Police v Holloway; Police v Vithoulkas - [2013] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HOLLOWAY; POLICE v VITHOULKAS
[2013] SASC 2
Judgment of The Honourable Justice Peek
18 January 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PROCEDURE - COSTS - POWER TO AWARD
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - EXPLANATORY MEMORANDA, PARLIAMENTARY DEBATES AND MATERIALS ETC
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING - GENERAL PRINCIPLES
STATUTES - ACTS OF PARLIAMENT - VALIDITY OF LEGISLATION GENERALLY
Appeals against the quantum of two costs orders in favour of the police made by two Magistrates following the conviction of the two respondents in separate trials.
Whether the literal meaning of s 189A(2), Summary Procedure Act is to limit the quantum of costs orders relating to successful prosecutions by police prosecutors to $100 - whether recourse should be had to the Minister's Second Reading Speech in interpreting s 189A - whether the words in s 189A should be interpreted as meaning that costs orders are not to be so limited.
Held: Appeals dismissed - the literal meaning of the words of s 189A(2) is to require the Court to make a single order for costs which order is to be in the amount of $100 - reference to the Minister's Second Reading Speech was permissible to ascertain the legislative purpose of the amending Act - the plain words of s 189A(2) cannot be altered by reference to a suggested inference that it would be surprising if Parliament intended to limit the amount of money it may garner from a cost saving provision - the Legal Practitioners Act 1981 precludes an award of costs being made in relation to representation by persons other than admitted legal practitioners with the recognised exception that an "appearance fee" may be awarded to police prosecutors - s 189A(2) does not empower a Magistrate to award one appearance fee of $100 and an additional appearance fee calculated on a time basis - further s 189A(3) precludes an award of costs on a time basis since it prevents a Magistrate awarding less than $100 in cases where time costing would indicate a lesser figure - the intention of Parliament as distinct from that of the Minister is further obfuscated by the disallowance of other more radical cost saving amendments between the Second Reading stage and the passage of the amending Bill into law - position reserved as to whether s 189A(3) purports to impose an impermissible fetter on the judicial power of a Magistrate.
Summary Procedure Act 1921 (SA) ss 189, 189A, 189B, 189C, 189D; Statutes Amendment (Budget 2011) Act (Commencement) Proclamation 2011 (SA) s 2(2); Statutes Amendment (Budget 2011) Act 2011 (SA) s 18; Australian Road Rules (Cth) Rule 20; Road Traffic Act 1961 (SA) s 47BA(1)(a); Criminal Law (Clamping, Impounding and Forfieture of Vehicles) Act 2007 (SA) s 12(1)(a)(iii); Acts Interpretation Act 1901 (Cth) s 15AB; Legislation Act 2001 (ACT) ss 141-143; Interpretation Act 1987 (NSW) s 34; Interpretation Act 1978 (NT) s 62B; Acts Interpretation Act 1954 (Qld) s 14B; Acts Interpretation Act 1931 (Tas) s 8B; Interpretation of Legislation Act 1984 (Vic) s 35(b); Interpretation Act 1984 (WA) s 19; Taxation (Administration) Act (NT) ss 4(1), 56N(2)(b); Criminal Law (Sentencing) Act 1988 (SA) ss 15, 16, 17; Magistrates Court Act 1991 (SA) s 42, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; Wellington v Police (2009) 105 SASR 215, applied.
Siganto v The Queen (1998) 194 CLR 656; Cameron v The Queen (2002) 209 CLR 339; Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449; Devine v Solomijczuk (1983) 32 SASR 538; Wacando v Commonwealth (1981) 148 CLR 1; Owen v South Australia (1996) 66 SASR 251; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Burch v South Australia (1998) 71 SASR 12; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Catlow v Accident Compensation Commission (1989) 167 CLR 543; Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (2004) 88 SASR 419; Regional Director of Education v International Grammar School Sydney Ltd (1986) 7 NSWLR 302; Police v Patterson [2012] SASC 182; Bell v Police [2012] SASC 188, discussed.
Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; James Hardie & Co Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Kelly v Noumenon Pty Ltd (1988) 47 SASR 182; Moore-McQuillan v South Australian Police (No 2) [2000] SASC 69; Willing v Hollobone (1972) 3 SASR 532; Singh v Commonwealth (2004) 222 CLR 322; Al-Kateb v Godwin (2004) 219 CLR 562; Coleman v Power (2004) 220 CLR 1; Byrnes v Kendle (2011) 243 CLR 253, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"appearance fee" and "an order"

POLICE v HOLLOWAY; POLICE v VITHOULKAS
[2013] SASC 2
Magistrates Appeal

PEEK J. Prosecution appeals against quantum of costs orders.
Introduction
These are two prosecution appeals against the separate orders of two Magistrates each restricting the quantum of costs orders in favour of the police to $100 following the conviction of the two respondents in their respective trials. The appellant’s position is that in a significant number of recent cases in the Magistrates Court, some Magistrates (including the present two Magistrates) have interpreted the Summary Procedure Act 1921 (the Act) as amended by s 18, Statutes Amendment (Budget 2011) Act 2011 (the 2011 amendments)[1] as now limiting the quantum of costs orders in relation to matters successfully prosecuted by police prosecutors to $100.[2] These two appeals are said to be representative of such cases and raise the common question of the correctness of that interpretation.
[1] Operation commenced on 1 July 2012: Statutes Amendment (Budget 2011) Act (Commencement) Proclamation 2011 s 2(2).
[2] Section 189A(2) refers to the possibility of an amount being prescribed by regulation for the purposes of this subsection but no such regulation has been enacted.
I consider that the interpretation adopted by the Magistrates in these two cases is correct and the appeals will each be dismissed. My reasons follow.
Police v Holloway
The first respondent, Mr Holloway, was convicted on 31 August 2012 after a trial lasting less than a day in which he pleaded not guilty to driving a motor vehicle in excess of the prescribed speed limit contrary to Rule 20, Australian Road Rules. The Magistrate convicted the respondent and imposed a fine of $371 plus the victims of crime levy. The police applied for an order for costs in the amount of $550. The Magistrate awarded prosecution costs in the amount of $100 only.
Police v Vithoulkas
The second respondent, Mr Vithoulkas, was convicted on 31 August 2012 after a trial lasting less than a day in which he pleaded not guilty to driving a motor vehicle, namely a Kenworth prime mover, on a road while there was present in his oral fluid a prescribed drug, contrary to s 47BA(1)(a), Road Traffic Act 1961. The Magistrate convicted the respondent, imposed a fine of $1,500 plus the victims of crime levy, disqualified the second respondent from holding or obtaining a drivers’ licence for 12 months and ordered him to pay the $874 impounding fee.[3] The police applied for an order for costs for the trial and the pre-trial conference, in an amount greater than $100. The Magistrate awarded prosecution costs in the amount of $100 only.
[3] Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007.
The grounds of appeal
The police appeal against each of the two costs orders dated 31 August 2012. The ground of appeal in each case is:
1.The Learned Magistrate interpreted section 189A of the Summary Procedure Act 1921 as placing a cap of $100 on the amount of costs that could be awarded to the appellant police. The Learned Magistrate’s interpretation of section 189A was wrong in law in that the section is not intended to confine the amount in costs that a court may award the police.
Lack of a contradictor
It is a little unfortunate that the police have selected these two particular cases as representative appeals. In the first appeal, the respondent, Holloway, was unrepresented at a trial which was very short and concerned a minor speeding offence. It was always highly unlikely that he would be represented on this appeal and so it has transpired. He appeared and actively opposed the appeal but was unable to give the Court any significant assistance. In the second appeal, the respondent, Vithoulkas, was represented at a trial which concerned a more serious driving charge but it was always highly likely that he would be unrepresented on this appeal because the quantum of costs in dispute, from a commercial point of view, did not make it worth his while to instruct counsel to appear on the appeal. Again, so it has transpired, with the second respondent simply advising that he would abide the outcome of the appeal (but of course not conceding the appeal). He was perfectly within his rights in taking that course and was always likely to.
I therefore do not have the benefit of argument by counsel against the propositions advanced by the appellant, but I can imagine some of the points that might have been made. I will have to do my best in the circumstances.
