R v Hughes
[2001] WASCA 300
•28 SEPTEMBER 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: R -v- HUGHES [2001] WASCA 300
CORAM: MALCOLM CJ
KENNEDY J
GROVE AJ
HEARD: 6 MARCH 2001
DELIVERED : 28 SEPTEMBER 2001
FILE NO/S: CCA 233 of 2000
BETWEEN: THE QUEEN
Appellant
AND
CRAIG ALLAN HUGHES
Respondent
Catchwords:
Criminal law and procedure - Corporations - Application of s 80 of the Commonwealth Constitution to trial on indictment of offence against the Corporations Law (WA) - Application of laws of evidence of Western Australia - Application of s 578 of Criminal Code (WA)
Legislation:
Commonwealth Constitution s 80
Corporations (Commonwealth Authorities and Officers) Regulations 1990 reg 3(1)(d)
Corporations (Western Australia) Act 1990 s 3, s 7, s 9, s 26, s 28, s 29, s 31, s 55, s 73
Corporations Act 1989 (Cth) s 47, s 82
Corporations Act 2001 (Cth) s 3, s 5(c), s 1064, s 1311, s 1370, s 1383
Corporations Law 1990 (WA) s 1064(1), s 1311(1)(a)
Corporations (Ancillary Provisions) Act (Cth) s 7(2), (3)
Criminal Code (WA) s 378, s 489, s 578, s 614
Director of Public Prosecutions Act 1983 (Cth) s 6(1), s 7, s 8
District Court Act 1970 (WA) s 49
Interpretation Act (Cth) s 23(b)
Interpretation Act 1984 (WA) s 37
Judiciary Act 1903 (Cth) s 68(2), s 79
Juries Act 1957 (WA) s 41
Result:
Questions on reference answered (1) Yes; (2) The laws of evidence of Western Australia apply; (3) No
Category: A
Representation:
Counsel:
Appellant: Mr S D Hall
Respondent: Mr S A Shirrefs
Attorney General of WA : Ms C F Jenkins
Solicitors:
Appellant: Commonwealth Director of Public Prosecutions
Respondent: Gary Massey & Associates
Attorney General of WA : State Crown Solicitor (Intervenor)
Case(s) referred to in judgment(s):
Cheatle v The Queen (1993) 177 CLR 541
Kiely v R [1974] WAR 180
Peel v The Queen (1971) 125 CLR 447
R v Cook; Ex parte Commonwealth DPP (1996) 130 FLR 354
R v Drury (1983) 50 ALR 159
R v Hannes [2000] NSW CCA 503
R v Hughes [2000] HCA 22; (2000) 74 ALJR 802
R v Marinovich [1988] 1 WAR 343
Re Colina; Ex parte Torney [1999] HCA 57; (1999) 73 ALJR 1576
Re Southern Equities Corporation Ltd (In Liq; Bond v England (1997) 140 FLR 202
Registrar of the Court of Appeal v Craven [No 1] (1995) 120 FLR 427
The King v Kidman & Ors (1915) 20 CLR 425
Williams v The King [No 2] (1934) 50 CLR 551
Case(s) also cited:
Brown v The Queen (1986) 160 CLR 171
Commissioner of Taxation v Scully [2000] HCA 6; (2000) 74 ALJR 504
Connell v R (No 6) (1994) 12 WAR 133
Duke v R [1999] WASCA 215
Levy v State of Victoria (1997) 189 CLR 579
Martin v R, unreported; CCA SCt of WA; Library No 940219; 13 December 1993
Maxwell v Murphy (1956) 96 CLR 261
Newell v R (1936) 55 CLR 707
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
R v Snow (1915) 20 CLR 315
Republic of Costa Rica v Erlanger (1876) 3 Ch D 62
Rodway v The Queen (1990) 169 CLR 515
Sankey v Whitlam (1978) 142 CLR 1
Shales v Lieschke (1985) 3 NSWLR 65
Smith v R (1994) 69 ALJR 24
Southern Equities Corporation Ltd (In Liq); Re Bond v England (1997) 140 FLR 202
Warner v Murdoch (1877) 4 Ch D 750
Wright v Hale (1860) 158 ER 94
MALCOLM CJ: This is a reference to the Court of Criminal Appeal pursuant to s 49 of the District Court of Western Australia Act 1969 (WA) by which Healy DCJ has reserved for the opinion of the Court the following points of law:
1.Does s 80 of the Commonwealth Constitution apply to the trial on indictment of an offence against the Corporations Law (WA) 1990?
2.In a trial on indictment for an offence against the Corporations Law (WA) 1990, what laws of evidence are applicable?
3.Does s 578 of the Criminal Code (WA) apply to the present indictment for offences against the Corporations Law (WA) 1990?
The reference was made on the application of Craig Allan Hughes ("the accused").
The reference was heard on 6 March 2001. The decision was reserved. Prior to reasons for judgment being delivered, the Court was informed of the amendment of the Commonwealth and State Corporations legislation based on a referral of powers to the Commonwealth by the States. What follows comprises the reasons for judgment as they had been prepared prior to the receipt of submissions by the parties concerning the impact of the new legislation followed by supplementary reasons dealing with the impact of the new legislation in the light of the transitional provisions.
On 15 July 1997 the Commonwealth Director of Public Prosecutions ("the Director") filed an indictment in the District Court alleging against the accused and one Noel Andrew Bell ("Bell") breaches of s 1064(1) and s 1311(1)(a) of the Corporations Law (WA) 1990 ("the Corporations Law (WA)"). The indictment alleged that:
"… between the 1st day of February 1992 and the 24th day of November 1994 at Perth in the State of Western Australia CRAIG ALLAN HUGHES and NOEL ANDREW BELL, being persons other than a public corporation, made available to Graham Datson a prescribed interest, contrary to section 1064(1) of the Corporations Law read with section 1311(1)(a) of the Corporations Law.
2. AND FURTHER THAT between the 1st day of February 1992 and the 24th day of November 1994 at Perth in the said State CRAIG ALLAN HUGHES and NOEL ANDREW BELL, being persons other than a public corporation, made available to Preston Richard Grigg and Karen Roselyn Grigg, a prescribed interest, contrary to section 1064(1) of the Corporations Law read with section 1311(1)(a) of the Corporations Law.
3. AND FURTHER THAT between the 1st day of February 1992 and the 24th day of November 1994 at Perth in the said State CRAIG ALLAN HUGHES and NOEL ANDREW BELL, being persons other than a public corporation, made available to Robert Boyd Kinnear and Angela Kinnear, a prescribed interest, contrary to section 1064(1) of the Corporations Law read with section 1311(1)(a) of the Corporations Law."
By notice of motion dated 23 August 1999 the accused sought to quash the indictment on the basis that it failed to disclose an offence known to the law of Western Australia or to the law of the Commonwealth. The motion to quash was removed to the High Court on 20 October 1999.
The matter came before the High Court as a case stated raising specific questions concerning the nature of the offences and the right of the Director to prosecute offences against the Corporations Law (WA). As appears from the statement of agreed facts before the High Court, on 8 August 1997 the accused and Bell were arraigned and pleaded not guilty. On 8 December 1998 following an application on behalf of the Director, Williams DCJ amended the period alleged in the three counts on the indictment to "between a date on or about 1st February 1992 and a date on or about 13th March 1992".
On 23 August 1999 the accused applied to quash the indictment pursuant to s 614 of the Criminal Code (WA). The application to quash the indictment was initially supported by written submissions dated 20 August 1999 and later by oral argument before Healy DCJ on 23 August 1999. The primary contention on behalf of the accused was that the Corporations Act 1989 (Cth) ("the Cth Corporations Act") and the Corporations (Western Australia) Act 1990 ("the WA Corporations Act") were unconstitutional insofar as they deemed an offence against the "applicable provisions of a jurisdiction" to be an offence against the laws of the Commonwealth and insofar as they purported to confer the exclusive authority to prosecute such offences on an officer or authority of the Commonwealth. On 20 October 1999 Gaudron and Gummow JJ ordered that, pursuant to s 40(1) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), so much of the cause as was involved in the motion to quash the indictment be removed into the High Court.
Section 7 of the WA Corporations Act provides that:
"The Corporations Law set out in section 82 of the Corporations Act [1989 (Cth)] as in force for the time being -
(a)applies as a law of Western Australia; and
(b)in so applying, may be referred to as the Corporations Law of Western Australia."
