Macleod v Australian Securities Commission

[2002] HCATrans 5

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P55 of 2001

B e t w e e n -

MALCOLM MACLEOD

Appellant

and

AUSTRALIAN SECURITIES COMMISSION

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 FEBRUARY 2002, AT 11.06 AM

Copyright in the High Court of Australia

MR W.B. HARRIS:   May it please the Court, I appear for the appellant.  (of William B. Harris)

MR D.J. BUGG, QC:   May it please the Court, I appear with my learned friend, MR L.R.M. FLETCHER, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

MR H.C. BURMESTER, QC:   If it please the Court, I appear with my learned friend, MR G. WITYNSKI, for the Attorney‑General of the Commonwealth intervening.  (instructed by the Australian Government Solicitor)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:  If it please the Court, I appear with my learned friends, MR R.M. MITCHELL and MR P.S. PSALTIS, for the Attorneys‑General for the States of South Australia, Western Australia, Tasmania, Queensland and the Northern Territory, intervening in support of the respondent.  (instructed by the Crown Solicitor for the State of South Australia, the Crown Solicitor for the State of Western Australia, the Crown Solicitor for the State of Tasmania, the Crown Solicitor for the State of Queensland and the Solicitor for the Northern Territory)

GLEESON CJ:   Mr Harris.

MR HARRIS:   May it please the Court.  The Full Court raised a question of the competency of ASIC to appeal.  We answered that we regarded that ASIC did not have the power to appeal and Mr Justice Owen looked at that very carefully and in doing so seemed to overlook a necessity that, as a matter of State law, the power to institute appeals had been conferred on ASIC and looked at it, I think from the second point of view, and that, second, that as a matter of Commonwealth law the consent to the conferral of power was a wide as the actual conferral of power by State law. 

The confusion seems to have come about because under the enabling statute, ASIC being a Commonwealth body, in its enabling statute there are incidental powers under section 11(4) and section 11(7) of the ASIC Act.  Under the State ASIC Act there are no incidental powers so, at the end of the day, the only relevant functional power conferred on ASIC by State law that is left, because they do not give them any incidental powers, is that the Commission may cause a prosecution of the person for the offence to begun and carried on.  In light of the decisions of this Court in Bond and Byrnes, our submission is that it is just insufficient.  That prosecution means prosecution, that appeal means appeal, and that the power has not been conferred.

GLEESON CJ:   Mr Harris, I notice there is a reference in the written submission to some legislation of the State of Western Australia of the year 2001.  Do you know the Act I am referring to?

MR HARRIS:   That is the ASIC Act 2001, is it?

KIRBY J:   No, it is the Corporations (Administrative Actions) Act 2001 of Western Australia, which is annexed to the submissions in reply.

MR HARRIS:   Yes.

KIRBY J:   I am sorry, it is annexed to the respondent’s supplementary submissions.

MR HARRIS:   Yes.

GLEESON CJ:   I just wondered if you wanted to make any submissions about that?

MR HARRIS:   That just referred to “invalid administrative action” in section 3(a) and they are talking – an:

“invalid administrative action” means an administrative action of a Commonwealth authority or an officer of the Commonwealth taken, or purportedly taken, at or before the commencement time:

(a) pursuant to a function or power conferred, or purportedly conferred, by or under a relevant State Act –

and, of course we say that there was no function conferred or purported to be conferred.  We are saying that a function to appeal was not conferred or purported to be conferred so that the administrative section does not apply.  It is just straight, “Have they given us the – has it the power – the State Government given it – has it the power to appeal?”  We say they have not and that is really the end of the matter.

GUMMOW J:   Just explain to me again, Mr Harris, why you say the 2001 Act has got nothing to do with it?

MR HARRIS:   They defined “invalid administrative action”.

GUMMOW J:   First of all they defined “administrative action”:

in the course of or ancillary to or preliminary to or subsequent to judicial proceedings  ‑ ‑ ‑

MR HARRIS:   Yes, your Honour.  It:

means an act or omission of an administrative or legislative nature, and includes any act or omission of an administrative nature that is done or omitted in the course of or ancillary to or preliminary to or subsequent to judicial proceedings –

Then they go on to “invalid administrative action”.  Then section 4 and section 5 then deals with the legal effect of “invalid administrative action” and every invalid administrative action has and is deemed always to have had the same force and effect for all the purposes as it would have had if it had been taken or purportedly taken by State authority or an officer of the State, so ‑ ‑ ‑

GUMMOW J:   I think it is said against you that the so‑called institution of the appeal would be an invalid administrative action.

MR HARRIS:   Yes.

KIRBY J:   Now, the decision of the Full Court was dated 13 April 2000, so, presumably, it was before the Parliament of Western Australia and other Parliaments enacted this Act.  In section 4(4) it says the:

Act does not affect rights or liabilities arising between parties to proceedings heard and finally determined –

It is not normal, in criminal proceedings, at least, that Parliaments intervene and affect a case that is before the judicature.  Do you accept that the Act affects your client and affects the rights that your client was litigating when the matter was given special leave and came to this Court?

MR HARRIS:   Yes, absolutely.

KIRBY J:   You accept that it does, that the Act applies but you say it does not attach?  Is that your argument?

MR HARRIS:   Yes, and I think you have dealt with that.

KIRBY J:   What was the sequence of events for the grant of special leave and the passage of the Act?  Was the passage of the Act after the grant of special leave or before?

GLEESON CJ:   Before.  The Act was assented to on 28 June 2001 and special leave was granted on 24 October.

KIRBY J:   I am not sure that our attention was drawn at the special leave hearing to this Act.

MR HARRIS:   I think we looked at this Act and saw it as an invalid administrative Act and then assumed that because there had been no attempt to give the power or function and then come to the conclusion that it did not apply at all the Act.

CALLINAN J:   Do you accept though that the matter had not been heard and finally determined by the time that the Act became law?  I think that is the question that Justice Kirby is really asking you.  It might be quite an important question.  If you want to think about it, do.  Do you accept that the proceedings had not been heard and finally determined when the Act was enacted, when it came into operation?

MR HARRIS:   That is a very difficult question.

CALLINAN J:   Well, it is or it may be and we need some assistance on it.  It may be a very important question for your client.

KIRBY J:   You see, in his submissions, in the respondent’s supplementary submissions, the respondent says:

Further the validity of the institution of the proceedings has been resolved by –

this Act, so that in a sense is a threshold question.  We have to therefore ask ourselves:  does the Act apply to a matter which is before the judicature, in its terms?  Does it attach in its terms to your client’s case?  Is it valid and does it have the consequence of putting the issue of the validity of the institution of the proceedings beyond question, as the respondent in its supplementary submission says?  It is a threshold point.

MR HARRIS:   Well our position is clear.  We just say the Act does not apply.  It cannot apply.

KIRBY J:   So you do not ‑ ‑ ‑

MR HARRIS:   I do now.

KIRBY J:   ‑ ‑ ‑challenge the validity of the Act and you do not challenge, as I understand it, its application according to its terms to the proceedings affecting your client.  You simply say that when analysed and looked at, the Act does not have any consequence for the proceedings affecting your client.  Is that your argument or not?  Have you thought about this?  This could be a not unimportant question.

MR HARRIS:   Well, I can say that my position will be that the Act does not apply to this particular case because the judicial process was under way and in the circumstances then the Act would not apply and what I am saying then, and even if it did, it would not affect the outcome.

CALLINAN J:   Well, I am sorry, is that a submission that the proceedings had been heard and finally determined before the Act became law?

KIRBY J:   Are you saying that the proceedings that are there referred to are the proceedings at trial?

