R v Hughes

Case [2000] HCA 22

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

THE QUEEN  PROSECUTOR

AND

CRAIG ALLAN HUGHES  DEFENDANT

The Queen v Hughes [2000] HCA 22
3 May 2000
P58/1999

ORDER

The questions in the Case Stated are answered as follows:

  1. Is s 45 of the Corporations Act 1989 (Cth) ("the Corporations Act") as amended by s 4(1) of the Corporations Legislation Amendment Act 1990 (Cth) a valid exercise of legislative power of the Commonwealth of Australia in so far as, with respect to Western Australia, it purports to require offences to be "taken to be" offences against the "laws of the Commonwealth"?

    Answer:    Unnecessary to answer.

  1. If yes, against which laws of the Commonwealth are the offences alleged in the indictment committed?

Answer:    Unnecessary to answer.

  1. Is s 43(2) of the Corporations Act a valid and effective conferral of function or power upon "an officer or authority" of the Commonwealth to prosecute offences against the Corporations Law of Western Australia?

Answer:    Unnecessary to answer.

  1. Is s 29 of the Corporations (Western Australia) Act 1990 (WA) ("the WA Corporations Act") a valid exercise of the legislative power

    of the Parliament of Western Australia in so far as it purports to create offences which are "taken to be" offences against the laws of the Commonwealth?

Answer: Section 29 is a valid law of the State of Western Australia and operates according to its terms.

  1. If offences by the WA Corporations Act are "taken to be" offences against the laws of the Commonwealth, against which laws of the Commonwealth are the offences alleged in the indictment committed?

Answer:    Unnecessary to answer.

  1. Are offences which, by the WA Corporations Act, are "taken to be" offences against the laws of the Commonwealth, offences against the laws of the Commonwealth or offences against the laws of Western Australia?

Answer:    Given the answer to question 9, unnecessary to answer.

  1. Do ss 31 and 33 of the WA Corporations Act constitute a valid and effective conferral of function or power upon "an officer or authority of the Commonwealth" to prosecute offences against the Corporations Law of Western Australia?

Answer: As to s 31, yes, but subject to the answer to question 8. As to s 33, unnecessary to answer.

  1. By what legislative authority is the Commonwealth Director of Public Prosecutions empowered to exercise the purported conferral, pursuant to ss 31 and 33 of the WA Corporations Act, of function or power to prosecute offences against the Corporations Law of Western Australia?

Answer: Section 31 of the WA Corporations Act (in combination with s 29(1) of that Act) and s 9(2)(a) of the Director of Public Prosecutions Act 1983 (Cth) (in combination with reg 3(1)(d) of the Corporations (Commonwealth Authorities and Officers) Regulations made pursuant to ss 47 and 73 of the Corporations Act).

  1. Does the indictment in the matter herein disclose an offence known to the law of:

(a)the Commonwealth?

(b)the…

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AGLC
R v Hughes [2000] HCA 22
Case
[2000] HCA 22
Decision Date

CaseChat Overview and Summary

This case concerned a prosecution instituted by the Commonwealth Director of Public Prosecutions against the accused for making available "prescribed interests" contrary to provisions of the Corporations Law of Western Australia. The dispute centred on the constitutional validity of the interlocking federal and state legislation that established a national scheme for corporate regulation, and specifically, whether the Commonwealth Director of Public Prosecutions had the power to prosecute offences against the laws of Western Australia under this scheme. The High Court of Australia was required to determine a series of questions posed in a Case Stated, addressing the validity of various legislative provisions and the nature of the offences charged.

The legal issues before the Court included whether certain Commonwealth legislation validly required offences under state law to be "taken to be" offences against Commonwealth law, and whether a provision of the Corporations Act 1989 (Cth) constituted a valid conferral of power on a Commonwealth officer to prosecute offences against the Corporations Law of Western Australia. Furthermore, the Court had to consider whether a provision of the Corporations (Western Australia) Act 1990 (WA) was a valid exercise of Western Australian legislative power in purporting to create offences that were "taken to be" offences against Commonwealth law, and whether this provision, along with other sections of the WA Act, validly conferred power on a Commonwealth officer to prosecute state offences. Finally, the Court was asked whether the indictment disclosed an offence known to the law of the Commonwealth or Western Australia.

The Court reasoned that the complexity and fictional nature of the interlocking legislation, designed to create a national corporate regulatory scheme through cooperation between the Commonwealth and the States, raised significant constitutional questions. Ultimately, the Court answered the questions posed in the Case Stated, finding that section 29 of the Corporations (Western Australia) Act 1990 was a valid law of Western Australia operating according to its terms. The Court also determined that the Commonwealth Director of Public Prosecutions was empowered to prosecute offences against the Corporations Law of Western Australia by virtue of section 31 of the WA Corporations Act, read in conjunction with section 29(1) of that Act, and section 9(2)(a) of the Director of Public Prosecutions Act 1983 (Cth) and associated regulations. Crucially, the Court concluded that the indictment disclosed offences known to the law of Western Australia.

