Paul Noel Dale v The Queen
[2012] VSCA 324
•20 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No SAPCR 2012 0213
| PAUL NOEL DALE | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG, HARPER AND WHELAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 December 2012 |
| DATE OF JUDGMENT | 20 December 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 324 |
| JUDGMENT APPEALED FROM | R v Dale [2012] VSC453R (Curtain J) |
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CRIMINAL LAW — Application for leave to appeal against interlocutory decision — Applicant charged with 12 counts of having given false evidence to examiner contrary to Australian Crime Commission Act 2002 (Cth) s 33(1) (‘ACC Act’) — Applicant subject to two summonses to give evidence before an examiner relating to two murders committed in May 2004 — Whether summonses valid as relating to ‘federally relevant criminal activity’ as defined by ACC Act — Whether murder an offence against a ‘law of a State’ as that term used in s 4A of ACC Act — Ordinary and natural meaning of expression offence ‘against a law of a State’ encompasses murder at common law — Summonses therefore valid — Prosecution of applicant not clearly ‘foredoomed to fail’ — Leave to appeal granted — Appeal dismissed — Re Colina; Ex parte Torney (1999) 200 CLR 386; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; Lipohar v The Queen (1999) 200 CLR 485, considered.
STATUTORY INTERPRETATION — Ordinary and natural meaning — Purposive interpretation — Whether phrase ‘law of a State’ encompasses common law offences — Necessity of avoiding absurd or irrational results — History of s 4A of ACC Act clearly indicates legislative intent to ensure constitutional validity — No intent to limit scope of ACC’s powers — Acts Interpretation Act 1901 (Cth) s 15AA; Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC with Mr A M Dinelli | Tony Hargreaves & Partners |
| For the Respondent | Mr M K Moshinsky SC with Mr C W Beale SC and Ms K Breckweg | Office of Public Prosecutions |
| For the Australian Crime Commission seeking leave to appear as amicus curiae | Ms S Maharaj QC with Ms R Sharp | The Australian Crime Commission |
WEINBERG JA
HARPER JA
WHELAN JA:
The applicant, a former Victorian police officer, currently faces 12 charges of having given false evidence to an examiner of the Australian Crime Commission (the ‘ACC’), contrary to s 33(1) of the Australian Crime Commission Act 2002 (Cth) (‘the ACC Act’). The charges arose from two examinations, conducted in March 2007 and November 2008. The examinations followed the issue of two summonses pursuant to s 28(1) of the ACC Act. Each summons was issued in connection with a special investigation being conducted by the ACC. The first was issued on 19 February 2007 by Examiner William Boulton, and the second on 10 November 2008 by Examiner John Hannaford.
Each summons required the applicant to give evidence of
federally relevant criminal activity involving violence-related offences, namely, the circumstances surrounding the murders of Terrence Hodson and Christine Hodson in May 2004.
The applicant attended both hearings, and gave evidence before the two examiners.
The Crown contends that the applicant’s evidence was false in a number of respects. The applicant has been arraigned, and is scheduled to stand trial on these charges in February 2013. However, he has raised a preliminary point in response to the allegations made against him. He contends that the trial should be permanently stayed as an abuse of process. He claims that the case against him is clearly foredoomed to fail.[1] After a hearing lasting some three days, a judge of the Trial Division rejected that application, and, in the ordinary course, the trial will therefore proceed.[2]
[1]See Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ).
[2]R v Dale [2012] VSC 453R.
At the request of the applicant, the trial judge certified that the matter is one which, in her opinion, meets the threshold requirements for an interlocutory appeal. The applicant now seeks leave, by way of such appeal, to challenge her Honour’s decision to refuse a permanent stay.
The relevant legislative background
The ACC is established by s 7(1) of the ACC Act.[3] It consists of its Chief Executive Officer, various examiners appointed under s 46B(1) (who must be legal practitioners of at least five years standing), and the members of the staff of the ACC.
[3]For ease of reference, these reasons refer to the provisions of the ACC Act as they are currently in force. Any material difference from the provisions in force at the date of the two summonses will be noted.
Under s 7A, the functions of the ACC include, when authorised by the Board of the ACC, investigating ‘matters relating to federally relevant criminal activity’ and reporting on the outcomes of those investigations.
The Board of the ACC is established by s 7B(1). It consists of the Commissioner of the Australian Federal Police, the Secretary of the Attorney-General’s Department, the Chief Executive Officer of the Australian Customs Service, the Chairperson of the Australian Securities and Investments Commission, the Director-General of ASIO and the Commissioner or head of the police force of each State and Territory.
Under s 7C(1), the Board’s functions include authorising the ACC, in writing, to investigate matters relating to ‘federally relevant criminal activity’. Under s 7C(3), the Board may, in certain circumstances,[4] determine that an investigation into matters relating to ‘federally relevant criminal activity’ is a ‘special investigation’. A determination under s 7C(3) must be in writing. Pursuant to s 7C(4), the determination must ‘describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity’, and ‘state that the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the Commonwealth’ a Territory, or a law of a State, but need not specify the particular offences. The determination must also set out the purpose of the investigation.
[4]The Board must consider whether ‘ordinary police methods of investigation into the matters are likely to be effective’. If not, a special investigation, with its suite of coercive powers, may be warranted.
Section 4 – ‘relevant criminal activity’
The ACC, a federal body, can investigate state offences. However, for constitutional reasons, it can only investigate those offences that amount to ‘federally relevant criminal activity’. In order to fall within that description for present purposes, a matter being investigated must be ‘an offence against a law of a State’ and have what the ACC Act describes as a ‘federal aspect’.
Section 4(1) defines a ‘federally relevant criminal activity’[5] as:
[5]The trial judge noted that the definition of ‘federally relevant criminal activity’ was amended after the first summons was issued and prior to the second summons. It was agreed that nothing turns upon the amendment.
(a)a relevant criminal activity, where the relevant crime is an offence against a law of the Commonwealth or of a Territory; or
(b) a relevant criminal activity, where the relevant crime:
(i) is an offence against a law of a State; and
(ii) has a federal aspect.
The term ‘relevant crime’ is defined to include ‘serious and organised crime’.
Subsection (1) also defines the term ‘relevant criminal activity’ as any
circumstances implying, or any allegations, that a [serious and organised crime] may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory.
Section 4 – ‘serious and organised crime’
The term ‘serious and organised crime’ is itself defined in s 4(1). In order to fall within that description, the offence that is the subject of investigation must, inter alia, involve two or more offenders and substantial planning and organisation.[6] It must also involve the use of sophisticated methods and techniques.[7] Moreover, it must be an offence that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind.[8]
[6]s 4(1)(a).
[7]s 4(1)(b).
[8]s 4(1)(c).
Perhaps more relevantly for present purposes, a ‘serious and organised crime’ must be a ‘serious offence’ within the meaning of the Proceeds of Crime Act 2002 (Cth), an offence of the kind proscribed by the regulations, or an offence that involves any of 20 separate categories of criminal behaviour specified in the section.[9]
[9]s 4(1)(d). It must also carry a penalty of imprisonment of three years or more.
The categories so specified are as follows:
(i) theft;
(ii) fraud;
(iii) tax evasion;
(iv) money laundering;
(v) currency violations;
(vi) illegal drug dealings;
(vii) illegal gambling;
(viii) obtaining financial benefit by vice engaged in by others;
(ix) extortion;
(x) violence;
(xi) bribery or corruption of, or by, an officer of the Commonwealth, an office of a State or an officer of a Territory;
(xii) perverting the course of justice;
(xiii) bankruptcy and company violations;
(xiv) harbouring of criminals;
(xv) forging of passports;
(xvi) firearms;
(xvii) armament dealings;
(xviii) illegal importation or exportation of fauna into or out of Australia;
(xix) cybercrime;
(xx) matters of the same general nature as one or more of the matters listed above
It should be noted that this list includes several offences that are, at least in Victoria, common law offences, and not statutorily-based.[10] It should also be noted that the term ‘violence’ is not descriptive of any offence, but merely indicative of the manner in which a particular offence might be committed. ‘Violence’ may be an adjunct of a common law offence, or an offence that is statutory in nature.
[10]See, for example, bribery, and perverting the course of justice, both of which are common law offences in Victoria.
Section 4A – when does an offence against a law of a State have a federal aspect?
