R v Porter

[2001] NSWCCA 441

Reported Decision: 126 A Crim R 83

New South Wales

Court of Criminal Appeal

CITATION:	R v PORTER [2001] NSWCCA 441
FILE NUMBER(S):	CCA 60445/01
HEARING DATE(S):	22/10/01
JUDGMENT DATE:	2 November 2001
PARTIES :	Christopher Mark Porter (Appellant) Attorney General of New South Wales (Respondent) Attorney General of the Commonwealth (Intervening)
JUDGMENT OF:	Spigelman CJ at 1; Studdert J at 88; Ireland AJ at 89

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/12/1283
LOWER COURT JUDICIAL OFFICER :	Ainslie-Wallace DCJ

COUNSEL :	C C Waterstreet (Appellant) M G Sexton SC / B Baker (Attorney General NSW) D Bennett QC / G Hill (Attorney General Cth)
SOLICITORS:	Kings Lawyers (Appellant) I V Knight (Attorney General NSW) Australian Government Solicitor (Attorney General Cth)
CATCHWORDS:	CONSTITUTIONAL LAW - validity of Commonwealth Places (Application of Laws) Act 1970 (Cth) - no abrogation of the legislative power of the Commonwealth - CRIMINAL LAW - Commonwealth offence - whether Commonwealth DPP has exclusive authority to conduct proceedings - Director of Public Prosecutions Act 1983 (Cth) s6(1) - Commonwealth Places (Application of Laws) Act 1970 (Cth), ss5(3) and (4) - CRIMINAL LAW - Commonwealth offence - whether State DPP can conduct proceedings - Director of Public Prosecutions Act 1986 (NSW), s24 - Commonwealth Places (Application of Laws) Act 1970 (Cth), s6(2) - CRIMINAL LAW - Commonwealth offence - whether State police can arrest and search in a Commonwealth place - Commonwealth Places (Application of Laws) Act 1970 (Cth), ss4(1), 5(3) and 6(2) - Crimes Act 1900 (NSW), ss352 and 357E - CONSTITUTIONAL LAW - no "law of a State" and no inconsistency - Constitution, s109 - Proceeds of Crime Act 1987 (Cth), s82 - Crimes Act 1900 (NSW), s527C
LEGISLATION CITED:	Commonwealth Places (Administration of Laws) Act 1970 (NSW) Commonwealth Places (Application of Laws) Act 1970 (Cth) Constitution Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) Director of Public Prosecutions Act 1983 (Cth) Director of Public Prosecutions Act 1986 (NSW) Misuse of Drugs Act 1981 (WA) Proceeds of Crimes Act 1987 (Cth) Statute Law (Miscellaneous Provisions) Act (No 2) 1986 (Cth)
CASES CITED:	Australian Securities Commission v Marlborough Gold Mines Ltd (1992-1993) 177 CLR 485 Bond v The Queen (2000) 201 CLR 213 Butler v Attorney General (Vic) (1961) 106 CLR 268 Cobb & Co Ltd v Kropp [1967] 1 AC 141 Mistretta v United States 488 US 361 (1989) R v Holmes (1988) 93 FLR 405 R v Pinkstone [2001] WASC 172 The Queen v Phillips (1970) 125 CLR 93 United States v Sharpnack 355 US 286 (1958) Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89
DECISION:	Paragraph [5] of the Stated Case answered "No determination was erroneous in law".

IN THE COURT OF
CRIMINAL APPEAL

60445/01

SPIGELMAN CJ

STUDDERT J

IRELAND AJ

Friday 2 November 2001

REGINA v Christopher Mark PORTER


On 3 December 1998 the Appellant arrived at the Ansett terminal at Mascot having flown to Sydney from Western Australia. New South Wales police had information which caused them to be at the airport when the Appellant arrived. He was arrested and his bags searched. The bag was found to contain $150,000. The Appellant was charged with having “goods in custody” in contravention of s527C of the Crimes Act 1900 (NSW). He was convicted before a magistrate.

The Appellant appealed to the District Court. At the commencement of the appeal the State Director of Public Prosecutions (“DPP”) took over the conduct of the proceedings on behalf of the Crown pursuant to ss9 and 10 of the Director of Public Prosecutions Act 1986 (NSW) (“the DPP Act”). The Appellant then raised a number of issues to be decided prior to the hearing of the appeal. Ainslie-Wallace DCJ reached conclusions on each issue adverse to the Appellant. The Appellant appealed by way of Stated Case from her Honour’s decision.