The statutory costs regime in the Magistrates Court
The awarding of costs in summary criminal trials in the Magistrates Court is governed by s 189, Summary Procedure Act 1921. Up until the enactment of the 2011 amendments, the types of matters in which costs orders could be made were stipulated but the Courts’ traditional discretion as to the making of such an order, and in what amount, was not fettered.
I should add for completeness that the separate matter of certification and payment of witness fees and expenses was, and continues to be, dealt with under s 190 of the Act and the Summary Procedure (Witness Fees) Regulations 2007. Under Regulation 3, the lesser of the amount actually lost through absence from work or $100 is specified but no amount is to be certified in respect of a witness who is an officer or employee of the State or Commonwealth, including a police officer, unless he or she is on leave at the time of attendance at court.
However, the 2011 amendments brought a significant change and while s 189A(2) is the important provision it is best to set out the whole of s 189 and 189A to 189D as they now appear:
189—Costs generally
Subject to sections 189A to 189D (inclusive), the Court may award such costs for or against a party to proceedings as the Court thinks fit.
189A—Costs payable by defendant in certain criminal proceedings
(1)     This section does not apply to—
(a)a defendant who enters a written plea of guilty in accordance with section 57A; or
(b)an enforcement procedure under section 13 of the Expiation of Offences Act 1996.
(2)     If the Court finds a defendant guilty in proceedings for an offence prosecuted by a police officer, the Court must, subject to subsection (3), make an order for costs against the defendant for—
(a)if an amount is prescribed by regulation for the purposes of this subsection—the prescribed amount; or
(b)     if no such amount is prescribed—$100.
(3)     If the prosecution agrees that an order under subsection (2) should not be made, the Court may instead make some other order as to costs (or may make no order as to costs).
189B—Costs in preliminary examination
Despite any other provision of this Part, costs will not be awarded against a party to a preliminary examination of an indictable offence unless the Court is satisfied that the party has unreasonably obstructed the proceedings.
189C—Costs against complainant in proceedings for restraining order
(1)Despite any other provision of this Part, costs will not be awarded against a complainant in proceedings for a restraining order unless the Court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings.
(2)     In this section—
complainant, in relation to a restraining order, includes an applicant for a restraining order;
restraining order includes a domestic violence restraining order under the Domestic Violence Act 1994 and an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009.
189D—Costs—delay or obstruction of proceedings
(1)If proceedings are delayed through the neglect or incompetence of a legal practitioner, the Court may—
(a)     disallow the whole or part of the costs as between the legal practitioner and his or her client (and, where appropriate, order the legal practitioner to repay costs already paid);
(b)     order the legal practitioner to indemnify his or her client or any other party to the proceedings for costs resulting from the delay;
(c)     order the legal practitioner to pay to the Principal Registrar for the credit of the Consolidated Account an amount fixed by the Court as compensation for time wasted.
(2)If proceedings are delayed through the neglect or incompetence of a prosecutor who is not a legal practitioner, the Court may order the Crown, or, where the prosecution is brought on behalf of a body that does not represent the Crown, that body, to indemnify any party to the proceedings for costs resulting from the delay.
(3)If proceedings are unreasonably obstructed by a party or a witness, or proceedings are delayed through the failure of a party or a witness to appear before the Court when required to do so, the Court may make either or both of the following orders:
(a)     an order that the party or witness indemnify any party for costs resulting from the obstruction or delay;
(b)     an order that the party or witness pay to the Principal Registrar for the credit of the Consolidated Account an amount fixed by the Court as compensation for time wasted in consequence of the obstruction or delay.
(4)Before making an order under subsection (1), (2) or (3), the Court must inform the person against whom the order is proposed of the nature of the proposed order and allow that person a reasonable opportunity to give or call evidence and make representations on the matter.
(5)A person against whom an order for costs is made under subsection (1), (2) or (3) has the same rights of appeal as a party to a civil action.             (Emphasis added)
The literal meaning of the Act
In my view, the literal meaning of the Act is that in any proceedings for an offence prosecuted by a police officer, if the Court finds the defendant guilty:
·the Court must make an order for costs against the defendant;
·the amount of that costs order must be “the prescribed amount” or, if no such amount is prescribed, $100;
·the amount of that costs order may only be varied if the police agree to a lesser amount; and
·by necessary implication, the amount of that costs order cannot be more than “the prescribed amount” or, if no such amount is prescribed, cannot be more than $100.
In other words, the section plainly requires the Court “to make an order for costs” and the quantum of that order is required to be $100. The words of the Act are clear: there is to be an order (and not in some cases two orders) and the amount of an order is to be $100 (and not in some cases $100 plus the amount of another order).
This interpretation closely conforms with the principle that a person should not be penalised for exercising his right to a trial in that this interpretation of the legislation treats all defendants adjudged to be guilty on an equal footing so far as awards of costs are concerned. The principle that a defendant should not be penalised for having insisted on his or her right to trial was clearly enunciated by the High Court in Siganto v The Queen where Gleeson CJ Gummow, Hayne and Callinan JJ there stated: [4]
A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation …
[4] (1998) 194 CLR 656, 663.
And in Cameron v The Queen, Gaudron, Gummow and Callinan JJ stated: [5]
[12]Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial. The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.
[5] (2002) 209 CLR 339, 343.
Of course, these statements were made in the context of discussion of sentencing discounts but it must also be remembered that it was not until quite recently that costs could be awarded against a defendant charged with a minor indictable offence in the Magistrate Court (rather than an offence on complaint) at all and even today there is no power to make an award of costs against a criminal defendant in relation to a major indictable offence in the Magistrate Court, District Court or Supreme Court.
The meaning contended for by the appellant – permissible reference to extrinsic materials
The appellant submits that s 189A(2) should be construed as meaning that the amount of $100 is in the nature of an “appearance fee” payable by every defendant found guilty and that the police may apply for an additional “order for costs” in cases where the time spent in Court would justify a greater award than $100. The appellant seeks to rely on the Minister’s Second Reading Speech to support that suggested interpretation of the legislation.
The original approach of the courts to the use of extrinsic materials
In South Australia, the use of extrinsic materials (such as Second Reading Speeches) by the courts in interpreting statutes is governed by the common law whereas in every other State and Territory the position is regulated by legislation.[6] The reference to extrinsic materials for the purpose of statutory interpretation has been a relatively recent development in the common law with the original approach being that such materials were strictly inadmissible for any purpose.[7] In 1977, Mason J stated in Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd:[8]
We are left then with the traditional rule that the courts will not look to proceedings in Parliament or to parliamentary debates as an aid to the construction of a statute (South Australia v The Commonwealth;[9] Beswick v Beswick[10]). The subsequent observations of Lord Reid in Warner v Metropolitan Police Commissioner[11] in which his Lordship says “The rule is firmly established that we may not look at Hansard ... ” acknowledge the existence of the rule and, as I understand them, go on to suggest that the law might be reformed so as to provide for “an exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other”.
The traditional rule is so firmly entrenched that the courts should not depart from it, notwithstanding that it may in isolated cases produce unintended results. It is, I think, peculiarly a matter for Parliament to decide whether there should be an alteration in the means by which the courts ascertain Parliament’s legislative intention and whether the courts should, in construing a statute, have recourse to what is said in the course of parliamentary debates upon a Bill and, if so, to what extent that recourse should be had.
[6] See Acts Interpretation Act 1901 (Cth) s 15AB; Legislation Act 2001 (ACT) ss 141-143; Interpretation Act 1987 (NSW) s 34; Interpretation Act 1978 (NT) s 62B; Acts Interpretation Act 1954 (Qld) s 14B; Acts Interpretation Act 1931 (Tas) s 8B; Interpretation of Legislation Act 1984 (Vic) s 35(b); Interpretation Act 1984 (WA) s 19.
[7] Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449, 457 (Barwick CJ), 461-462 (Gibbs J), 470 (Stephen J), 477 (Mason J); Devine v Solomijczuk (1983) 32 SASR 538, 541 (Mitchell J), 545 (Zelling J).
[8] (1977) 139 CLR 449, 477.
[9] (1942) 65 CLR 373, at pp 409-410, 439, 460.
[10] [1968] AC 58, at pp 73-74.