Section 4A sets out the circumstances in which an offence against a ‘law of a State’ (referred to in the section as a ‘State offence’) is deemed to have a ‘federal aspect’.[11]
[11]In P v Board of Australian Crime Commission (2006) 151 FCR 114, 122 [27] (Mansfield, Dowsett and Lander JJ) the Full Federal Court described the definition of ‘federal aspect’ in s 4A as ‘particularly complex’. The Court added: ‘it is likely that the intention was to ensure constitutional validity of the Act by limiting the functions of the ACC to areas in respect of which the Commonwealth Parliament might legislate’.
The section is headed: ‘When a State offence has a federal aspect’. Subsection (1) sets out the object of the section which, not surprisingly, repeats the heading. It provides that State offences will have a federal aspect where:
(a) they potentially fall within Commonwealth legislative power because of:
(i) the elements of the State offence; or
(ii) the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be elements of the offence); or
(b)either:
(i) the ACC investigating them is incidental to the ACC investigating an offence against a law of the Commonwealth or a territory; or
(ii) the ACC undertaking an intelligence operation relating to them is incidental to the ACC undertaking an intelligence operation relating to an offence against a law of the Commonwealth or a Territory
Section 4A(2), which is central to this application, relevantly provides that, for the purposes of the ACC Act, ‘a State offence has a federal aspect if, and only if’:
(a) both:
(i) the State offence is not an ancillary offence; and
(ii)assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
(b) both:
(i)the State offence is an ancillary offence that relates to a particular primary offence; and
(ii)assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
(c)assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth; or
(d) both:
(i)the ACC is investigating a matter relating to a relevant criminal activity that relates to an offence against a law of the Commonwealth or a Territory; and
(ii)if the ACC is investigating, or were to investigate, a matter relating to a relevant criminal activity that relates to the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i); or
(e) both:
(i)the ACC is undertaking an intelligence operation relating to an offence against a law of the Commonwealth or a Territory; and
(ii)if the ACC is undertaking, or were to undertake, an intelligence operation relating to the State offence—that operation is, or would be, incidental to the operation mentioned in subparagraph (i).
Subsection (6) defines a ‘State offence’ as ‘an offence against a law of a State’.
The power to summon and examine witnesses
Section 24A provides that an examiner may conduct an examination for the purposes of a special investigation into matters relating to ‘federally relevant criminal activity’ that the ACC is conducting.
Under s 28(1), an examiner may summon a person to appear before the examiner at an examination to give evidence and to produce such documents or other things, if any, as are referred to in the summons. Subsection (2) provides that any summons that is issued requiring a person to appear at an examination must be accompanied ‘by a copy of the determination of the Board that … the investigation into matters relating to federally relevant criminal activity is a special investigation’. Subsection (3) provides that such a summons must, unless the examiner issuing the summons is satisfied that it would prejudice the effectiveness of the investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the examiner intends to question the person. However, nothing in that subsection prevents the examiner from questioning a person in relation to any matter that relates to a special investigation being conducted by the ACC.
Section 28(5) authorises an examiner, at an examination, to take evidence on oath or affirmation, and for that purpose to require a person to take such an oath or make such an affirmation in a form approved by the examiner. Subsection (7) provides that the powers conferred by s 28 are not exercisable except for the purposes of a special ACC operation or investigation.
Giving false or misleading evidence at an examination
It is next necessary to set out s 33(1) under which the applicant has been charged. The section provides:
A person shall not, at an examination before an examiner, give evidence that is to his or her knowledge false or misleading in a material particular.
Section 33(2) provides that the offence is indictable, and carries a maximum penalty of five years’ imprisonment.
Plainly, the Crown must establish that the evidence said to have been false or misleading was given ‘at an examination before an examiner’. The Crown accepts that this means a lawful examination resulting from a valid determination, and the issuing of a valid summons.[12]
[12]See generally Australian Crime Commission v Marrapodi [2012] WASCA 103, [39] (McLure P), [104] (Allanson J) where the Western Australian Court of Appeal considered that service of a valid summons was an element of the offence of refusing to answer a question at an examination, and a precondition to the exercise of the power to ‘require an answer’.
The applicant’s case
At one level, the applicant’s case appears simple. He submits that both summonses requiring his attendance at the examinations were invalid. It follows, so he contends, that any answers he gave to the examiners were not provided during the course of an ‘examination’ (meaning a lawful examination), and an essential element of the offence under s 33(1) cannot therefore be established.
The basis for that submission is again quite simple. The summonses made it plain that the only matter that the examiners wished to question the applicant about was ‘the circumstances surrounding the murders’ in May 2004, in Victoria, of Terrence and Christine Hodson. The transcript of each examination confirms that this was, indeed, the only matter raised during each examination.
The applicant contends that the ACC can only lawfully investigate a federally relevant criminal activity, as defined in the ACC Act. This means it can only inquire into an offence against a ‘law of a State’, which has a ‘federal aspect’. The applicant does not challenge the existence of a ‘federal aspect’ on the facts of this case, but does contend that there is no inquiry into an offence against a ‘law of a State’. That is because the expression ‘law of a State’ must be construed as meaning an offence against an enacted law, and not an offence at common law.
In reality, the point is purely one of statutory construction. Does the expression ‘against a law of a State’ encompass not merely statutory offences, but also offences at common law? If so, the applicant fails. If not, subject to a notice of contention filed by the Crown, he succeeds.
In his written submissions, the applicant makes the following points in support of his argument regarding the construction of the term ‘State offence’.
For the purposes of s 4A(2), the ‘State offence’ must be an offence created by statute because the subsection, on its proper construction, only contemplates offences created or enacted by the Parliament of a State. That is because:
·The term ‘State offence’ (meaning ‘an offence against the law of a State’) is used in conjunction with the term ‘law of the Commonwealth’. Self-evidently, that latter term is confined to laws made by, or under the authority of, the Commonwealth Parliament, there being no Commonwealth common law.[13] There is no reason to read ‘law of a State’ any more broadly than ‘law of the Commonwealth’.
[13]Citing Re Colina; Ex parte Torney (1999) 200 CLR 386, 397, which, however, deals with the meaning of ‘law of the Commonwealth’ in the context of s 80 of the Constitution, rather than the meaning of that term at large.
·The immediate context in which the term ‘State offence’ is found (namely within s 4A(2)) makes it plain that an offence against the ‘law of a State’ is confined to a statutory offence. That is because of the maxim that a particular expression should be interpreted consistently throughout the whole of a section within which it appears. It is clear that the term ‘State offence’, as used in both ss 4A(2)(a) and 4A(2)(b), is confined to an offence created by the ‘Parliament of the State’. It would follow that the same meaning should be accorded to that expression throughout the balance of s 4A.
·The language chosen by the Commonwealth Parliament in s 4A(2) must have been deliberate. Where it is sought to refer to a ‘law’ which extends beyond a statutory provision, the Parliament uses quite different language to make its intent plain. For example, if it intends to encompass the common law, it will refer to the law ‘whether written or unwritten’.[14]
[14]See, eg, Commonwealth Places (Application of Laws) Act 1970 (Cth) s 3 (‘the laws of a State’ means ‘the laws in force in that State, whether written or unwritten…); International Criminal Court Act 2002 (Cth) s 4(1); Foreign Evidence Act 1994 (Cth) s 3(1); Electronic Transactions Act 1999 (Cth) s 15(2); Superannuation Industry (Supervision) Act 1993 (Cth) s 233(2); Health Insurance Act 1973 (Cth) s 124Z(1); Radio Communications Act 1974 (Cth) ss 74(b), 125(1)(b).
·A number of authorities support the construction for which the applicant contends. Particular reliance is placed upon the following passage in the judgment of Brooking J in Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots:[15]
[15][1991] 1 VR 637, 688 (emphasis added) (‘Ansett’).
One defence to the plea for conspiracy to procure resignations can be disposed of very shortly. It is that raised by para 22 of the defence, relying on s164 of the Industrial Relations Act, which provides that an action under a law of a State or Territory does not lie against a trade union, or an officer, member or employee of a trade union, in relation to boycott conduct of the trade union or of the officer, member or employee acting in that capacity. s4(1) of that Act defines "boycott conduct" by reference to s45D and s45E of the Trade Practices Act (Cth). The short answer to this defence is that the expression “a law of a State or Territory" in s164 is confined to enacted laws. In my view it is even more difficult to contend that these words include a rule or principle of the common law than it is to advance that contention in relation to the words "a law of a State" in s109 of the Constitution.