Orders

Orders of the court

The questions in the Case Stated are answered as follows:

1.

Is s 45 of the Corporations Act 1989 (Cth) ("the Corporations Act") as amended by s 4(1) of the Corporations Legislation Amendment Act 1990 (Cth) a valid exercise of legislative power of the Commonwealth of Australia in so far as, with respect to Western Australia, it purports to require offences to be "taken to be" offences against the "laws of the Commonwealth"?

Answer: Unnecessary to answer.

2.

If yes, against which laws of the Commonwealth are the offences alleged in the indictment committed?

Answer: Unnecessary to answer.

3.

Is s 43(2) of the Corporations Act a valid and effective conferral of function or power upon "an officer or authority" of the Commonwealth to prosecute offences against the Corporations Law of Western Australia?

Answer: Unnecessary to answer.

4.

Is s 29 of the Corporations (Western Australia) Act 1990 (WA) ("the WA Corporations Act") a valid exercise of the legislative power

of the Parliament of Western Australia in so far as it purports to create offences which are "taken to be" offences against the laws of the Commonwealth?

Answer: Section 29 is a valid law of the State of Western Australia and operates according to its terms.

5.

If offences by the WA Corporations Act are "taken to be" offences against the laws of the Commonwealth, against which laws of the Commonwealth are the offences alleged in the indictment committed?

Answer: Unnecessary to answer.

6.

Are offences which, by the WA Corporations Act, are "taken to be" offences against the laws of the Commonwealth, offences against the laws of the Commonwealth or offences against the laws of Western Australia?

Answer: Given the answer to question 9, unnecessary to answer.

7.

Do ss 31 and 33 of the WA Corporations Act constitute a valid and effective conferral of function or power upon "an officer or authority of the Commonwealth" to prosecute offences against the Corporations Law of Western Australia?

Answer: As to s 31, yes, but subject to the answer to question 8. As to s 33, unnecessary to answer.

8.

By what legislative authority is the Commonwealth Director of Public Prosecutions empowered to exercise the purported conferral, pursuant to ss 31 and 33 of the WA Corporations Act, of function or power to prosecute offences against the Corporations Law of Western Australia?

Answer: Section 31 of the WA Corporations Act (in combination with s 29(1) of that Act) and s 9(2)(a) of the Director of Public Prosecutions Act 1983 (Cth) (in combination with reg 3(1)(d) of the Corporations (Commonwealth Authorities and Officers) Regulations made pursuant to ss 47 and 73 of the Corporations Act).

9.

Does the indictment in the matter herein disclose an offence known to the law of:

(a) the Commonwealth?

(b) the State of Western Australia?

(c) the Australian Capital Territory?

Answer: The indictment discloses offences known to the law of Western Australia.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HUGH, GUMMOW, HAYNE AND CALLINAN JJ KIRBY J (dissent)
Duncan is one of a number of decisions[34] which recognise that co‑operation on the part of the Commonwealth and States may well achieve objects that could be achieved by neither acting alone. Nothing in these reasons denies that general proposition. The present case emphasises that for the Commonwealth to impose on an officer or instrumentality of the Commonwealth powers coupled with duties adversely to affect the rights of individuals, where no such power is directly conferred on that officer or instrumentality by the Constitution itself, requires a law of the Commonwealth supported by an appropriate head of power.[34]Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 774 per Starke J; Wilcox Mofflin Ltd v State of NSW (1952) 85 CLR 488 at 508‑511 per Dixon, McTiernan and Fullagar JJ, 526‑528 per Williams J; R v Lydon; Ex parte Cessnock Collieries Ltd (1960) 103 CLR 15 at 20; Airlines of NSW Pty Ltd v New South Wales (1964) 113 CLR 1 at 40, 42 per Taylor J, 48 per Menzies J, 51‑52 per Windeyer J; Clark King & Co Pty Ltd v Australian Wheat Board (1978) 140 CLR 120 at 179 per Mason and Jacobs JJ. See, since Duncan, Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 130.Conclusion The accused fails in the various challenges he makes in support of his case that the indictment be quashed. Appropriate answers should be given to the questions before the Full Court. The questions and answers should be as follows:1.Is s 45 of the Corporations Act 1989 (Cth) ("the Corporations Act") as amended by s 4(1) of the Corporations Legislation Amendment Act 1990 (Cth) a valid exercise of legislative power of the Commonwealth of Australia in so far as, with respect to Western Australia, it purports to require offences to be "taken to be" offences against the "laws of the Commonwealth"?Answer: Unnecessary to answer.2.If yes, against which laws of the Commonwealth are the offences alleged in the indictment committed?Answer: Unnecessary to answer.3.Is s 43(2) of the Corporations Act a valid and effective conferral of function or power upon "an officer or authority" of the Commonwealth to prosecute offences against the Corporations Law of Western Australia?Answer: Unnecessary to answer.4.Is s 29 of the Corporations (Western Australia) Act 1990 (WA) ("the WA Corporations Act") a valid exercise of the legislative power of the Parliament of Western Australia in so far as it purports to create offences which are "taken to be" offences against the laws of the Commonwealth?Answer: Section 29 is a valid law of the State of Western Australia and operates according to its terms.5.If offences by the WA Corporations Act are "taken to be" offences against the laws of the Commonwealth, against which laws of the Commonwealth are the offences alleged in the indictment committed?Answer: Unnecessary to answer.6.Are offences which, by the WA Corporations Act, are "taken to be" offences against the laws of the Commonwealth, offences against the laws of the Commonwealth or offences against the laws of Western Australia?Answer: Given the answer to question 9, unnecessary to answer.7.Do ss 31 and 33 of the WA Corporations Act constitute a valid and effective conferral of function or power upon "an officer or authority of the Commonwealth" to prosecute offences against the Corporations Law of Western Australia?Answer: As to s 31, yes, but subject to the answer to question 8. As to s 33, unnecessary to answer.8.By what legislative authority is the Commonwealth Director of Public Prosecutions empowered to exercise the purported conferral, pursuant to ss 31 and 33 of the WA Corporations Act, of function or power to prosecute offences against the Corporations Law of Western Australia?Answer: Section 31 of the WA Corporations Act (in combination with s 29(1) of that Act) and s 9(2)(a) of the Director of Public Prosecutions Act 1983 (Cth) (in combination with reg 3(1)(d) of the Corporations (Commonwealth Authorities and Officers) Regulations made pursuant to ss 47 and 73 of the Corporations Act).9.Does the indictment in the matter herein disclose an offence known to the law of:(a)the Commonwealth?(b)the State of Western Australia?(c)the Australian Capital Territory?Answer: The indictment discloses offences known to the law of Western Australia.