[11] [1969] 2 AC 256, at p 279

In 1983, in Devine v Solomijczuk, Mitchell J held: [12]
In my opinion The South Australian Commissioner of Prices and Consumer Affairs v Charles Moore Aust Ltd[13] is clear authority for the proposition that the speech is not available for us to use even for the limited purpose which Mr Wells suggested, namely that of deciding the mischief which the amendment sought to rectify.
[12] (1983) 32 SASR 538, 541. Zelling J’s judgment was to the same effect. I refer to the dissenting judgment of Cox J below.
[13] (1977) 14 ALR 485
However, in more recent times a different approach towards the consideration of extrinsic materials has developed in the High Court,[14] the Federal Court[15] and State courts.[16] This evolved largely in tandem with, and even slightly predating, the eventual passage (other than in South Australia) of the various Australian provisions as to reference to extrinsic materials noted above.[17] As the learned authors of Halsbury’s Laws of Australia state:[18]
The more recent acceptance by the court that the purpose of the statute and context should be taken into account when determining the ordinary meaning of words found in the statute, only slightly predated the recent changes to the interpretation legislation in most Australian jurisdictions to much the same effect. The legislation in most Australian jurisdictions has gone further and listed a number of items, extrinsic to the statute, able to be consulted by the court where there is doubt or ambiguity as to the meaning of statutory provisions. Since the commencement of that trend, the general law has also moved towards relaxing the strict exclusionary rule and now allows certain materials to be consulted by the court. This is particularly relevant in South Australia, where the rule has not been altered by legislative provision. [Footnotes omitted]
[14] Wacando v Commonwealth (1981) 148 CLR 1, 25-27; Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355, 373-374 (Mason J); Barker v The Queen (1983) 153 CLR 338, 346 (Mason J).
[15] TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496, 507-508.
[16] See Fairfield Municipal Council v McGrath [1984] 2 NSWLR 247, 250 (Glass JA; Hurtley JA agreeing); Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220, 223 (Kirby P); Ex parte Solicitors’ Board of Queensland [1979] Qd R 133; Estate of Kelly; Duggan v Hallion (1983) 34 SASR 370, 379-380 (Zelling J).
[17] Above at footnote 6.
[18] LexisNexis, Halbury’s Laws of Australia, vol 24 (at 5 January 2011) 385 Statutes, ‘2 Interpretation and Construction’ [385-325]. See also R S Geddes, ‘Purpose and Context in Statutory Interpretation’ (2005) 2 University of New England Law Journal 5, 6: “In parallel with the formal changes enacted by the legislatures, the courts, led by the High Court, have brought about changes at common law that in some respects have gone further than those made by the legislatures”.
Thus, as early as 1981, in Wacando v Commonwealth,[19] Mason J suggested:
Generally speaking, reference cannot be made to what is said in Parliament for the purpose of interpreting a statute. But in my opinion there are grounds for making an exception for the case where a bill is introduced to remedy a mischief. Then, to have regard to the purpose for which the legislation was enacted as stated by the Minister in charge of the bill would conform to the rule that extrinsic material is admissible to show the mischief which the statute is designed to remedy. (Emphasis added)
[19] (1981) 148 CLR 1, 25-27; See also Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355, 373-374 (Mason J).
This approach was then already gaining ground in South Australia in 1983. In Devine v Solomijczuk,[20] Cox J stated in his dissent on this issue:
There is no doubt that, as a general rule, it is not permissible to have regard to the debates in Parliament as an aid to the construction of a statute (Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd), but there is some authority for the view that an exception may be made, at least in some circumstances, where it is a matter of referring to the statement of the Minister in charge of a Bill as evidence of the mischief which the Bill was designed to remedy. See the judgments of Mason J in Wacando v Commonwealth[21] and Commissioner of Taxation v Whitfords Beach Pty Ltd and the joint judgment of Bowen CJ, Lockhart and Ellicott JJ, of the Federal Court, in TCN Channel Nine Pty Ltd v Australian Mutual Provident Society. (Emphasis added)
[20] (1983) 32 SASR 538, 541.
[21] (1981) 56 ALJR 16, at pp 25-26.
In 1984, s 15AB was inserted into the Commonwealth Acts Interpretation Act 1901. That provision relevantly provides:[22]
[22] See also Legislation Act 2001 (ACT) ss 141-143; Interpretation Act 1978 (NSW) s 34; Interpretation Act 1987 (NT) s 62B; Interpretation of Legislation Act 1984 (Vic) s 35; Interpretation Act 1984 (WA) s 19.
15AB Use of extrinsic material in the interpretation of an Act
(1)     Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)     to determine the meaning of the provision when:
(i)    the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
In Owen v South Australia,[23] Cox J noted the abovementioned developments and stated:[24]
I have no doubt, for the reasons that have generally prevailed in other places since Devine v Solomijczuk was decided, that that case should now be regarded as having been overruled or, preferably perhaps, superseded in this respect. It is permissible to look at the Minister’s Second Reading Speech on the 1995 amendment to s 20 of the Truth in Sentencing Act in order to identify the purpose of the amendment.
[23] (1996) 66 SASR 251 (Prior J concurred with Cox J; Olsson J did not express an opinion)
[24] Owen v South Australia (1996) 66 SASR 251, 256.
In 1997, the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (CIC Insurance) noted a definitive change in the common law quite apart from legislative developments:[25]
It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure.[26] Moreover, the 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.[27] 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,[28] 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.[29] (Emphasis added)
[25] (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); See also Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 112 (McHugh J).
[26] Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg [1975] UKHL 2; [1975] AC 591 at 614, 629, 638; Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1 at 25-26; Pepper v Hart [1992] UKHL 3; [1993] AC 593, 630.
[27] Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309, 312, 315.
[28] (1986) 6 NSWLR 363, 388.
[29] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 320-321.
In Burch v South Australia,[30] Cox J relying upon CIC Insurance,[31] held that the common law does not require that there be an ambiguity in the text of an Act before a court can have regard to extrinsic materials as an aid to its construction. His Honour stated:[32]
There is nothing in this statement of principle that would make the application of the mischief rule conditional upon an ambiguity in the text of the Act when taken at face value, but until quite recently the rule was usually applied in that restrictive way. However, it is clear that the restriction has now been discarded.
[30] (1998) 71 SASR 12.
[31] (1997) 187 CLR 384.
[32] Burch v South Australia (1998) 71 SASR 12, 17. Lander and Bleby JJ agreed with Cox J
The distinction between the purpose of an Act and the meaning of particular provisions of the Act
Superimposed upon the above evolutionary process is the continuing and constant distinction between the mischief being addressed or the purpose of an Act (on the one hand) [33] and the meaning of particular words in particular sections of the Act (on the other hand). Traditionally, resort to extrinsic materials has only been permitted to determine the mischief or purpose of the Act, and not to establish Parliament’s intention in relation to the meaning of particular words in particular sections of the Act. As Bleby J observed in Burch v South Australia,[34] citing the principle derived from CIC Insurance:[35]
… [I]t is clear that the only purpose in looking at the Minister’s Second Reading Speech is to ascertain the mischief that the Act was intended to cure. It does not mean that one can have regard to the second reading speech in order to ascertain what Parliament intended certain words to mean. Nor did it mean that once the mischief has been ascertained, the words must be strained in their meaning and context to give effect to the identified mischief. Reference to the Second Reading Speech provides no more than an indicator of what Parliament hoped to achieve. It does not follow that Parliament’s hope has necessarily borne fruit.
[33] For completeness, there was previously a distinction between looking at extrinsic material in order to identify the mischief being addressed (which was permissible) and the purpose of the Act (which was impermissible). While it could be said that discovery of the mischief involves a more limited inquiry than ascertainment of purpose or object, there is a great deal of overlap and, although one may still detect echoes of that distinction, it is no longer of great importance.
[34] (1998) 71 SASR 12, 39.
[35] (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
This distinction is adhered to in the above cases which consistently refer to ascertaining the mischief at which an Act is directed or the general legislative intention or purpose.[36] Geddes and Pearce sum up the matter thus:[37]
It would be inconsistent with the CIC Insurance principle to start an interpretive task with the contextual materials, relegating the enacted words to a secondary role. ...
The fundamental task of a court is to interpret and apply the words of the legislation. It is not permitted to give effect to ministerial intent as expressed in reports of parliamentary debates at the expense of the enacted words.