·In any case, the expression ‘law of a State’ cannot now encompass the common law because there is now no common law of any state. Instead, the High Court has definitively established that there is but one common law of Australia, and that it is wrong to speak of the common law of a particular state. In support of that statement, the applicant cites the following passage from Lipohar v The Queen:[16]
To assert that there is more than one common law in Australia or that there is a common law of individual States is to ignore the central place which precedent has in both understanding the common law and explaining its basis.
·The principle enunciated in cases such as Beckwith v The Queen[17] and R v Cheetham[18] is to the effect that a penal statute, or one which would enlarge the circumstances where penal consequences would flow, should be read narrowly rather than broadly. Therefore, the term ‘State offence’ should not be given any more expansive meaning than can properly be ascribed to it.
·Finally, the trial judge is said to have erred in allowing considerations of purpose and object to override or expand the text of the legislation. More particularly, the applicant submits that the trial judge fell into the error identified by Gleeson CJ in Carr v Western Australia[19] by identifying the ‘underlying purpose’ of the Act as to deal with serious and organised crime in every State and Territory, without having regard to the relevant text. Further, while the applicant acknowledges that Parliament might be seen to have ‘misfired’[20] if his construction were to be accepted, that fact cannot be used as a basis to override or expand the text of the legislation itself.
[16](1999) 200 CLR 485, 505 (Gaudron, Gummow and Hayne JJ) (‘Lipohar’). See also Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.
[17](1976) 135 CLR 569.
[18](2006) 13 VR 304.
[19](2007) 232 CLR 138, 143.
[20]Byrnes v The Queen (1999) 199 CLR 1, 33-4 (Kirby J); Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180, 207 [89] (Kirby J).
The respondent’s submissions
The Crown submits that the applicant’s construction of the phrase ‘against a law of a State’ is altogether too narrow, and simplistic. It submits that there is no reason to construe that expression as confined to statute-based law. It says that any interpretation of that kind would be unintended, absurd, and inconsistent with the clear purpose of the ACC Act.
The Crown submits that there are at least five reasons why the applicant’s construction should be rejected.
First, the Crown submits that the ordinary meaning of the word ‘law’ includes both statute law and the common law. It refers, in that regard, to various dictionary definitions, including those to be found in legal dictionaries of the highest repute.[21] Accordingly, the expression ‘against a law of a State’ is perfectly capable, in its ordinary and natural sense, of referring not merely to laws enacted by or under the authority of the legislature, but also the common law, as developed by the judiciary.
[21]See the definitions of ‘law’ in, eg, The Shorter Oxford English Dictionary (6th ed); Black’s Law Dictionary (9th ed) 962-3; Stroud’s Judicial Dictionary of Words and Phrases (8th ed) 2265.
In support of this first submission, the Crown argues that the mere fact that the Commonwealth Parliament has, on occasion, specifically defined the word ‘law’ to include both the ‘written and unwritten’ law, or in some cases, similar expressions, does not mean that the use of that term in s 4A(6) should be confined to statutory law. The process of statutory interpretation should commence with the ordinary meaning of the text, and not with some implication supposedly to be drawn from the fact that other statutes have approached this issue in different ways.
Importantly, the Crown submits that the word ‘of’ in the composite expression ‘the law of a State’ should not be read, as the applicant contends, as meaning ‘sourced from’ the state itself. It refers to the definition of the word ‘of’ in the Shorter Oxford English Dictionary which includes ‘belonging to (a place) as a native or resident, as situated, existing, or taking place there, as forming part of it, as deriving a title from it …’. It also refers to the definition of that word in the Macquarie Dictionary which relevantly defines ‘of’ as ‘belonging or possession, connection or association’.[22] In that sense, it is perfectly natural to say that the common law forms part of the law of Victoria notwithstanding that it is also entirely appropriate, in a different context, to speak of the common law of Australia.
[22]Arthur Delbridge (ed), Macquarie Dictionary (4th ed, 2005).
In support of this particular argument, the Crown refers to Momcilovic v The Queen[23] where French CJ reconciled these two propositions:
The concept of the presumption of innocence is part of the common law of Australia, subject to its statutory qualification or displacement in particular cases. It is therefore part of the law of the State of Victoria.[24]
[23](2011) 245 CLR 1.
[24]Ibid 51 [53] (French CJ)(emphasis added).
Possibly of more doubtful relevance is the Crown’s submission that typical choice of law clauses, in use in many commercial contracts, refer to those contracts being governed by ‘the law of [a particular state]’. That expression is plainly understood to include both statute law, and common law operating in that state.
Secondly, the Crown submits that the legislative history of s 4A demonstrates that the expression ‘against the law of a State’ was never intended to be read as confined to laws enacted by the state parliament.
The ACC Act was originally enacted in 1984 as the National Crime Authority Act1984 (Cth) (‘NCA Act’). In its original form, and throughout almost the entire period of the NCA’s existence, its investigative powers extended to state offences, without any requirement that these constitute ‘federally relevant criminal activity’, or any equivalent thereof. Rather, the NCA was empowered to investigate ‘relevant criminal activity’ which was defined, in s 4 of the original NCA Act, as meaning:
[A]ny circumstances implying or any allegations, that a relevant offence may have been, or may be being, committed against a law of the Commonwealth, of a State or of a Territory.
The term ‘relevant offence’ was defined in terms similar to those presently contained in s 4(1) of the ACC Act in the definition of ‘serious and organised crime’.
The NCA regarded itself as empowered, under the original NCA Act, to investigate state offences, including murder. It did not differentiate between that offence at common law, or under statute.
It was not until the enactment of the National Crime Authority Amendment Act 2000 (Cth) that s 4A found its way into law. The NCA Act, then, for the first time, spoke of ‘State offences’ that had a ‘federal aspect’, these involving what s 4(1) defined as involving ‘federally relevant criminal activity’. At the same time, the expression ‘against a law of a State’ came into being.
Both the definition of ‘federally relevant criminal activity’ in s 4(1), and s 4A, were introduced to support the constitutional validity of the NCA Act following the decision of the High Court in R v Hughes.[25] That case raised questions about the capacity of a Commonwealth authority, such as the NCA, to perform functions or exercise powers under state laws. The High Court determined that there had to be an appropriate Commonwealth head of power to support the conferral of any such power or function, particularly, in circumstances where the performance of those powers or functions had the potential to affect individual rights.
[25](2000) 202 CLR 535 (‘Hughes’).
In other words, the amendments introduced into the NCA Act post-Hughes were intended to confirm the NCA’s power to investigate state offences, as that body had always done, by ensuring that there was a firm constitutional foundation for the exercise of such powers.
The Crown submits that the legislative history, including reference to the explanatory memorandum to the National Crime Authority Amendment Bill 2000, makes it abundantly clear that this was the purpose behind the amendments, and that there was no intention whatever to limit the NCA’s investigative powers, in relation to state offences, to statutory offences. Moreover, the Crown submits, there is nothing in the ‘logic or purpose’ of the amendments which suggests that the words ‘law of a State’ should be so confined.
Thirdly, the Crown submits that its construction of ‘State offence’ is supported by the statutory context in which that expression appears. It refers, in that regard, to the definition of ‘serious and organised crime’ which forms part of the definition of ‘relevant criminal activity’ in s 4(1).
The expression ‘serious and organised crime’, which is central to the ACC’s role, is described as ‘very broad’. It includes offences involving ‘violence’. Murder is a prime example of such an offence, and there is no reason, in logic, why it should be excluded from the list of offences, or offending conduct, contained within the definition of ‘serious and organised crime’. The fact that murder may be a common law offence in some parts of Australia, and a statutory offence in others, provides no rational basis for delineating the scope of the ACC’s powers of investigation.
The Crown argues that, if the Commonwealth Parliament had intended to limit the ACC’s investigative powers to statutory offences, one would have expected it to have said so, clearly and in terms. As previously noted, the list of matters falling within the definition of ‘serious and organised crime’ includes not merely statutory offences, but also a number of common law offences.[26]
[26]See above n 10.
The Crown disputes the applicant’s contention that s 4A(2) supports his construction of the term ‘State offence’. That subsection sets out five alternative ways in which a ‘State offence’ may have a ‘federal aspect’. While it is obviously true that paragraphs (a) and (b) speak in terms of state statutory offences, paragraphs (c)-(e) operate perfectly well irrespective of whether the ‘State offence’ is statute-based, or one at common law. Because these are alternatives, it cannot be assumed that the term ‘State offence’ bears the same meaning throughout s 4A(2). Indeed, the very reason why these alternatives are provided explains the narrower use of the term in paragraphs (a) and (b), and its broader use in paragraphs (c)-(e).
