McGillivray v Alan Piper, Chief Executive Officer of the Ministry of Justice
[2000] WASCA 245
•7 SEPTEMBER 2000
McGILLIVRAY & ORS -v- ALAN PIPER, CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF JUSTICE [2000] WASCA 245
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 245 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:1881/2000 | 14 JULY 2000 | |
| Coram: | KENNEDY ACJ WALLWORK J ANDERSON J | 7/09/00 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | BRIAN JOHN McGILLIVRAY JAN LORENE McGILLIVRAY KRISTEN JAMES McGILLIVRAY ALAN PIPER, CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF JUSTICE |
Catchwords: | Contempt of court Family Court of Western Australia Flagrant challenge to authority of court Imprisonment Whether contemnor a "federal offender" for purposes of the Crimes Act Application of State sentencing laws Eligibility for release on home detention order Statutes Interpretation Sentencing of offenders Sentencing Act Sentence Administration Act Direction in Sentence Administration Act that it is "to be read with" Sentencing Act Effect Provision in Sentencing Act that it does not apply to persons being punished for contempt of court Effect on application of Sentence Administration Act to person being punished for contempt Words and phrases "being punished" Meaning Whether confined to passing of sentence |
Legislation: | Commonwealth Prisoners Act 1967 (Cth), s 19 Constitution (Cth), s 71, s 80 Crimes Act 1914 (Cth), s 16, s 19AA, s 19AZD(3) Crimes Regulations 1990 (Cth), reg 5 Family Law Act 1975 (Cth), s 35, s 41(3), s 108, s 112AD, s 112AP Judiciary Act 1903 (Cth), s 24 Offenders Community Correction Act 1963 (WA) Sentence Administration Act 1995 (WA), s 3, s 6, s 59, Pt 5 Sentencing Act 1995 (WA), s 3(3)(a), s 85, s 97 |
Case References: | Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 54 ALR 57 Cadbury-Fry-Pascall Proprietary Limited v The Federal Commissioner of Taxation (1944) 70 CLR 362 City of Bayswater v Minister for Family and Children's Services & Ors [2000] WASCA 151 Georgoussis v The Medical Board of Victoria [1957] VR 671 In the Marriage of Mariti (S F and A S) (No 2) (1977) 34 FLR 269 In the marriage of Schwarzkopff, L and Schwarzkopff, H (1992) FLC 92-303 Phillips v Parnaby [1934] 2 KB 299 Re Colina; Ex parte Torney [1999] HCA 57 The Canada Southern Railway Company v The International Bridge Company [1883] 8 AC 723 Witham v Holloway (1995) 183 CLR 525 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : McGILLIVRAY & ORS -v- ALAN PIPER, CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF JUSTICE [2000] WASCA 245 CORAM : KENNEDY ACJ
- WALLWORK J
ANDERSON J
- JAN LORENE McGILLIVRAY
KRISTEN JAMES McGILLIVRAY
Applicants
AND
ALAN PIPER, CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF JUSTICE
Respondent
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Catchwords:
Contempt of court - Family Court of Western Australia - Flagrant challenge to authority of court - Imprisonment - Whether contemnor a "federal offender" for purposes of the Crimes Act - Application of State sentencing laws - Eligibility for release on home detention order
Statutes - Interpretation - Sentencing of offenders - Sentencing Act - Sentence Administration Act - Direction in Sentence Administration Act that it is "to be read with" Sentencing Act - Effect - Provision in Sentencing Act that it does not apply to persons being punished for contempt of court - Effect on application of Sentence Administration Act to person being punished for contempt
Words and phrases - "being punished" - Meaning - Whether confined to passing of sentence
Legislation:
Commonwealth Prisoners Act 1967 (Cth), s 19
Constitution (Cth), s 71, s 80
Crimes Act 1914 (Cth), s 16, s 19AA, s 19AZD(3)
Crimes Regulations 1990 (Cth), reg 5
Family Law Act 1975 (Cth), s 35, s 41(3), s 108, s 112AD, s 112AP
Judiciary Act1903 (Cth), s 24
Offenders Community Correction Act 1963 (WA)
Sentence Administration Act 1995 (WA), s 3, s 6, s 59, Pt 5
Sentencing Act 1995 (WA), s 3(3)(a), s 85, s 97
Result:
Application dismissed
Representation:
Counsel:
Applicants : Mr M Curwood
Respondent : Ms C F Jenkins
Solicitors:
Applicants : Arns & Associates
Respondent : State Crown Solicitor
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Case(s) referred to in judgment(s):
Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 54 ALR 57
Cadbury-Fry-Pascall Proprietary Limited v The Federal Commissioner of Taxation (1944) 70 CLR 362
City of Bayswater v Minister for Family and Children's Services & Ors [2000] WASCA 151
Georgoussis v The Medical Board of Victoria [1957] VR 671
In the Marriage of Mariti (S F and A S) (No 2) (1977) 34 FLR 269
In the marriage of Schwarzkopff, L and Schwarzkopff, H (1992) FLC 92-303
Phillips v Parnaby [1934] 2 KB 299
Re Colina; Ex parte Torney [1999] HCA 57
The Canada Southern Railway Company v The International Bridge Company [1883] 8 AC 723
Case(s) also cited:
Witham v Holloway (1995) 183 CLR 525
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1 KENNEDY ACJ: I have had the benefit of reading in draft the reasons to be published by Anderson J. For the reasons which his Honour gives, I agree that the order nisi should be discharged.
