility for the
administration of the Local Government Act
rests on the Minister.

And then His Honour - and my learned friend I would

invite to contradict me if I summarize this, as

Your Honour suggests, inaccurately - but His Honour

in his charge to the jury adopted much the same

Herscu 6/8/91

approach as two of Their Honours did in the Court

of Criminal Appeal. He pointed to the sections

which imposed duties on the Minister, which I will

endeavour to show were all specific duties of a

circumscribed nature and said, in effect, "There

you are, he has a general duty of supervision".

McHUGH J: That is what the trial judge told the jury?

MR HUGHES:  Yes. The trial judge's approach was the same as

that of two of Their Honours in the Court of

Criminal Appeal. I pointed out, in our outline,

Your Honours, that Mr Justice Byrne, at page 133 of

the application book, said this:

At the trial and in this Court the Crown

relied on the statutory provisions discussed

in the reasons of Thomas J. to show a general

obligation on the Minister for Local discretions on the Minister. Nevertheless,
Government to supervise local authorities.

having considered the relevant statutory

provisions, I am not persuaded that the

legislation requires the Minister to supervise

local authorities.

If one reduces that to the particular, what

His Honour was really implying was that what the

Minister did was not the performance of a

particular duty.

DAWSON J:  In a sense that if he did not do it he would not

be in dereliction of duty.

MR HUGHES:	Yes.
DAWSON J: That is not the whole question, is it.	I had in

mind in raising this point that it is at least a

mixed question of law and fact, and the question

does arise as to how much should be left to the

jury.

MR HUGHES:  Well, indeed. The jury were asked to consider

the sections.

DAWSON J: But was the question ultimately left to them, in

spe9ific terms, whether he was in fact acting in the

discharge of the duties of his office?

MR HUGHES:  It was left to them as an issue for them to

decide.

DAWSON J: Yes.

MR HUGHES:  The instruction, or the elaboration in the

charge of the matter that fell for their decision

Herscu 9 6/8/91

consisting in a reference to the sections in the

Act. Of course, the point was clearly taken.

DAWSON J:  And was taken at the trial by the jury?

MR HUGHES:  Yes. The point was taken as a verdict point, as

I understand it, at the conclusion of the whole of the evidence and before the charge, is that right - it was taken at the beginning and at the end.

DAWSON J:  And it was a question that was left to the jury,

is what I am asking?

MR HUGHES:  Yes. But it was left with the jury, we say, on

a wrong basis.

DAWSON J: That the jury were not entitled to find from a

mere general obligation such as the obligation to
administer the Act, a duty within the meaning of

the section in the discharge of which the Minister

was said to have been acting?

MR HUGHES:  Yes. And we say that one cannot deduce from a

concatenation of specific duties directed to
certain specific matters a general duty of

supervision, and with that one of the learned

judges agrees.

DAWSON J: There is a general duty of administering the Act,

is there not?

MR HUGHES:	Yes, but when one asks what is comprised within the ambit of the general duty of administering the
Act, one has to go, in my respectful submission, to
the particular matters in the Act that are marked out for the Minister's attention.
DAWSON J:	Or is the jury then left to decide whether the particular duty alleged falls within the general
obligation to administer the Act?

MR HUGHES:  The jury should not be left with that.

DAWSON J:	Why not?
MR HUGHES:	Because it is, we say, at least arguable and we

would contend that there is not to be found in the

Aqt any general duty within the framework of which

comes what the Minister on the evidence did in this

case.

DAWSON J: That may be a question of fact.

MR HUGHES:  It is a question of law too, with respect.

DAWSON J: Mixed. That is the problem which I am raising.

Herscu	10	6/8/91
MR HUGHES:	Yes.	But the point was adequately covered at

the trial as a verdict point so that there can be

no suggestion, and I do not understand, having had

the benefit of a quick reading of the - - -

GAUDRON J: But the verdict point was left, was it, in the

context of a general duty to supervise local

government bodies?

MR HUGHES:  Yes, and that is a view which was the subject of

a distinct difference in the Court of Criminal

Appeal.

GAUDRON J:  Does your argument go so far as this: that if

the Minister had done these matters bona fide, to

use that expression, he would have been acting as

an officious bystander?