Fourthly, the Crown submits that where the ordinary meaning of the term ‘law of a State’ allows for a construction that would promote the purpose of the Act,[27] namely the investigation of ‘serious and organised crime’, there is no reason for this Court to prefer a construction that would ‘frustrate’ that purpose. In particular, it would be entirely irrational to attribute to the legislature an intent to permit the ACC to investigate murder in those states where that offence is statutory, but to prohibit it from doing so in those states where murder is a common law offence.
[27]See Acts Interpretation Act 1901 (Cth) s 15AA; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 31 (French CJ).
In that regard, the Crown submits that it is significant that the applicant does not claim that there is any purpose to be served by his construction. He simply argues that the legislation has ‘misfired’.
Fifthly, the Crown submits that the status of murder as an offence against the law of Victoria is ‘underlined’ by the significant statutory modifications to that offence set out in the Crimes Act 1958. In this regard, it cites as examples the abolition of the ‘year-and-a-day rule’,[28] and the introduction of a statutory form of self-defence applicable only to murder.[29] In oral argument, the Crown referred as well to the significant changes to the elements of murder in this State brought about by the legislative abrogation of the doctrine of provocation.[30] The Crown acknowledged that while some statements in Lipohar might be seen to be against this particular submission, these should not be read in isolation from the central issue in that case, which was purely one of jurisdiction, based upon territoriality.
[28]Crimes Act 1958 s 9AA.
[29]Ibid s 9AC.
[30]A further example is the enactment in 1981 of s 3A of the Crimes Act1958 concerning constructive murder. The effect of that section is to displace the common law felony murder rule as articulated in R v Ryan and Walker [1966] VR 553 and Ryan v The Queen (1967) 121 CLR 205: see generally R v Galas (2007) 18 VR 205, 213 [29] (Kellam JA).
The notice of contention
The Crown also relies upon a notice of contention.[31] It argues that irrespective of whether the applicant’s submission regarding the meaning of the expression ‘law of a State’ is correct, any invalidity that might attach to either summons as a consequence of any such finding should have no effect upon whether the applicant was validly sworn, and therefore whether the various offences charged were committed.
[31]The trial judge rejected this aspect of the Crown’s argument: R v Dale [2012] VSC 453R, [32]-[33].
More particularly, the argument is that the investigation was validly constituted as it concerned offences against the law of the Commonwealth, including drug importation and trafficking offences. In addition, the summonses should be regarded as having been validly issued as they related to the ‘circumstances surrounding’ the murders of Terrence and Christine Hodson, which necessarily included a consideration of various Commonwealth and State drug offences, all of them statute-based. In other words, the wide range of ‘federally relevant criminal activity’ set out in the determination attached to each summons provided a proper legal foundation for the special investigation that was being conducted.
In response to the notice of contention, the applicant submits that each examination clearly proceeded upon the basis that the subject offence was murder, and that each summons, properly construed, so provided. He argues first that the Crown should not be permitted to challenge the trial judge’s factual finding to that effect. He submits that it would be wrong, in any event, to permit the Crown to rely upon a determination that is of such extraordinary breadth as the justification for the use of coercive powers by way of special investigation. He contends that the relevant investigation was, as a matter of practical reality, solely based upon the offence of murder, and that it would be ‘rewriting history’ to pretend otherwise.
The principles governing the construction issue
In CIC Insurance Ltd v Bankstown Football Club Ltd,[32] the High Court set out the approach that must be taken to the task of statutory interpretation:
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses `context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy .... Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd ..., if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.[33]
[32](1997) 187 CLR 384.
[33]Ibid 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted).
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[34] Hayne, Heydon, Crennan and Kiefel JJ commented as follows:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text . The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[35]
[34](2009) 239 CLR 27 (‘Alcan’).
[35]Ibid 47 [46]-[47] (citations omitted).
As recently as this month, the High Court had more to say in this subject. In Commissioner of Taxation v Consolidated Media Holdings Ltd,[36] the passage in Alcan was quoted, and further explained. After repeating that: ‘[t]his Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’, the joint judgment continued:
So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[37]
[36][2012] HCA 55.
[37]Ibid [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ) (citations omitted).
In DPP v Leys,[38] decided earlier this month, this Court dealt comprehensively with a number of pronouncements by the High Court on this subject. It also referred to a number of pronouncements by intermediate appellate courts, including, in particular, the observations of McHugh JA (as his Honour then was) in Kingston v Keprose Pty Ltd:[39]
A purposive and not a literal approach is the method of statutory construction which now prevails … In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.
[38][2012] VSCA 304 (‘Leys’).
[39][1987] 11 NSWLR 404, 423 (citations omitted).
The Court in Leys went on to say:
The process of construction must always begin by examining the context of the provision with the object of adopting an interpretation that is consistent with the ordinary and natural meaning of the words derived from the context in which they appear and having regard to the legislative purpose of all the provisions of the statute.[40]
[40]Leys [2012] VSCA 304, [46] (Redlich and Tate JJA, T Forrest AJA).
In Leys, there was also a helpful discussion of a separate strand of authority dealing with the circumstances in which a departure from the literal meaning of the words of a statute may be justified.
It was noted that in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation,[41] Gibbs CJ said that there could be such a departure where the result of giving words their ordinary meaning would be so ‘irrational’ that the court is forced to the conclusion that the draftsman has made a mistake.[42] In addition, the Chief Justice made clear that departing from the literal meaning may sometimes also be justified in cases falling short of manifest irrationality, especially where ‘on a full
view of the Act, considering its scheme and its machinery and the manifest purpose of it’ the legislative history ‘explains how the mistake occurred’.[43]
[41](1981) 147 CLR 297.
[42]Ibid 304.
[43]Ibid 306 citing Drummond v Collins [1915] AC 1011.
In the same vein, Mason and Wilson JJ said:
Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.[44]
[44]Ibid 320.
In Leys, the Court said:
While labels such as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’, when applied to the literal interpretation of a statutory provision, may provide grounds for concluding that the legislature intended no such operation and that an alternative interpretation must be preferred, Mason and Wilson JJ, like Gibbs CJ, did not confine the propriety of departing from the literal interpretation to situations described by these labels. They considered that departing from the literal meaning of a statutory provision may be permissible where the literal reading does not conform to the legislative intent as ascertained from the provisions of the statute as a whole, including the policy which may be discerned from those provisions. Aickin J, in his dissenting judgment, also recognised that words can be read into a statute where the words actually used produce an absurd result, but he considered that the omission and how it should be remedied should be very clear.[45]
[45]Leys [2012] VSCA 304, [52] (Redlich and Tate JJA, T Forrest AJA). See also DPP (Nauru) v Fowler (1984) 154 CLR 627; Wentworth Securities Ltd v Jones [1980] AC 74, 105-6 (Lord Diplock).
In Newcastle City Council v GIO General Ltd,[46] McHugh J observed that if the target of a legislative provision is clear, it is the court’s duty is to ensure that the target is ‘hit’ rather than to report that it has been missed. [47] In some cases, this may require words to be read into a provision so that effect can be given to the obvious legislative purpose.[48]
[46]Newcastle City Council v GIO General Ltd (1997) 191 CLR 85.
[47]Ibid 113. See also Stephen Gageler, ‘Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process’ (2011) 37 Monash University Law Review 1, 7.
[48]Leys [2012] VSCA 304, [64] (Redlich and Tate JJA, T Forrest AJA).
In MacAlister v The Queen,[49] the High Court adopted a similar approach, holding that the particular words in the statute there under consideration should not be given their literal meaning as this would ‘defeat the purpose of the legislation and produce an unreasonable result’,[50] one that was certainly not intended.
[49](1990) 169 CLR 324. See also Mills v Meeking (1990) 169 CLR 214; Saraswati v The Queen(1991) 172 CLR 1; and the discussion in Leys [2012] VSCA 304, [71]-[74] (Redlich and Tate JJA, T Forrest AJA) of Bennion on Statutory Interpretation and the various cases cited therein.
[50]MacAlister v The Queen (1990) 169 CLR 324, 330 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).