[36] Wacando v Commonwealth (1981) 148 CLR 1, 25-27 (Mason J); Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355, 373-374 (Mason J); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 112 (McHugh J); James Hardie & Co Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53, 76-77 (Kirby J).
[37] D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 7^th ed, 2011) 75, 78.
Thus, in 1987 in Re Bolton; Ex parte Beane,[38] Mason CJ, Wilson and Dawson JJ formulated the position as follows:
The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law. (Emphasis added)
[38] (1987) 162 CLR 514, 518.
And in 1989 in Catlow v Accident Compensation Commission,[39] Brennan and Gaudron JJ stated in their joint judgment:
Whether or not extrinsic material is considered in interpreting a statutory provision, it is clear that the meaning attributed to the statute must be consistent with the statutory text. If the meaning which would otherwise be attributed to the statutory text is plain, extrinsic material cannot alter it. It is only when the meaning of the text is doubtful (to use a neutral term rather than those to be found in s 15AB (1) of the Acts Interpretation Act), that consideration of extrinsic material might be of assistance. It follows that it would be erroneous to look to the extrinsic material before exhausting the application of the ordinary rules of statutory construction. If, when that is done, the meaning of the statutory text is not doubtful, there is no occasion to look to the extrinsic material. (Emphasis added)
[39] (1989) 167 CLR 543, 550.
Again in 2006 in Nominal Defendant v GLG Australia Pty Ltd,[40] Gleeson CJ, Gummow, Hayne and Heydon JJ held: “The words of the statute, not non-statutory words seeking to explain them, have paramount significance”.[41] Kirby J expanded on those matters thus:[42]
[82]This Court has repeatedly insisted that the Second Reading and other speeches in Parliament may only be used to throw light on the meaning of legislative words, to the extent that such speeches are sustained by the legislative text as subsequently adopted.[43] It is in the nature of parliamentary speeches that they commonly lack the precision of statutory language. They can sometimes be motivated by forensic and political factors. They occasionally stray into hyperbole. The rule of law requires that this Court give effect to the purpose of Parliament expressed in the law made by or under an enactment.[44] It is not part of a court’s function, as such, to give effect to parliamentary speeches, ministerial media releases or other informal statements unless, validly, they have the specific endorsement of a parliamentary enactment. Saying this is not to discourage the proper use of such materials. It is simply to insist on the primacy of the enacted law.
[40] (2006) 228 CLR 529, 538.
[41] Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529, 555 [22].
[42] Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529, 555.
[43] Re Bolton; Ex parte Beane (1987) 162 CLR 514, 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 459; Wik Peoples v Queensland (1996) 187 CLR 1, 169; Leask v The Commonwealth (1996) 187 CLR 579, 634; Byrnes v The Queen (1999) 199 CLR 1, 34 [80]; Mann v Carnell (1999) 201 CLR 1, 45 [143]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 95 [132]; The Commonwealth v Yarmirr (2001) 208 CLR 1, 117 [261]; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, 499 [55].
[44] Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 459.
More recently, in 2009 in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (Alcan), Hayne, Heydon, Crennan and Kiefel JJ stated: [45]
[47]This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.[46] Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[47] The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[48] …
[45] (2009) 239 CLR 27, 46-47.
[46] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 77 [9] per Gaudron, Gummow, Hayne and Callinan JJ; 89 [46] per Kirby J; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193, 206 [30] per Gleeson CJ, Gummow, Hayne and Heydon JJ; 240-241 [167]-[168] per Kirby J; Carr v Western Australia (2007) 232 CLR 138, 143 [6] per Gleeson CJ; Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562, 586 [85] per Kirby and Crennan JJ; Northern Territory v Collins (2008) 235 CLR 619, 642 [99] per Crennan J.
[47] Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529, 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ; 555-556 [82]-[84] per Kirby J. See also Combet v The Commonwealth (2005) 224 CLR 494, 567 [135] per Gummow, Hayne, Callinan and Heydon JJ; Northern Territory v Collins (2008) 235 CLR 619, 642 [99] per Crennan J.
[48] Hilder v Dexter [1902] AC 474, 477-478 per Earl of Halsbury LC.
French CJ stated to similar effect:[49]
[4]The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill[50] as: “dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.” In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.[51]
[5]… The Interpretation Act (NT) has no equivalent of s 15AB(3) of the Acts Interpretation Act 1901 (Cth) (“the Commonwealth Interpretation Act”), which requires regard to be had to “the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act”. Despite the lack of such a provision in the Interpretation Act (NT), the established common law approach, which begins with the ordinary grammatical meaning of the text having regard to context and purpose, applies to like effect. …
[49] (2009) 239 CLR 27, 31-32.
[50] (1991) 172 CLR 319, 340.
[51] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 per Brennan CJ, Dawson, Toohey and Gummow JJ, particularly authorities referred to in fns 82 and 83.
More recently still in 2010, French CJ, Gummow, Hayne, Crennan and Kiefel JJ in Saeed v Minister for Immigration and Citizenship, stated: [52]
[31]… Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
…
[33]… As was pointed out in Catlow v Accident Compensation Commission[53] it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction.
[52] (2010) 241 CLR 252 citing Catlow v Accident Compensation Commission (1989) 167 CLR 543, 550 (Brennan and Gaudron JJ).
[53] (1989) 167 CLR 543, 550 per Brennan and Gaudron JJ.

While some of the above comments were made in the context of s 15AB(1), Acts Interpretation Act 1901, or its State equivalent, they are equally applicable to the common law principles in this area since they are directed at the same inquiry. Thus, Geddes and Pearce state:[54]
Although the remarks of Mason CJ, Wilson and Dawson JJ in Re Bolton were made with particular reference to the words of a Minister of the Commonwealth, they are equally applicable to second reading speeches admitted in reliance on s 15AA or its state or territorial equivalents or on the basis of principles derived from the common law. ...
[54] D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 7^th ed, 2011) 90.
Similarly, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT), French CJ stated: [55]
[5]The provisions of the Interpretation Act (NT) as they stood at the time of the relevant transactions have to be taken into account. Section 62A of the Interpretation Act (NT) requires a construction promoting the purpose or object underlying the statute to be preferred to a construction that does not do so. Section 62B authorises recourse to extrinsic materials in the interpretation of statutes. The Interpretation Act (NT) has no equivalent of s 15AB(3) of the Acts Interpretation Act 1901 (Cth) (the Commonwealth Interpretation Act), which requires regard to be had to “the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act”. Despite the lack of such a provision in the Interpretation Act (NT), the established common law approach, which begins with the ordinary grammatical meaning of the text having regard to context and purpose, applies to like effect. The Court of Appeal in this case construed the Act by reference to an imputed legislative intention reflecting a revenue-maximising approach to taxing statutes which paid insufficient regard to the clear words of the Act.
[55] (2009) 239 CLR 27, 31.
Gerah Imports Pty Ltd v Duke Group Ltd (in liq)
Counsel for the appellant cited Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (Gerah)[56] for the proposition that the courts “can have regard to Second Reading Speeches [to identify the legislative purpose of a provision] even if it is the case that the words of the section are on their face plain and unambiguous”.[57]
[56] (2004) 88 SASR 419.
[57] Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (2004) 88 SASR 419, [32].
I agree that the courts are not precluded from even looking at a Second Reading Speech by the making of a submission by a party that the words in question are so clear that such resort is simply prohibited. If that is all that is contended here, I think that this has been established for some time, probably by the time of the decision of the High Court in CIC Insurance[58] and certainly for South Australia by the time of the decision in Burch v South Australia.[59]
[58] (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); See also Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 112 (McHugh J).
[59] (1998) 71 SASR 12. To refer to more recent authority, in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 521-522 [52] French CJ stated: “At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes ‘the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy’”.
However, to proceed from this premise to the appellant’s broader submissions without reference to the various statements of the High Court both before and since the decision in Gerah would be to run the risk of tripping and falling down a slippery slope indeed. For, as those decisions of the High Court emphasise, what the Courts must not do is interpret words in a particular section of an Act that otherwise have a clear meaning in a different and strained way so as to make them more effective in carrying out a supposed overall purpose of the legislation discerned from a Second Reading Speech.