Held
per Spigelman CJ, Studdert J and Ireland AJ agreeing

1 The Commonwealth Places (Application of Laws) Act 1970 (Cth) (“the Commonwealth Places Act”) is a valid law of the Commonwealth. It does not “delegate” the Commonwealth’s exclusive legislative power to the States. R v Holmes (1988) 93 FLR 405 applied.

2 The effect of s4 of the Commonwealth Places Act is to enact Commonwealth law in the same terms as each State which falls within its terms. Any offence created by such a law is a Commonwealth offence. R v Pinkstone [2001] WASC 172 referred to.

3 Though the Appellant’s charge did not specify that he was charged with an offence against s527C of the Crimes Act “as applied by s4 of the Commonwealth Places Act”, there was no relevant defect in the charge. The proceedings could be conducted on this charge either pursuant to s12(1) or by application of s14 of the Commonwealth Places Act. R v Holmes , R v Pinkstone referred to.

4 Section 24 of the DPP Act does not represent a mini-code with respect to State DPP prosecution of Commonwealth offences. Section 24 does not operate as an implied repeal of the Arrangement between the State and the Commonwealth made pursuant to s6(2) of the Commonwealth Places Act. There is a strong presumption that a legislature in a federal system would not alter a statute that forms part of a collaborative and uniform national scheme, save in express terms.

5 The Commonwealth Parliament did not intend to confer an exclusive power on the Commonwealth DPP to conduct proceedings with respect to Commonwealth offences in Commonwealth places. The NSW DPP had standing to respond to the appeal.

6 The powers of arrest and search contained in ss352 and 357E of the Crimes Act are a “power or … function” within both s6(2) of the Commonwealth Places Act and the Agreement. The State police were authorised to act as they did in this case.

7 By force of s4(1) of the Commonwealth Places Act, s527C of the Crimes Act operates as a Commonwealth law. Accordingly, no inconsistency under s109 of the Constitution arises between s527C and s82 of the Proceeds of Crime Act 1987 (Cth).

Orders
Paragraph [5] of the Stated Case answered “No determination was erroneous in law”.

IN THE COURT OF
CRIMINAL APPEAL

60445/01

SPIGELMAN CJ

STUDDERT J

IRELAND AJ

Friday 2 November 2001


REGINA v Christopher Mark PORTER

JUDGMENT

: This is an appeal by way of a case stated by Ainslie-Wallace DCJ pursuant to s5B of the Criminal Appeal Act 1912 (NSW). The relevant facts are as follows.

2 On 3 December 1998, the Appellant, Christopher Mark Porter, arrived at the Ansett terminal at Mascot, having flown to Sydney from Western Australia. New South Wales police had information about the Appellant which caused them to be at the airport when he arrived. The Appellant was arrested and his bags were searched. The bag was found to contain $150,000 in Australian currency.

3 The Appellant was charged with having currency in his possession which was reasonably suspected of being stolen, or otherwise unlawfully obtained (“goods in custody”) pursuant to s527C(1)(a) of the Crimes Act 1900 (NSW). He was convicted on 6 October 1999 before a magistrate. In those proceedings, the informant, a member of the New South Wales Police Service, was represented by a police prosecutor.

4 The Appellant lodged an appeal to the District Court. At the commencement of the hearing of the appeal, the solicitor representing the Crown filed in Court a notice under ss9 and 10 of the Director of Public Prosecutions Act 1986 (NSW) (“the DPP Act”). The effect of such a notice is to inform a court that proceedings which, having been instituted by a person other than the Director of Public Prosecutions (“DPP”), are to be continued by the DPP.

5 After the notice, the Appellant raised a number of legal issues to be decided prior to the hearing of the appeal. One of those issues was a challenge to the standing of the DPP to respond to the appeal. Submissions were heard on that argument and the matter was reserved for judgment. In the intervening period, the Solicitor General, on behalf of the Attorney General of New South Wales, appeared and made submissions. There was then a further hearing on the issue of the DPP’s standing and, in addition, the balance of the matters raised by the Appellant were dealt with.

6 There was no dispute that the Appellant was arrested in possession of the currency in a Commonwealth place. The case was commenced and conducted before the magistrate as if it were a matter under New South Wales legislation. It was conceded before Ainslie-Wallace DCJ that s14 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) (“the Commonwealth Places Act”) had the effect of making the charge and prosecution of the Appellant one under the provisions of the Crimes Act as applied.