In D F J v Secretary to the Department of Justice,[51] this Court noted that ‘the common law has long set its face against interpreting a provision in a way that leads to a result that is manifestly absurd or unreasonable’.[52] It also noted that in Minister for Immigration and Citizenship v SZJGV,[53] the High Court had emphasised the need to avoid an ‘irrational’ result. In that case, French CJ and Bell J cited with approval the following passage from Maxwell on the Interpretation of Statues:
Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.[54]
[51][2012] VSCA 177.
[52]Ibid [82] (Weinberg, Harper and Osborn JJA).
[53](2009) 238 CLR 642.
[54]Ibid 651-2 citing Maxwell on the Interpretation of Statutes (12th ed, 1969) 228. Cf Carr v Western Australia (2007) 232 CLR 138, 147 where Gleeson CJ cautioned against too readily departing from the terms of the statute, and resorting to implications based upon notions of policy or convenience.
It is perhaps unnecessary, at this point, to refer to other recent statements of principle regarding the approach to be taken to questions of statutory interpretation. The main cases are fully discussed in Leys.
We should approach the question of construction of the term ‘State offence’, as it appears in s 4A, on the basis that the language of the text has primacy. Where possible the expression ‘against a law of a State’ is to be given its ordinary and natural meaning. However, that meaning must be ascertained having regard to the context in which those words appear.[55]
[55]See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ). In that case, the High Court held that a legislative provision should be construed: ‘by reference to the language of the instrument viewed as a whole’, and by considering ‘the context, the general purpose and policy of a provision’.
As Lord Hoffman said in Charter Reinsurance Co Ltd v Fagan:[56]
[I]n some cases the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another. Thus a statement that words have a particular natural meaning may mean no more than that in many contexts they will have that meaning. In other contexts, their meaning will be different but no less natural.[57]
[56][1997] AC 313.
[57]Ibid 391. See also the observations of Spigelman CJ in Campbell v The Queen (2008) 73 NSWLR 272, 284 [48]-[50] regarding the importance of context and purpose in the construction of statutory provisions.
We must, of course, give full effect to s 15AA of the Acts Interpretation Act 1901 (Cth). That section requires us to prefer the interpretation of ‘State offence’ that ‘best achieve[s] the purpose or object’ of the ACC Act. It is also important to have regard to the legislative history of the Act as a whole, as well as the history of the introduction of s 4A itself. This requires us to focus specifically upon the particular ‘mischief’ that s 4A was designed to overcome, or, to put it in another way, the reason for its introduction. As part of the task of construction, it is of course appropriate to have regard to recognised maxims of interpretation. It must be remembered, however, that these maxims often pull in different directions. And, as the High Court has most recently stated, we must, in the end, return to the text itself.[58]
[58]Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55.
Conclusion regarding the construction issue
The trial judge rejected the applicant’s construction argument, holding that the expression ‘State offence’ in s 4A was apt to encompass an offence at common law. Her Honour’s ruling sets out clearly, and comprehensively, why the applicant’s construction should not be preferred.
The only point at which her Honour departed from the Crown’s submissions was in rejecting the argument that has now been put before this Court in support of the notice of contention.
In our opinion, the trial judge’s ruling on the construction issue was correct in all respects.
That is not to say that the applicant has failed to make some forceful points. His case has been put as well as it could possibly be. Nonetheless, we are constrained to reject it.
Our reasons may be briefly stated.
First, the definition of the term ‘State offence’ in s 4A(6) might need to be expanded or contracted, depending upon the particular job it is intended to do. But in the absence of any reason to add to, or to subtract from, that term, it speaks in the ordinary way to encompass all that would normally fall within the ambit of state law. There is no reason why this would not include both enacted law, and common law. The fact that, in some circumstances, a narrower interpretation might also be available, confined to offences created by or under the authority of statute, does not detract from the fact that the expression ‘law of a State’ is apt, in its ordinary sense, to include the common law applicable in that State.
Secondly, there is nothing in the text of either s 4(1) or s 4A which dictates that the ACC should be confined, in its investigative role, to examining statutory offences only. We accept that the phrase ‘State offence’, as used in ss 4A(2)(a) and 4A(2)(b), means an offence created by, or under, state legislation. The reason for that is plain. These provisions are intended to identify the circumstances under which a ‘State offence’ has a ‘federal aspect’. One such circumstance hypothesises that the particular provision creating the state offence had been enacted by the Commonwealth Parliament, rather than a state parliament. That hypothesis only works if one compares laws that can, meaningfully, be compared. A principle of the common law cannot, relevantly, be compared with an Act of the Commonwealth Parliament. Context, therefore, dictates that ‘State offence’, in these provisions, is confined to an offence under a law of a state parliament.
The applicant has seized upon the meaning of ‘State offence’ in ss 4A(2)(a) and 4A(2)(b) as casting its net across the entirety of s 4A(2). And it is true that, as a general rule, words contained within a statutory provision will bear the same meaning throughout the entirety of that provision. Consistency in the use of language is obviously an important virtue in statutory drafting (as well as the drafting of any document intended to have legal effect). At the same time, it is not always appropriate to accept bald propositions as if they contain immutable truths. The applicant’s submission that ‘[p]lainly, “State offence” must be consistently interpreted in s 4A’ is, in our opinion, incorrect.
Section 4A(2) covers territory well beyond the direct relationship (central to the purpose of paragraphs (a) and (b) of that subsection) between statutes creating a State offence and laws of the Commonwealth (which are, of necessity, creatures of statute). Set in the context of the remaining subsections of s 4A(2), the phrase ‘State offence’ naturally and appropriately covers both statute and common law offences. Any other construction would be based entirely upon the proposition that consistency in meaning is an immutable rule of construction that must be applied irrespective of both context, and the consequences of doing so. Such an approach would also require this Court to put to one side the purpose and object of the ACC Act, and to ignore the legislative history underlying the introduction of s 4A.
Further, if the applicant’s construction were to be adopted and applied consistently throughout the ACC Act, and not merely to s 4A, the consequences of doing so could only be described as ‘absurd’.
It is sufficient to refer to some examples in the ACC Act in which a term equivalent to the expression ‘against a law of a State’ appears. If that expression were to be confined to statutory offences in s 12 (headed ‘performance of functions’), the ACC would be under no obligation, under that section, to assemble any evidence of the commission of a murder in Victoria, and to provide it to the relevant law enforcement agency. Somewhat strangely, it would be bound to do so if the murder had been committed not in Victoria, but in New South Wales.
Similarly, the ACC would be bound under s 12 to pass on evidence of the commission of drug offences, or even burglaries, but not evidence of the commission, in Victoria, of the crime of murder. It is difficult to think of any rational justification for any such differentiation.
Another example is s 22(7), which concerns items discovered during a search pursuant to a warrant. It is impossible to understand why any evidence of the commission of a statutory offence under state law could be seized under such a warrant, but not evidence of the commission of a murder in Victoria.
A third example is s 35A which concerns double jeopardy. Subsection (1) provides:
Where an act or omission by a person is an offence against this Act and is also an offence against a law of a State, the person may be prosecuted and convicted under this Act or under that law of that State in respect of that act or omission, but nothing in this Act renders a person liable to be punished twice in respect of the same act or omission.
There is no sensible explanation as to why the Commonwealth Parliament would be prepared to afford protection from double jeopardy to a person who might otherwise be prosecuted under an enacted state law in respect of an act or omission which would also constitute an offence under the ACC Act, but afford no such protection in relation to a common law offence.
We note that there are other provisions of the ACC Act which appear to be predicated upon references to state law encompassing only enacted law, namely ss 51(4), 55A(2) and 55B. These sections do not, however, support the applicant’s proposed construction of the term ‘State offence’. There are clear reasons why they should be so construed in their immediate context. For example, the reference to ‘law of a State’ in s 51(4) is part of a definition of ‘relevant Act’. Self-evidently, that could not extend to the common law. Similarly, s 55A deals with the conferral by state law of certain listed powers upon the ACC. It is obvious that the common law cannot confer any such powers. Section 55B provides that the ACC is to have a choice between exercising powers under the ACC Act or powers conferred by the law of a State, where two sources of investigative power exist. Here, too, context is everything.
Thirdly, the legislative history tells strongly in favour of the Crown’s position. There is nothing to indicate that s 4A was intended to circumscribe the investigative powers of first the NCA and then the ACC.[59]
[59]It is noteworthy that throughout its entire existence, the NCA routinely investigated murder as an incident of its coercive powers. See, eg, National Crime Authority v A1 & A2 (1997) 75 FCR 274; Salerno v National Crime Authority (1997) 75 FCR 133. See also Commonwealth, Parliamentary Debates, Senate, 2 November 2000, 18961 (Senator Cooney) as to the background to the 2000 amendment to the NCA Act.