MR HARRIS:   The Full Court’s decision are the proceedings we are challenging, which precedes the Act.

KIRBY J:   The Full Court was against your client.  You are challenging, in this Court, Justice Owen’s view of the legislation.

MR HARRIS:   The Full Court is only against us because his Honour misconstrued the law.  He overlooked the fact of the meaning of the ‑ ‑ ‑

KIRBY J:   I know that is your submission, but this is an Act which purports to fix it all up.  So it is a pretty important threshold question that I do not think was drawn to the attention to Justice McHugh, Justice Hayne and myself on the special leave application.  I may be wrong.

MR HARRIS:   No it was not.

KIRBY J:   It was not drawn to attention?

MR HARRIS:   No.

GUMMOW J:   Do we know it is in force yet?  Section 2 of the 2001 Act says it comes into operation:

immediately before the Corporations Act 2001 of the Commonwealth, as originally enacted, comes into operation.

Now, do we know the date on which the CorporationsAct 2001 of the Commonwealth came into operation? Mr Burmester will tell you.

MR HARRIS:   15 July, 2001.

GUMMOW J:   Thank you.  So it was in force at the time of the leave application, was it?  Yes, it was.

MR HARRIS:   But not in force when the application for leave was made.

GUMMOW J:   That does not matter.

KIRBY J:   There is a general presumption of law that a statute will not disturb the rights and liabilities of parties in proceedings that are before the judicature.  What I was asking was does that presumption have any work to do in the interpretation of the application provisions of section 4(4)?

MR HARRIS:   We would submit that the presumption applies.

KIRBY J:   If it does apply, how does it do any work?  Does it do work on the meaning of the word “proceedings”?  We just have to sort this out, because this is a preliminary question.  I do not know whether the Director of Public Prosecutions can help the Court.

CALLINAN J:   If the Act does not apply, it might be arguable that it cannot in any way improve the respondent’s position.

GLEESON CJ:   Am I not right in thinking, Mr Harris, that as at 15 July, 2001, which is the commencement referred to in section 4(4), you were losing.

MR HARRIS:   We were - - -?

GLEESON CJ:   You were not in good shape.  At that time you had lost before the Full Court of Western Australia.

MR HARRIS:   Yes.

GLEESON CJ:   So it may not be attractive to you to contend for the proposition that the proceedings had been heard and finally determined as at that stage.  If the proceedings had been finally determined at that stage they had been finally determined against you, had they not?

MR HARRIS:   Yes. 

KIRBY J:   But the way I was asking your assistance was:  if “proceedings heard and finally determined” means proceedings heard and validly finally determined, then that refers to the proceedings at trial, before an appeal was purportedly brought.  In respect of the suggested invalid exercise of power to institute the appeal, the last validly exercised power was the trial, and that therefore, applying the principle of interpretation, you would interpret this to mean, in respect of proceedings that are before the judicature, the proceedings at trial, which were heard and finally, validly, determined; and that therefore the purported appeal, being, as it is argued, without warrant in

federal legislation, was invalid; and that therefore the last valid proceedings were the proceedings at trial.  Therefore, the Act does not attach.  Now, I do not know – you have to think these things out.  This is quite an important point from your client’s point of view, and, to be quite brutal, it was raised in the supplementary submissions of the respondent, and we just have to expect assistance on these things. 

MR HARRIS:   Yes. 

GLEESON CJ:   You lost at trial, did you not? 

MR HARRIS:   The trial before the magistrate we lost ‑ ‑ ‑

GLEESON CJ:   You lost at trial, and then you won on appeal. 

MR HARRIS:   We won on appeal. 

GLEESON CJ:   What we are concerned about, in terms of power to institute an appeal, is a power to institute a further appeal endeavouring to restore the decision of the original trial magistrate. 

MR HARRIS:   Yes. 

GAUDRON J:   And a question might arise in relation to section 4(4), whether an appeal is a separate proceeding.  Now, on one view, having got your acquittal before the Commissioner, your proceedings might have been finally determined – heard and determined – and the question then would be could this Act do anything to make good the subsequent appeal? 

KIRBY J:   Justice Gaudron puts more accurately the point that I was referring to. 

GAUDRON J:   Yes.  To the Full Court. 

GLEESON CJ:   Would you like to think about this and deal with it in reply? 

MR HARRIS:   Yes, certainly.  Thank you. 

GLEESON CJ:   Now, I am sorry to have interrupted you.  Was there anything else that you want to put, or does that cover your case? 

MR HARRIS:   That, in fact, covers my case, yes. 

GLEESON CJ:   Thank you, Mr Harris.  Yes, Mr Bugg. 

MR BUGG:   Thank you, your Honour.  Your Honours, my learned friends and I have had some discussion about the disposition of this matter.  There are two distinct areas of consideration, the first being the competency of the appeal, and the second being the Hughes point, which is the subject of response submissions from the appellant and the intervention applications by my learned friends.  It would create more efficient use of this Court’s time if we were to split that argument.  I had proposed to make submissions on the competence of the appeal and my learned friend, Mr Burmester, whose submissions I have read on the Hughes point, I would rely and adopt his argument in relation to that, if that is a course convenient to the Court. 

GLEESON CJ:   Yes.

MR BUGG:   Your Honours, if I could just go back to that Act that the Court was considering with my learned friend before I embark upon a consideration of this argument, and it may assist my learned friend in his consideration of it.  The definition of “invalid administrative action” has a conjunctive part to it.  We had always read subparagraph (b) as being a State enactment which covered the lack of constitutional power – that is legislative power – to authorise.

KIRBY J:   What is (b), I am sorry?

MR BUGG:   That is (b) under “invalid administrative action”.  It must be:

(a) pursuant to a function or power conferred, or purportedly conferred, by or under a relevant State Act . . . and

(b) in circumstances where the relevant function or power could not have been conferred on the authority or officer by a law of the Commonwealth the operation of which in the relevant respect was based on the legislative powers of the Parliament of the Commonwealth –

What is missing on the appellant’s case in relation to the competence argument is a lack of authorisation to appeal and it could not be contended that a consent for that authorisation by a State Parliament is not lacking from the legislative powers of the Commonwealth.

We saw this Act as applying to the Hughes argument and it was mentioned in the submissions when the special leave application was first heard in Perth in October 2000.  It was also mentioned in the special leave that if your Honours Justice Kirby and Justice Hayne, who were present, were sitting during that first hearing, Justice McHugh raised a number of issues which he pointed out to the appellant, who was unrepresented, and the matter was adjourned to enable him to obtain representation.  One of the points his Honour did consider was whether or not this appeal raised a Hughes argument.

Then when the matter came on when the special leave application was heard in October last year, the only issue which was canvassed in discussion with the Court was the section 11(4) question and whether or not there was a direct incidental power given to ASIC through that subsection or whether the exclusion of it from the State Act through section 58(1) of the Western Australian Corporations Act deprived us of that argument.

GLEESON CJ:   What is your submission in relation to the effect of this legislation?

MR BUGG:   That it only applies to the Hughes argument, not to the competency of the appeal argument.  In other words, did ASIC have power to appeal is not covered by this legislation, and the only mention of it in the outline of submissions in both special leave applications on behalf of the respondent was to address the potential Hughes problem.  Therefore, it only has relevance in relation to that particular ‑ ‑ ‑

GLEESON CJ:   Could you just spell out what you say is the way this legislation operates in relation to what you call the Hughes problem?

MR BUGG:   Certainly.  What the State does is retrospectively say if there was not a head of legislative power to give a direction to ASIC to undertake a particular enforcement and that was not covered by a constitutional head of power, then the State ‑ ‑ ‑

GUMMOW J:   You mean a federal head of constitutional power?