Section 29 of the WA Corporations Act provides that:
"(1)The Commonwealth laws apply as laws of Western Australia in relation to an offence against the applicable provisions of Western Australia as if those provisions were laws of the Commonwealth and were not laws of Western Australia.
(2)For the purposes of a law of Western Australia, an offence against the applicable provisions of Western Australia -
(a)is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth; and
(b)is taken not to be an offence against the laws of Western Australia."
Section 31 of the WA Corporations Act provides that:
"A Commonwealth law applying because of section 29 that confers on an officer or authority of the Commonwealth a function or power in relation to an offence against the applicable provisions of the [Australian] Capital Territory also confers on the officer or authority the same function or power in relation to an offence against the corresponding applicable provision in Western Australia."
Section 1311(1)(a) of the Corporations Law (WA) relevantly provides that a person who does an act or a thing that the person is forbidden to do by a provision of the Law is guilty of an offence. The Corporations Law (WA) provided in s 1064(1) (since repealed) that:
"A person other than a public corporation, must not make available, offer for subscription or purchase or issue an invitation to subscribe for or buy, any prescribed interest."
"Prescribed interest" was defined in s 9 of the Corporations Law (WA) as including a "participation interest", which was in turn defined as any right to participate, or any interest:
"(a)in any profits, assets or realisation of any financial or business undertaking or scheme whether in Australia or elsewhere;
(b)in any common enterprise whether in Australia or elsewhere, in relation to which the holder of the right or interest is led to expect profits, rent or interest from the efforts of the promoter of the enterprise or a third party; or
(c)in any investment contract."
Section 47 of the Cth Corporations Act relevantly provided that:
"Regulations … may provide that prescribed authorities and officers of the Commonwealth have prescribed functions and powers that are expressed to be conferred on them by or under corresponding laws."
The WA Corporations Act is a corresponding law. Regulation 3(1)(d) of the Corporations (Commonwealth Authorities and Officers) Regulations 1990 (Cth) provided that the Director is one of the officers of the Commonwealth who has the functions and powers expressed to be conferred on them by or under a corresponding law.
In the High Court the accused submitted that there was a lack of legislative authority under Commonwealth and State law for the Director to prosecute the offences specified in the indictment. In particular, it was contended that the effect of the WA Corporations Act was to make offences against State law offences against Commonwealth law, which was beyond the competence of the State legislature.
In a joint judgment in R v Hughes [2000] HCA 22; (2000) 74 ALJR 802 Gleeson, Gaudron, McHugh, Gummow, Hayne and Callinan JJ held that, first, s 29 of the WA Corporations Act was not invalid as an exercise of State legislative power because it represented an "abdication" of legislative authority rather than the exercise of such an authority and did not deny or displace the binding effect upon the courts, judges and people of Western Australia given, by covering cl 5 of the Constitution, to the Constitution and laws made by the Parliament of the Commonwealth. Further, s 29 was not defective for want of sufficient specification of the command which it directed to the community.
As their Honours said in Hughes at pars [22] - [23]:
Section 29 uses the expression '[t]he Commonwealth laws'. 'Commonwealth law' is defined in s 3(1) as meaning 'any of the written or unwritten laws of the Commonwealth, including laws about the exercise of prerogative powers, rights and privileges …'. The definition excludes from its operation certain statutes, in particular the Law. This is identified in the definition as 'the Corporations Law of the [Australian] Capital Territory'. (The exclusion avoids a risk of repetition and circularity: the Law is already 'picked up' by s 7 of the WA Corporations Act, the text of which is set out earlier in these reasons.) What is significant for present purposes is that the term 'Commonwealth law' is apt to include [the Director of Public Prosecutions Act 1983 (Cth) ("the DPP Act")]. Section 29(1) then operates, for present purposes, by stating that the DPP Act applies as a law of Western Australia in relation to an offence against provisions of the Corporations Law (WA) 'as if' those provisions were not laws of Western Australia but were laws of the Commonwealth.
Then, '[f]or the purposes of a law of Western Australia', s 29(2) provides that an offence against the Corporations Law (WA) 'is taken to be' an offence against the laws of the Commonwealth (again, as if the Corporations Law (WA) were a law of the Commonwealth) and not 'an offence against the laws of Western Australia'. It is significant that s 29(2) is expressed to apply '[f]or the purposes of a law of Western Australia'. This indicates that the State legislature is not purporting to dictate to the Commonwealth Parliament what are Commonwealth laws. Rather, it is requiring certain of the laws of Western Australia to be treated as if they were Commonwealth laws for the purposes of Western Australian law."
Their Honours in the High Court also concluded that s 29 was not defective for want of sufficient specification of the command which it directed to the community. Any difficulties of interpretation by reason of such a "pick up" provision may arise from case to case, but that prospect did not entail invalidity. As their Honours said in par [26]:
"Section 29 is not invalid as an exercise of State legislative power because it represents an 'abdication' rather than the exercise of such an authority. There is no such principle applicable here. The authorities rejecting submissions to this effect are collected in Byrnes v The Queen [(1999) 73 ALJR 1292 at 1294]. Section 29 does not deny or displace the binding effect upon the courts, judges and people of Western Australia given, by covering cl 5 of the Constitution, to the Constitution and laws made by the Parliament of the Commonwealth. Nor is s 29 defective for want of sufficient specification of the command which, in an Austinian sense, it directs to the community. Difficulties of interpretation by reason of such a 'pick up' provision may arise from case to case but that prospect does not entail invalidity. The submissions by the accused respecting the alleged invalidity of s 29 and cognate provisions of the WA Corporations Act should be rejected."
Section 31(1) of the WA Corporations Act provides that:
"A Commonwealth law applying because of section 29 that confers on an officer or authority of the Commonwealth a function or power in relation to an offence against the applicable provisions of the [Australian] Capital Territory also confers on the officer or authority the same function or power in relation to an offence against the corresponding applicable provision of Western Australia."
In par [27] their Honours noted that, in the context of a decision whether the indictment should be quashed, the Director of Public Prosecutions Act 1983 (Cth) ("the DPP Act") was rendered applicable as a law of Western Australia in relation to the offences against the Corporations Law (WA) which were the subject of the indictment. Their Honours went on to say at [28] - [29]:
"The functions of the DPP under pars (a) and (b) of s 6(1) of the DPP Act include the institution and carrying on of prosecutions on indictment for indictable offences against the laws of the Commonwealth, including ss 1064(1) and 1311(1)(a) of the Law. Powers relevant to that function are contained in s 9 of the DPP Act. It follows that, as a matter of Western Australian law, the corresponding function or power is conferred on the DPP in relation to offences against ss 1064(1) and 1311(1)(a) of the Corporations Law (WA).
Furthermore, the functions or powers of the Attorney-General conferred by ss 7 and 8 of the DPP Act in respect of the performance of the functions and powers of the DPP are, with respect to offences against the Corporations Law (WA), conferred upon the Attorney-General as a matter of Western Australian law."
As their Honours pointed out at [30], it was in this context that s 46 of the Cth Corporations Act came into play. The effect of that provision is that, as a matter of Commonwealth law, the Attorney‑General "has such functions and powers as are expressed to be conferred upon him or her by or under [the WA Corporations Act]". With respect to the DPP, it was the provisions of s 47 of the Cth Corporations Act and of reg 3(1)(d) of the Regulations which operated, as a matter of Commonwealth law, to specify that that officer had the functions and powers expressed to be conferred on him or her by the WA Corporations Act: cf Registrar of the Court of Appeal v Craven [No 1] (1995) 120 FLR 427 at 457 - 458 per Meagher JA.
In pars [40] - [44] their Honours concluded that the DPP Act was supported by as many heads of power as from time to time had been exercised by the Commonwealth Parliament to create offences against Commonwealth laws. State laws may create offences in fields where it would have been competent for the Parliament of the Commonwealth to enter directly by its own offence‑creating legislation. In this case, the offences with which the accused was charged related to the making of investments in the United States and thus, to trade and commerce with other countries, thereby attracting s 51(1) of the Constitution. They also related to matters territorially outside Australia, but touching and concerning Australia, and therefore attracted the power in s 51(xxix) of the Commonwealth Constitution: see pars [40] and [42].