Discussion
In the present case, counsel for the appellant referred me to the Minister’s Second Reading Speech, which, it is to be noted, addressed the original Bill which also contained proposed amendments substantially restricting the making of costs awards in favour of defendants against the police; those proposed amendments were in fact rejected by the Parliament.[60]
[60] I will revert to this aspect later.
Counsel emphasised the following passage which related to the amendments which were passed:[61]
This Bill will further amend the Summary Procedure Act 1921 to introduce a court enforcement fee for police appearances at court.
Currently, the South Australia Police may be awarded a $25 appearance fee for each court file finalised by a guilty plea or finding.
From 1 July 2012, this fee will be replaced with a $100 court enforcement fee awarded at the time a defendant is found guilty in court. The fee would not apply where a defendant pleads guilty in writing without the need for any court hearing.
This initiative will provide estimated savings of $13.4 million over three years from 2012 - 13 which will assist in meeting the cost of prosecution.
[61] South Australia, Parliamentary Debates, House of Assembly, 9 June 2011, 4138-4140 (Jack Snelling, Treasurer).
On the basis of this passage, counsel submitted that a purpose of the bill was to increase revenue derived from costs orders made against defendants who are found guilty of offences and thus to provide “savings” in the cost of police prosecutions. Based on this premise, counsel submits that it could not have been the intention of Parliament to restrict costs to $100 where a matter might involve a not guilty plea which necessitates a number of pre-trial conferences and eventually a trial.
In my opinion, there are a number of impediments to this approach. In overview, they are as follows.
·First, the meaning contended for by the appellant is not the literal meaning and requires a substantial rewording of the Act.
·Second, the Minister’s speech manifests confusion by his advisers as to the nature and place of the concept of a “Court enforcement fee” within the system of the awarding of costs in the Magistrate Court.
·Third, the limitations in using the Minister’s Second Reading Speech in interpreting the meaning of particular words of the legislation (as distinct from the general purpose of the legislation and the mischief it addresses) are even greater in the present case due to the particular history of the passage of this legislation through Parliament.
·Fourth, the explanation given by the Minister in the Second Reading Speech is equivocal as to whether the literal meaning of s 189A leads to a diminution in revenue as compared with the position prior to the 2011 amendments.
I will deal with these matters in that order.
The meaning contended for by the appellant is not the literal meaning and requires a substantial re-wording of the Act
I have referred to the literal meaning of the provision above. One way of addressing the submissions of the appellant is to ask: What are the words that would have to be notionally added to the section in order to give rise to the meaning for which the appellant contends? One suggestion might be the addition of the following words in emphasis:
(2) If the Court finds a defendant guilty in proceedings for an offence prosecuted by a police officer, the Court must, subject to subsection (3), make an order for costs against the defendant for—
(a)If an amount is prescribed by regulation for the purposes of this subsection— a minimum of the prescribed amount; or
(b) If no such amount is prescribed— a minimum of $100.
(3) If the prosecution agrees that an order under subsection (2) should not be made, the Court may instead make some other order as to costs (or may make no order as to costs). (Emphasis added)
When looked at in this way, it can clearly be seen that a requirement to order costs in the fixed (and therefore maximum) amount of $100 is very different to a requirement to order costs in a minimum amount of $100. The effect of the authorities is that the latter different meaning cannot be substituted simply because it is thought to be in the financial interest of the State to do so.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)
The case of Alcan[62] is particularly instructive in this respect. The High Court there was concerned with a disputed assessment of stamp duty. The main question was whether the exclusion of “an option to renew a lease” in the definition of “lease” in s 4(1), Taxation (Administration) Act precluded such an option being taken into account when assessing the value of a lease as “land” for the purposes of provisions dealing with the levying of duty on companies whose total value, to the extent of 60 per cent or more, was comprised of “land”.[63] The definition was subject to the words “unless the contrary intention appears”.
[62] (2009) 239 CLR 27.
[63] It was common ground that without the inclusion of the value of the option to renew the 60 per cent threshold would not be met.
The Northern Territory Court of Appeal had held that “a contrary intention” did appear in that the legislative history of the Act revealed that the purpose of the amendments was to increase the capacity of the Northern Territory to raise revenue through the imposition of stamp duty and that therefore the common law definition of a “lease” which included the valuable option to renew should be preferred. The High Court allowed an appeal against this decision, finding that no such contrary intention arose from the words of the statute. The plurality judgment (Hayne, Heydon, Crennan and Kiefel JJ) approached the matter in the following steps.
First, the literal meaning of s 56N(2)(b), taken together with the relevant definitions from s 4(1), was that the value of the right to renew would not be included, and that such literal meaning could not be dismissed as “an absurd result of the kind referred to in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation[64]”.[65]
[64] (1981) 147 CLR 297.
[65] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46 [45] (Hayne, Heydon, Crennan and Kiefel JJ).
Second, statutory construction must begin with a consideration of the text itself. Their Honours stated:
[47]This Court has stated on many occasions that Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[66] The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[67] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision,[68] in particular the mischief[69] it is seeking to remedy.
[66] Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ; 555-556 [82]-[84] per Kirby J. See also Combet v The Commonwealth (2005) 224 CLR 494, 567 [135] per Gummow, Hayne, Callinan and Heydon JJ; Northern Territory v Collins (2008) 235 CLR 619, 642 [99] per Crennan J.
[67] Hilder v Dexter [1902] AC 474, 477-478 per Earl of Halsbury LC.
[68] Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 per Dixon CJ, quoted with approval in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] per McHugh, Gummow, Kirby and Hayne JJ.
[69] Heydon's Case (1584) 3 Co Rep 7a, 7b [76 ER 637, 638].
Third, their Honours rejected the respondent’s first argument that the ordinary meaning of the provisions was that the value of the right to renew was included on the basis that it attempted to give the words “a meaning quite different from their ordinary and natural meaning”.[70]
[70] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 47 [48] (Hayne, Heydon, Crennan and Kiefel JJ).
Fourth, as to the argument that the definition did not apply in its terms because “a contrary intention” appeared, the Court noted that the Court of Appeal had relied upon the fact that “over the years the Northern Territory legislature had consistently increased its capacity to raise revenue”.[71] The plurality judgment emphasised that reliance upon such matters was impermissible in circumstances where the meaning of the particular provision(s) was clear and “the effect of that approach is to impute erroneously a statutory intention which destroys the effect of a clearly expressed definition”.[72] Thus their Honours stated:
[50]In the Court of Appeal, Martin (BR) CJ (with whom Angel and Southwood JJ agreed) observed: Such considerations underpinned his Honour’s conclusion that Div 8A operates independently of the definitions in s 4(1) because there is no reason to suppose that the legislature intended to reduce its capacity to raise revenue by excluding an option to renew a lease from the definition of “land”.
[51]Fixing upon the general legislative purpose of raising revenue carried with it the danger that the text did not receive the attention it deserves. This danger was adverted to by Gleeson CJ in Carr v Western Australia[73] when he said:
[I]t may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.
[52]There is nothing express in the text of relevant parts of the Act, as enacted, or in amendments made to the Act in 1979[74] or in 1987[75] which supports the Commissioner’s contention, upheld in the Court of Appeal, that the definition of “lease” in the legislation did not apply when dealing with a “conveyance” of a lease. As can be seen from the extracts set out above, essentially the Court of Appeal’s reasoning was not based on the text, but on an inference that the text would not apply because it would be surprising if the legislature intended to sever from a lease something which contributed to its value on a conveyance.[76] However, in terms, the definition of “lease” in the Act, as amended over time, was always capable of applying both to the grant of a lease and to the conveyance of a lease. Relevant amendments to the Act up to and including the 2000 amendments were all assessed by the Court of Appeal by reference to a generally ascertained intention to amend the legislation to increase the revenue rather than by reference to the express terms of the Act. The effect of that approach is to impute erroneously a statutory intention which destroys the effect of a clearly expressed definition.
[71] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 47 [50] (Hayne, Heydon, Crennan and Kiefel JJ).
[72] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 47 [52] (Hayne, Heydon, Crennan and Kiefel JJ).
[73] (2007) 232 CLR 138, 143 [6].
[74] Taxation (Administration) Act 1979 (NT).
[75] Taxation (Administration) Amendment Act 1987 (NT).
[76] Commissioner of Territory Revenue v Alcan (NT) Alumina Pty Ltd (2008) 156 NTR 1 at 15 [41] per Martin (BR) CJ.