7 Four issues were raised:

(i) The validity of the Commonwealth Places Act;

(ii) Whether pursuant to s4(13) and s4(14) of the Commonwealth Places Act State police have no power of search and arrest in Commonwealth places;

(iii) The standing of the New South Wales DPP to respond to the appeal; and

(iv) Whether there was an inconsistency between section 527C of the Crimes Act and section 82 of the Proceeds of Crime Act 1987 (Cth).

8 Ainslie-Wallace DCJ dealt with each of the issues. In each case her Honour reached conclusions adverse to the Appellant. The Appellant appeals by way of Stated Case from her Honour’s decision.

9 Paragraph [5] of the Stated Case is:

“The matter to be determined by the Court is whether my determination was erroneous in point of law.”

10 The reference to “my determination” is a reference to each of the matters which Her Honour said in par [3] of the Stated Case that she had “determined”, namely the four issues I have set out in par [7] hereof:

“3 GROUNDS FOR DETERMINATION

As to (i)

I determined that the Act was valid relying upon R v Holmes (1998) 93 FLR 405, a decision of the South Australian Court of Criminal Appeal which, in turn, relied upon US v Sharpnack 355 US 286 (1958).

As to (ii)

I determined that State police have the power of search and arrest in Commonwealth places by virtue of s.4(1) of the Act which applies ss.357E and 352, Crimes Act. Sections 4(13) and (14) of the Act were not relevant to my determination. I further determined that, to the extent that it might be suggested that s.4(1) of the Act only applied to substantive law and not to the duties and powers necessary for the exercise of that power, the arrangement under s.6(2) of the Act published in the Gazette of 30 September 1971 was a complete answer.

As to (iii)

I determined that the DPP had standing to respond to the appeal under s.6(2) of the Act (see arrangement referred to above). I rejected an argument that s.24 of the DPP Act precluded the DPP conducting the appeal and distinguished Bond v The Queen (2000) 169 ALR 607 on the basis that it related to a ‘federal appeal’ whereas the offence was a State offence not a federal offence.

As to (iv)

I determined that there was no legislative intention in the Proceeds of Crime Act 1987 (Cth) to cover the field to the exclusion of s.527C, Crimes Act 1900 (NSW) so that s.4(2)(a) of the Act did not preclude s.527C applying under s.4(1) of the Act.”

11 Paragraph [4] of the Stated Case is headed “Appellant’s Contention” and says:

“The Appellant contends that my determination was erroneous in point of law upon the following grounds:

(1) I erred in finding that the Act was valid (judgment, pages 2-4).

(2) (a) I erred in finding that s.357E, Crimes Act applied in respect of arrests for Commonwealth offences.

(b) I erred in finding that s.352, Crimes Act applied in respect of arrests for Commonwealth offences.
(c) I erred in finding that ss.4(13) and 4(14) of the Act played no part in these circumstances.

(3) I erred in finding that the charge preferred against the appellant was not a federal offence.

(4) I erred in finding that that there was no inconsistency between s.527C, Crimes Act and s.82, Proceeds of Crime Act 1987 (Cth).”

12 The issue for this Court is to decide whether her Honour erred in any of the respects identified in par [4] of the Stated Case and, if so, whether the error resulted in any, and if so which, of the “determinations” set out in par [3] of the Stated Case being wrong in law.

The Statutory Regime

13 The Commonwealth Places Act was enacted after the decisions of the High Court in Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 and The Queen v Phillips (1970) 125 CLR 93. The effect of those two decisions was that the States did not have power to pass legislation which had effect within places acquired by the Commonwealth for public purposes, by reason of the exclusive legislative power in s52(i) of the Constitution. Accordingly, a State could not prosecute a person for an offence against State law if it was committed in a Commonwealth place.

14 The principal operative provision of the Commonwealth Places Act is s4(1):

“4(1) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time.”

15 Sections 4(13) and 4(14) are:

“4(13) Without limiting the effect of any of the preceding provisions of this section, it is declared that the powers of a person under the applied provisions may be exercised in a Commonwealth place in a State in respect of an act done in that State notwithstanding that the act was not done in or in relation to that place and the applied provisions as having effect in or in relation to that place have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.

(14) Without limiting the effect of any other law of the Commonwealth, it is declared that the powers of a person under the law of a State may be exercised in that State in respect of an act done in that State notwithstanding that the act was done in or in relation to a Commonwealth place and the provisions of the laws of the State have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.”