Finally, it was held that a law of the Commonwealth could not take the definitions of "prescribed interest" and "participation interest" in the Corporations Law (WA) as criteria of operation for the prosecution unless they were read down to exclude purely domestic dealings of the proscribed varieties. However, by operation of s 15A of the Acts Interpretation Act 1901 (Cth), this could be achieved by construing the phrase in s 47(1) of the Cth Corporations Act: "the functions and powers that are expressed to be conferred on them by or under corresponding laws", as limited to those functions and powers in respect of matters within the legislative powers of the Commonwealth Parliament. In the result, their Honours concluded that s 47(1) of the Cth Corporations Act and reg 3(1)(d) of the Corporations (Commonwealth Authorities and Officers) Regulations operated to provide such authority as was necessary under Federal law to support the prosecution by the DPP of the offences against the law of Western Australia which were specified in the indictment: pars [43] and [44].
On 15 May 2000 an officer of the former Western Australian Major Fraud Squad charged both the accused and Bell with offences of stealing and fraud under s 378 and s 409 respectively of the Criminal Code (WA). These alleged offences were said, among other things, to arise out of the same facts and circumstances that gave rise to the present indictment.
On 4 September 2000 this matter came on again in the District Court for resolution of the notice of motion and argument of various pre‑trial matters pursuant to s 611A of the Criminal Code. The accused then sought a stay of proceedings based upon a combination of the following:
(1)the unacceptable prejudice caused to the accused as a consequence of the parallel criminal proceedings based upon the same facts and circumstances; and
(2)the irreconcilable uncertainty of the trial process for offences under the Corporations Law which were left unresolved by the High Court, namely:
(a)whether the trial upon indictment of offences under the Corporations Law is to be conducted in accordance with s 80 of the Commonwealth Constitution; and
(b)what laws of evidence apply?
The accused also challenged the present indictment on the basis that it failed to comply with the requirements of s 578 of the Criminal Code. It was following the consideration of these and other matters that Healy DCJ reserved the three points of law set out above for the opinion of this Court pursuant to s 49 of the District Court Act.
At the outset of the hearing before this Court, counsel for the accused was asked how it was that it was contended that the Commonwealth prosecution should be stayed as an abuse of process by reason of the commencement of a State prosecution arising out of the same facts and circumstances. One would have thought that if there was to be an argument about abuse of process, it would be related to the State‑based subsequent prosecution rather than the current Commonwealth prosecution. It was conceded that there was no party before this Court who was in a position to seek to uphold the validity, effectiveness or propriety of the subsequent prosecution. Counsel for the accused accepted that this was a matter that was still before the District Court to be considered in the light of the answers to the current set of questions referred to this Court. In the result, the subsequent State prosecution is of no relevance or significance in the context of these proceedings, which are concerned with the substantive and procedural law applicable to the trial of an offence against the WA Corporations Act.
As a result of the answer to question 4 before the High Court, s 29 of the WA Corporations Act is a valid law of the State of Western Australia and operates according to its terms, insofar as it purports to create offences which are "taken to be" offences against the laws of the Commonwealth. Further, s 31 of the WA Corporations Act constitutes a valid and effective conferral of the function or power upon the Commonwealth DPP as "an officer or authority of the Commonwealth" to prosecute offences against the Corporations Law (WA), subject to the answer to question 8. The answer to question 8 was that s 31 of the WA Corporations Act in combination with s 29(1) of that Act and s 9(2)(a) of the DPP Act (when read with reg 3(1)(d) of the Corporations (Commonwealth Authorities and Officers) Regulations made pursuant to s 47 and s 73 of the WA Corporations Act) authorised the DPP to exercise the function or power to prosecute offences against the Corporations Law (WA). Finally, it was held by the High Court that the indictment in this case disclosed offences known to the law of Western Australia. It is against this background that this Court is called upon to answer the questions referred.
Question 1: Applicability of s 80 of the Commonwealth Constitution
The first question is whether s 80 of the Commonwealth Constitution applies to the trial on indictment of an offence against the Corporations Law (WA). Section 80 of the Commonwealth Constitution provides that:
"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."
The verdict in a trial for an offence against "any law of the Commonwealth" must be unanimous: Cheatle v The Queen (1993) 177 CLR 541.
Section 28(1) of the WA Corporations Act provides that the purpose of Div 2 of Pt 8, which is concerned with the national administration and enforcement of the Corporations Law, is to treat an offence against the Corporations Law (WA) "as if it were an offence against the laws of the Commonwealth". Section 28(1) appears at the commencement of Div 2 of Pt 8 of the WA Corporations Act. It provides that an object of Div 2 is to further the object of Pt 8 by providing in s 28(1)(a):
"For an offence against an applicable provision of Western Australia to be treated as if it were an offence against a law of the Commonwealth."
Section 28(2) provides that the purposes for which an offence is to be treated as an offence against the laws of the Commonwealth are as follows:
"(a)the investigation and prosecution of offences; and
(b)the arrest, custody, bail, trial and conviction of offenders or persons charged with offences; and
(c)proceedings relating to a matter referred to in paragraph (a) or (b); and
(d)appeals and review relating to criminal proceedings and to proceedings of the kind referred to in paragraph (c); and
(e)the sentencing, punishment and release of persons convicted of offences; and
(f)fines, penalties and forfeitures; and
(g)liability to make reparation in connection with offences; and
(h)proceeds of crime; and
(i)spent convictions."
As has been seen, s 29(1) provides that "the Commonwealth laws" apply as laws of Western Australia in relation to an offence against the applicable provisions of the Corporations Law (WA) as if those provisions were laws of the Commonwealth and were not laws of the State.
The expression "the Commonwealth laws" as used in s 29 is defined in s 3(1) as meaning:
"Any of the written or unwritten laws of the Commonwealth, including laws about the exercise of prerogative powers, rights and privileges."
As has also been seen, s 29(2) provides that, "for the purposes of a law of Western Australia" an offence against the Corporations Law (WA) "is taken to be" an offence against the laws of the Commonwealth, "as if" the Corporations Law was a law of the Commonwealth and "is taken" not to be an offence against the laws of Western Australia.
The primary contention on the part of the accused was that, notwithstanding the fiction created by these provisions, the High Court in Hughes had upheld their validity on the basis that the State legislature was doing no more than "requiring certain of the laws of Western Australia to be treated as if they were Commonwealth laws for the purpose of Western Australian law": see par [23] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; and at [88] per Kirby J. Accordingly, it was submitted on behalf of the accused that an offence against the Corporations Law (WA) is a State offence, notwithstanding that for the purposes of Western Australian law, it is to be deemed an offence against the laws of the Commonwealth. That submission may be accepted, but it remains necessary to give full effect to the requirement that the offence is required by the law of Western Australia to be taken to be an offence against a law of the Commonwealth.
In the course of argument in Hughes in the High Court, an issue arose in relation to s 29(1) of the WA Corporations Act regarding which of the "written or unwritten laws" of the Commonwealth were "picked up" as applying in relation to a prosecution for an offence against the Corporations Law (WA). There was some debate about whether s 80 was applicable and whether the State or Commonwealth laws of evidence applied. As the High Court was not required to resolve these questions, they were left unanswered: see par [24] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; and pars [90] - [91] per Kirby J. In par [90] Kirby J referred to the uncertainty as to whether the provisions of s 80 of the Commonwealth Constitution and the provisions of the Evidence Act 1995 (Cth) would apply. His Honour went on to say in par [91]:
"These are very practical complications which will doubtless return to trouble the courts unless a greater measure of clarity can be introduced into the 'novel legislative device'."
The questions raised in the present proceedings are proof positive of the accuracy of that prediction.
It was accepted by counsel for the accused that if the Commonwealth Constitution was a "Commonwealth law" as defined by s 3 of the WA Corporations Act, s 80 of the Commonwealth Constitution would apply in accordance with its terms. It was contended, however, that the Commonwealth Constitution is not a "Commonwealth law" as defined in s 3 of the Act, namely:
" 'Commonwealth law' means any of the written or unwritten laws of the Commonwealth, including laws about the exercise of prerogative powers, rights and privileges, other than the Corporations Law of the Capital Territory, the ASC Law of the Capital Territory or provisions prescribed, for the purposes of the definition of 'Commonwealth law' in section 4 of the Corporations Act, by regulations under section 73 of the Corporations Act."
In Re Colina; Ex parte Torney [1999] HCA 57; (1999) 73 ALJR 1576 at [25] Gleeson CJ and Gummow J said:
"The term 'law of the Commonwealth' refers to laws made under the legislative powers of the Commonwealth. This meaning is settled by a long line of authorities. (eg R v Bernasconi (1915) 19 CLR 629 at 635; Jerger v Pearce (1920) 27 CLR 526 at 531; Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 431; Sankey v Whitlam (1978) 142 CLR 1 at 91-92; Western Australia v The Commonwealth (1995) 183 CLR 373 at 436-437.) In particular an obligation or liability which has its source in the Constitution itself does not arise under a law of the Commonwealth. (Sankey v Whitlam (1978) 142 CLR 1 at 29-30, 72-74, 91-93, 104-105.) The fact that there are laws made by the Parliament which are declaratory of the power implicit in Ch III of the Constitution or which make provision under s 51(xxxix) of the Constitution incidental to the exercise of that power does not bring the case within s 80."