2 WALLWORK J: I agree with the reasons for judgment of Anderson J.
3 ANDERSON J: On 11 July 2000, Owen J made an order nisi requiring the respondent, Alan Piper, Chief Executive Officer of the Ministry of Justice, "to show cause before the Full Court of this Honourable Court why a Writ of Mandamus should not be issued against [him] to require [him] to consider each of the Applicants as being eligible for consideration to be released under a Home Detention Order…". This Court heard the matter on 14 July 2000 and, by unanimous decision, discharged the order nisi with reasons to follow. These are my reasons for joining in that decision.
Background
4 On 16 June 1999, Martin J of the Family Court of Western Australia, in proceedings in which the court was exercising federal jurisdiction, committed the applicants to imprisonment for contempt of that court. Brian McGillivray was imprisoned for 4 months, and Jan and Kirsten McGillivray were imprisoned for 3 months. Due to the institution of appeal proceedings, a warrant of commitment was not issued until 2 May 2000. Therefore, the terms of imprisonment did not commence until then. Consequently, Brian McGillivray was due to be released no later than 1 September 2000 and Jan and Kristen Gillivray were due to be released no later than 1 August 2000.
5 On 2 June 2000, solicitors for the applicants requested of the respondent that the applicants be considered eligible for a home detention order pursuant to s 59 of the Sentence Administration Act1995 (WA).
6 That section provides:
"59. Certain prisoners may apply to CEO for HDO and CEO may make HDO
(1) A prisoner may apply to the CEO to be released under an HDO if —
(a) the term or terms that he or she is serving or is yet to serve are not parole terms;
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- (b) the term, or aggregate of terms, that he or she is serving or is yet to serve is less than 12 months; and
(c) at the release date that would be specified in the HDO if it were made, he or she will have served —
(i) one month of the term or the aggregate of terms (as the case may be); or
(ii) one third of the term or the aggregate of terms (as the case may be),
whichever is the longer.
- (2) The CEO must consider the case of every prisoner who applies to be released under an HDO and may, in respect of such a prisoner —
(a) make an HDO; or
(b) refuse to make an HDO.
(3) In deciding whether to make an HDO, the CEO must have regard to —
(a) the nature and circumstances of the offence for which the prisoner is imprisoned;
(b) the degree of risk that the release of the prisoner appears to present to the personal safety of people in the community or of any individual in the community; and
(c) the views of other people residing at the place where it is proposed the prisoner will remain while subject to the HDO.
(4) Subsection (3) is a directory provision only and a breach of that subsection does not affect any issue relating to the lawfulness of the release of a prisoner under an HDO.
(5) An HDO may relate to more than one term."
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7 The Crown Solicitor's Office, on behalf of the respondent, replied on 13 June 2000 refusing the request. After further correspondence between the solicitors for the applicants and the Crown Solicitor's Office, these proceedings were commenced.