Their Honours therefore concluded:
[53]In conclusion, “land” in s 56N(2)(b) takes its defined meaning so that it includes “lease of land” and the words “‘lease’ ... does not include ... an option to renew a lease” bear their natural and ordinary meaning, which is not displaced or reversed by contextual or historical considerations. The general purpose of the Act to raise revenue is insufficient to support an intention to exclude a clearly expressed definition and to substitute a quite different meaning. Accordingly, the value attributable to an option to renew a lease should be excluded in making relevant calculations for stamp duty purposes under s 56N(2)(b) of the Act.
To similar effect, French CJ stated:[77]
[77] (2009) 239 CLR 27, 32-35.
[5]… The Court of Appeal in this case construed the Act by reference to an imputed legislative intention reflecting a revenue-maximising approach to taxing statutes[78] which paid insufficient regard to the clear words of the Act.
…
[9]On the face of it, there is nothing in the text of ss 56N and 56R which indicates an intention to displace the definition of “land” in s 4(1) so as not to apply to the word as used in those provisions. There is no textual indicator of such an intention in the other provisions of the Act. Neither the context in the wide sense nor legislative purpose suggests such an intention. There is nothing to indicate any basis upon which the term “lease” as used in the definition of “land” in s 4(1) should not take its meaning from the definition of “lease” in that section.
[10]It was common ground that the purpose of Div 8A of Pt III of the Act was to tax transactions involving the sale of shares in corporations which had the effect of indirectly transferring ownership, or a share in the ownership, of land in the Territory. The “mischief” to which that purpose was directed arose out of:[79]
·    the much lower rate of marketable security duty payable on transfer of shares than on transfer of land;
·    the calculation of the duty payable on transfer of shares by reference to the consideration for the transfer or by reference to the value of the shares;
·    the relief from payment of duty enjoyed in respect of the indirect transfer of the shares in the company holding the subject land to the new shareholder.
So it was submitted by the Commissioner and not contested by Alcan that “by the device of transferring shares in a landholding company and winding it up all but minimal duty could be avoided”. But, as Alcan submitted, to identify the purpose of Div 8A as providing a remedy for the mischief so described does not answer the constructional question.
[11]That submission should be accepted. The ultimate purpose of Div 8A was to impose stamp duty on the transactions to which it applied. Its purpose says nothing about the extent of that imposition, which must be determined by reference to its terms. The terms are not to be read by reference to some general principle that requires taxing statutes to be construed so as to maximise the recovery of revenue. In my opinion, no contrary intention was disclosed which would warrant displacing the definitions of “land” and “lease” in s 4(1) so as to render them inapplicable in ss 56N and 56R.
[78] (2008) 24 NTLR 33, 51 [45], 57 [66], 59-60 [76]-[77] per Martin (BR) CJ, Angel J agreeing at 66 [104], Southwood J agreeing at 70 [121].
[79] See Northern Territory, Legislative Assembly, Parliamentary Record, 24 August 1988 at 3883.
The result contended for by the appellant in the present case is similarly a stretch of the natural and ordinary meaning of the words in s 189A(2). Any general intention to be ascertained from the Second Reading Speech cannot prevail over the clear words that have been used. As in Alcan, the words of s 189A(2) cannot be changed by an inference that it would be surprising if Parliament intended to limit the amount of money it may garner from a cost saving provision.[80]
[80] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, 48 [52] (Hayne, Heydon, Crennan and Kiefel JJ).
The concept of an appearance fee for police appearances at Court

As noted above, counsel attempts to gain assistance from the mention of a “Court enforcement fee for police appearances at Court” in the Minister’s Second Reading Speech. Regrettably, this aspect of the speech manifests confusion on the part of the advisers briefing the Minister as to the nature and place of the concept of an “appearance fee” within the system of the awarding of costs in the Magistrate Court.
The fact is that s 189 of the Act is the only repository of power of a Magistrate in South Australia to make monetary awards in favour of, or against, parties by reference to the outcome of proceedings in civil and criminal proceedings. Section 189 deals with, and only with, orders for costs and the term “appearance fee” is not mentioned in the legislation. However, that term does have an important place in the history and practice of the Magistrates Court.
Police officers who are not qualified as legal practitioners may be given leave by the Court to appear to prosecute.[81] Importantly, awards of costs in favour of the prosecution in such cases have never been made on a basis corresponding to awards made to a successful defendant represented by a legal practitioner for professional legal costs. Rather, the prosecutor is entitled to recover “such costs as, but no further costs than, would be recoverable by any legally unqualified complainant appearing in person”.[82] The quantum of such costs is to have no reference to any claimed specialist knowledge[83] or to preparation time.[84] It is analogous to a witness fee.[85]
[81] See Wellington v Police (2009) 105 SASR 215, 228 [55].
[82] Willing v Hollobone (1972) 3 SASR 532; Kelly v Noumenon Pty Ltd (1988) 47 SASR 182; Moore-McQuillan v South Australian Police (No 2) [2000] SASC 69.
[83] Wellington v Police (2009) 105 SASR 215, 230 [61] citing Kelly v Noumenon Pty Ltd (1988) 47 SASR 182, 185 (King CJ).
[84] Wellington v Police (2009) 105 SASR 215, 230 [61].
[85] Wellington v Police (2009) 105 SASR 215, 230 [61].
It is in this context that such an award is referred to as an “appearance fee”, but it is important to note that such an award is made pursuant to s 189 (there being no other source of power) and is no more, and no less, than an order of costs to the police albeit subject to well accepted historical limits as to quantum.
In Wellington v Police,[86] Kourakis J (as he then was) reviewed some of the cases in the area and found that a Magistrate had erred in awarding the prosecution costs on a basis that included an amount for preparation by the prosecuting police officer. His Honour stated:
[60]I start by observing that the decisions in both Willing and Neumann appear to proceed on the basis that the claims made in those cases fell within the connotation of the word “costs” as used in the applicable statutory provisions, but that as a matter of principle no costs other than the time spent in attendance at court would be allowed where a party was represented by a non-lawyer.
[61]For the reasons given in the following two paragraphs, it is my view there is good reason to maintain that principle and in particular the rule that costs should not be awarded for time spent by a lay person on preparing for a hearing. Moreover, in my view, the quantum of costs awarded for the attendance in court of a lay person should not include any amount in recognition of the specialist nature of the activity in which he or she is engaged.
[62]Section 21 of the Legal Practitioners Act 1981 (SA) prohibits a person practising the profession of the law unless he or she is a legal practitioner. Section 21(2) of the Legal Practitioners Act includes the representation of any party to proceedings in a court or tribunal within the concept of practising the profession of the law. Section 21(3) of the Legal Practitioners Act exempts the conduct of an unqualified person who represents a party to proceedings in a court or tribunal for fee or reward from the operation of s 21 where that person is authorised by or under the Act by which the court or Tribunal is constituted to do so.
[63]It follows that a person who is given leave to appear before the Magistrates Court is not subject to the prohibition against legal practice by unqualified persons enacted by s 21 of the Legal Practitioners Act. However, the discretion to allow lay persons to represent others must be exercised judicially and with a keen appreciation of the special responsibilities of those who assist in the administration of justice. Unless there is good reason to do so, having regard to the objects and purposes of the Legal Practitioners Act, the discretion should not be exercised in a way which encourages representation by persons who are neither legally trained nor subject to the professional ethics and discipline of legal practitioners. Moreover, it is one thing to authorise lay persons to appear and thereby give them a right to charge the party who engages them for the legal work they perform. It is quite another thing to order the opposing party who has not engaged the lay advocate to pay the costs of the legal work the lay advocate has performed.
[86] (2009) 105 SASR 25.
I respectfully agree with this analysis.
In the context of the 2011 amendments, it is important to note that the fixed amount of $100 referred to in s 189A only applies to cases prosecuted by persons who are not admitted legal practitioners. Where the police brief a legal practitioner for whose fees they are liable on a successful prosecution, an application for costs against the unsuccessful defendant will usually be granted. Such an application will not be caught by s 189A at all but will fall to be considered under the general power in s 189 (“as the Court thinks fit”).
To summarise, the effect of the above matters is that the submissions of the appellant must be rejected for the following reasons.