See also McHugh J at pars [45] - [46]; and par [108] per Hayne J.
Section 68(2) of the Judiciary Act is clearly a "Commonwealth law" within the definition in s 3 of the WA Corporations Act which confers Federal jurisdiction on State courts with respect to an offence against the laws of the Commonwealth. It follows that such conferral is subject to s 80 of the Commonwealth Constitution. In R v Cook; Ex parte Commonwealth DPP (1996) 130 FLR 354, the Court of Appeal of Queensland held that a breach of the Corporations Law (Qld) constituted an offence against a law of the Commonwealth for the purposes of s 68(2) of the Judiciary Act, thereby permitting the Court to hear a reference from the Director under s 669A of the Criminal Code (Qld). In that case, Davies JA, Moynihan and Ambrose JJ said at 355 - 356:
"There is a preliminary question, on which the Court invited submissions, of whether the Commonwealth Director of Public Prosecutions may refer to this Court a point of law pursuant to s 669A of the Criminal Code. This Court has jurisdiction under s 669A only to hear a reference by the Attorney-General. 'Attorney-General' in s 669A is the State Attorney-General: s 35(1) of the Acts Interpretation Act 1954 (Qld). Accordingly, s 669A does not permit the Commonwealth Director of Public Prosecutions to refer a question to this Court.
However, s 68(2) of the Judiciary Act 1903 (Cth) gives jurisdiction to the State Supreme Courts in relation to '… the hearing and determination of appeals arising out of any … trial or conviction', with respect to an offence against the laws of the Commonwealth committed within the State, which appeal is brought by the Commonwealth Attorney-General (or by the Commonwealth Director of Public Prosecutions: Rohde v Director of Public Prosecutions (1986) 161 CLR 119.
Two questions arise under that section:
(a) is an offence against the Corporations Law (Qld) an offence against the laws of the Commonwealth for its purposes; and
(b) is a reference on a point of law an 'appeal' within it?
In regard to (a), s 7 of the Corporations (Queensland) Act 1990 provides that the Corporations Law applies as a law of Queensland. Thus, as the Law is the product of an enactment of the Queensland legislature, it is a Queensland law. Chew v The Queen (1992) 173 CLR 626 at 649. Therefore, prima facie, a contravention of a provision of that Law as enacted by the Queensland Act is not an offence against the laws of the Commonwealth. However, the Corporations Act 1989 (Cth) provides that for the purposes of a law of the Commonwealth, an offence against the provisions of a law of a jurisdiction other than the Capital Territory is taken, first to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth, and secondly, not to be an offence against the laws of that jurisdiction. In our opinion, this effectively means that a breach of a provision of the Corporations Law (Qld), is an offence against a law of the Commonwealth for the purposes of s 68(2) of the Judiciary Act: see generally Registrar, Court of Appeal v Craven (1994) 120 FLR 427.
With regard to (b), s 2 of the Judiciary Act provides 'appeal includes … any proceedings to review or call in question the … decision of any Court or Judge'. A reference on a point of law, though not an appeal in the ordinary sense of the word, in that it does not seek to affect the outcome of the case decided below, is an 'appeal' for the purposes of s 2 of the Judiciary Act: it 'calls into question the decision of the judge', Questions of Law (No 2 of 1993 (1993) 61 SASR 1 at 3.
For those reasons we would conclude that s 68(2) of the Judiciary Act confers in this Court jurisdiction to hear a reference under s 669A."
This Court was informed that, notwithstanding the decision in Cook, in the course of argument in Hughes in the High Court, the Commonwealth Attorney-General, intervening, said that the formal position of the Commonwealth was that s 80 did not apply, but that "out of an abundance of caution the [Director] acts on the basis that s 80 may apply". The Director informed this Court that "as a matter of policy in terms with the practice of the office, s 80 is regarded as applicable". As against this, the Attorney General for Western Australia, intervening in the present proceedings, submitted that s 80 of the Commonwealth Constitution did not apply as the Judiciary Act was not picked up by s 29 of the WA Corporations Act.
I have already set out the provisions of s 29 of the WA Corporations Act. This has the effect that "The Commonwealth laws" apply as laws of Western Australia in relation to an offence against the applicable provisions of Western Australia, as if those provisions were laws of the Commonwealth and were not laws of Western Australia. Section 29(2) provides that such an offence is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth; and taken not to be an offence against the laws of Western Australia.
While the offences themselves are created by Western Australia law and are State offences, the Western Australian law requires that for the purposes of a law of Western Australia, which would include the WA Corporations Act itself, such an offence is required to be treated as an offence against the laws of the Commonwealth in the same way as if the provision creating the offence was a law of the Commonwealth. In other words, s 1311(1)(a) of the Corporations Law (WA) is required to be treated for the purposes of Western Australian law as if it were a law of the Commonwealth.
In my opinion, the contention that the Commonwealth Constitution is not a "Commonwealth law" as defined in s 3 of the Act, as contended by counsel for the accused and counsel for the State Attorney General, so that s 29 did not "pick up" s 80 of the Commonwealth Constitution, may be accepted. That does not conclude the matter, however. The point is that it is the State law which requires that the offence created by the relevant provisions be treated as if it were an offence against a law of the Commonwealth. On that basis, while s 80 of the Commonwealth Constitution does not apply of its own constitutional force to the trial of an offence under State law, its application is attracted by virtue of the State law requiring that the provision creating the offence be taken to be an offence against a law of the Commonwealth, in the same way as if it were a law of the Commonwealth and not an offence against the law of Western Australia. In this respect, I agree with the conclusion reached in the joint judgment in Cook, supra, at 356. This means that a breach of the provision of the Corporations Law (WA) is required to be treated as an offence against a law of the Commonwealth, with the result that s 80 of the Commonwealth Constitution applies by force of the State law as distinct from it applying of its own force as a law of the Commonwealth.
It may be accepted that s 80 is not "picked up" as a consequence of the Judiciary Act being picked up by s 29 of the WA Corporations Act. In this case, also, the relevant effect of s 29(1), however, is that the provisions of the Judiciary Act apply as laws of Western Australia for the purposes of the Corporations Law (WA), as if the provisions of that Law were exclusively laws of the Commonwealth. This result is consistent with the scheme of the combination of the various enactments constituting the Co‑operative Corporations Law Scheme. Part 8 of the WA Corporations Act is intended to ensure that the Corporations Law (WA) and the corresponding laws of each other Australian jurisdiction are administered and enforced on a national basis, as if they constituted a single body of Commonwealth law. In other words, the effect of the relevant provisions, so far as Western Australia is concerned, is to give effect to an intention that an offence against the Corporations Law (WA) is to be treated as if it were an offence against Commonwealth law for the purposes of, among other things, the prosecution, trial and conviction of offenders. It is in that context that s 29(2) provides that for the purposes of the laws of the State, an offence under the Corporations Law is to be considered as an offence against a law of the Commonwealth as distinct from an offence against a law of the State.
It was contended on behalf of the Director that it would be consistent with the provisions and purposes of s 26 and s 28 of the WA Corporations Act for the constitutional protection provided in s 80 to be drawn into the State law. This would enable all offences against the Cth Corporations Law to be dealt with in the same way, however the prosecution was brought. Further, if under s 29(2) an offence against the applicable provisions of Western Australia is to be taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth, and is not to be taken to be an offence against the laws of Western Australia, it seems to me that there is a compelling reason for the conclusion that s 80 of the Commonwealth Constitution is rendered applicable by the State of Western Australia, by force of its own law requiring the offence to be dealt with as if it were an offence against a law of the Commonwealth. This is the logical result of the "abdication" approach refined by the High Court requiring the offence to be dealt with as an offence against the law of the Commonwealth, so as to attract the application of s 80 of the Commonwealth Constitution. It follows that s 41 of the Juries Act (WA) has no application. Section 41 is limited in its application to the trial on indictment of offences pursuant to the Criminal Code (WA), which itself has no application to Commonwealth offences: Kiely v R [1974] WAR 180.