Fourthly, the construction for which the applicant contends would not only fail to ‘best achieve the purpose or object of the Act’,[60] but would go a considerable distance towards frustrating it. It would have very deleterious consequences for Commonwealth-assisted criminal investigations.
[60]Acts Interpretation Act 1901 (Cth) s 15AA. In this regard, see also Parliamentary Joint Committee on the National Crime Authority, Commonwealth, Third Evaluation of the National Crime Authority (1998) ch 2 which contains a discussion of the objectives of the National Crime Authority (as it then was). The Committee identified that one role of the NCA, in investigating organised crime, was to ‘transcend all Australian jurisdictional boundaries’. The applicant’s submission regarding the construction of the phrase ‘State offence’ would compartmentalise the investigative powers of the ACC, and lead to it being circumscribed in its capacity to transcend jurisdictional boundaries.
Fifthly, that construction would lead to irrational (or, as the trial judge correctly described it, ‘absurd’) results.[61] It would make no sense to say that the summonses are invalid because they deal with the common law offence of murder, but would have been perfectly lawful had there been mentioned in them any of a host of statutory offences, all of them less serious than murder. What conceivable legislative purpose could be served by requiring a summons to include within it a reference to an investigation into, for example, a burglary or drug offence, in order to render the inquiry valid? How could one plausibly explain an intent on the part of the legislature to permit a special investigation to be conducted into a murder in New South Wales, but not in Victoria?[62]
[61]R v Dale [2012] VSC 453R, [31]. There can be no sensible distinction between the adjectives ‘irrational’ and ‘absurd’ (the term used by the trial judge in this case) in describing the result of legislative provisions. This was implicitly noted by Gibbs CJ in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 312 where his Honour concluded that the provision under consideration in that case ‘does not bring about a result that could be described as inconvenient, improbable or unjust, and still less as absurd or irrational’ (emphasis added).
[62]Murder (though curiously not manslaughter) being a statutory offence in New South Wales: Crimes Act 1900 (NSW) s 18. If the applicant’s submissions were correct, the ACC would be empowered to investigate murder in New South Wales, but not manslaughter. This, again, would be a strange outcome.
Sixthly, the authorities upon which the applicant primarily relies do not, upon careful analysis, support his case. These fall into three categories. There is first Re Colina; Ex parte Torney[63] and the cases cited therein. There is next the judgment of Brooking J in Ansett.[64] Finally, there is Lipohar,[65] and subsequent High Court authority to the same effect. We shall next turn to these authorities.
[63](1999) 200 CLR 386 (‘Colina’).
[64][1991] 1 VR 637, 688.
[65](1999) 200 CLR 485.
Colina
First, the applicant relies upon Colina.[66] The case concerned a prosecution for contempt of the Family Court. The issue was whether s 80 of the Constitution, which provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury, meant that the trial for contempt had to be a trial by jury. The High Court held that it did not.
[66](1999) 200 CLR 386, 397 [25].
Gleeson CJ, Gummow and Hayne JJ held that the offence of contempt derived from Ch III of the Constitution, and was therefore not an offence against any ‘law of the Commonwealth’.[67] McHugh J held that contempt was an offence against a law of the Commonwealth because that offence was ‘picked up’ by s 35 of the Family Law Act 1975 (Cth).[68] However, s 80 of the Constitution did not require trial by jury because the offence was not being tried on indictment. Callinan J reached the same conclusions as McHugh J. Kirby J dissented. His Honour alone held that s 80 did require trial by jury. While he doubted the restricted meaning given to the expression ‘law of the Commonwealth’, it was not necessary for him to decide that issue as he agreed with McHugh J’s approach to s 35 of the Family Law Act1975 (Cth).[69]
[67]Ibid 395 [16] (Gleeson CJ and Gummow J), 428 [108] (Hayne J).
[68]398-9 [35].
[69]Ibid 416 [80].
The passage from Colina upon which the applicant primarily relies is from the judgment of Gleeson CJ and Gummow J (with whom Hayne J agreed, subject to some additional observations). Gleeson CJ and Gummow J said:
The term ‘law of the Commonwealth’ refers to laws made under the legislative powers of the Commonwealth. This meaning is settled by a long line of authority. In particular an obligation or liability which has its source in the Constitution itself does not arise under a law of the Commonwealth.[70]
[70]Ibid 397 [25].
It is implicit in the submission made on behalf of the applicant that Colina stands for the proposition that the phrase ‘law of the Commonwealth’ is confined to statutory law for reasons that would apply equally to the expression ‘law of a State’, and not for reasons peculiar to the position of the Commonwealth. The submission asserts that there is ‘no reason’ to read ‘law of a State’ as encompassing anything
beyond that covered by ‘law of the Commonwealth’. It is necessary to review the line of authority to which Gleeson CJ and Gummow J referred to see if that is so.
The first case cited by Gleeson CJ and Gummow J was R v Bernasconi.[71]That also concerned s 80 of the Constitution. The issue was whether the Commonwealth’s power in s 122 of the Constitution to make laws for the government of a Territory was restricted by the right to trial by jury in s 80. In the context of s 80, and by reference also to ss 5, 41, 61 and 109 of the Constitution, Griffith CJ said:[72]
In my judgment, Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to Territories. Sec 80, therefore, relates only to offences created by the Parliament by Statutes passed in the execution of those functions, which are aptly described as ‘laws of the Commonwealth’.
[71](1915) 19 CLR 629.
[72]Ibid 635.
The next case cited by Gleeson CJ and Gummow J was Jerger v Pearce.[73] The relevant issue there was whether naturalisation under a United Kingdom Act in force in Australia, the Naturalisation Act 1870, was naturalisation under a ‘law of the Commonwealth’ within the meaning of s 10 of the Naturalisation Act 1903-1917 (Cth). That Act referred to a person ‘naturalised under the law of the Commonwealth or of a State’. The Court in Jerger held that whether the United Kingdom Act was in force in Australia at the relevant time or not :
[T]he words ‘under the law of the Commonwealth’, used as they are in that section in antithesis to the words ‘of a State’ mean ‘under a law passed under the legislative authority of the Commonwealth’[74].
[73](1920) 27 CLR 526 (‘Jerger’).
[74]Ibid 531 (Knox CJ, Gavan Duffy, Rich and Starke JJ).
The naturalisation was held not to be relevantly under a law of the Commonwealth because of the context in which those words appeared, and, in particular, the juxtaposition of the reference to the law of the Commonwealth with its ‘antithesis’ being law of the State.
The next case cited was Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd.[75] The passage cited was in the judgment of Knox CJ and Gavan Duffy J. What their Honours said there was that the phrase ‘law of the Commonwealth’ is to be found in a number of places in the Constitution and that ‘[i]n every case it probably means Acts of the Parliament of the Commonwealth’.[76]
[75](1922) 31 CLR 421.
[76]Ibid 431.
The qualification ‘probably’ suggests the importance of context in interpreting the meaning of that phrase in each Act in which it appears.
Knox CJ and Gavan Duffy J went on to address what was in issue in that case, namely whether certain agreements made by the Executive of the Commonwealth fell within s 61 of the Constitution which empowered the Executive to execute and maintain the Constitution and ‘the laws of the Commonwealth’.
As to that issue, their Honours said:
But whatever may be the meaning of the expression elsewhere, its collocation with the words ‘this Constitution’ in sec 61 leaves no room for doubt as to its meaning there. These words would be wholly unnecessary if the phrase ‘laws of the Commonwealth’ meant more than the laws made by the Parliament of the Commonwealth, for the phrase would then include the Constitution itself.[77]
[77]Ibid 432.
Gleeson CJ and Gummow J next cited the judgment of Mason J in Sankey v Whitlam.[78] The relevant issue in that case had been whether contravention of the Commonwealth State ‘Financial Agreement’ regulating government borrowings, which had been validated by the Financial Agreement Validation Act 1929 (Cth) and subsequent amending Acts, would, within the meaning of s 86 of the Crimes Act 1914 (Cth), be unlawful under a ‘law of the Commonwealth’. Before considering what was said about that issue, it is necessary to turn briefly to an earlier High Court decision concerning the Financial Agreement.
[78](1978) 142 CLR 1 (‘Sankey’).