MR HUGHES:  He would have been acting in no better position

than a bystander. He would have been acting in no

more powerful position, legally, than the Member of

Parliament - and one is familiar with this sort of

activity - the Member of Parliament who undertakes

to make representations outside Parliament on

behalf of constituents. In Boston's case, to which

we have referred in our outline, 33 CLR, makes it

clear, at least in the joint judgment of

Sir George Rich and Sir Isaac Isaacs, that that

activity - extra parliamentary activity - seeing

ministers, writing letters to government

departments, is not an activity done in the

discharge of the duty of a Member of Parliament, it

is something he does no doubt for good reasons of

his own, but to help his constituents in the hope

or expectation that they will - - -

DAWSON J: Lending the weight of one's office is not the

same thing as exercising the duties of the office.

MR HUGHES:	The duties of the office; that is the essential difference.
McHUGH J: But supposing some resident of the municipality

had come to the Minister and asked him to make

representations to the council not to approve these

changes in the pedestrian and vehicular access,

would the Minister not be making the

representations by virtue of his office?

MR HUGHES:	He would be in the sense that he is using his office, or even his position as a Member of
Parliament, as a platform to strengthen the persuasive force of the representation. But he may
be doing something under colour of his office, he
would be, but he is not discharging, in the example Your Honour gives, any duty of his office.

Herscu 11 6/8/91

McHUGH J: What about a function of his office?

MR HUGHES:  The section does not speak about function.

McHUGH J: In the Canadian Pacific Tobacco Case

Sir Owen Dixon equated duty and function - - -

MR HUGHES: In the context of a particular statute. It does

not follow, in my respectful submission, that one

translates that particular interpretation as a

general rule.

McHUGH J: No, I follow. Supposing you had a limitation Act

which gave immunity to a person acting in the

execution of his duty and, in this particular case,

the Minister had made some defamatory statement

concerning Hersfield Developments. Now in that

situation, could he rely on that limitation

provision to exempt him from liability?

MR HUGHES:	It would depend, in my respectful submission, on an evaluation of whether the particular statement
alleged to be defamatory, Your Honour, was
sufficiently incidental to the performance of some
duty that he was legally required to perform.
McHUGH J:	But on your argument he would have had no duty in

this particular case.

MR HUGHES:	If he was merely making representations to the council, not having the power to require them or
even to request them, he was not discharging a duty
and therefore if he published defamatory matter, in
the course of doing so, he would not be protected
by a statute which was limited to protecting him
for things done in the execution of his duty.
McHUGH J:	Does Sir Samuel Griffith's notes on this

Queensland Code throw any light on this provision?

Have you looked at that at all?

MR HUGHES:

No, I have not, they are not referred to in the

judgment.

McHUGH J:	No.
MR HUGHES:	One possible explanation for the way in which

t~e section - section 87 - is framed is that the

draftsman, Sir Samuel Griffith, was directing his

attention to the most, perhaps, common form of

common law bribery, bribing the public official to

show favour or disfavour in making some decision,

particularly an appointment to office.

Now, I appreciate the limitations of the use

that I can make of the two cases, David and Hyman

v French, but it is, perhaps, legitimate to point

Herscu 12 6/8/91

out that the Parliament of Western Australia took

sufficient notice of the decision in Hyman v French

to introduce legislation rewriting section 82 - I

have got a copy of it here, Your Honours -

rewriting section 82, it is on page 920 of this
photocopy of the print, Your Honours. Section 16
of the Criminal Law Amendment Act of 1988 of

Western Australia repealed chapter 13 of the Code

and substituted a chapter which commences now with

section 82, headed:

Bribery of public officer

82. Any public officer who obtained, or who

seeks or agrees to receive, a bribe, and any

person who gives, or who offers or promises to

give, a bribe to a public officer, is guilty

of a crime and is liable to imprisonment for 7

years.

So, any - - -

DAWSON J: And bribe is defined, yes.

MR HUGHES:  Yes. It is defined in the amended section 1

which is at page 916, Your Honour.

DAWSON J: Yes.

MR HUGHES:  But the definition is devoid of any reference to

public office or the discharge of duties, yes.

Now, I should next go to the summation of the sections of the legislation. Section 3 is at page 10 of the thick print, the Local Government Act,

and it defines "Minister" on page 13. I do not

think I need dwell on that. Section 4(1) says at

page 19:

The Minister, respectively, in exercising any

powers conferred by this Act shall have due

regard to the representations of the several

Local Authorities which, or the Areas of

which, may be affected by the exercise of such

powers; but the Minister shall not be bound

to wait for any representation of any Local

Authority before exercising such powers or to

comply with any such representation.