This conclusion is consistent with the national character of the scheme, which is evidenced by s 55 of the WA Corporations Act. Section 55(1) makes provision for the several courts of each State and Territory exercising jurisdiction in respect to the summary conviction; the examination and commitment to trial on indictment; or the trial and conviction on indictment of offenders or persons charged with offences against the laws of the State or Capital Territory and with respect to their sentencing, punishment and release; or their liability to make reparation and connection with their offences; for the forfeiture of property in connection with their offences, or the proceeds of their crimes. Such jurisdiction also extends to the hearing and determination of proceedings connected with, or appeals arising out of, any such trial or conviction or any matter of a kind just described. Each such court is given the equivalent jurisdiction with respect to offenders or persons charged with offences against the Corporations Law (WA). Section 55(2) empowers a court in Western Australia to exercise jurisdiction conferred by a provision of a law of another State or the Capital Territory corresponding to s 55(1).
Section 56(1) and (2) of the WA Corporations Act provide that:
"(1)Subject to this Division, the laws of Western Australia respecting -
(a)the arrest and custody in Western Australia of offenders or persons charged with offences; and
(b)criminal procedure in Western Australia in relation to such persons -
apply in Western Australia, so far as they are applicable, to persons who are charged with offences against the Corporations Law of Western Australia or of another State or the Capital Territory in respect of whom jurisdiction is conferred on a court of Western Australia by this Division or a corresponding law of another State or the Capital Territory.
(2)Subject to this Division, the laws of each other State and the Capital Territory respecting -
(a)the arrest and custody in that State or Territory of offenders or persons charged with offences; and
(b)criminal procedure in that State or Territory in relation to such persons -
apply in that State or Territory, so far as they are applicable, to persons who are charged with offences against the Corporations Law of Western Australia in respect of whom jurisdiction is conferred on a court of that State or Territory by this Division."
It is made clear by subs (3) of s 56 that the application of laws by s 56(1) and (2) is in addition to, and not in derogation from, the application of laws effected by Part 8 or the corresponding law of another State or the Capital Territory.
Section 56(4) provides that in s 56:
" 'criminal procedure' means the procedure for -
(a)the summary conviction; and
(b)the examination and commitment for trial and indictment; and
(c)the trial and conviction on indictment; and
(d)the hearing and determination of appeals arising out of any such trial or conviction or out of any related proceedings -
of offenders or persons charged with offences and including the procedure for holding accused persons to bail."
Section 56(4) also provides that in s 56:
" 'laws of each other State and the Capital Territory' means the laws that apply in relation to offenders, or persons charged with offences, against the Corporations Law of the State or Territory concerned."
In my opinion, these provisions are consistent with and support the interpretation that, by virtue of the parallel provisions in each State or Territory, offences in each jurisdiction are to be taken to be offences against a law of the Commonwealth on the footing that, while the procedure of the jurisdiction where the trial or other proceeding is to take place is required to conform to that of the State or Territory concerned, nonetheless, in each jurisdiction the offence is to be taken to be an offence against a law of the Commonwealth and not to be an offence against the law of the State or Territory in which the prosecution takes place. In my opinion, all of these provisions are consistent with the application to such offences of s 80 of the Commonwealth Constitution. Section 41 of the Juries Act, however, does not apply of its own force to Commonwealth offences. For the same reasons as in Kiely, the Criminal Code did not apply to Commonwealth offences of its own force. Section 55 of the WA Corporations Act appears to be the equivalent at State level of s 68(2) of the Judiciary Act, although unlike s 68(2) of the latter, the jurisdiction is not expressed to be subject to s 80 of the Commonwealth Constitution. However, for the reasons I have already expressed, such an express provision was not necessary.
The words in s 56(1) qualifying the application of the relevant laws of Western Australia respecting the subject matter referred to in that subsection apply "so far as they are applicable". This provision is necessary because of the substantive provision that the relevant offences are by force of the State law to be treated as if they were offences against the laws of the Commonwealth rather than, as was suggested by counsel for the accused, merely to take account of s 109 of the Commonwealth Constitution.
It was submitted on behalf of the Director that s 55 specifically provided, in similar terms to s 68(2) of the Judiciary Act, for State courts to have jurisdiction with respect to the trial and conviction on indictment of persons charged with offences against the Corporations Law. However, unlike s 68(2) of the Judiciary Act, the jurisdiction was not expressed to be subject to s 80 of the Commonwealth Constitution. Similarly, s 56(1) of the WA Corporations Act provides that the laws of Western Australia respecting criminal procedure apply in Western Australia to persons charged with offences against the Corporations Law. Unlike s 55, s 56 is expressed to be in addition to and not in derogation from the application of law effected by s 29 of the WA Corporations Act. Further, it was submitted that if there was a conflict between the applied laws of procedure and Western Australian laws of procedure, the latter would prevail. However, the primary submission, to which I have referred earlier, was that there was no such conflict because the Judiciary Act was picked up and the references in it to offences against the Commonwealth would be deemed to include offences against the Corporations Law.
In my opinion, there is no substance in this point which would have the result that the relevant law and procedure in Western Australia would be applicable in the context of a trial by jury whether that was a matter going to jurisdiction or a matter of procedure. That appears to be contrary to the apparent purpose and intent of the legislation.
If the alternative submission of the Director was correct, it would mean that an accused in Western Australia could, with the consent of the Crown under s 651A of the Criminal Code, elect to be tried by a Judge alone or, if trial was by jury, a majority verdict could be taken in the circumstances specified in s 41 of the Juries Act. It was in this context that it was submitted that as the Corporations Law was not a true law of the Commonwealth, there was no constitutional impediment to these provisions applying to offences under the Corporations Law. In my opinion, that contention ignores the conclusion which I have reached earlier that s 80 of the Commonwealth Constitution is applicable, not by virtue of its own force in applying to a law of the Commonwealth, but by virtue of the force of Western Australian law which requires the offence to be taken to be, for the purposes of Western Australian law, an offence against a law of the Commonwealth.
For these reasons, I would answer Question 1, "Yes".
Question 2: What laws of evidence are applicable?
I have already set out the provisions of s 29 of the Act. The Evidence Act 1995 (Cth) ("the Cth Evidence Act") is a Commonwealth law that would apply to prosecutions for offences against the Corporations Law (WA) by virtue of s 29 of the WA Corporations Act. By its express terms, however, the Cth Evidence Act, with some exceptions, is expressed by s 4 as not to apply to criminal proceedings in State courts: see also the definition of "federal court" in the dictionary of the Cth Evidence Act. State Evidence Acts have been applied to prosecutions for Corporations Law offences in other jurisdictions: R v Hannes [2000] NSW CCA 503; and Re Southern Equities Corporation Ltd (In Liq; Bond v England (1997) 140 FLR 202. The effect of s 29, however, is that subject to s 55 and s 56 of the Act and other express provisions in the Corporations Law (WA), laws of evidence applicable to a prosecution on indictment of an offence against the laws of the Commonwealth apply to a prosecution on indictment of an offence against the Corporations Law: see, for example, s 1305.
The term "laws of Western Australia" includes the written and unwritten or common law of the State. By s 5 of the Interpretation Act 1984, the term "written law" means all statute law. The Act consistently refers to "written laws" except in s 13 where "law of the State" is defined to mean "written law". The Act does not define the term "laws of Western Australia". However, it does define "Commonwealth law" to mean "written and unwritten law". It was submitted that the corresponding term in relation to the State should not be given a corresponding meaning. In my opinion, there seems to be no substantive reason why, in the context of the WA Corporations Act and the Corporations Law (WA) the term "laws of Western Australia" should not be interpreted to mean the written and unwritten law of the State, including the common law of Australia as it applies in Western Australia.
As a result of the provisions of the WA Corporations Act requiring that an offence under the Corporations Law (WA) is to be dealt with as if it were an offence against a law of the Commonwealth, as has been seen, s 56(1) of the Corporations Law (WA) applies the criminal procedure of Western Australia, to persons who are charged with offences against the Corporations Law (WA). This would not include the laws of evidence, at least to the extent that such laws deal with a substantive matter as distinct from matters of procedure. In my opinion, the purpose of s 56 of the WA Corporations Act is to supplement s 29(1) of the Act by applying Western Australian law with respect to criminal procedure (as defined) where relevant Commonwealth laws either do not exist or are inapplicable. The expression "so far as they are applicable" suggests that s 56 was not intended to operate in lieu of the Commonwealth laws to which s 29 refers, but to fill any gaps that might otherwise exist.