MR BUGG:   Yes, a federal head of constitutional power.  Then the State, by this Act, fills that gap and fills it retrospectively.

GLEESON CJ:   So that if, for example, the corporations power does not apply in the particular circumstances of this case and there is no other power that does ‑ ‑ ‑

MR BUGG:   Then the State, by this legislation, provides retrospectively the validation of that administrative ‑ ‑ ‑

KIRBY J:   This is an intervention by legislation in proceedings that have already been instituted and were before the judicature where a person was in criminal proceedings seeking to defend an initial decision.

GAUDRON J:   And involved the exercise of federal jurisdiction.

MR BUGG:   There is a further argument about that which I would more comfortably leave with my learned friend, Mr Burmester, as to the correctness of – I would not concede that proposition, your Honour, that the rights or liabilities of the party would be adversely affected by this legislation but I am ‑ ‑ ‑

KIRBY J:   But the object of it was to deprive parties of arguments by reference to a specific grant of constitutional power.  It is not like, I think it was Hughes, where the power was not adumbrated in the Act but existed when analysed.  This case is one where there is a purported actual conferral upon an official who, by the way, is a prosecutor who normally has his own or her own discretions to exercise, and it is conferring this power on that person retrospectively with effect on current criminal proceedings ‑ ‑ ‑

MR BUGG:   Where there would be a discretion such as an appeal, this legislation, I do not think, applies.  I really have not given it any more detailed consideration than that because I did not see it as relevant to the point.

GLEESON CJ:   In any event, this legislation, as you understand its purpose, is simply irrelevant if we were to accept the submission that having regard to the circumstances behind this particular prosecution the Commonwealth had power, under its power to make laws with respect to interstate trade and commerce or under the corporations power or otherwise, to legislate with respect to it.

MR BUGG:   Yes.

KIRBY J:   Extending to the present appellant ‑ ‑ ‑

MR BUGG:   Yes.

KIRBY J:   ‑ ‑ ‑ because his argument is that he was not a shareholder; he was not a corporation; he was just a ‑ ‑ ‑

MR BUGG:   He was not an officer, he was an outsider.  Yes, if the submissions in relation to section 51(i) and 51(xx) satisfy or persuade this Court that there was ‑ ‑ ‑

GUMMOW J:   There is a decision of the New South Wales Court of Appeal, is there not?

MR BUGG:   Yes, O’Halloran.

GUMMOW J:   A decision of Justice Heydon’s.

MR BUGG:   Yes, that is right.

GUMMOW J:   Which Justice Callinan and I refused special leave.

MR BUGG:   That is correct.

GUMMOW J:   The gentleman in that case was in a similar position, I think, to Mr Macleod.

MR BUGG:   Yes.  One of the difficulties, of course, with the way in which this matter has evolved, that some of the evidence, which is relevant to that particular issue, of course, was not in the application book and subsequently the appeal book, but we attempted ‑ ‑ ‑

KIRBY J:   I thought I saw – I was astonished when I saw there was an affidavit there; two affidavits in criminal appeals before the Court.  I am sure that, and I must have been mistaken when I thought ‑ ‑ ‑

MR BUGG:   When all else fails you swear, your Honour; affidavits that is.

KIRBY J:   Following Mickelberg and Eastman there is just no way we can look at those, is there?

MR BUGG:   It is one of the difficulties, but the proposition as we put it is that this evidence as to the operation of the seats system, the Australian Stock Exchange seats automated system, was before the court and it was the exact same system which was considered by the ‑ ‑ ‑

GUMMOW J:   Before the court at which stage?

MR BUGG:   The magistrate.

GUMMOW J:   Right, well that is all right.

KIRBY J:   But, is what we have here in the affidavit of Mr O’Hara and Mr Lee, were they part of a record before the magistrate?

MR BUGG:   They were exhibits and your Honour will see from the bundle of documents you have that there is a passage of transcript where ‑ ‑ ‑

GUMMOW J:   Well, the answer is yes.  They are part of the record in the appeal.

MR BUGG:   Yes.  So, the exhibits are identified.

KIRBY J:   If that is so, there is no problem in our receiving them, I think.

MR BUGG:   Yes, when you were referring to an affidavit I – but, in any event, that material is put before the Court in support of obviously the expanded argument for which there is the intervention and ‑ ‑ ‑

GLEESON CJ:   Right.  Well this legislation does not matter if one of the arguments that Mr Burmester wants to put is correct and it does not touch the argument that you are going to deal with under the agreed division between you and Mr Burmester.

MR BUGG:   That is correct, your Honour.  Your Honours, the proposition which my learned friend put in relation to the competence of the appeal, of course relies heavily upon this Court’s determinations in Bond and Byrnes, and we have sought in the submissions to distinguish the position which is now before the Court from that which was before the Court in Bond and Byrnes.  Here we have a complainant, the Australian Securities Commission as it was then named and now Australian Securities Investments Commission, who successfully prosecuted the appellant before a magistrate.

The appellant then successfully appealed to a single judge or a commissioner of the Supreme Court of Western Australia, and then the respondent then appealed that decision to the Full Court in accordance with the procedures laid down under the Justices Act in Western Australia.  So that the primary position of saying this prosecution appeal process offends the double-jeopardy principle and, therefore, if there is to be a right of appeal, it should be properly presented in legislative form in a way that there is no doubt as to the extent of that right of appeal.  Here the position is that there is no double jeopardy; in fact, all the respondent has attempted to do throughout is conduct a prosecution and sustain the outcome of that prosecution.

GUMMOW J:   What statutory language are you interpreting?  What are the words?

MR BUGG:   The words are in section 49(2) of the Western Australian Corporations Act.

GUMMOW J:   What section?

MR BUGG:   I am sorry, your Honour, I have given you – I am now in the dilemma that Justice Kirby speaks about with this legislation.  That is the power to prosecute ‑ ‑ ‑

GLEESON CJ:   What is the legislation?

MR BUGG: Section 49(2). I am sorry, your Honour. Let me just take you through it.

GLEESON CJ:   What is the name of the Act?

MR BUGG:   The Australian Securities Commission Law of Western Australia.

GUMMOW J:   Australian Securities Commission Law?

MR BUGG:   Yes.

GAUDRON J:   Is it the Australian Securities and Investments Commission Act?

MR BUGG:   Yes.  I am sorry, no, your Honour.  It is Australian Securities and Investments Commission Act and it is section 49(2) which says, “The Commission may cause” ‑ ‑ ‑

GUMMOW J:   Wait a minute.  I have got to find it first.

KIRBY J:   At the relevant time there was no Australian Securities and Investments Commission.

MR BUGG:   No, because the Australian Securities Commission ‑ ‑ ‑

KIRBY J:   So should we have an earlier version?  We really ought, in this horrendous legislation, to have had a book of legislation.

GLEESON CJ:   It is the bane of our lives, Mr Bugg.  When legislation keeps changing we are never quite sure whether we have got the right print in front of us.

KIRBY J:   Then we have counsel saying before us that we have quoted legislation which has been changed.  That happened yesterday.  I did not like it.

MR BUGG:   The submissions which were first filed with the Court has annexed to it a copy of section 49(2) ‑ ‑ ‑

GUMMOW J:   This is the Australian Securities and Investments Commission Act 1989 of the Commonwealth, is that right?

MR BUGG:   Yes.

GUMMOW J:   It is 49(2):

The Commission may cause a prosecution of the person for the offence to be begun and carried on.

MR BUGG:   Yes.

GUMMOW J:   And that is the same provision that has already been construed, has it?

MR BUGG:   Yes.

GUMMOW J:   In these earlier cases?