In New South Wales v The Commonwealth(No 1),[79] the High Court considered whether Commonwealth Acts passed to enforce the Financial Agreement were valid. A majority, constituted by Rich, Starke, Dixon and McTiernan JJ, held that they were. Section 105A of the Constitution, introduced in 1928, provided that the Commonwealth and the States could make agreements with respect to public debt, that the Commonwealth Parliament could make laws validating such agreements, and that any such agreements would be binding on the Commonwealth and the States. The Financial Agreement itself was not a statute of the Commonwealth Parliament. Starke J nevertheless described it as ‘part of the organic law of the Commonwealth’.[80] McTiernan J said that s 105A of the Constitution imbued the Financial Agreement ‘with the force of a fundamental law’.[81]
[79](1932) 46 CLR 155.
[80]Ibid 186.
[81]Ibid 229.
In Sankey, Gibbs ACJ held that contravention of the Financial Agreement would not involve a breach of a law of the Commonwealth. That was because the relevant obligation was under an agreement and not a law ‘in the ordinary sense’.[82] His Honour also said that the Agreement ‘ … is not made by or under the authority of the Parliament of the Commonwealth’.[83] Stephen J adopted a similar approach. He said:
No doubt the Constitution may be spoken of, in one sense, as being the fundamental law of the Commonwealth: but the words of s 86 of the Crimes Act do not speak in any such broad jurisprudential terms.[84]
[82](1978) 142 CLR 1, 29.
[83]Ibid 30.
[84]Ibid 73.
Mason J, having referred to Starke J’s observation in New South Wales v Commonwealth (No 1) about the Financial Agreement being ‘part of the organic law of the Commonwealth’,[85] explained that the obligations in the Financial Agreement were contractual and that therefore ‘the Agreement does not have the force of law’.[86] It followed that the provision said to have been contravened was not a law of the Commonwealth within the meaning of s 86 of the Crimes Act. Mason J then went on to explain why he rejected a submission that a law amending the Constitution was not itself a law of the Commonwealth.
[85]Ibid 88.
[86]Ibid 91.
The analysis of the expression ‘law of the Commonwealth’ in Sankey involved considerations peculiar to the Commonwealth.
The final case cited by Gleeson CJ and Gummow J in Colina was Western Australia v The Commonwealth (the ‘Native Title Act Case’).[87] One issue in that case was whether Western Australian legislation on native title was inconsistent with the Racial Discrimination Act 1975 (Cth) and thereby invalid under s 109 of the Constitution. Another was the validity of s 12 of the Native Title Act 1993 (Cth) which purported to give ‘the common law of Australia in respect of native title … the force of a law of the Commonwealth.’ For present purposes, it is the consideration of the issue concerning the validity of s 12 which is relevant.
[87](1995) 183 CLR 373. The citation to the relevant passage in Colina is to pp 436-7, but this seems to be a typographical error and probably ought to be pp 486-7. The relevant consideration begins at p 484. The passage is correctly cited in McHugh J’s judgment.
All members of the Court agreed that the Commonwealth Parliament could not do that which s 12 purported to do. This was because the common law was not to be found in a text, but rather was ‘evidenced by’ judicial reasons.[88] This meant that the common law could therefore be, or be seen to be, different at different times. Section 12 was invalid because, given the nature of the common law, it either purported to confer legislative power on the courts, or was an enactment without constitutional support under s 51.
[88]Ibid 485 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
In that context six members of the Court said:
A ‘law of the Commonwealth’, as that term is used in the Constitution, cannot be the unwritten law. It is necessarily statute law, for the only power to make Commonwealth law is vested in the Parliament. But the laws of the Commonwealth operate in the milieu of the common law.[89]
[89]Ibid 487.
In the Native Title Act Case, it was held that the expression ‘provisions of the laws of a State’ within the meaning of s 4(1) of the Commonwealth Places (Application of Laws) Act 1970 (Cth) included both statute law and common law. However, the statutory definition of ‘the laws of a State’ in that Act made that clear.
In PGA v The Queen,[90] the High Court cited with approval the analysis of the common law in the Native Title Act Case, and referred in particular to that case as having established that:
[T]he term ‘common law’ might be understood not only as a body of law created and defined by the courts in the past, but also as a body of law the content of which, having been declared by the courts at a particular time, might be developed thereafter and be declared to be different.[91]
[90](2012) 287 ALR 599.
[91]Ibid 606-7 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
Returning to Colina, it is noteworthy that McHugh J, in his analysis, placed some reliance upon Re Nolan; Ex parte Young.[92]
[92](1991) 172 CLR 460 (‘Nolan’).
In Nolan, Mason CJ, Brennan, Dawson and Toohey JJ held that a service tribunal had jurisdiction to hear various charges of using a false instrument to receive more than a serviceman’s true entitlement. In addition to constituting a ‘service offence’ under the Defence Force Discipline Act 1982 (Cth) (‘DFDA Act’), such conduct was also contrary to comparable provisions of the Crimes Act 1914 (Cth). The High Court, by a 4:3 majority upheld the validity of the DFDA Act. Mason CJ and Dawson J did so on the ground that it was open to Parliament to provide that any conduct that constitutes an offence under civil law shall constitute a service offence if committed by a defence member, and shall accordingly be triable by a service tribunal.[93] Brennan and Toohey JJ agreed that the Act was valid, but on the narrower basis that the power conferred by s 51(vi) of the Constitution would extend to punishing defence personnel if such proceedings could be regarded as substantially serving the purpose of maintaining or enforcing service discipline.[94] Deane, Gaudron and McHugh JJ dissented.
[93]Ibid 474.
[94]Ibid 484.
Brennan and Toohey JJ, in the course of their reasoning concluded that the Commonwealth’s power under s 51(vi) of the Constitution to make laws relating to the discipline of the Defence Force could not be exercised so as to ‘override the ordinary criminal law.’[95] That conclusion required their Honours to address the issue of s 109 of the Constitution. In that respect, they said:
The possibility exists that, where service offences created by the Parliament in exercise of the defence power are defined by reference to the definition of offences under the ordinary criminal law of the Australian Capital Territory, service offences will not correspond with offences under the ordinary criminal law of one or more of the States, whether the State offences are created by legislation or by the common law administered by State courts. … If s 109 were to apply, it would be because the Discipline Act is a Commonwealth law and the ordinary criminal law is State law over which the Commonwealth law prevails to the extent of the inconsistency. Were there such an inconsistency, the system of military law would prevail over the system of the ordinary criminal law, not be supplementary to it. Defence members and defence civilians, being subject to the Discipline Act, would not be subject to the inconsistent State law. [96]
[95]Ibid 482.
[96]Ibid 479 (emphasis added).
It might be noted at this point that Brennan and Toohey JJ described offences created both by legislation and by the common law administered by State courts as ‘State offences’. What they characterised as ‘ordinary criminal law’, which they described as ‘State law’, plainly includes the common law.
Having concluded that the Commonwealth could not legislate to override ordinary criminal law, their Honours went on:
The application of this doctrine avoids the possibility, albeit a faint possibility, of unresolved conflict between a substantive provision of the ordinary criminal law (whether Commonwealth law, State law or common law) and a substantive provision of a law creating (whether by the Discipline Act or by regulation) a service offence: the substantive provision of the ordinary criminal law would prevail where simultaneous obedience to both would not be practicable. Thus, if simultaneous obedience to a law prescribing a service offence and a State criminal law were not practicable, the State criminal law would prevail provided that law were itself consistent with Commonwealth laws governing the creation, organization and functions of the Defence Force. To say that a State criminal law of that kind — characteristically, a State criminal law prescribing a general norm of personal conduct — would prevail over a law creating a service offence is not to destroy the operation of s 109 of the Constitution, though it may appear at first sight to do so. Once it is appreciated that the legislative power conferred by s 51(vi) is limited in the relevant respect to the creation of laws which are supplementary to the ordinary criminal law, it can be seen that no law of the Commonwealth can validly create a service offence which is inconsistent with, as distinct from supplementary to, the ordinary criminal law.[97]
[97]Ibid 482-3.