Then there is the next provision referred to in the

judgments - subsection (5) at page 23 and it

provides in summary the Governor in Council may

intervene to -

(a) suspend or rescind any resolution or order

of a Local Authority; or

Herscu 13 6/8/91

(b) to prohibit the expenditure of any moneys.

I do not know if Your Honours have had the

opportunity of reading in the application book the

particular representation that was made.

DAWSON J: Yes.

MR HUGHES:  It was, in effect, a polite request at the

instigation of the Minister by the Commissioner of

Main Roads to the council to consider altering the

conditions as to access and the conditions as to

the number of vehicles to be parked on the subject

premises.

Section 4(7) at page 24 says:

The Local Authority shall provide the Minister

at his request from time to time with such

returns relating to matters under its

jurisdiction as may be required, and the

Minister shall fix a reasonable time within

which the returns so required shall be

furnished.

Subsection (8) at page 25 says:

The Governor in Council may by Order in

Council repeal any by-law or part of any by-law.

Subsection (9) of the same section provides:

The Governor in Council may ..... by Order in

Council ..... in his absolute

discretion ..... dissolve any council.

The next provision is section 4A which commences at

page 28 of the print at the bottom of the page:

(i) For the due and effectual administration

of this Act, a Director of Local Government

for the State of Queensland shall be appointed

by the Governor in Council.

And subsection (2) says:

The Director shall, subject to the Minister,

be charged with the administration of this

Act.

The next reference in our summary of these provisions, Your Honours, is to section 4B(3).

That should be a reference to 4A(3). There was a

typographical error in Mr Justice Thomas' judgment.

That is to be found at page 29 of the print:

Herscu 14 6/8/91

The Director may make or cause to be made such

inspections, investigations and inquiries as

he thinks fit in relation to any matter
respecting the administration of this Act, and

shall make or cause to be made such

inspections, investigations and inquiries as

are directed by the Minister.

Now, the Minister's intervention in this case was not through the agency of the director of local

government.	It was through the Commissioner for
Main Roads.

GAUDRON J: Is there a Main Roads Act?

MR HUGHES:  Yes, but this was not a main road. It is called

Mains Road, Your Honour, but it was not a main road

any alleged ministerial duty.

and the Crown did not rely on any provision of the content of

McHUGH J: Could I just ask - this really turns on the word

"corruptly" I suppose - but supposing Mr Hinz

genuinely believed that these conditions were not

in the public interest, and therefore he was

genuinely in favour of their omission - would that

constitute an offence against this section if he

had taken the money? That seems to be the way the

case proceeded.

MR HUGHES: It would not. In that case there would be a

real issue as to the content of the Crown case on
the issue of corruptness, but it would not be an

offence anyway for the other reason that I have

been endeavouring to advance in support of this

application.

McHUGH J:  The case seems to have been left to the jury on

the basis that if the payment was made to get him

to favour the application, that itself constituted

corruption.

MR HUGHES:  Yes. The case that the Crown sought to make was

really this, that there was a provision of money on

account of the Minister exercising influence to

persuade the council to fall in with his view as

expressed through his Commissioner of Main Roads

tha-t the conditions were inappropriate. But as I

have said, the Minister had no more power to

require the council to alter those conditions than

a private citizen, and there is nothing in these

sections through which I am, I am afraid rather

laboriously travelling at the present time, that

gave him such a power, let alone a duty.

DAWSON J:  I was going to raise that question with you,

Mr Hughes. This, after all, is only an application

Herscu 15 6/8/91

for special leave.	Do we have to go through all of
this - - -?

MR HUGHES:	No, Your Honour, but
DAWSON J:	The point you make is there is no duty laid down

which relates to the representation to a local

authority such as this one in relation to a

planning permit.

MR HUGHES:  Your Honour, that is so, and I am not going to

subject Your Honours to the tedium of travelling

through these submissions because that would merely

be repetitious, and I am sorry that I have been

tedious. But, Your Honour did suggest that I might

go through these - - -

DAWSON J:	Did I?
MR HUGHES:	Yes, Your Honour - at least I took Your Honour

to do so at one stage. But I accept what

Your Honour says and I will not say any more.