MR BUGG:   Yes.

GUMMOW J:   Which one?

MR BUGG:   49(2)?

GUMMOW J:   Yes.

MR BUGG:   In Hosken.

GUMMOW J:   No, no, in this Court.

MR BUGG:   In this Court?  I do not believe it has been considered in this Court.

GUMMOW J:   But the phrase “prosecution” was, was it not?

MR BUGG:   Yes it was, in both Bond and Byrnes but there the prosecution is being undertaken by the DPP.

GUMMOW J:   Yes, thank you.

GLEESON CJ:   You are referring to an Act of the Commonwealth of 1989.  What print of the Act is relevant to our consideration of this case?  The 1989 Act as at what date?  We make a huge act of faith when we look at some photocopies of materials attached to written submissions, and do not actually look for legislation ourselves.

MR BUGG:   Yes, I appreciate that.

HAYNE J:   Especially when they are out of the CCH.

GUMMOW J:   I am looking at Reprint No 2 which includes amendments up to 1998.

MR BUGG:   Yes. Your Honours, the text of section 49(2) has not changed throughout the relevant period of these proceedings, that is from the date of commencement of prosecution until the date of the agitation of the appeal and the decision by the Full Court in Western Australia.

KIRBY J:   Now, Bond stands for the proposition that the power to cause a prosecution does not extend to the power to make an appeal.

MR BUGG:   Yes, that is correct, in the circumstances which existed in Byrnes, namely, where the appeal was an appeal against sentence and this Court applied the strict rule of interpretation that where a power of appeal was exercised to put at jeopardy an accused person for the second time, that power had to be expressly granted.

KIRBY J:   Expressly conferred..  That apply a fortiori, one would think, to an appeal against an acquittal.

MR BUGG:   Exactly, where that acquittal is at first instance.  In other words, there is a double jeopardy, “You have been tried, acquitted”, and now the Crown is seeking to have another go, or the prosecution is seeking to have another go, but here there was a trial and a conviction and the present appellant then appealed.

KIRBY J:   The present appellant appealed.  He does not need – he is a human being.  He has his own rights to appeal so he does not need this statute, but then there was the further appeal which did need a relevant source of conferral of power and authority to appeal.

MR BUGG:   Yes.

GLEESON CJ:   Now, you have told us that further appeal was under the provisions of the Justices Act 1902 of Western Australia, is that right?

MR BUGG:   That is correct, your Honour.

GLEESON CJ:   Under what provision?

MR BUGG:   The appeal to the Full Court was under section 206A.  That is also with those annexed legislative provisions at page 13 of those annexures.  It must first be made by way of an application for leave and it:

may be made by –

(a) a party to an appeal; or

(b) the Attorney‑General.

GLEESON CJ:   Section 206A was inserted in 1989.

MR BUGG:   Yes.

GAUDRON J:   That is to the Full Court?

GUMMOW J:   Yes, where do we get the primary appeal?

MR BUGG:   That is earlier on in section 184 which is page 10 of that bundle of annexures.

GLEESON CJ:   Now, is this kind of appeal from a justice a hearing de novo, like a quarter sessions appeal from a magistrate?

GUMMOW J:   It looks like a limited one under 186.

HAYNE J:    ‑ ‑ ‑“an error of law or fact”.

GLEESON CJ:   You need leave, apparently.

MR BUGG:   Yes.

GUMMOW J:   You are limited to these sort of grounds.

MR BUGG:   Yes, it is an appeal limited to those grounds, it would appear.  No, I am sorry, I cannot assist the Court but there certainly was not a hearing de novo.

KIRBY J:   Now, where was the provision in the Justices Act for the Director’s appeal?  We have to take two steps, do we not?

MR BUGG:   No, this is not a Director’s appeal.

KIRBY J:   No, the first one was not but the second one was.

MR BUGG:   No, the second one was an appeal by the party.

KIRBY J:   By ASIC, I am sorry.

MR BUGG:   That is in section 206A.

KIRBY J:   Yes, but, now, that is conferring the right to appeal, but what about the authority on ASIC to appeal?  That is said to be on foot.

MR BUGG:   We argue that the ‑ ‑ ‑

KIRBY J:   First of all, I am sorry, I interrupted you.  Where is the power to appeal on a party?  I did see it in the written submissions but I would like to have it in the Act.

MR BUGG:   Section 206A, which was page 13.

KIRBY J:   Yes, I have that.  So you have the power to appeal, but where is the authority in ASIC to exercise that power, that having to come from a federal statute, not from a State statute?

GUMMOW J:   I think you have taken us too fast.  Just look back at 206A, which you were referring Justice Kirby to a minute ago, “from a decision under section 199, 205 or 206C”.  We do not have those provisions at the moment.  Is there some other subsection of 206A?

KIRBY J:   Which one is the applicable one here?

MR BUGG:   Section 199, which deals with the powers of court.  This is not before the Court and I apologise.

GUMMOW J:   Well, we need it.  It is really not good enough.

MR BUGG:   I accept that, your Honour.

KIRBY J:   These are amongst our most joyful days, going through statutes of this kind.

HAYNE J:   We are sharing our happiness with you, Mr Bugg, as you have noticed.

MR BUGG:   I have not undertaken tasks like this with great enthusiasm or pleasure either, your Honours, but I do apologise.  I do not wish to be flippant about the ‑ ‑ ‑

GLEESON CJ:   What does section 199 provide?

MR BUGG:   It says:

(1) Upon the hearing of an appeal, the Court may do one or more of the following –

(a) dismiss the appeal, or set aside, quash or vary the decision of the justices and any order made or thing done as a result of the decision –

Then there is a list of other ‑ ‑ ‑

GLEESON CJ:   So Commissioner Martin pursued that course?

MR BUGG:   Yes, he did, under section 199.

GLEESON CJ:   Just remind us how it came about that it was ASIC that was the party to the appeal to Commissioner Martin.

MR BUGG:   Because ASIC commenced the prosecution and was therefore the respondent.  The prosecution throughout was undertaken on behalf of ASIC by my office in Western Australia.

GLEESON CJ: Pursuant to section 49(2) of the ASIC Act 1989.

MR BUGG:   Yes.

GLEESON CJ:   Then does it all come down to the question whether or not, in acting under section 206A of the Justices Act 1902, or more precisely under section 206A(2)(a), ASIC was carrying on a prosecution within the meaning of section 49(2)?

MR BUGG:   Yes, whether the act of attempting to sustain the conviction by further appealing to the Full Court was an incidental act of carrying on the prosecution.

KIRBY J:   Is the word “incidental” in the statute?

MR BUGG:   No, it is not.

KIRBY J:   So you have to say it is carrying on the prosecution.  Does not Hughes stand against that?  It said if you want to take the step further, you have to be specifically authorised.

MR BUGG:   That is correct, your Honour, but not Hughes.

KIRBY J:   And appeal is a separate proceeding; appeal is an invention of statute.  It is not part of the prosecution.

HAYNE J:   Again, could it respond to the appeal?  Could it respond to the accused’s appeal to a single judge?  Was it carrying on the prosecution by responding?

MR BUGG:   That is the distinction.  We say, your Honour, this is not a separate appeal to review an outcome favourable to the accused at first instance.  All the complainant was endeavouring to do was to sustain the outcome first obtained.

KIRBY J:   This is an argument of misericordiam, to saying this is really terrible and it is unfair and unjust and you really were only doing your duty and so was ASIC.  But that has nothing to do with it.  Bond won on a technical point and Hughes raised this technical issue.  An appeal is different.  It is not the prosecution. 