16 Section 12(1) of the Act states:

“12(1) Subject to this Act, proceedings (whether civil or criminal and whether original or appellate) under any part of the applied provisions shall be instituted and conducted in the same manner as though they were proceedings under the law of the State to which that part corresponds and all other proceedings in relation to any such proceedings (including declining to proceed further in a prosecution) shall also be taken as though the first-mentioned proceedings were proceedings under that law.”

17 Section14 states:

“14 Where a person is charged with an offence against a law of a State and the court before which he is charged is satisfied that:

(a) that law is inapplicable by reason of the operation of section 52 of the Constitution in relation to Commonwealth places; and
(b) a part of the applied provisions corresponds to that law;
the proceedings shall be continued as though that person had been charged with the corresponding offence under that part of the applied provisions.”

18 Section 7 states, relevantly:

“7(1) The several courts of a State are, within the limits of their several jurisdictions, whether those limits are as to subject matter or otherwise, but disregarding any limitation that exists by reason of a place being a Commonwealth place, invested with federal jurisdiction in all matters arising under the applied provisions as having, or as having had, effect in or in relation to a Commonwealth place.”

19 “Commonwealth place” is defined in s3 to be:

“a place (not being the seat of government) with respect to which the Parliament, by virtue of section 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order, and good government of the Commonwealth”.

20 The scheme makes express provision for the execution of State laws which are applied to Commonwealth places. Section 6(2) of the Commonwealth Places Act provides:

“6(2) The Governor-General may make an arrangement with the Governor of a State for or in relation to the exercise or performance of a power, duty or function (not being a power, duty or function involving the exercise of judicial power) by an authority of the State under the applied provisions having effect in or in relation to a Commonwealth place in that State and, where such an arrangement is in force, the power, duty or function may or shall, as the case may be, be exercised or performed accordingly.”

21 An Arrangement pursuant to s6(2) between the Commonwealth and the State of New South Wales was gazetted on 30 September 1971. The Arrangement states:

“… where, under a law of the State to which a part of the applied provisions corresponds, an authority (as defined in the Act and in the State Act) of the State (not being a court) may or shall, as the case may be, exercise or perform any power, duty or function (not being a power, duty or function involving the exercise of judicial power), the corresponding power, duty or function under that part of the applied provisions may or shall, as the case may be, be exercised or performed by that authority.” (Commonwealth of Australia Gazette, No. 91, 30 September 1971, Australian Government Publishing Service, at 6160)

22 The word “authority” is defined in s3 to mean, inter alia:

“(d) a body created by or under the law of the State; and

(e) an officer or an employee of the State or of a body referred to in the last preceding paragraph;”

23 Furthermore, s10 of the Commonwealth Places Act provides:

“10 Where an authority of a State or a person has purported to do an act under a law of a State in or in relation to a Commonwealth place and:


(a) that law is inapplicable by reason of the operation of section 52 of the Constitution in relation to that Commonwealth place; and

(b) a part of the applied provisions corresponded to that law;

that act shall be deemed to have been done under that part of the applied provisions.

24 The New South Wales Parliament passed complementary legislation in the Commonwealth Places (Administration of Laws) Act 1970 (“the State Act”). Sections 4 and 5 of the State Act relevantly provide:

“4(1) Where, under a law of the State, provision is made for or in relation to the exercise or performance of a power duty or function by an Authority of the State and under the applied provisions, provision is made for or in relation to the exercise or performance of a like power duty or function, the Governor may make an arrangement with the Governor-General of the Commonwealth for the exercise or performance of that power duty or function under the applied provisions by an Authority of the State in and in relation to Commonwealth places as provided in the arrangement.

(2) The Governor may make an arrangement with the Governor-General with respect to any matter necessary or convenient for the purpose of carrying out or giving effect to the Commonwealth Act in or in relation to the State.

…

5 Notwithstanding the provisions of any law of the State, an Authority may -

(a) exercise or perform the powers or functions that it or he is empowered to exercise or perform under the Commonwealth Act; and

in addition to carrying out its or his duties under the laws of the State.”

The Validity of the Commonwealth Act

25 The Appellant contends that the Commonwealth Places Act is invalid because it delegates the exclusive power to legislate to the State. This argument was rejected by the South Australian Court of Criminal Appeal in R v Holmes (1988) 93 FLR 405. Ainslie-Wallace DCJ applied that decision. An argument to like effect had been rejected by a majority of the Supreme Court of the United States in United States v Sharpnack 355 US 286 (1958).