That is the point. We submit it is a point of

substance as indicated if by nothing else by the

division of opinion in the court below as to the
central point in the Crown case, the supposed

general supervisory duty. And I am able to say,

after consultation with my learned friend, that

what we said in our affidavit about the pendancy of

cases in which this point arises, is correct.
There are two other prosecutions, and I do not

think I need mention the names of the accused - one

is a very prominent name - in which this section is

relied upon. In one prosecution it is a joint

trial pending, and we submit that the point is

deserving of special leave and in deference to what

Your Honour said I will not go through those

sections. It is very tedious.

DAWSON J: Thank you, Mr Hughes.	Yes, Mr Drummond.
MR DRUMMOND: If the Court pleases. The only difference in

opinion between the members of the court below - I

am sorry, I hand up my outline if it is of some

assistance to the Court.

DAWSON J: Could I first of all raise the question with you

that I raised with Mr Hughes. Nothing hinges, does

it, on the particular direction that was given by

the trial judge to the jury?

MR DRUMMOND:	We do not think so, Your Honour.
DAWSON J:	The point is the point which is raised, and that

is the one that is said to attract special leave.

Herscu 16 6/8/91

MR DRUMMOND: That is so, Your Honour. I was just

submitting that the only difference between the

judges below was on the question whether the

legislation required the Minister to supervise

local authorities. Mr Justice Byrne held No; the

other two judges held Yes. But all three judges
were of the same view that the duties of the

Minister connoted a wide range of functions, and

making a representation or directing a letter that

he caused to be directed to the council fell fairly

and squarely within the range of his functions and

duties.

DAWSON J: Why was that not a jury question? Once you have

drawn such parameters as you can discern which are

a matter of law, that is the parameters of the
duties of his office, why is it not then for the

jury to decide whether this particular function

fell within those duties or not?

MR DRUMMOND:  I may have misunderstood Your Honour at the

outset, but I understand that it was left to the

jury to decide whether what the Minister did was an

act in the course of his duties. That was left to

them with directions about his duties under the

Local Government Act~

McHUGH J: It is a separate question though as to what his

duties are.

MR DRUMMOND: That is so, Your Honour, yes.

DAWSON J: What I had in mind is the most you may be able to

say as a matter of law is - and this may be wrong -

"Well look, he had the general duty of

administering this Act". Now, does the trial judge

have to go further and deal with that more

specifically and decide whether or not the

particular matter which is in issue here was within
the administration of the Act, or is that a matter

for the jury?

MR DRUMMOND:  We submit it is a matter for the jury. Once

to decide whether what the Minister did was in the course of discharging his duties.

he has identified the range of authorities that the jury

McHUGH J: -aut surely the judge, as a matter of law, would

have to define what the duties are.

MR DRUMMOND:  That is so, Your Honour. As we understand it

he did, although nowhere near as fully as the

judges in the Court of Appeal did who looked in

great deal not only at the relevant local authority

legislation, but also at the constitutional status

Herscu 17 6/8/91

of a Minister and what flowed from the functions and duties he had in his capacity as a Minister.

DAWSON J: Well, does it come to this: that the trial judge

implicitly told the jury that this particular

activity - the one we are talking about - was

capable of falling within - - -

MR DRUMMOND:  I think that is the proper way of putting it

if I - - -

DAWSON J:  And the argument is he is not capable on the other side?

MR DRUMMOND:  That is so, Your Honour. I think that is the

proper way of - - -

McHUGH J: 

I must say I would have thought it would be for

the judge to say whether doing this was the duty of
the Minister and for the jury to say whether what

had been done was done in the course of doing that.

Otherwise it is the jury then that says what the

duty of the Minister is. That is all you are

doing, in effect, transferring it to the jury to

make the determination as to what the duty of the
Minister is.

MR DRUMMOND: With the direction as to the activity in

question being capable of answering that

requirement that it is a duty of the Minister.

DAWSON J: But at all events, there is a question there.

But we are really concerned with whether this

particular activity was capable of being construed

as being a duty?

MR DRUMMOND:  Yes, Your Honour. If I could take the Court

to page 133 of the appeal book to a judgment of

Mr Justice Byrne, at about line 15 just after the

passage in which His Honour said that he could not

find the legislation requiring the Minister to

supervise local authorities, he went on to say:

That, however, is not to say that the Minister

exceeds his functions when he seeks, for
proper reasons, to influence local government

bodies in their activities.

Skipping about five or six lines he then says:

And the Minister has a role to play in local

government affairs beyond the tasks designated

by legislation.