GLEESON CJ:   If I can come back to Justice Hayne’s question, if somebody had challenged the retainer of counsel who appeared for the respondent on the appeal before Commissioner Martin, what would the outcome have been? 

MR BUGG:   That the DPP’s office would have argued that it was appearing on behalf of ASIC, a party to the proceedings, who was brought to the proceedings as a respondent but was there attempting to sustain the outcome of the prosecution. 

GAUDRON J:   Now, is there a more general power in ASIC?  It seems to me that frequently one finds one’s power to resist proceedings as a respondent in something quite general, for example, a general power to do all that which a corporation can do, or something of that nature.  There are proceedings pending in this Court in which ASIC is a respondent.  Now, presumably there is a general power somewhere in the ASIC Act 1989 of the Commonwealth dealing with such things and it may provide the answer to Justice Hayne’s question, rather than 49(2). 

MR BUGG:   Well, the difficulty is with this process and, in fact, some of the State appellate courts’ consideration of the issue, that there is an exclusion of – to answer your question, Justice Gaudron – most of those powers and functions by the State Act. 

GLEESON CJ:   Is this section 11(4)?

MR BUGG:   Yes. Section 11(4), which has been referred to in some of the judgments and relied on in some of the judgments.

GLEESON CJ:   But it is, if I can say so with respect to Justice Hayne, a question worth pursuing, is it not? 

HAYNE J:   It is a rare event, Mr Bugg.  It is a rare event. 

GLEESON CJ:   How did your client get into this appellate process, which it sought to continue by going to the Full Court?  It may be – I am not suggesting it is the case – that the power that enabled your client to resist the appeal to Commissioner Martin enabled it to make a further appeal to the Full Court.  I do not know, but your client’s situation at the time it was seeking to take the matter further – if I can use a neutral expression – after having lost before Commissioner Martin, was that it had been somehow drawn into a fight ‑ ‑ ‑

MR BUGG:   Yes, that is right. 

GLEESON CJ:   ‑ ‑ ‑ before Commissioner Martin. 

KIRBY J:   But that merely, as it were, poses the question whether your client was a proper “party”, because if you only had the power to prosecute, let it be said, at trial, then you could not be a party to resist an appeal unless you are authorised to be so.  Is this not the consequence of the strictness of the logic in Hughes, that said appeal is different, it has to have a separate authority and it has to be specifically conferred? 

MR BUGG:   Hughes did not consider the question of appeal.

KIRBY J:   Was that Bond, was it?

MR BUGG:   Hughes is the preliminary challenge to the proceedings on the basis of the lack of constitutional authority, whereas Bond and Byrnes ‑ ‑ ‑

KIRBY J:   Yes, I am sorry, I am thinking of Bond.

MR BUGG:   Byrnes was first, and then Bond, and they both looked at what were prosecution appeals by the prosecutor.  They were both as a consequence of trials on indictment.

KIRBY J:   The question is what the logic of Byrnes and Bond has to say for defending an appeal and prosecuting an appeal, an appeal being a separate proceeding, not a trial.

MR BUGG:   We say that there is a distinction and that distinction was identified by this Court in Davern v Messel, where ‑ ‑ ‑

GUMMOW J:   They were construing the word “appeal” in the Federal Court Act.

MR BUGG:   Yes, they were.

MR BURTON:   They were not construing the word “prosecution”.

MR BUGG:   The court had a lot to say about the distinction between an appeal which offended the principle of double jeopardy and an appeal where there was a conviction at first instance from a summary prosecution.

KIRBY J:   Was that concerned with authority, Davern?  Authority.  Authority in statute to even initiate or take part in the process?

MR BUGG:   It is the jurisdiction of the court to entertain an appeal.

GUMMOW J:   Yes.

GLEESON CJ:   Mr Bugg, this discussion arose because you allowed yourself to be pinned to the proposition that you stand or fall on the words “carried on” in section 49(2). Could I just point out to you that Commissioner Martin made an order for costs against your client and I presume one of the things you are trying to do in your proceedings to the Full Court was to displace that order for costs, which appears at page 85 of the appeal book. To go back to the question about what was going on before Commissioner Martin and by what power Commissioner Martin made an order for costs against your client, do you say – and I am not suggesting that this is either right or wrong – that you were there before Commissioner Martin “carrying on” the prosecution?

MR BUGG:   Yes.

GLEESON CJ:   Or is there, as Justice Gaudron has suggested, perhaps another basis on which you were there, being on the receiving end of an order for costs?

MR BUGG:   No.  It was part if the prosecution process in that the carrying on of the prosecution was attempting to sustain the conviction obtained.

KIRBY J:   The question of costs is something ancillary, is it not?  It is not ‑ ‑ ‑

MR BUGG:   Yes, but it flowed from the quashing of the conviction.

KIRBY J:   It can hardly be said that you carrying on a prosecution in order to set aside an order for costs, that is not part of the prosecution, simply something ancillary.  The prosecution is to have a person declared or held to be a person in breach of the criminal law.  Is that not right?

MR BUGG:   Yes it is, but because of the nature of these proceedings which we sought to distinguish from those that were undertaken in both Byrnes and Bond and therefore submit to this Court that a different approach should be undertaken to the interpretation of this power to appeal which is not offending that principle against double jeopardy.  The proceedings are prosecutorial but the review of those proceedings have a civil flavour about them, and that is it is an appeal to a single judge of the Supreme Court, not exercising the criminal jurisdiction of the Supreme Court of Western Australia, and the appeal from that is to the Full Court.

GAUDRON J:   Why does not section 12A(6) at least get you into resisting the first appeal to the Western Australian - it was a prosecution under a non‑national scheme law, was it not?

MR BUGG:   I am sorry, I ‑ ‑ ‑

GUMMOW J:   It is 11(4), is it not?

HAYNE J: Section 11(4), I think.

GAUDRON J:   No, 12A.

HAYNE J:   Section 12A(6).  I suspect this is a national scheme law, is it not?

MR BUGG:   Yes, it is.

GAUDRON J:   It is.

HAYNE J:   And, therefore, 11(4) would be the equivalent of 12A(6).

GAUDRON J:   And you are liking that.

MR BUGG:   And we lose 11(4) because it is excluded by section 58(1) which ‑ ‑ ‑

GAUDRON J:   Of what?

MR BUGG:   Of the Corporations Act of Western Australia.

GUMMOW J:   Yes.

MR BUGG:   That section is attached ‑ ‑ ‑

GUMMOW J:   That would be an extraordinary piece of parochialism to put that in, would it not?

GLEESON CJ:   Can you just give us now the complete reference to this further statutory provision you want us to look at?  It is the Corporations Act ‑ ‑ ‑

MR BUGG:   Of Western Australia, section 58.

GLEESON CJ:   The Corporations Act of Western Australia, what year?

MR BUGG:   1989.

KIRBY J:   And do we have the pleasure of having that Act before us?

MR BUGG:   Yes.  They are with the bundle of documents, I am sorry, your Honours.

GLEESON CJ:   What year, Mr Bugg?

MR BUGG:   1989.

GLEESON CJ:   Tell us the name of the Act again?

MR BUGG:   It is the Corporations (Western Australia) Act ‑ ‑ ‑

KIRBY J:   1990; is that correct?  I have a print of Corporations (Western Australia) Act reprinted as at 17 August 2001, which does not contain section 12.

MR BUGG:   That is correct.

GLEESON CJ:   What is the year of the statute?

MR BUGG:   That is reprinted in July 2001, your Honour.

GLEESON CJ:   What is the year of the statute?

MR BUGG:   1990, your Honour, I am sorry.

KIRBY J:   Well, the print I have does not include the section you have referred to.  It leaps from 10 to 25.