The relevant provisions
8 The Family Court of Western Australia is a State court which is invested with federal jurisdiction in matrimonial causes by s 41(3) of the Family Law Act 1975 (Cth). The subsection makes the Act applicable to proceedings in which the court is exercising the federal jurisdiction so conferred. The power to punish for contempt is declared by s 35 of the Act. That section provides that the Family Court "has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court". Section 112AP provides for the making of rules of court concerning the practice and procedure for dealing with contempts which involve a "flagrant challenge to the authority of the court" and specifies the forms of punishment. It was this kind of contempt, that is, a contempt involving a flagrant challenge to the authority of the court, for which the McGillivrays were punished. They had disposed of assets in contumacious disregard of an order restraining them from doing so.
9 If the conduct for which the applicants were punished is a federal offence, the Crimes Act1914 (Cth), s 19AZD(3) and reg 5 of the Crimes Regulations1990 (Cth) apply. Section 19AZD(3) makes available to federal offenders pre-release permit schemes provided for in the legislation of the State in which they are serving a term of imprisonment. Regulation 5 provides that the home detention provisions under Pt 5 of the Sentence Administration Act 1995 (WA) are a pre-release permit scheme for the purposes of s 19AZD(3). That section is in the following terms:
"19AZD(3) A law of a State or Territory providing for a State or Territory offender to be released from prison under a pre-release permit scheme (however called) that is prescribed for the purposes of this subsection, applies to a federal offender who is serving a sentence in that State or Territory, subject to any conditions relating to eligibility to participate that are specified in the regulations that prescribe that scheme, as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory."
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10 The effect of this is that if the applicants are "federal offenders" under the Crimes Act, and a home detention order could have been made in their favour had they been State offenders, then a home detention order could be made in their favour under the relevant provisions of the Sentence Administration Act as if they were State offenders.
11 This raises two questions. It is convenient to deal first with the question whether a contemnor in the Family Court of Western Australia exercising federal jurisdiction is a "federal offender" within the meaning of s 19AZD(3), and then with the question whether a person in Western Australia serving a sentence of imprisonment for contempt of a State court is eligible for home detention. Only if both questions are answered in the affirmative can the application succeed.
Are the applicants "federal offenders"?
12 By s 16 of the Crimes Act "federal offender" is defined as "a person convicted of a federal offence"; "federal offence" is defined as "an offence against the law of the Commonwealth"; and "federal sentence" is defined as "a sentence imposed for a federal offence". The question is whether a person convicted of contempt under the Family Law Act for a contempt of the Family Court of Western Australia exercising federal jurisdiction is convicted of an offence against the law of the Commonwealth and is therefore a federal offender.
13 In In the Marriage of Mariti (S F and A S) (No 2) (1977) 34 FLR 269 a husband was committed to prison for contempt of the Family Court of Australia pursuant to s 108 of the Family Law Act. Section 108 has now been replaced by s 112AP but the two sections are in similar terms. The issue was whether the husband was eligible for parole pursuant to s 19 of the Commonwealth Prisoners Act (Cth)1967. That section provided:
"The provisions of a law of a State or Territory relating to the reduction or remission of sentences or minimum terms of imprisonment apply to a federal offender who is serving a sentence of imprisonment in a prison of that State or Territory in like manner as those provisions apply in relation to a State offender or a Territory offender serving a sentence of imprisonment in that prison".
14 Watson SJ held (at 273) that "committal to prison for wilful disobedience of an order of this Court exercising jurisdiction under the
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- Family Law Act is not the imprisonment of a federal offender…". Consequently, he held (at 273) that the husband was not eligible for parole. He considered "[t]he period for which a contemnor of this Court is to be incarcerated is solely within the control of this Court …" (at 274).