This is an approach that all three of the judges

took to find that what the Minister did on this

occasion was capable of filling the requirement

Herscu 18 6/8/91

that it be in the course of his duties. His Honour

referred at the bottom of the page to the 1975
administrative arrangements under which the

business of government was allocated to various

ministers, as did all the other judges in the Court

of Appeal, and continued to discuss the notion

that, at line 3 on page 134:

His responsibilities are greater than those

specifically assigned by the statutes he

administers. The powers of his office surely

involve participation in the formulation and

implementation of government policy on local

government matters, including legislative

reform.

And he concludes at about line 20 by saying:

It is comfortably within the general scope of

the powers and functions of the Minister for

Local Government to attempt, for good reasons,

to influence local government deliberations

about town planning matters.

Now, that is exactly the same approach that each of

the other members of the court took after first

coming to the conclusion that duty imported into

section 87(2) from section 87(1) had no narrow

technical meaning, but bore a broad popular meaning

capable of embracing the concept of functions.

Perhaps I should take the Court to

Mr Justice Thomas. He summarizes his conclusions

in this area at the bottom of page 55 of the appeal

book.

DAWSON J:  You would concede, Mr Drummond, would you, that

if a Minister used his influence as a Minister to,
for instance, exert pressure on another Minister

with another portfolio to do something within that

portfolio, that would not fall within the section?

MR DRUMMOND:  I concede that, Your Honour. That would not

fall within it. But if he is seeking to influence

a body over which he has ministerial

responsibility, that is a different matter

altogether.

DAWSON J: · Yes.

McHUGH J: That is a thing I have some little difficulty

with about seeking to influence - after all, the

word is corruption. To take another context:

supposing a government minister was in favour of

nationalization of some industry and had made

statements to that effect, and some member of the

community gave him some money to carry out that

Herscu 19 6/8/91

policy to nationalize industry. Would that be a

corrupt payment on the part of that person?

MR DRUMMOND: It may well not be, Your Honour. It is

possible it could be, but it may well not be. This

kind of notion, the boundary between intermeddling

and acting in the course of duties was recognized
by the judges in the court below, and they said
that this case was not in that intermeddling

category although the boundary was often difficult

to draw. The facts of this case against the

legislative background to their minds made it clear

that this was within the scope of ministerial

exercise of function which could answer the test.

McHUGH J: Yes, I follow that.

GAUDRON J:  Does your argument allow any area of autonomy on

the part of local government authorities?

MR DRUMMOND:  Yes, Your Honour. As the judges

GAUDRON J: Well, it does not fit well to just talk about

ministerial responsibility over local government if

you do not allow for some exception where there is

real autonomy.

MR DRUMMOND:  I am not sure if I quite understand

Your Honour, but the judges below all acknowledged

that the Minister here had no authority to compel
the local authority to obey his wishes, but they

held nevertheless, given the scope of his functions

under the statutes and under the administrative

arrangements and by virtue of his holding office as

a Minister, what he did, if it had not been done
for a corrupt motive, would have been a legitimate

exercise of his functions in attempting to procure

a particular result from a local authority by

making the approach he did, and because there was

evidence to justify that it was done corruptly the

offence could be made out.

GAUDRON J:  Why would it be a legitimate exercise of his

power if it were done honestly, we will say?	Why
would that involve his power, his duty, his
functions if it is an area in which the local
government actually has autonomy?

MR DRUMMOND:- Because of the way the business of

administering these areas of governmental activity

was allocated among the ministers. I probably

cannot do better than to take Your Honour to what

Mr Justice Thomas said, I think, on this point at

page 51 about line 14 to the bottom of the page.

His Honour says:

Herscu 20 6/8/91

Ministerial intervention in a planning

issue such as that in the present case may be

characterised as a direct involvement in an

issue between a local authority and a citizen.

Such interventions may be rare events, but

when it happens it may be seen as a function

of good Government. I use the term "good

Government" in the wide sense contemplated.

And His Honour continues:

It may be thought in the interests of good

Government that local authorities be to some

extent discouraged from taking and persisting

in irresponsible decisions, and that from time

to time ministerial intervention might be

expected.

It is that notion that all the judges

GAUDRON J: Yes, but that notion does not seem to allow for

any real autonomy.

MR DRUMMOND: With respect, Your Honour, I would submit that

is not so because the judgments all recognize that

the Minister has no power to compel.