The conclusion to be drawn from this analysis of Colina, and the cases cited therein, is that the meaning of the term ‘law of the Commonwealth’ is dependent on context. In each case, except Jerger, the relevant context was the Constitution. In Jerger, the context was a statute which juxtaposed ‘law of the Commonwealth’ and ‘law of a State’. The reasons why ‘law of the Commonwealth’ has been interpreted as it has cannot be simply transposed to the expression ‘law of a State’, as the applicant’s submission implicitly does. These reasons may not apply to the expression ‘law of a State’, particularly where that term is used in a non-constitutional sense.[98]
[98]In context, the expression ‘law of a State’ will sometimes be confined to enacted law. For example, s 109 of the Constitution provides that ‘[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’. Plainly, the expression ‘law of a State’ in s 109 is confined to enacted law. It would be utterly meaningless to speak of common law being ‘invalid’.
Ansett
The applicant also relies upon Brooking J’s conclusion in Ansett[99] that the expression ‘law of a State or Territory’ referred only to ‘enacted’ law. However, it is clear that Brooking J did not intend to lay down as an absolute rule the proposition that phrases of that nature must always be so limited. His Honour’s conclusion was confined to the words of the section then under consideration, namely s 164 of the Industrial Relations Act 1988 (Cth). So much is evident from his Honour’s detailed discussion of the legislative history of that section and the explanatory memorandum which made it perfectly clear that s 164 was not intended to detract from common law rights. Self-evidently, not all statutes containing a phrase such as ‘law of a State’ will share the same history. Indeed, as we have mentioned, the legislative history of the ACC Act points towards the opposite conclusion to that reached by Brooking J in the particular circumstances of Ansett.
[99][1991] 1 VR 637, 688.
Lipohar
The applicant relies upon Lipohar[100] to establish that the phrase ‘law of a State’ could not ‘encompass the common law because there is a common law of Australia, and not a common law of an (individual) State’.[101] Upon analysis, Lipohar does not require this result.
[100](1999) 200 CLR 485.
[101]See also Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; PGA v The Queen (2012) 287 ALR 599.
One effect of Lipohar is to highlight the position of the High Court at the ‘apex’ of the judicial hierarchy in this country. So much is evident from the following passage in the judgment of Gaudron, Gummow and Hayne JJ:
This Court is placed by s 73 of the Constitution at the apex of a judicial hierarchy to give decisions upon the common law which are binding on all courts, federal, State and territorial. Different intermediate appellate courts within that hierarchy may give inconsistent rulings upon questions of common law. This disagreement will indicate that not all of these courts will have correctly applied or declared the common law. But it does not follow that there are as many bodies of common law as there are intermediate courts of appeal. The situation which arises is not materially different to that which arises where trial judges in different courts or within the same court reach different conclusions on the same point of law.[102]
[102](1999) 200 CLR 485, 505-6.
It should also be noted that their Honours did not see any inconsistency between that position and the fact that every state legislature is competent to amend the common law as it sees fit. They continued:
Nor is it relevant to inquire about the powers of State legislatures to pass laws modifying or abrogating the common law any more than it is relevant to inquire about the powers of the Commonwealth Parliament to do so. Such inquiries are irrelevant because the answers to questions about how rules established by judicial decision may be abrogated or modified by legislative action say nothing about the creation of the rules or their content. So too, the converse question of whether a State legislature has abrogated or modified a common law rule is irrelevant for present purposes. The answers to such questions are silent about whether there are, or can be, rules established by judicial decision that are to remain peculiar to a particular State.[103]
[103]Ibid 507.
Lipohar, in noting that the High Court is at the ‘apex’ of the judicial hierarchy, can be seen as recognising that the common law as applicable in Australia is not determined by the common law of England. At least since the Judicial Committee of the Privy Council ceased to be the ultimate court of appeal for Australia, decisions of English courts as to the content of English common law are useful ‘only to the degree of the persuasiveness of their reasoning’.[104] In this sense, the expression ‘common law of Australia’ signifies a distinction from the ‘common law of England’.
[104]Cook v Cook (1986) 162 CLR 376, 390 (Mason, Wilson, Deane and Dawson JJ).
Nothing in Lipohar stands in the way of a conclusion that the phrase ‘law of a State’ encompasses the common law. Further, it is clear that it is appropriate to describe a concept which is part of the ‘common law of Australia’ as constituting part of the law of a State. Thus, in Momcilovic v The Queen, French CJ said:
The concept of the presumption of innocence is part of the common law of Australia, subject to its statutory qualification or displacement in particular cases. It is therefore part of the law of the State of Victoria.[105]
[105](2011) 245 CLR 1, 51 [53].
The construction of penal statues
We do not consider that the applicant’s reliance upon the principles as to the interpretation of penal statutes set out in Beckwith v The Queen[106] and discussed by this Court in R v Cheetham[107] greatly assists his argument. As Nettle JA (with whom Buchanan and Chernov JJA agreed) explained in Cheetham:
The rule is that when the language of a penal provision is capable of more than one meaning or is vague or cloudy, so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, it ought not be construed as extending any penal category. But, as Gibbs J said in Beckwith v R, the rule is one of last resort. These days, the meaning of a penal statute is to be determined in accordance with the ordinary rules of construction and it is only if the meaning is not thus capable of certain ascertainment that it is necessary to default to the meaning of most limited extension.[108]
[106](1976) 135 CLR 596.
[107](2006) 13 VR 304 (‘Cheetham’).
[108]Ibid 308 (citations omitted).
Having regard to our reasons set out above, there is no basis in our opinion to resort to any principle of construction particular to penal statutes. The ordinary and natural meaning of the words used, the purpose of the ACC Act and its legislative history all point clearly towards the conclusion that we have reached.
The Crown’s notice of contention
Because of the view we have taken on the construction point, we consider it unnecessary to say anything about the notice of contention.
Conclusion
There comes a point at which an issue of statutory interpretation can only sensibly be resolved in one way. The notion that the crime of murder, the most serious offence known to the law in this State, is not an ‘offence against a law of [Victoria]’ is almost breathtaking in its audacity.[109]
[109]While there are no formal limits on the matters a party may raise on an interlocutory appeal, this Court has previously warned that highly complex issues, as for example those that may arise under the Charter of Human Rights and Responsibilities Act 2006 are ordinarily unsuitable for such appeals: Wells v The Queen (No 2) [2010] VSCA 294, [40]. The present case involves a trial that is likely to be relatively short, but has resulted in a three day hearing before the judge below, a full day hearing, and more than a week’s work upon this matter by three members of this Court. It has led to the preparation of an extensive set of written submissions, reference to a vast number of authorities, and the involvement of separate senior and junior counsel seeking leave to appear as amicus on behalf of the ACC. It might therefore be seen, in some respects, as analogous to the very process that was criticised in Wells. It is also worth remembering the comments of Brooking J in DPP Reference No 2 of 1996 [1998] 3 VR 241, 245-6 decrying fragmentation of the criminal justice system. See also M A v The Queen (2011) 31 VR 203, 206 [7]-[10], where Redlich JA (with whom Weinberg and Bongiorno JJA agreed) observed that interlocutory appeals in short trials will not normally warrant a grant of leave. While his Honour’s comments were made in the context of appeals from evidentiary rulings, the paragraphs cited are of more general application.
It is presumed that parliament does not intend ‘absurd’ consequences to flow from the application of its legislation.[110] In this context, ‘absurd’ means ‘contrary to sense and reason’.[111] Bennion identifies six separate types of consequence that might be said to fall within this description. These range from results that are unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, and those giving rise to disproportionate counter-mischief.[112]
[110]Francis Bennion, Bennion on Statutory Interpretation (LexisNexis, 5th ed, 2008) 969.
[111]Ibid.
[112]Ibid.
In rare cases, there may be overriding reasons for applying a construction that produces an absurd result. It may be that parliament really intended such a result. Alternatively, the literal meaning of the language may simply be too strong, and incapable of being overcome by a solid dose of common sense.
The more unreasonable a result, the less likely it is that the legislature intended it. In the present case, the construction for which the applicant contends would, in our view, substantially defeat, or impair, the purpose or object of the ACC Act. It would lead to arbitrary and capricious outcomes. Where, as in this case, an alternative construction is not merely tenable, but entirely reasonable, we should be slow to prefer a construction that serves no apparent purpose, and is at odds with the legislative history.
For the sake of completeness, we note that the ACC sought leave to be heard as amicus in this application. However, leave was refused on the basis that its submissions were almost indistinguishable, in substance, from those filed on behalf of the Crown. There being little of utility that the ACC could add to what the Crown had put, it was considered inappropriate to hear separately from that body.
For these reasons, we consider that although the applicant should be granted leave to appeal, his appeal should be dismissed.
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