15 A more recent case dealing with the question whether a contempt of a court exercising federal jurisdiction is a "federal offence" is In the marriage of Schwarzkopff, L and Schwarzkopff, H (1992) FLC 92-303, a case which was referred to by Martin J. The wife had applied under s 112AD of the Family Law Act for the husband to be dealt with for continuing breaches of restraint orders. The husband was arrested and imprisoned for two years. The question arose whether the imposition of a sentence under s 112AD was a "federal sentence" and therefore whether, pursuant to s 19AA of the Crimes Act 1914 (Cth), the sentencing principles set out in the Crimes Act had to be followed and whether remission provisions in State legislation applied. It was held that the imposition of a sentence under Pt XIIIA [the Part in which both s 112AD and s 112AP appear] was not a "federal sentence" within the Crimes Act. Consequently, neither the sentencing principles in the Crimes Act nor the State remission provisions applied. At 79,289 - 79,290 the court (Barblett DCJ, Fogarty and Moore JJ) said:
"We agree with the submission of counsel for the Attorney-General that a contravention of these provisions of the Family Law Act does not in itself constitute a contravention of the law of the Commonwealth and that Part XIIIA does not employ the language of the criminal law and should be seen as a self-contained code within the Family Law Act under which the Court may impose 'sanctions' where there has been a breach of orders made under that Act. This Part gives the Court the widest possible discretion to mould the sanction to the circumstances of the individual situation within the overall principles and philosophy of the Family Law Act. It appears to us that the sections in Part XIIIA are careful to avoid the language of the criminal law; in particular, the provisions for early release, release on recognizance after a specified part of the term of imprisonment has been served, release on compliance with the order, and the capacity to order compensatory access, all militate against the conclusion that this is part of the criminal law of the Commonwealth".
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16 It should be observed that in Re Colina; Ex parte Torney [1999] HCA 57, a case not referred to in argument, three justices of the High Court approved of In the Marriage of Schwarezkopff (supra)
17 In Re Colina the High Court had to consider the question whether s 80 of the Constitution required that a contemnor in the Family Court of Australia be afforded the right to trial by jury. In considering that question, the nature of the offence of contempt was discussed and in particular whether acts constituting contempt in the Family Court are acts against a law of the Commonwealth. In their joint judgment, Gleeson CJ and Gummow J held that "acts constituting the alleged contempts … [of the Family Court] … are not offences against any law of the Commonwealth" (Pt XVI). They cited In the Marriage of Schwarzkopff (supra) in support (see par 25 and footnote 29). Their Honours observed that the power of a court exercising federal jurisdiction to punish for contempt has its source in Ch III of the Constitution as an inherent attribute of judicial power. In their view, s 35 of the Family Law Act does not create the offence of contempt but is merely "declaratory of an attribute of the judicial power of the Commonwealth which is vested in those Courts by s 71 of the Constitution" (par 16). Consequently, the effect of s 112AP is merely "to authorize provisions as to practice and procedure by the Rules and to specify the forms of punishment" (par 15). Hayne J agreed with this opinion.
18 Whilst a contrary view was expressed by McHugh J and Kirby J, Callinan J expressed no view on the question. Hence, taking the majority view to be the law, the law is that a person committing the offence of contempt of a court exercising federal jurisdiction does not contravene a law of the Commonwealth and therefore is not a federal offender for the purposes of the Crimes Act. The provisions of the Crimes Act that make available the remission and early release benefits of State regimes therefore do not apply.
19 From this, it follows that the applicants could not avail themselves of s 19AZD(3). They could not insist, in virtue of that section, that the State legislation with respect to remissions and early release, including release under home detention orders, be applied to them. As they are imprisoned by the juridical act of a court exercising federal jurisdiction, there is no other way in which the relevant State legislation can be made to apply to them.
20 This is sufficient to dispose of this application. However, in case this is thought to be wrong, I turn now to consider whether a person
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- imprisoned by a State court in the exercise of State jurisdiction for contempt of that court is entitled to be considered for home detention release.
The position under State law
21 The starting-point is that there is nothing in the Sentence Administration Act (s 59 of which entitles a prisoner to apply to be released under a home detention order), which expressly excludes contemnors from the benefit of the Act. The excepting provision relied on by the respondent is to be found not in the Sentence Administration Act but in the Sentencing Act1995 (WA). In that Act, it is provided in s 3(3)(a) that:
"This Act does not apply to or in respect of a person being punished -
(a) by the Supreme Court or any other court for or as for contempt of court."
22 It is the respondent's contention that the entitlement that the applicants might otherwise have under s 59 of the Sentence Administration Act to apply to be released under a home detention order and to have that application considered by the chief executive officer (in this case, the respondent) is barred by s 3(3)(a) of the Sentencing Act. To this, the applicants make two responses. First the applicants submit that s 3(3)(a) does not in its terms apply to the applicants because the applicants are not persons " … being punished … ". The argument is that, "being punished" refers to the imposition of penalty, not to the circumstance of imprisonment - the serving of the term. A person is only "being punished" within the meaning of s 3(3), so it was submitted, while the sentence is being imposed by the court.