DAWSON J: Well, on the other side of the coin he is doing

no more than any citizen can do. It may be that

his name adds weight to what he is doing, but

anyone can make representations.

MR DRUMMOND:	But he does it clothed with the authority of the Minister responsible for that area of
governmental activity.

McHUGH J: But by hypothesis he is not responsible for this

issue. He has no duty nor any power. That is what

worries me about this case. Once you have the

findings of the fact of corruption and so on, there

is a natural tendency to stretch the terms of the

statute to get at behaviour which right thinking

people will condemn. But this is a very oddly

drawn statute as compared to, say, the amendments

in Western Australia. The Minister has no duties,
and he has no authority in respect of a matter and

he makes a representation. How is his position any

di_fferent to any other citizen or any other

minister, for example? How would you distinguish

him from the minister for industries or works?

MR DRUMMOND:  Your Honour, he has a range of authorities

under statute over councils, authorities that

enable him to exercise supervision in some areas,

that enable him to call for reports in others, and

there is an authority in the Governor in Council to

dismiss a council.

Herscu 21 6/8/91

McHUGH J:  I know, and he has power to authorize the

director and to direct the director to carry out

investigations, put in auditors and things of that

nature. I was thinking of that earlier. But he

does not seem to have any specific powers in

relation to this very matter.

MR DRUMMOND: There is no specific statutory power which

says he can give directions in relation to town

planning decisions made by the particular council.
But here is a man who is charged with
responsibility for this general area, and he uses

his position. As Minister for Local Government he

makes this approach to the council.

McHUGH J:  The other difficulty I have, Mr Drummond, about

it is that on the hypothesis of the meaning of the

word "duties" in this section as formulated in the

judgments below, there does not seem to be any work

for the words "omitted to be done". How can you

omit to do something that you have either no duty

or power to do? You see, the section contemplates

that it is something that you do or you omit to do.

Now, if you can be caught by this section in

respect of something that you have no duty to do

and no power or authority to do, how do you fit the

words "omitted to be done"?

MR DRUMMOND:  Your Honour, it is a section which has a very

wide reach over all sorts of officials from quite

minor officials who may have duties that they are

required to exercise in certain circumstances, and

if they fail to exercise those duties in those

circumstances - - -

McHUGH J:  I appreciate that. There is no doubt it has

plenty of work to do in a case where somebody has a

positive duty. But you would argue, and the courts

below have held, that it covers functions or

activities by an office-holder which he has no duty

to perform and which he has no power to perform.

MR DRUMMOND:  We do not concede that he has no duty to

perform these functions. It could be said to be

one of his duties to maintain a watch on the way

local government authorities are acting in town

planning matters, even though he has no specific
po~er to give a direction. It is the same notion,

we would submit, as saying that that is within the

range of his functions.

GAUDRON J:  If the Minister had genuinely formed the view

that this planning arrangement was contrary to the public interest, would he have had a duty to bring

his view to the notice of the council, to make

representations to the council?

Herscu 22 6/8/91

MR DRUMMOND:  It would certainly be within his functions,

and one could say - within the meaning of "duty" in

section 87, it would have been his duty to do that

without doubt.

GAUDRON J: And he would omit to do it if he made no

representation on your argument? If he genuinely had a view that the planning was wrong and failed to do anything about it, would that be an omission

in the discharge of his duties of office?

MR DRUMMOND:  It could be said to be an omission within the

meaning of section 87 but, of course, he would not

commit an offence unless he omitted to do it

corruptly.

GAUDRON J: Yes.

DAWSON J: Well, you say he has a duty to perform the

functions of his office to the best of his ability.

Really, that is putting it at its most general.

MR DRUMMOND:  I suppose that is the position, yes,

Your Honour.

McHUGH J:  I think you really have to found yourself on a

duty to supervise in a sense and then all sorts of things flow from that. For example, supposing the Minister took the view that these conditions were

outrageous and should not be imposed by any council

acting properly, it may well be that he has a duty

to take some action under 4B or one of those

sections.

DAWSON J: And before doing so, before taking more

precipitate action, to try to influence the council

to change its mind.

MR DRUMMOND:  That is so, yes. Such a general duty to

supervise was, of course, found by two of the

judges in the court below and we would submit that

was a correct assessment of the position of the

Minister.