First, s 189A(2) specifically refers to “an order for costs”. Prior to the 2011 amendments, when orders for costs were made in favour of the prosecution in cases prosecuted by police officers who were not admitted as legal practitioners, such costs orders could only be made on the basis of “attendance fees” to comply with the provisions of the Legal Practitioners Act 1981 which prohibit the charging of legal costs by persons not admitted as legal practitioners.
Second, following the 2011 amendments, the position still remains that police officers remain subject to the Legal Practitioners Act 1981 and accordingly no matter how much the award of costs – say a figure well in excess of $100 being for a large number of days prosecuting a long trial – the award is still viewed as an attendance fee because the Legal Practitioners Act 1981 precludes any other award of costs being made in relation to a person who is not acting as a qualified legal practitioner.
Third, in the light of these matters, it can easily be seen that a submission that the award of costs for $100 referred to in s 189A(2) can somehow be distinguished from a separate and larger award of costs on the basis that the $100 is an attendance fee is quite wrong. The postulated further, separate and larger award of costs could only ever be awarded on the basis that it too is an attendance fee because, as explained above, that is the only way that a Magistrate may make any award at all in favour of the police in relation to a case prosecuted by a police prosecutor who is not an admitted legal practitioner. The upshot is that the submission of the appellant is in effect suggesting that two attendance fees in the same case can be awarded, one at a flat rate of $100 and the other calculated by a scale for attendance fees on a time basis. When the submission is correctly seen in that light, the chasm between that suggested meaning and the actual literal meaning of the words used becomes ever the greater.
I would simply add that the submission for the appellant leaves many questions unanswered. For example, in what situations is it said that a prosecutor is to be awarded the postulated further appearance fee over and above the $100? Trials do generally take longer than guilty pleas, but there is no warrant in the terms of the legislation to distinguish between trials and guilty pleas. In any event, some complex plea proceedings may necessitate a number of attendances, perhaps including the taking of evidence and the making of long oral and written submissions; on a time basis, they may actually be longer than some short trials and obviously very much longer than simple short pleas. The fact is that the spectrum of proceedings necessarily ranges from the ultra simple to the ultra complex.
The answer cannot lie in an assertion that it is all a simple matter of time costing because, if it were, in many cases $100 would be manifestly excessive on any time costing basis. In a busy general list in the Magistrates Court, a police prosecutor may bring many files to Court and a high percentage of them will be disposed of by way of a guilty plea. Many of these will literally take just a few minutes each, for example pleas of guilty by unrepresented defendants charged with minor traffic matters. In such cases, a time costing basis would require a figure very much below $100 in order to retain any parity in relation to what might reasonably be ordered in relation to a lengthy trial. However, any notion that such parity is intended is defeated by s 189A(3) which prohibits any reduction by the Court of the $100 amount,[87] no matter how trivial the matter of which the defendant is guilty and no matter how quickly the Magistrate disposes of it.[88]
[87] I will refer to the aspect of prosecution agreement to a reduction below.
[88] There are various other associated questions. For example, if there is to be an additional amount awarded over and above the $100, is the $100 to be viewed as an entirely separate amount or is the $100 to be somehow credited against the other amount and, if so, upon what basis? I think the point is sufficiently made.
The result of the position contended for by the appellant is a meaning and effect both clearly different to the literal meaning of the words and productive of confusion and ambiguity.
The history of the passage of the amending legislation through Parliament
It must be emphasised that what is to be ascertained is the intention of Parliament and not that of the Minister.[89] Here, the Minister made a Second Reading Speech as to a Bill, but Parliament rejected the proposed amendments therein which would have substantially restricted the power of a Magistrate to make an award of costs in favour of a defendant in an unsuccessful prosecution. It is therefore much more difficult to divine Parliament’s intention in relation to those provisions which did pass into law. Thus, Geddes and Pearce state:[90]
Care must be taken to ensure that the bill which has been the subject of parliamentary comment or an explanatory memorandum has not been relevantly amended before it has passed into law. In Avel Pty Ltd v Attorney-General for New South Wales (1987) 11 NSWLR 126 at 128-9 Kirby P warned:
It is important to compare the Bill to which the Parliamentary remarks are addressed with the Bill as finally enacted. The remarks may be addressed to quite different, and even contrary, language. The Bill may have been substantially amended after the second-reading speech.
[89] Singh v Commonwealth (2004) 222 CLR 322, 385 [159], 386 [162] (Gummow, Hayne and Heydon JJ); Al-Kateb v Godwin (2004) 219 CLR 562, 622 [167] (Kirby J); Coleman v Power (2004) 220 CLR 1, 95 [245] (Kirby J); Byrnes v Kendle (2011) 243 CLR 253, 283 [96] (Heydon and Crennan JJ).
[90] D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 7^th ed, 2011) 92.
The New South Wales Court of Appeal had made similar observations in the earlier decision of Regional Director of Education v International Grammar School Sydney Ltd.[91] Thus, President Kirby stated: [92]
Read in isolation, this passage from the Second Reading Speech does appear to lend weight to the appellant’s argument that the purpose of s 10(1) was nothing more than a transitional one. I should say that the equivalent to s 10(1) in the Act, as finally passed, was cl 11(1) of the 1915 Bill, as first introduced.
However, the researches of the respondent school demonstrated that changes occurred in the bill, as it passed through the Parliament, relevant to the mischief to which s 10(1) (or its equivalent clause) was addressed and the issue to which the Minister’s speech had been directed. Without objection of either party, the Court received material tracing the legislative debates and the successive terms in which the Bill appeared during the course of its passage. This procedure is unorthodox. It may be the inevitable consequence of taking a court beyond the legislative language and into the Parliamentary Debates. Once those debates are scrutinised for the purpose of defining the “mischief” to which the legislation is addressed, it will sometimes become important, if the legislation is altered during passage, to have regard to the different terms of the legislation at the time the Parliamentary remarks were addressed to it. Otherwise, read in isolation, those remarks may be quite misleading.
[91] (1986) 7 NSWLR 302.
[92] Regional Director of Education v International Grammar School Sydney Ltd (1986) 7 NSWLR 302, 309.
After considering a good deal of material provided by both parties, his Honour concluded:[93]
The Court was taken to this material by consent of both parties and at their invitation. Unfortunately, when the journey is complete, it leaves the Court, in this case, no more clear as to the meaning of the legislation than it was at the outset. The only value of the enterprise is to demonstrate the particular care which must be taken in utilising Second Reading Speeches to ensure that the Bill being addressed in Hansard relied upon is in the same form as the Act subsequently enacted.
[93] Regional Director of Education v International Grammar School Sydney Ltd (1986) 7 NSWLR 302, 311.
In the present case, no such material was proffered by either party and, if it had been, the extent to which I could take it into account would be debateable, although the lack of a contradictor would make for a dry debate. However, the fact is that Parliament did reject the clauses limiting costs orders in favour of defendants and therefore it may well be that the majority view can be seen to have been against rigorous cost cutting measures at the cost of encroachment into the present rights of citizens.
In any event, what does seem clear quite apart from this matter of differences between the Bill as addressed in Second Reading Speech and the Act as eventually passed is that any submission that the plain words of s 189A(2) should be altered on the basis of an assumed intention to garner revenue must therefore be viewed with great circumspection.
There is no evidence that the natural reading of the provision will result in a net diminution in income from costs awards
It is also to be noted that the Second Reading Speech is equivocal as to whether the implementation of the legislation according to its natural meaning would necessarily result in a net diminution in income from costs awards and, that being so, there is no safe foundation for an inference of a legislative meaning other than the literal meaning.
The Second Reading Speech states that the mandatory $100 award will “provide estimated savings of $13.4 million over three years”[94] and this estimated amount is presumably to be generated in two ways. The first way relates to a change to the traditional practice of the Magistrate Court which was to allow an order for costs in favour of the prosecution by way of a $25 appearance fee only as a matter of discretion; in many cases, the Court traditionally considered it appropriate to make no order for costs in favour of the prosecution at all. An effect of the 2011 amendments is to make it obligatory to make an order for costs in favour of the prosecution in every case. The second way is to fix such an order at the amount of $100; compared to a previous discretionary amount of $25 for a guilty plea, a mandatory amount of $100 is a truly starting increase.