Ratio Decidendi

Legal Principle Established

Established by: HUGH, GUMMOW, HAYNE AND CALLINAN JJ,

Courts, including this Court, regularly speak in terms of the "intention" of the legislature when interpreting particular legislation. This polite but unacceptable fiction has never been shown in starker relief than in the present case. So complex is the interlocking legislation, with fiction piled upon fiction, that it must be doubted whether any of those presenting and enacting it were truly aware of precisely what they were doing. It may be hoped that this and other recent decisions, together with the great national importance of the subject matter of the legislation, will encourage its early reconsideration and the adoption of a simpler constitutional foundation to reduce the perils that are otherwise bound to recur, possibly with serious results.The Heads of Agreement and the purposes of cooperation The decision of this Court in the Incorporation Case was announced on 8 February 1990. The original Heads of Agreement were signed in Alice Springs in June 1990[62]. Thereafter the legislation, the subject of these proceedings, was enacted, in turn, by the legislatures of the Commonwealth, the States and the Northern Territory. [62]Heads of Agreement – Future Corporation Regulation in Australia, 29 June 1990. The Heads of Agreement were later amended and endorsed as amended by all participating governments on 23 September 1997. See Corporations Agreement (1997) now in force as between the participating governments of the Commonwealth, the States and the Northern Territory. Put broadly, the purposes were:1.To provide, in place of the previous laws regulating corporations in Australia, a nation-wide system of corporate regulation that would involve cooperation between the Commonwealth, the States and the Territories through their respective Executive Governments and legislatures;2.To effect such cooperation in response to the urgent situation presented by the weaknesses of the earlier cooperative scheme[63], by implementing the new national scheme in accordance with a political agreement reached at Alice Springs between the representatives of the Commonwealth, the States and the Northern Territory of Australia; and3.To enact legislation, as necessary, to give effect to cl 27.1 of the Heads of Agreement[64]. That subclause provides, relevantly:"Consistent with the Commonwealth character of the proposed applied State laws –- the ASC[65] and the Commonwealth Director of Public Prosecutions will have responsibility for the prosecution of offences under the new legislation;- arrangements between the Commonwealth DPP and State counterparts will enable the Commonwealth DPP to prosecute offences under State criminal law where the relevant conduct is associated with prosecution by the DPP of offences under the new legislation or arises out of an ASC investigation".[63]Illustrated by the collapse in the 1980s of a number of major Australian financial and trading corporations.[64]The Heads of Agreement of June 1990 were tabled in the Senate. See Australia, Senate, Parliamentary Debates (Hansard), 11 December 1990 at 5380. The legislative scheme implemented to give effect to the Heads of Agreement is described in cl 502 of the Corporations Agreement which was entered on 23 September 1997 to supplement the national scheme laws.[65]Australian Securities Commission (now Australian Securities and Investments Commission) referred to in the Corporations Agreement, Preamble par 4(a). See Australian Securities and Investments Commission Act 1989 (Cth), s 8; cf Re BPTC Ltd (In Liq) (1992) 29 NSWLR 713.