If I could take the Court to section 87. have some prints of it if I could just hand those I

up. There is one matter I should deal with. Our

lgarned friends find the existence of a legally

bintling obligation which they submit has to exist

before the section can apply in the two expressions

in section 87(1) which refer to duty or duties. In

the second, third and fourth lines of my print the

expression -

and being charged with the performance of any

duty by virtue of such employment or office -

Herscu 23 6/8/91

appears. And then at the end of the subsection the

expression -

in the discharge of the duties of his office -

also appears.	Now, there are some curious features
about the wording of the subsection.	The second

expression does not say "in the discharge of such
duties" which, if it did, would be a clear
reference back to the first phrase. They really

are two quite independent expressions in

subsection (1), and in my submission, that is a

clear indication that the function of those

expressions is not to identify a particular range

of duties, activities or functions which the

official must carry out if he is to be caught by

section 87, but to make it clear that it is only if

he acts in an official capacity as opposed to a

private capacity that he is within the section.

That strikes at the very heart of our learned

friends' submissions. There is no warrant for
inferring from those expressions that there has to

be a legally binding obligation before section 87

can apply. All the judges in the court below took

that approach. And if I could just give a

reference to what was said in that regard:

Mr Justice Byrne at page 129, line 2 said:

In the context of s.87 those words do not

imply that the act or omission in question

must relate to something the official is bound

to do or must not do. Rather, in my opinion
the words signify that the corruption must

concern the employee's or office holder's

official powers and functions, as opposed to

conduct in some private capacity unconnected

with official responsibilities.

Mr Justice Thomas, at page 45 lines 1 to 15,

expressly agreed with that, and

Mr Justice Mackenzie, at page 105 line 15 through

to page 106 line 15 adopted an approach completely

consistent with that, although he did not say he

expressly agreed with that approach. So, in our

submission, the proposition that there has to be a

legally binding obligation is not supported by the

section.

It is also of some significance to note that

what is imported into subsection (2), the section

under which the applicant here was convicted, is

not both those expressions, but only the second of

them in so far as there is reference to "such act

or omission" of section 87(2).

Your Honours, our learned friends are in

difficulty in the construction they put forward, in

Herscu 24 6/8/91

our submission. They recognize they have to

concede that the section will apply to a range of

discretionary judgments or powers, otherwise it

would be practically useless if we had such a

limited scope of operation that it would have

little field to apply at all. But once you make

that concession it is very difficult to construe

section 87, in our submission, in such a way as to

allow room for that. If you say that the two

expressions in 87(1) identify a need for a legally

binding obligation then, in our submission, it is
not possible to read those words as containing room
for a discretionary judgment or power.

Unless there is something else that the Court wishes to hear me on, I do not think I can take the

matter further.

McHUGH J: Sir Samuel Griffith has written notes on this

Code, has he not? Is there something -

MR DRUMMOND:  I am sorry, we do have that. The note he put

against his draft of the section is just simply a

reference to the common law, misdemeanour of

bribery.	I will hand up the relevant sections from
his draft Code.	·

The section, when it was enacted, was changed

from Sir Samuel Griffith's draft as appearing in

that draft letter, to include a wider range of

public officials.

McHUGH J: Can I just ask you one thing, Mr Drummond? What

about the words in subsection (1) -

charged with the performance of any duty -

what do you say about those words?

MR DRUMMOND:	Our submission, Your Honour, is that they serve the function of identifying the quality of
the acts of the official, official acts as opposed
to private acts, which the acts must have if the section is to apply. That is their only role. The
common law definition of "bribery" is a very wide
one, and is capable of the very wide operation
applicable to functions and discretions as opposed
t~ legally binding obligations. If I could just
hand up a copy of an extract from the 12th Edition of Russell on Crime which, we submit, makes that
clear. The first paragraph is, I think, all I need
read. The notion of influencing his behaviour in
office is the notion which the three judges below
found in these two expressions in section 87(1).

Herscu 25 6/8/91

McHUGH J:  How is this - "and will incline him to act

contrary to the known rules of honesty and

integrity" - he must have that as well.

MR DRUMMOND:	We cover that in the Code, in our corruption aspect, yes, Your Honour. Again, the common law is
clear that it is only official acts as opposed to private acts which are indictable.
DAWSON J:	Thank you, Mr Drummond.

MR DRUMMOND: If the Court pleases.

DAWSON J: There appears to be a question of importance that

needs to be settled, and special leave will be

granted.

AT 10.51 AM THE MATTER WAS ADJOURNED SINE DIE

Herscu 26 6/8/91