It was submitted on behalf of the accused that, to the extent that the Judiciary Act is a law of the Commonwealth for the purpose of s 29(1) of the WA Corporations Act, it could be contended that s 79 is picked up. Section 79 relevantly provides that:
"The laws of each State or Territory, including the laws relating to procedure, evidence and the competency of witnesses shall … be binding on all courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."
It was submitted, however, that s 79 of the Judiciary Act was not picked up by s 29(1) as it was concerned solely with the exercise of federal jurisdiction (truly so‑called) which is derived directly from Ch III of the Commonwealth Constitution. It is not concerned with the prosecution of State offences, which through the use of the "novel legislative device" are sought to be treated as if they were truly offences under Commonwealth law. In this respect, reliance was placed upon the decision in Hughes for the proposition that, while s 29 treats offences against the Corporations Law (WA) as if they were offences against the laws of the Commonwealth, for the purposes of Western Australian law, they remain State offences amenable to State jurisdiction. If this submission were accepted it would follow that s 79 of the Judiciary Act was not concerned with or connected with the exercise by a State Court of State jurisdiction. All that might be so, but it is necessary to give force and effect to the provisions of s 29(1) of the WA Corporations Act in accordance with its terms and apply the Commonwealth laws as laws of Western Australia in relation to an offence against the applicable provisions of Western Australia "as if those provisions were laws of the Commonwealth and were not laws of Western Australia". In my opinion, the State laws of evidence are laws of procedure and are picked up by s 56(4) of the WA Corporations Act which applies in the same way as s 68(1) of the Judiciary Act: R v Drury (1983) 50 ALR 159 at 162 per Kelly J. The effect of s 56(4) is to pick up all the laws of evidence that are procedural as distinct from substantive. The Evidence Act of the Commonwealth only applies to proceedings in federal courts. It does not apply in criminal proceedings or Corporations Law proceedings.
Section 79 of the Judiciary Act is applied by virtue of s 29(1) of the WA Corporations Act. Section 79 provides that the laws of evidence of the State are applicable where a court is exercising federal jurisdiction. Although the District Court in this case would not be exercising federal jurisdiction in the sense that the jurisdiction derives from a State rather than a federal law, it is exercising a jurisdiction which requires it to deal with the matter as if it were a Commonwealth offence under Commonwealth law.
In applying laws under provisions such as s 68 and s 79 of the Judiciary Act, the process is one of application by way of analogy: Williams v The King [No 2] (1934) 50 CLR 551; and Peel v The Queen (1971) 125 CLR 447. In my view, s 29(1) of the WA Corporations Act should be construed to operate in the same way when it picks up s 79. While the jurisdiction being exercised is not federal jurisdiction, properly so called, it is the effect of the national scheme that the offence is to be dealt with "as if" if were an offence under Commonwealth law. In these circumstances, s 79 of the Judiciary Act should be applied so as to make the State laws of evidence applicable.
To the extent that common law rules of evidence are applicable, they would apply to fill any gaps by virtue of s 29 of the State Act which applies to both written and unwritten laws of the Commonwealth. The common law itself is a law of the Commonwealth: The King v Kidman & Ors (1915) 20 CLR 425.
I would answer Question 2, "The laws of evidence of Western Australia".
Question 3: Applicability of s 578 of the Criminal Code (WA)
Question 3 of the reference was:
"Does s 578 of the Criminal Code (WA) apply to the present indictment for offences against the Corporations Law (WA) (1990)?
Section 578 of the Criminal Code (WA) provides that:
"When a person charged with an indictable offence has been committed for trial, and it is intended to put him on his trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.
The indictment is to be signed and presented to the court by the Attorney General or some other person appointed in that behalf by the Governor."
In Hughes at par [27] in the joint judgment their Honours held that the DPP Act was rendered applicable as if it was a law of Western Australia in relation to the offences against the Corporations Law (WA) which were the subject of the indictment. This meant that s 31(1) of the Corporations Law (WA) then comes into play, which provides:
"A Commonwealth law applying because of section 29 that confers on an officer or authority of the Commonwealth a function or power in relation to an offence against the applicable provisions of the Capital Territory also confers on the officer or authority the same function or power in relation to an offence against the corresponding applicable provision of Western Australia."
As their Honours said in Hughes at pars [28] and [29]:
"The functions of the DPP under pars (a) and (b) of s 6(1) of the DPP Act include the institution and carrying on of prosecutions on indictment for indictable offences against the laws of the Commonwealth, including ss 1064(1) and 1311(1)(a) of the Law. Powers relevant to that function are contained in s 9 of the DPP Act. It follows that, as a matter of Western Australian law, the corresponding function or power is conferred on the DPP in relation to offences against ss 1064(1) and 1311(1)(a) of the Corporations Law (WA).
Furthermore, the functions or powers of the Attorney-General conferred by ss 7 and 8 of the DPP Act in respect of the performance of the functions and powers of the DPP are, with respect to offences against the Corporations Law (WA), conferred upon the Attorney-General as a matter of Western Australian law."
The reference to the Attorney General in this context is to the Commonwealth Attorney General.
It seems to me, on the face of it, that Question 3 must be answered "No". This result would be consistent with the decision of this Court relating to the application and operation of s 68(1) of the Judiciary Act, which applies to the exercise of the invested federal jurisdiction in criminal matters the laws of the State respecting the arrest and custody of offenders or persons charged with offences and the procedure for their trial and conviction on indictment. The Crimes Act (Cth) is silent on the subject of a nolle prosequi. Section 9(4) of the DPP Act as it stood in 1988 simply provided that the Director as a delegate may decline to proceed further in a prosecution.
Section 579 of the Code provides in the fourth paragraph that, with regard to any person committed for trial in respect of an indictable offence alleged to have been committed by him:
"… the Attorney General and, if otherwise acting within the scope of their authority, all officers and persons authorised to sign and present indictments may present indictments against any such person for any indictable offences which the Attorney General or any such officers or persons shall consider to be prima facie disclosed by the evidence, irrespective of whether the said offences are mentioned in the commitment for trial or not …"
In R v Marinovich [1988] 1 WAR 343 at 347 Seaman J held that because the then Commonwealth Deputy DPP in Western Australia, Mr Nairn, held an appointment from the Governor of Western Australia in Executive Council to present indictments in any court of criminal jurisdiction, he had the necessary authority to present the second indictment.
Section 581 of the Code specifically provided that such an officer may inform the court, by writing under his hand, that the Crown will not further proceed upon any indictment then pending in the court. This decision was reached without deciding the question of the applicability of s 581 of the Code by virtue of s 68(1) of the Judiciary Act, in the light of the provisions of the DPP Act, or the question of the adoption and application of the State law by analogy so as to construe s 581 as giving the necessary authority to the Deputy Director.
In the result it is sufficient to refer to the judgment of Hughes at pars [32], [33] and [44] as follows:
"[32]… As indicated earlier in these reasons, the effect of the national scheme was to substitute the Commonwealth prosecution apparatus for that of the relevant State. State functionaries were directed by State law, in this case by s 33 of the WA Corporations Act, not to perform or exercise functions or powers conferred by the State legislation upon an officer or authority of the Commonwealth."
"[33]It is submitted, principally by the DPP and the Attorney-General who intervened in his support, that reg 3(1)(d) of the Regulations and the federal laws which support it involve no more than an approval or consent to the exercise of State functions and powers by the DPP. It is said that the State provisions simply purport to confer powers upon the DPP, whose exercise may be the subject of general directions by the Attorney-General under s 8 of the DPP Act. However, what is involved in the federal legislation is more than consent or permission by the Commonwealth to the exercise by its officers of additional functions and powers derived entirely from State law. These additional functions and powers are imposed by federal law as a mater of duty or obligation, lest there be an abdication of State authority with no certainty of its effective replacement."
"[44]Accordingly, the federal legislation identified above (s 47(1) of the Corporations Act and reg 3(1)(e) of the Regulations) operates to provide such authority as is necessary under federal law to support the prosecution by the DPP of the offences against the law of Western Australia which are specified in the indictment."
It is for these reasons and against this background that I would answer Question 3, "No".
Conclusion
In my opinion the Court should order that the questions be answered as follows:
Question 1: Does s 80 of the Commonwealth Constitution apply to the trial on indictment of an offence against the Corporations Law (WA) 1990?
Answer: Yes.
Question 2: In a trial on indictment for an offence against the Corporations Law (WA) 1990, what laws of evidence are applicable?
Answer: The laws of evidence of Western Australia.
Question 3: Does s 578 of the Criminal Code (WA) apply to the present indictment for offences against the Corporations Law (WA) 1990?
Answer: No.