23 The main argument in support of this submission is that the Sentencing Act is exclusively concerned with the sentencing process, sentencing options, sentencing principles and the like. Looked at separately from the Sentence Administration Act, it has nothing to do with the administration of sentences. Hence, the phrase "being punished" must be understood as not extending to the serving of the sentence. This is an attractive argument, but it overlooks the provisions in s 3 of the Sentence Administration Act that the latter Act is "to be read with" the former. Before expanding on that, I should say that the second of the applicants' two main submissions is that s 3(3)(a) excepts only the Sentencing Act
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- from application to contemnors and does not except the Sentence Administration Act. Hence, the home detention order provisions in the Sentence Administration Act are not excepted and must be given effect to. This submission is also answered by reference to s 3 of the Sentence Administration Act. In its terms, that section provides:
"This Act is to be read with the Sentencing Act 1995."
25 Thus, the Sentence Administration Act is to be read as if it contained s 3(3)(a) of the Sentencing Act and terms such as "being punished" in s 3(3) of the Sentencing Act are to be construed accordingly as also are provisions such as the excepting provision in s 3(3)(a) of the Sentencing Act.
26 The qualification to the rule that the two Acts must be construed as if they were moulded into the one enactment is that if the requirement that two Acts be read together is contained in the later of the two Acts and there is a manifest discrepancy between the provisions of the two Acts, the later Act may be construed as repealing the earlier Act: Canada Southern Railway Co v International Bridge Co (supra) per Lord Hewitt CJ at 303; Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 54 ALR 57; Pearce & Geddes (loc cit).
27 There is no manifest discrepancy between the statutory provisions in question in this case. There is no reason why s 3(3)(a) of the Sentencing Act cannot be given full effect as if it were a provision of the Sentence Administration Act.
28 Counsel for the applicants referred to the legislative history in an attempt to persuade us that it was not parliament's intention to exclude
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- contemnors from the home detention system. He submitted that the Offenders Community Correction Act 1963 (WA), which was repealed upon the introduction of the Sentence Administration Act and the Sentencing Act, allowed for the chief executive officer to make a home detention order with respect to a prisoner serving a sentence for contempt of court. He submitted that a comparison of the new legislation with the old and recourse to extraneous material does not indicate that upon the introduction of the Sentence Administration Act and the Sentencing Act there was an intention on the part of the legislature to remove the discretion to make a home detention order in favour of imprisoned contemnors. In my opinion, even if it is true that, under the Offenders Community Correction Act, home detention was available to contemnors imprisoned for contempt, I am not persuaded that this historical fact can displace the plain meaning of the legislative provisions now in force.
29 In my opinion, the construction of the Sentence Administration Act1995 and the Sentencing Act1995 must be approached on the basis that they are intended to form a uniform code for the sentencing and punishment of offenders. When the two Acts are read together as a single code, the inescapable conclusion is that the provisions of neither Act apply to persons being punished for contempt of a court.
30 I accept the submissions made by counsel for the respondent that this construction of the two statutes is supported by the provisions within them. Section 97 of the Sentencing Act expressly enacts that nothing in Pt XIII of the Sentencing Act affects the operation of Pt IV and Pt V of the Sentence Administration Act. The implication is that, but for that express provision, the provisions in the Sentencing Act that are referred to would affect the operation of the specified provisions in the Sentence Administration Act.
31 On behalf of the applicants, it was submitted that if it truly was the intention of parliament that the two Acts be read as one, there would have been no occasion to enact s 6 of the Sentence Administration Act. That is the section which provides:
"In this Part words and phrases have the same definitions, and calculations are to be made in the same way, as in Part XIII of the Sentencing Act1995."
32 I am not able to accept this submission. The purpose of s 6 of the Sentence Administration Act is to expressly transport into Part 2 of the Sentence Administration Act the special definitions contained in s 85 of
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- the Sentencing Act and to make it clear that the same processes of calculation are to be followed in these parts of both Acts. It is a provision which would be both necessary and convenient even if the two Acts had been enacted as one statute.
33 It was for these reasons that I reached the conclusion that the order nisi should be discharged.
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