GUMMOW J:   No, but you are referring to 58, are you not?

MR BUGG:   Yes, section 58 says that the ‑ ‑ ‑

GUMMOW J:   Of the WA Act of 1990?

MR BUGG:   Yes.

GUMMOW J:   Now, how does that exclude 11(4) of the ASIC Act?

MR BUGG:   It excludes Part 1 and Part 2 under section 58(2).

GLEESON CJ:   And section 11 is in?

MR BUGG:   Part 2, your Honour.

GUMMOW J:   What was the reasoning behind that?  Is that disclosed in the supporting ‑ ‑ ‑

MR BUGG:   I cannot assist the Court, I am sorry.

GUMMOW J:   It has given rise to great mischief.  It is a legislative omission too.

MR BUGG:   Yes.

GUMMOW J:   There is a tendency to go around blaming the courts for all of this.

KIRBY J:   What was the policy behind that, can you tell us?  Was that because they wanted a Western Australian agency to prosecute appeals or ‑ ‑ ‑

MR BUGG:   No, not at all. The State Acts removed those provisions providing functions to ASIC as established under the federal Act, but sought to confer functions upon it, and there is, as Justice Gummow says, an oversight where section 11(4) has been ‑ ‑ ‑

GUMMOW J:   We referred to 11(4) in one of the earlier cases, I think.

MR BUGG:   No, 11(4) is referred to in Hosken which is within the respondent’s list of authorities.  Also it was referred to by the Full Court in Macleod and it was also referred to by Chief Justice Doyle in Vis which is also referred to in the list of authorities.  But when the special leave application was heard, Justice McHugh pointed to the fact that 11(4) was excluded.

GUMMOW J:   Now, that is the root of the problem.  There is a legislatively-created hiatus.

MR BUGG:   Yes, so there is no ‑ ‑ ‑

GUMMOW J:   So you have to then stretch these other words, that is to say ‑ ‑ ‑

MR BUGG:   Implied incidental power.

GLEESON CJ:   What, the relevant words being carried on?

MR BUGG:   Yes.

GLEESON CJ:   Well, to return to this subject we are nagging away at, how did you get before Commissioner Martin?

MR BUGG:   By responding to the notice of appeal which was served upon ‑ ‑ ‑

GLEESON CJ:   And what authority did your client have to instruct counsel to resist that appeal?  I am not saying it had no authority but it may be instructive to inquire as to its source.

MR BUGG:   Yes.  My office had statutory authority to appear for it and act on instructions from it.

KIRBY J:   But that is merely subsidiary, is it not? We are looking at ASC’s powers.  At the relevant time it was the ASC, was it not?

MR BUGG:   Yes.  If I can just take your Honours to that.

KIRBY J:   When did ASIC itself come into operation and by what?  I am sorry to be rude, but this is where a compilation of legislation would have been very helpful.

MR BUGG: Section 29(1) of the Corporations (Western Australia) Act 1990 applies. The Commonwealth DPP Act in relation to Corporations Law offences as if those offences were Commonwealth offences.

KIRBY J:   Forgive me if I am wrong:  does anybody challenge your retainer, your power?

MR BUGG:   Retainer, no.

KIRBY J:   So that question is not really in issue in this appeal?

MR BUGG:   No.

KIRBY J:   It is ASIC or ASC’s authority to allegedly carry on the prosecution, on one view.  The other characterisation is it is not carrying on the prosecution; it is prosecuting an appeal.

MR BUGG:   Yes.

KIRBY J:   I thought that is what Bond or Byrnes stood for when it said appeal is a separate process.  To have the authority to do it you have to have specific legislative power.

MR BUGG:   Yes, your Honour, I will come to Bond and Byrnes, but they were specifically considering and addressing the rather unique position of a Crown’s appeal against sentence and applying strict interpretation of the legislation which supposedly conferred the power.  Now, to see where the Commonwealth consent or ‑ ‑ ‑

GLEESON CJ:   But is the consequence of the argument against you that the total effect of all this legislation was that ASIC could prosecute alleged offenders before magistrates but if they were convicted and if they appealed, ASIC had no authority to resist the appeal?  Who else could have resisted the appeal?

MR BUGG:   The Commonwealth Attorney‑General, because the Attorney‑General is one of the parties.  If I can take you back to 206A of the Justices Act you will see that the Attorney‑General, and of course that, by virtue of ‑ ‑ ‑

GLEESON CJ:   No, I do not think so.  That is dealing with “Appeal to Full Court”.  I am dealing with the appeal ‑ ‑ ‑

MR BUGG:   So the same applies I am sorry, your Honour, to the appeal at first instance.

The application may be made by –

(a)  any person who is aggrieved by the decision –

this is section 185, page 11 of that bundle.

GUMMOW J:   That is talking about moving parties.  The Act is silent on who the responding parties are, is it not?

HAYNE J:   No it is not.  In one of the provisions you have not given us, and which I am sent to have copied, there is provision about who gets notice of these appeals.  There are a few provisions tucked in to the middle of this part which I think may have some bearing on it.  I have sent them to be copied for us.

KIRBY J:   I am getting a bit lost, Mr Bugg.

MR BUGG:   Yes.  I am sorry, your Honour.  I will endeavour to turn some lights on, if I might.

KIRBY J:   Are there two questions?  One, whether your client is a party within the State statute.  One argument might be a party there means, it being a State statute, a party of a State character.  Now I do not know that argument is run.  Another is a party means a party with valid powers to be a party.  That raises the question of carrying on.  Now, I could at least concede the argument that responding to an appeal is carrying on, the prosecution defending the conviction, but then you have the next step which is the appeal to the Full Court by yourself, and I think that runs headlong into the authority in Byrnes and Bond because that is not carrying on the prosecution.  It is prosecuting a new process which is an appeal.

Now, am I analysing this correctly?  Do we have to ask the question at the two stages first defending the first instance appeal and then, secondly, you are prosecuting the appeal to the Full Court?

MR BUGG:   No.  We say that it is a continuum, that is, that there is a conviction that we say has been validly obtained before a magistrate.  By an error of law it is quashed by a single judge.  We seek, by carrying on, to sustain that conviction by taking the matter to the Full Court through that process, which has been identified and accepted as being a different process to that which this Court considered in both Bond and Byrnes.

GLEESON CJ:   I see the orders of the Full Court appear at page 129.  They were orders that, “The conviction . . . is restored” and “The costs order made by the Magistrate is reinstated”.  Does that have any relevance to your argument?

MR BUGG:   Yes it does, your Honour, because that is really the purpose of the respondent continuing, or attempting to sustain the conviction, in other words carrying on to the outcome which was obtained which your Honour has identified at page 129.

HAYNE J:   There is this further aspect of it to which it may be necessary to pay attention, it may not.  Because this is a summary prosecution in which there is a complainant, there may perhaps be some distinction to be drawn between proceedings of that kind and indictable proceedings where the Attorney, for example, might have some power to step into the shoes of whoever otherwise is named as the moving party on the indictment.  Where you have a complainant in a summary process, the opportunity for intervention by law officers may be more limited.

So it seems to me that your argument may come down to two propositions:  one, prosecution of an offence includes maintenance of conviction for the offence, and includes that in the case of a complaint heard and determined summarily, the absence of ready opportunity for some law officer to take over the process and maintain the conviction, reinforcing the conclusion first asserted.  Now, that seems to me, perhaps, to be where your argument gets to, does it not?

MR BUGG:   Yes, it does. 

HAYNE J:   I do not know whether it is right or wrong, but that is the nub of it. 