Effect of the Corporations Act 2001 (Cth); and Corporations (Commonwealth Powers) Act 2001 (WA)
Since the above was written, significant changes have been made to the relevant legislation following the enactment of the Corporations Act 2001(Cth) ("the Corporations Act") which came into force on 15 July 2001. The new legislation is the result of an agreement between the Commonwealth and the States whereby the States have referred to the Commonwealth power to enable the Commonwealth to enact, not only the Corporations Act, but also the Australian Securities and Investments Commission Act 2001 (Cth) ("the ASIC Act") and the consequent amendment power.
By a letter dated 9 August 2001 from the Acting Senior Assistant Director of Public Prosecutions for the Commonwealth, Perth Office, the changes to the legislation were formally brought to the attention of the Court. In the circumstances, a direction was given that there be further argument by way of written submissions. Submissions on the part of the Commonwealth were directed to be filed and served on or before 22 August 2001 and submissions on behalf of the respondent were directed to be filed and served on or before 28 August 2001.
The submissions on behalf of the Commonwealth were duly filed and served on 22 August 2001. The submissions on behalf of the respondent were not filed and served until 3 September 2001.
The conventional approach to transition from one statutory regime to another is that reflected in the Interpretation Act 1984 (WA) s 37, which states that, unless the contrary intention appears, where a written law repeals an enactment, the amendment does not affect any legal proceeding then pending which may be continued as if the repealing written law had not been passed or made. Thus, when amendments were made to the Corporations Law (WA) introducing new provisions concerning fundraising in 2000 (the new Ch 6D), the transitional provisions provided that the new Law applied to offers of securities made after the commencement of the amendment and that, if a prospectus had been lodged before such commencement, the previous Law would continue to apply: Corporations Law (WA) s 1475.
The transitional provisions contained in Pt 10.1 of the CthCorporations Act adopt a different approach. As I understand the provisions, the new Law entirely replaces the old Law from the commencement date, namely 15 July 2001, and the new Law is deemed to apply to them from the commencement date on 15 July 2001. Consequently, a reference in the new Cth Corporations Act to an event, circumstance or thing is taken to include a reference to an event, circumstance or thing that happened before the commencement of the new Law: s 1404(1). References to the old corporations legislation in instruments made before or after the commencement of the new Law are taken to include a reference to the corresponding part of the new corporations legislation: s 1407.
It was submitted on behalf of the Commonwealth that, by operation of law, the indictment now contains offences contrary to the Cth Corporations Act and that the trial on that indictment is now a proceeding under that Act. It follows, according to the submission, that the learned trial Judge will not be required to pass judgment in conformity with the opinion expressed by this Court as the foundation for the three questions no longer exists. It is further submitted that the substitution of offences and proceedings as has been outlined, is achieved by operation of various provisions of the Cth Corporations Act and the Corporations (Ancillary Provisions) Act 2001 (WA) ("the Ancillary Provisions Act).
Section 3 of the Cth Corporations Act provides that the constitutional basis for the Act is all of the legislative powers the Commonwealth Parliament has under s 51 of the Commonwealth Constitution (apart from the referral power under s 51(xxxvii) of the Commonwealth Constitution) and the legislative powers of the Parliament of the Commonwealth as a result of the referral of powers to it by the States. In Western Australia this referral was effected by the Corporations (Commonwealth Powers) Act 2001 (WA) s 4, which provides that various matters relating to corporations are referred to the Parliament of the Commonwealth to the extent that any such matter is not included in the legislative powers of the Parliament of the Commonwealth otherwise than by a reference under s 51(xxxvii) of the Commonwealth Constitution, and if and to the extent that the matter is included in the legislative powers of the State. By s 5(1), subject to earlier termination, the references terminate on the day that is the fifth anniversary of the commencement day or on a later day fixed by the Governor by proclamation under s 6.
The transitional provisions are contained in Pt 10.1 of the Cth Corporations Act which is entitled "Transition from the old corporations legislation". Section 1370(1) provides that:
"Subject to subsection (3) the object of this Part is to provide for a smooth transition from the regime provided for in the old corporations legislation of the States and Territories in this jurisdiction to the regime provided for in the new corporations legislation, so that individuals, bodies corporate and other bodies are, to the greatest extent possible, put in the same position immediately after the commencement as they would have been if:
(a)that old corporations legislation had from time to time when it was in force, been valid Commonwealth legislation applying throughout those States and Territories; and
(b)the new corporations legislation (to the extent it contains provisions that correspond to provisions of the old corporations legislation as in force immediately before the commencement) were a continuation of that old corporations legislation as so applying."
There is a note incorporated in the text of the print of the legislation to the following effect:
"The new corporations legislation contains provisions that correspond to most of the provisions of the old corporations legislation. Generally, the only exceptions to this are provisions of the old corporations legislation that related to the fact that the Corporations Law operated separately in each of the States and Territories (rather than as a single national law)."
Section 1370(2) and (3) provide that:
"(2)In resolving any ambiguity as to the meaning of any of the other provisions of this Part, an interpretation that is consistent with the object of this Part is to be preferred to an interpretation that is not consistent with that object.
(3)This Part does contain some provisions (for example, subsection 1400(4)) which apply or extend to matters under the old corporations legislation of any non‑referring state."
The transition is sought to be achieved by the creation of equivalent liabilities and proceedings under the new corporations legislation and the cancelling and termination respectively of the existing liabilities and proceedings under the old corporations legislation.
The creation of equivalent liabilities is achieved through s 1400 and s 1401 of the Cth Corporations Act which respectively deal with offences against the provisions of the Corporations Law (WA) which are no longer in force prior to the commencement of the Cth Corporations Act and offences in respect of which there is an equivalent provision in the Cth Corporations Act.
The indictment the subject of these proceedings contains three counts for an offence contrary to s 1064(1) of the Corporations Law read with s 1311(1)(a) of the Corporations Law (WA). Section 1064(1) was repealed by operation of the Managed Investments Act 1998 (Cth) and the WA Corporations Act. An equivalent provision to s 1311(1)(1a) is provided under the Cth Corporations Act. The liability under the Corporations Law (WA) was created by the combined effect of these provisions.
Section 1401 of the Cth Corporations Act substitutes a new liability under that Act equivalent to the liability incurred under a provision of the Corporations Law (WA) that ceased to be in force upon the commencement of the Cth Corporations Act. Section 1401 of the Cth Corporations Act provides that:
"(1)This section applies in relation to a right or liability (the pre‑commencement right or liability), whether civil or criminal that:
(a)was acquired, accrued or incurred under a provision of the old corporations legislation of a State or Territory in this jurisdiction that was no longer in force immediately before the commencement; and
(b)was in existence immediately prior to the commencement.
(2)For the purposes of subsections (3) and (4), the new corporations legislation is taken to include:
(a)the provision of the old corporations legislation (with such modifications (if any) as are necessary) under which the pre‑commencement right or liability was acquired, accrued or incurred; and
(b)the other provisions of the old corporations legislation (with such modifications (if any) as are necessary) that applied in relation to the pre‑commencement right or liability).
(3)On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability), equivalent to the pre‑commencement right or liability, under the provision taken to be included in the new corporations legislation by paragraph (2)(a) (as if that provision applied to the conduct or circumstances that gave rise to the pre‑commencement right or liability)."
The Acts Interpretation Act 1901 (Cth) ("the Interpretation Act") applies to the Cth Corporations Act: s 5C. Section 23(b) of the Interpretation Act provides that, unless the contrary intention appears, words in the singular number include the plural. The word "provision" in s 1041(1), (2) and (3) includes, where necessary, a reference to "provisions". It is submitted on behalf of the Commonwealth that s 1064(1) and s 1311(1)(a) were, when operating together to create a liability, no longer in force immediately before the commencement, for the purposes of s 1401. Accordingly, the accused had accrued a liability under the Cth Corporations Act, a liability equivalent to the liability that existed under the combined operation of s 1064(1) and s 1311(1)(a) of the Corporations Law (WA) under equivalent provisions taken to be included in the Cth Corporations Act as if those provisions applied to the conduct or circumstances that gave rise to the original liability.