[94] South Australia, Parliamentary Debates, House of Assembly, 9 June 2011, 4140 (Jack Snelling, Treasurer).
The estimated savings of $13.4 million over three years are considerable but there is no indication as to how that figure of $13.4 million is calculated. There are at least two possibilities. The first possibility is that $13.4 million is a net gain calculated by adding the total of the two sources of savings referred to above and then deducting a forecast diminution in costs awards for trials. The second possibility is that $13.4 million is the total of the two sources of savings referred to above but does not take into account the diminution in costs awards for trials. If it is that second possibility, there is no information as to how large that diminution might be and, in particular, whether it is greater or less than the figure of $13.4 million. Accordingly, there is insufficient information in the Second Reading Speech to indicate that the effect of the literal interpretation of the words of s 189A(2) is likely to bring about a disadvantageous financial outcome.
Conclusion
For the above reasons, I conclude that the words of s 189A(2) are clear and intractable. The section plainly requires the Court “to make an order for costs” and the quantum of that order is required to be $100. The words of the Act are clear: there is to be an order (and not in some cases two orders) and the amount of an order is to be $100 (and not in some cases $100 plus another order). This literal meaning cannot be displaced by the strained meaning for which the appellant contends.
A final matter - is s 189A(2) invalid?
As noted above, the Minister referred in the Second Reading Speech to the $100 amount which must be ordered by every person who is found guilty of any offence as “a court enforcement fee”.
The existence of this interesting creature appears to have hitherto gone unrecorded in commentaries on the common law or in any statute of which I am aware; South Australia may have the only one in captivity.
The creature’s name gives little hint of its function. While one can readily understand the concept of a court making an order for the payment of money (as a fine or as payment of costs etc) and the subsequent need for enforcement of the payment of that monetary amount, the court enforcement fee does not function in that way. It does not address the question of the enforcement of payment of a monetary amount at all; it leaves that matter entirely up to the existing legislative and regulatory regime which addresses the general issue of outstanding fines, Court orders etc.
What the court enforcement fee does do is force Magistrates to impose a $100 costs penalty on any defendant who is found guilty (as distinct from being convicted) of any offence (no matter how trivial) quite irrespective of any relationship between the figure of $100 and the true costs to the police. The traditional, careful and measured approach of the courts is thus replaced by Magistrates being forced to arbitrarily impose a $100 penalty without any regard at all to particular mitigating circumstances that might exist in a particular case.
As is well known, the courts, at least for the moment, have a range of powers to effectuate a sensible and just outcome in cases where a prosecution has occurred over a matter that is truly trivial or trifling.[95] In such cases – and they do occur - the courts may find that the defendant is technically guilty but dismiss the matter without convicting or imposing any penalty. However, the effect of s 189A is that where a Magistrate finds that a charge is proven, but dismisses it without conviction or penalty on the basis that it is petty and technical in the extreme, the Magistrate is now required to order the defendant to pay an amount of $100 to the police for costs of that very prosecution!
[95] Criminal Law (Sentencing) Act 1988 ss 15, 16, 17.

The only reprieve from this $100 penalty is within the absolute discretion of the prosecution, s 189A(3) constituting a unilateral and unchallengeable right of police to veto any suggestion that a Magistrate might make as to the waiver of the penalty in the interests of justice.
It should surprise no one to learn that there are occasions when Magistrates are rightly critical of the police. It is an important function of the Judiciary to protect the rights and liberties of citizens and, if necessary, to criticise police officers if such rights are unreasonably infringed. I therefore find it disturbing that Magistrates should be placed in a situation where they are beholden, or might appear to be beholden, to a police prosecutor to “agree” that the court not make an order for the imposition of the $100 court enforcement fee in a case where the Magistrate is firmly of the view that it would be unjust for the defendant to have to pay it. Is it not ironic that a Magistrate, who is rightly critical of the police in a particular case and, if possessed of the traditional wide discretion as to costs, would not make an order for the defendant to pay the police $100 (and might even order the police to pay the defendant’s costs), in South Australia is supposed to seek permission from the police so as not to impose upon the defendant what amounts to a fine of $100 in the circumstances?
This new “police discretion” is enacted to the direct detriment of the courts’ traditional power and responsibility to administer criminal justice. It is another example of a startling trend of abnegation of the power and responsibility of the independent Judiciary to the police in this State.
Of course, the courts may not comment on such matters until they arise in a case being heard by the court and there may therefore be an unfortunate time lag between the passage of legislation and any consideration of it by the courts. I will simply refer to two similar recent examples of courts considering the trend to which I refer.
In Police v Patterson[96] I considered a similar “police discretion” in the context of clamping or impounding fees under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007. I there stated:[97]
[25]… It is not the province of police (or other members of the executive) to punish persons; rather, it is the exclusive duty of the judiciary to impose penalty in an open, transparent and consistent fashion upon persons who have been proven in open court to have committed clearly specified offences.
[26]In my view, one of the most disturbing aspects of this legislation is that the assertion by a police officer of a suspicion that a person has committed a “prescribed offence” enlivens in the police officer a broad discretion to decide as between two alternatives; namely whether that person will simply be prosecuted for the suspected offence in the traditional way or whether such person will, in addition to that traditional prosecution process, also be visited with the added severe penalty of being deprived of access to a motor vehicle for at least 28 days under the s 5 process described above (as well as being liable for fees said to thereby be incurred).
[96] [2012] SASC 182.
[97] Police v Patterson [2012] SASC 182.
In Bell v Police,[98] Kourakis CJ considered the forfeiture provisions contained in s 12(1)(a)(iii), Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007. His Honour there stated:[99]
[66]It is a long accepted principle of Anglo Australian law that penalties for criminal offences should be judicially imposed. That principle is, at a Commonwealth level, constitutionally entrenched. On the other hand the executive governments of the States probably retain a power, under appropriate legislative authority, to impose penalties. However, it is quite another thing for a State legislature to empower a State executive agency to impose, in its discretion, and on an ad hoc basis, an additional penalty after a court has finally judicially disposed of a prosecution. It is also a very different matter to confer a power on the prosecution to order a court to apply and enforce a penalty in addition to the sentence it has previously imposed.
[67]The Constitution protects the integrity of the courts of the States by what I will call the judicial integrity implication. …
[75] … [A]t the core of the judicial integrity implication lies a requirement that there be a rational connection between the adjudicative function invested in the court and the powers it must, or may, exercise. Legislation conferring a jurisdiction or power on a court will only be compatible with the judicial integrity implication if the orders which the court must, or may, make have a rational connection to findings of fact, and judgments on those facts, which the court itself has made.
[78]… It is (also) one thing for Parliament to provide a statutorily prescribed mandatory penalty for criminal conduct and quite another for it to allow the executive to nominate in its application to the Court an additional penalty of its choosing which a court must impose to depend on the selection. In the former case, the acceptance of the sovereignty of Parliament and the universality of the proscription will usually not impinge on the institutional role of the courts under the Constitution. However, when judicial orders which impinge on accepted rights and liberties are made, for all practical purposes, at the dictate of the executive, an essential attribute of courts and the very function of the judicial branch of government is compromised.
[79]… The blind implementation of executive action is not compatible with the judicial charter to ensure that the executive branch adheres to the Constitution and laws made under it. (Emphasis added; footnotes omitted)
[98] [2012] SASC 188.
[99] Bell v Police [2012] SASC 188.
The effect of s 189A appears to me to manifest the very situation warned against by Kourakis CJ:[100] “when judicial orders which impinge on accepted rights and liberties are made, for all practical purposes, at the dictate of the executive, an essential attribute of courts and the very function of the judicial branch of government is compromised”.
[100] Bell v Police [2012] SASC 188, [78].
I would simply add that, in the context of the example given above of a Magistrate wishing to dismiss a charge without conviction or penalty, the matter becomes very clear and stark indeed: the effect of s 189A is to confer a power on the prosecution to order a court to apply and enforce a penalty in circumstances where it has decided that the appropriate and just result is that there should be no penalty imposed at all.
I do not consider it necessary to say anything further about this matter in the present case. Unsurprisingly, the unrepresented defendant did not allude to it and it is clear that the appeals must in any event be dismissed for the other reasons referred to in the previous sections above.
Conclusion
I dismiss the appeal in each case.