MR BUGG:   The position, really, I suppose, going back to the origins of why this Court certainly appears to have started down the path it did in Byrnes and Hopwood, you are looking at the powers of the DPP to appeal.  The Court started with the proposition that these appeals were usually undertaken by the Attorney-General, but it was not until the early or mid‑1980s, with the ‑ ‑ ‑

GUMMOW J:   No, you start with the prosecution.  You start with the idea that prosecution finishes with a conviction.  That is what you start with. 

GAUDRON J:   Or acquittal. 

GUMMOW J:   Or acquittal.  That is what you start with.  There is no such thing as any appeal at general law.  It is a statute creature. 

MR BUGG:   It is a creature of statute.  You go to the first ‑ ‑ ‑

GUMMOW J:   The whole trouble is that the people who drafted these sections did not realise that. 

MR BUGG:   The position, certainly in so far as Byrnes and Bond are concerned, the Court adopting the position that the Director of Public Prosecutions has to identify a statutory base for the right of appeal against sentence, because there is no common law right, then identified by applying a strict interpretative approach, because of the principle against double jeopardy, and concluded that these words that we are now looking at, in that circumstance, did not import a right of appeal to the DPP.  However, we seek to distinguish that position.  If I could take the Court to Davern v Messel, which is ‑ ‑ ‑

KIRBY J:   Just before you go to that, can I observe that at 129 the orders made by the Full Court included an order that: 

The Respondent pay the Appellant’s costs of the appeal –

So it is not simply orders that restore the result of the prosecution, which you say is carrying on the prosecution.  It is a specific order that is ancillary to the appeal process. 

MR BUGG:   The prosecution itself included an order for costs.  The fine was $2,500 ‑ ‑ ‑

KIRBY J:   No, but there are two orders for costs.  One is restoring the magistrate’s order for costs – I can see how, arguably, that is part of the prosecution – but there is also the separate order that the respondent pay the costs of the appeal before Commissioner Martin. 

MR BUGG:   The prosecution process through the Magistrates Court gave rise to an order for costs.  This is not a trial by jury situation, where the Crown seeks costs. 

KIRBY J:   I am not questioning the fact that it is not a trial by jury.  I am questioning whether or not you have initiated something which, consistently with Byrnes and Bond, is a separate procedure.  As Justice Gummow has pointed out, it is an appeal and it is not dealt with specifically.  You have to try and squeeze it into carrying on the prosecution.  I am just concerned that Byrnes and Bond stand against that proposition. 

GUMMOW J:   I mean, what you got out of it, as Justice Kirby is pointing out to you – you got a new right under order 6. 

GLEESON CJ:   What is the statutory source of the power for any costs orders to be made at any level of this process? 

MR BUGG:   The Justices Act. 

GLEESON CJ:   What is the provision? 

HAYNE J:   Section 199(1)(g), at least as to first instance. 

GAUDRON J:   The magistrate was exercising federal jurisdiction.  There is no doubt, is there, that when Mr Macleod appealed – and he had a right to appeal under the Justices Act – that attracted the exercise of federal jurisdiction too?

MR BUGG:   Yes.

GAUDRON J:   I suppose you could say either section 79 or section 80 of the Judiciary Act – perhaps section 80 – gave ASIC a right to be heard in resistance to the appeal.  The common law of Australia perhaps gave it a right to be heard, but that might be the beginning and end of it on that view.

KIRBY J:   How could you make an order for costs against parties only there as a right to be heard?  That is what Commissioner Martin did.

MR BUGG:   If one examines the jurisdiction of the magistrate to order costs – and this is an appeal from that order – and the court itself has power to order costs, which it has done ‑ ‑ ‑

GUMMOW J:   We do not find the power in the Full Court at the moment.  We have not found that yet.  You have to say 199.

HAYNE J:   Section 206A(4) may do it perhaps; 206A(4)(d) might do it.

GLEESON CJ:   Is there anything in the Supreme Court Act that touches this point?

MR BUGG:   Yes, 206A(4).

GLEESON CJ:   Section 206A(4) is of the Justices Act, but is there anything in the Supreme Court Act that would deal with the question of orders for costs?

MR BUGG:   I understand that the procedures and powers of the court are contained within these provisions of the Justices Act but there is nothing ancillary in the ‑ ‑ ‑

KIRBY J:   In the end, if there was no authority for the costs order in the Full Court, that could just be ordered to be set aside.  But the question is whether the ordering of costs is an indication that the Full Court conceived itself, and was perhaps in its character, engaged in a process that was separate, namely the sort of thing Full Courts do:  hearing an appeal, not continuing a prosecution.

MR BUGG:   Well, the process is one where costs were being incurred on the way and the court as part of its power obviously could impose an order for costs against the unsuccessful party.

GLEESON CJ:   One way of putting the question is whether you were carrying on a prosecution when you were seeking a restoration of a conviction that you said had wrongfully been set aside.

MR BUGG:   And that very proposition, your Honour, we say distinguishes the position we have here from that which prevailed with Byrnes and Bond.

KIRBY J:   I may have forgotten it and I have not read it for a time, but it does not sit well with some of the language in Bond, does it, emphasising the separateness of appeal and the fact that if you are to expose a person to another jeopardy, a jeopardy following Commissioner Martin’s order, you have to have clear statutory authority to do so, because after Commissioner Martin’s order, once that is enrolled in the Supreme Court, then that is it, and you are seeking to expose the appellant to another jeopardy.

MR BUGG:   It is a position which is subject to an appeal which is identified in the process of the Justices Act and, in terms of the distinction between the position and the firm language contained in both Bond and Byrnes, there you are talking about a position where there is a person who has been either acquitted or convicted and a sentence imposed and the prosecution is attempting to expose that person to further jeopardy, either of an increase in penalty or a retrial.

KIRBY J:   Yes, but from the point of view of the accused, it matters not whether he or she is acquitted at the trial level, the first level, or on appeal.   The main point is that they have been acquitted and you are exposing them to something new, and the suggestion is that is not carrying on a prosecution, that is carrying on an appeal.

MR BUGG:   Could I take your Honour to Davern v Messel 155 CLR.

GUMMOW J:   Now, at page 47 in the judgment of Justices Mason and Brennan, there is a discussion of the distinct nature of criminal appeals.  First we had better see what section they were construing though, had we not?

MR BUGG:   Certainly, your Honour. There their Honours were examining section 24(1) of the Federal Court of Australia Act, which confers on the Federal Court jurisdiction “to hear and determine”:

(a) appeals from judgments of the Court constituted by a single Judge -

and the question was whether or not section 24 conferred on the Federal Court power to hear and determine an appeal by the Crown from a decision given by the Supreme Court of the Northern Territory quashing a conviction on an appeal by an accused.  Now, the accused had been convicted before a magistrate and the appeal process had gone to the Supreme Court of the Northern Territory, the conviction had been quashed and the consideration was whether or not the word “appeal” embraced an appeal by the prosecution to reinstate that conviction or whether more specific words were required in the terms of the Bond and Byrnes decisions.

At page 37 Chief Justice Gibbs at the foot of the page said:

A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury.  The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted.

His Honour then proceeds down that page to consider a number of authorities in support of that proposition, but towards the foot of the page, about 10 lines up, he says:

It is apparent that it is no longer exceptional, or thought to be contrary to public policy, in Australia, to allow an appeal from an acquittal by a magistrate or justices.  What is even more important is that if a person convicted in summary jurisdiction does appeal successfully to a Supreme Court under the statutory procedure provided, and secures an order quashing the conviction, there is no doubt of the power of this Court to grant special leave to appeal, allow the appeal and restore the conviction.  An example chosen at random of a case where that was done is Samuels v Bosch.