Section 1383 of the Cth Corporations Act relevantly provides that:
"(1)This section applies to a proceeding, other than a federal corporations proceeding, in relation to which the following paragraphs are satisfied:
(a)the proceeding was started in a court before the commencement; and
(b)the proceeding was:
(i)under a provision of the old corporations legislation of a State or Territory in this jurisdiction; or
(ii)brought as, or connected with, a prosecution for an offence against a provision of the old corporations legislation of a State or Territory in this jurisdiction; and
(c)the proceeding was not an enforcement proceeding, or an appeal or review proceeding, in relation to an order of a court; and
(d)the proceeding had not been concluded or terminated before the commencement; and
(e)either:
(i)if the proceeding is a primary proceeding - no final determination of any of the existing rights or liabilities at issue in the proceeding had been made before the commencement; or
(ii)if the proceeding is an interlocutory proceeding - this section applies to the primary proceeding to which the interlocutory proceeding relates.
(2)In this section:
(a)the proceeding to which this section applies is called the old proceeding; and
(b)the provision of the old corporations legislation referred to in whichever of subparagraphs (1)(b)(i) and (ii) applies is called the relevant old provision.
(3)A proceeding (the new proceeding) equivalent to the old proceeding is, on the commencement, taken to have been brought in the same court exercising federal jurisdiction:
(a)if subparagraph (1)(b)(i) applies - under the provisions of the new corporations legislation that corresponds to the relevant old provision; or
(b)if subparagraph (1)(b)(ii) applies - as, or connected with, a prosecution for an offence against the provision of the new corporations legislation that corresponds to the relevant old provision.
(4)The following provisions apply in relation to the new proceeding:
(a)the parties to the new proceeding are the same as the parties to the old proceeding;
(b)subject to subsections (5) and (6), and to any order to the contrary made by the court, the court must deal with the new proceeding as if the steps that had been taken for the purposes of the old proceeding before the commencement had been taken for the purposes of the new proceeding.
(5)If:
(a)an interlocutory order was made before the commencement for the purpose of, or in relation to, the old proceeding; and
(b)that interlocutory order was in force immediately before the commencement;
the rights and liabilities of all persons (including rights and liabilities arising wholly or partly because of conduct occurring before the commencement) are declared to be, for all purposes, the same as if the interlocutory order had instead been made by the same court, in the exercise of federal jurisdiction, for the purpose of, or in relation to, the new proceeding.
(6)The court may make orders doing all or any of the following:
(a)cancelling or varying rights or liabilities that a person has because of subsection (5);
(b)substituting other rights or liabilities for rights or liabilities a person has because of subsection (5);
(c)adding rights or liabilities to the rights or liabilities a person has because of subsection (5);
(d)enforcing or otherwise dealing with conduct contrary to, a right or liability a person has because of subsection (5) in the same way as it could enforce, or deal with, the right, liability or conduct if the right or liability had arisen under or because of an order made by the court in the exercise of federal jurisdiction under the new corporations legislation."
In my opinion, whereas, at the time that this matter was argued there was in existence a State law requiring an offence to be deemed an offence under Commonwealth law, the subject offence is now required to be treated as an offence under Commonwealth law which is applicable to current or pending proceedings. Consequently, s 1383 has substituted for the proceedings previously on foot under the Corporations Law (WA) equivalent Federal proceedings under the Cth Corporations Act.
This conclusion is reinforced by a reference to the parallel State legislation which came into force on the same date as the Commonwealth legislation. Section 7(2) of the Ancillary Provisions Act cancels a liability under the old corporations legislation where the Cth Corporations Act has created a new liability. Further, s 7(3) of the Ancillary Provisions Act terminates legal proceedings under the old corporations legislation where the Cth Corporations Act has had the effect of creating equivalent proceedings.
It follows, in my opinion, that, as a result of the enactment of the new Commonwealth/State legislative package relating to corporations, the proceedings which were current in the District Court have been terminated and substituted by proceedings under the Cth Corporations Act which have commenced at the same stage of progress as the original proceedings under State law, but from the commencement date are to be treated as offences under Commonwealth law. Consequently, they are to be tried in the District Court as Commonwealth offences in the exercise of Federal jurisdiction under the Cth Corporations Act rather than an exercise of jurisdiction under the old corporations legislation.
It follows that, as the indictment in the current proceedings in the District Court is now required to be treated as alleging offences against a Commonwealth law, the trial of those offences must conform to s 80 of the Commonwealth Constitution which requires a unanimous jury verdict: Cheatle v The Queen, supra.
It follows that the rules of evidence that are to be applied in Western Australia in a trial on indictment for an offence against the Cth Corporations Act are those which apply by virtue of s 1338C(1)(c) of the Cth Corporations Act which provides that:
"(1)Subject to this Division, the laws of a State, the Capital Territory or the Northern Territory respecting:
(a)the arrest and custody in the State or Territory of offenders or persons charged with offences; and
(b)criminal procedure in the State or Territory in relation to such persons; and
(c)the rules of evidence applied in criminal procedure in the State or Territory in relation to such persons;
apply in the State or Territory, so far as they are applicable, to persons who are charged with offences against the Corporations legislation.
(2)In this section:
"criminal procedure" means the procedure for:
(a)the summary conviction; and
(b)the examination and commitment for trial on indictment; and
(c)the trial and conviction on indictment; and
(d)the hearing and determination of appeals arising out of any such trial or conviction or out of any related proceedings;
of offenders or persons charged with offences, and includes the procedure for holding accused persons to bail."
It follows that the rules of evidence that apply in criminal proceedings in Western Australia apply to proceedings for offences against the Cth Corporations Act. It follows that the laws of evidence of Western Australia are applicable to such a trial.
So far as the entitlement to initiate prosecutions is concerned, the functions of the Commonwealth Director of Public Prosecutions include the institution and carrying on of prosecutions on indictment for indictable offences against the laws of the Commonwealth: s 6(1) and s 9(1) of the Director of Public Prosecutions Act 1983 (Cth). Section 9(2) of that Act provides that the Director has the power to institute a prosecution on indictment for a Commonwealth offence and that such an indictment shall be signed by the Director or a person authorised to sign on his behalf. Section 578 of the Criminal Code (WA) relates to indictments for offences against the law of Western Australia. Consequently, it has no application to an offence against a law of the Commonwealth: Kiely v R, supra. As has already been made clear, the indictment in this case was signed by a person authorised to sign on behalf of the Director and is, consequently, valid.
The submissions on the part of the respondent which were filed on 3 September 2001 commence with the contention that s 49 of the District Court Act 1969 does not permit this Court to express an opinion on a point of law that has not been referred to it. In my opinion, it is unnecessary for this Court to decide that point, except to say that where, as in this case, there have been amendments to the law, there is nothing to prevent the Court from expressing a view about the meaning and effect of the new legislation, even if that view may be no more than an obiter dictum. The expression of such a view may be of assistance to the parties and to any other court which may be called upon to consider the matter.
It has been submitted on behalf of the respondent that the transitional provisions of Chapter 10 and, in particular, s 1401 of the Cth Corporations Act, to the extent that they purport to create equivalent rights and liabilities under Commonwealth law to those previously existing under State law are invalid, to the extent that they purport to create rights and liabilities under Commonwealth law equivalent to those previously existing under the law of the State. The point is made that, in purporting to create an equivalent liability, the Commonwealth legislation does so without creating an offence against the law of the Commonwealth equivalent, in the present case, to an offence under s 1064 of the Corporations Law (WA). In other words, instead of enacting equivalent offence provisions with retrospective operation, the Commonwealth has enacted by s 1383 that, for the purposes of the new proceeding created by that section, the State liability is deemed to be a Commonwealth liability.
It is submitted on behalf of the respondent that the validity of this statutory device is doubtful and gives rise to matters arising under the Commonwealth Constitution or its interpretation. The questions which the respondent contends arise as a result include questions whether a State liability can be converted into a Federal liability without an offence against a law of the Commonwealth being committed, and whether a trial on an indictment for an offence under these provisions is a trial on indictment for an offence against the laws of the Commonwealth for the purposes of s 80 of the Commonwealth Constitution.
Finally, it is submitted that these questions and others which also arise are complex matters that cannot be dealt with by this Court in the
available time. They require the giving of notice in accordance with s 78B of the Judiciary Act as well as written and oral submissions to the Court.
In the circumstances, it seems to me that this Court should decline to consider any question of the constitutional validity of the transitional provisions in the Cth Corporations Act. The views which we have expressed are on the assumption that the relevant provisions constitute valid laws of the Commonwealth. The correctness of that assumption is a matter to be considered in other proceedings commenced for that purpose.
KENNEDY J: I have had the benefit of reading in draft the reasons published by the Chief Justice. I am in agreement with those reasons and with the disposition of this matter in the manner his Honour has proposed.
GROVE AJ: I also agree with the reasons of the Chief Justice and the disposition of the matter in the manner which he has proposed.
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