GAUDRON J:   But, again, we are talking about in a context of ordinary human beings with all the rights that attach to human beings.  We are not talking in a context of limited statutory powers of a statutory body, are we?

MR BUGG:   I understand that, your Honour, and by looking at the statutory powers of a statutory body and applying strict tenets of interpretation in Bond and Byrnes, the rule against double jeopardy played a pivotal part.  His Honour the Chief Justice on the next page, 39, about two‑thirds of the way down in the passage commenced “Sheppard and Morling JJ”, halfway down that passage says that:

GAUDRON J:   If it was an entirely State dispute, but that is an entirely different question.  There was reference, I think, in Justice Deane’s to the fact that the Commonwealth seemed not to have legislated to give full effect to the constitutional meaning of “industrial dispute”.

MR SELWAY:   True.

GAUDRON J:   When you were looking at a State matter, you were looking to statutory definitions, not constitutional issues.

MR SELWAY:   If your Honour is right, and that is what Duncan stands for, it has restricted the arbitration power and is related to intrastate ‑ ‑ ‑

GAUDRON J:   But not necessarily restricted to the arbitration power.

MR SELWAY:   Perhaps I should rephrase it.

GAUDRON J:   You have to find the power to which what you are doing is reasonably necessary or incidental.

MR SELWAY:   Yes.  Your Honours, we have put our submission that a cooperative scheme solves that problem by identifying what is reasonably necessary or incidental.

GAUDRON J:   The Commonwealth and the States cannot just get together and decide for themselves what is reasonably necessary or incidental, but that seems to be what you are submitting.

MR SELWAY:   No, your Honour, what we say is that the Constitution is premised on a certain basis, which Duncan identifies, but, on that basis, if one puts together a co‑operative scheme, which is designed, in this case, clearly to facilitate a national solution.

GAUDRON J:   To what?

MR SELWAY:   To the regulation of corporations and, specifically ‑ ‑ ‑

GAUDRON J:   But it goes well beyond that though.  You can tell it from the Act.  It is designed to regulate financial markets.  That is what it is all about.

MR SELWAY:   Well, with respect, your Honour, following Hughes, solicitors in this country were giving opinions qualifying the validity of incorporation of companies on the basis that there could not be a national scheme, set up by its States and the Commonwealth ‑ ‑ ‑

GUMMOW J:   It is all fixed up now.

MR SELWAY:   Fixed up now, your Honour.  But the question is that this is not the only co‑operative scheme that exists, your Honour.  I think Justice Kirby listed a number of them in Hughes and I might say so, it is not a complete list.  There are an enormous number of problems that are raised by Hughes.  The question is, is the solution to it in each case to prove what the Commonwealth could have legislated on if it had felt like it, but did not, which is what the process that has been gone through in O’Halloran, or is the scheme itself capable of being supported in this case under the territories power looked at in the broad and we say it is so capable.  If we are wrong in that we would invite your Honours to make it clear.

GUMMOW J:   Yes, well we have got the message.

MR SELWAY:   Your Honours, in relation to 51(i), our submission on that is relatively short.  We do not dispute that this could be capable of being supported under the trade and commerce power; we simply say that the evidence in this case is entirely deficient for that purpose.  It does not explain how the market operates, it does not explain who the statements were made to and, in particular, given that the market itself is the emanation of a monopoly scheme, one has to ask whether the monopoly scheme is valid before one comes to the conclusion that it dictates that the operation is valid, so one is driven back to ask in the general question about securities and so forth before one looks simply at section 999.

KIRBY J:   What are we to make of the affidavits in the respondent’s supplementary submissions?

MR SELWAY:   Your Honours, we cannot see anything in them that identifies what the nature of the trade is or how it operates.  We are not arguing that this may not be capable of being explained as interstate trade and commerce, it may well be, but we would say it requires significantly more evidence than was given in this case.

GAUDRON J:   I am not too sure about that, but if you identify the scheme as the regulation of capital markets, it may be that the whole thing is supported simply by 51(i) and the territories power in combination.

MR SELWAY:   That may be possible, your Honour.  What we would say is, it needs some evidence of what the capital markets are. 

GLEESON CJ:   But we know they are interstate, do we not? 

GAUDRON J:   And we know that they ‑ ‑ ‑

MR SELWAY:   Well, they were not interstate at one stage, your Honour.  They are now interstate. 

GAUDRON J:   That is right.  And we know also because you hear it at the end of the news broadcasts that foreigners buy shares on our stock exchange.  People trade on different stock exchanges at different times of the day and night, is really what I am saying. 

MR SELWAY:   Yes, your Honour.  Your Honour, the difficulty in this case, as it was decided before Hughes, before there was any idea that there was a difficulty – if one looks at O’Halloran which was after ‑ ‑ ‑

GUMMOW J:   Well, this does not seem to be a very wholesome submission for an intervenor, Mr Selway.

MR SELWAY:   Your Honour, 51(i) has its own dangers and difficulties.  If one comes here and says it is sufficient for someone to produce this evidence to show that 51(i) applies, then, with respect, it does not make very ‑ ‑ ‑

GAUDRON J:   What I have said should be understood subject to any implied prohibitions in the Constitution which might affect 92(1)(a).

GLEESON CJ:   We know that there is an Australian Stock Exchange and we are all old enough to remember that there used to be a Sydney Stock Exchange and a Melbourne Stock Exchange.  That is all changed now. 

MR SELWAY:   Yes, your Honour. 

HAYNE J:   And if you did not know it, we can read it in the Act.  Under Corporations Law, it tells us about it, tells us what it does. 

MR SELWAY:   That is my point, your Honour. My whole point is that what we now have is a market created by the Act. The question of whether that market is interstate trade and commerce depends upon whether the provisions of the Act establishing the market are valid. Those provisions are in the same part as section 999 and raise the same questions about section 92. That is all I need to say, your Honour, that one cannot assume that there is a national market when the question is why is it trading in bonds issued by Australian governments?

Your Honours, in relation to the question of the Corporations (Administrative Actions) Act 2001, we agree, it is not applicable.  We say, first, because it only applies if there is invalidity and, for the submissions we put, there is no invalidity; second, that the Act was enacted after the Full Court delivered its decision, and therefore it cannot be directly relevant to an appeal under section 73, though we would accept that it may affect your Honour’s considerations of whatever order your Honours might make, in the Fairfax sense. 

We say that if your Honours come to the view that it is applicable, then section 5 of the Act clearly cannot have application in federal jurisdiction.  The only provision that could have application is section 6, which would seem to operate after the federal jurisdiction is over.  It is not apparent that that section has anything to do with whatever orders your Honours would make on this appeal, but if there was a risk that it might, then, with respect, the suggestion by my learned friend, Mr Burmester, that it might be remitted may have some force.  May it please the Court. 

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Harris. 

MR HARRIS:   I do not think that anything has really been raised that I have to answer. 

GLEESON CJ:   All right. 

MR HARRIS:   Unless you would like to raise something that I have to answer. 

GLEESON CJ:   No, we do not feel a need to do that.  Thank you, Mr Harris. 

MR HARRIS:   There is just one thing.  In Davern v Messel – and it is in my summary of argument at page 6 – what seems to be ignored: his Honour the Chief Justice reaffirmed all the principles of statutory interpretation. Of course, he applied them to the jurisdiction he was looking at or the statute, just like we would apply it to section 206A of the Justices Act, and said, “Yes, the court has jurisdiction”.  I have set it all out in my summary of argument, and if there is nothing else, I will sit down. 

GLEESON CJ:   Thank you, Mr Harris.  We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning. 

AT 3.52 PM THE MATTER WAS ADJOURNED