26 The basic principle against delegation is well established (see Cobb & Co Ltd v Kropp [1967] 1 AC 141 at 154-8). As Scalia J said in Mistretta v United States 488 US 361 (1989):

“Strictly speaking, there is no acceptable delegation of legislative power. As John Locke put it almost 300 years ago ‘[t]he power of the legislative being derived from the people by a positive voluntary grant and institution, can be no other, than what the positive grant conveyed, which being only to make laws , and not to make legislators , the legislative can have no power to transfer their authority of making laws, and place it in other hands.’ J. Locke, Second Treatise of Government 87 (R. Cox ed. 1982) (emphasis added). Or as we have less epigrammatically said: ‘That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.’ Field v. Clark, [148 US 649 (1892)], at 692.” (at 419-420)

27 In this Court, as in the District Court, the Appellant submitted that Holmes should not be followed and relied on the reasoning of the dissentients in Sharpnack (Douglas J and Black J). This Court should follow the decision of a Court of Criminal Appeal in another State when dealing with a Commonwealth law, unless satisfied that the reasoning is plainly wrong. (Australian Securities Commission v Marlborough Gold Mines Ltd (1992-1993) 177 CLR 485 at 492.) Far from being so satisfied, I agree with the reasoning in Holmes. Indeed, as pointed out in Holmes, the legislative solution to the lacuna had been suggested in general terms by three of their Honours in Worthing v Rowell (see supra at 103 per Barwick CJ; at 120 per Menzies J and at 132 per Windeyer J).

28 The Commonwealth Places Act does not “delegate” the Commonwealth’s exclusive power to make laws for Commonwealth places. It constitutes an exercise of that power in a particular manner.

29 Indeed the Commonwealth Parliament has made clear the retention by the Commonwealth of its control over the application of State laws by enacting s4(6) which provides:

“The regulations may provide that such of the provisions referred to in subsection (1) of this section as are specified in the regulations do not apply, or shall be deemed not to have applied, by reason of this section or so apply, or shall be deemed to have so applied, with such modifications as are specified in the regulations.”

30 In Holmes, King CJ said:

“It is a fundamental principle of constitutional law that Parliament cannot effectively divest itself of its sovereign legislative power, nor assign or transfer or abrogate that power, and in that sense it cannot abdicate its legislative power: Cobb & Co Ltd v Kropp [1967] 1 AC 141 at 157. The Parliament is entitled, however, to use any machinery considered appropriate for carrying out its purposes, Cobb & Co Ltd v Kropp, and ‘has, within its ambit, full power to frame its laws in any fashion, using any agent, any agency, any machinery that in its wisdom it thinks fit, for the peace, order and good government of Australia’: Baxter v Ah Way (1909) 8 CLR 626 at 646, per Isaacs J. The machinery chosen by the legislature for present purposes is the application to a Commonwealth place of the body of law existing from time to time in the State in which the place is located. There is no relinquishment or abdication of power. The Parliament may amend or repeal the Act and replace it with a new body of law, at any time. There is no inconsistency with the grant of exclusive legislative power in s 52(i); the Parliament has exercised that exclusive power by providing for the body of law which is to apply . (at 406-407)

31 King CJ concluded:

“I see no reason why the Commonwealth Parliament cannot lawfully exercise its exclusive legislative authority with respect to Commonwealth places by applying to those places State law as it exists from time to time. … [The Commonwealth Places Act] is a valid exercise of the legislative power conferred on the Parliament of the Commonwealth by s 52(i) of the Constitution.” (at 409)

32 To similar effect is the reasoning of Bollen J:

“… Parliament … has abdicated nothing. It has exercised its power in a particular way following a suggestion of some justices of the High Court. It has acted itself. … It is a direct exercise of its powers by the Commonwealth and in no sense an abdication at all.” (at 412-413)

33 I agree with King CJ and Bollen J. Her Honour was correct to apply this reasoning.

34 The Appellant’s contention 4(1) should be rejected, and her Honour’s determination 3(i) should be upheld.

A “Commonwealth” or “State” Offence

35 Ainslie-Wallace DCJ concluded:

“The effect of section 4(1) is to apply state laws according to their ‘tenor’. The appellant is charged with a state offence and this appeal is against a conviction for a state offence under the applied provisions and said to have been committed in a Commonwealth place. It is not a federal offence, section 4(1) makes that clear”.

36 The Appellant submitted that the basis of the scheme under the Commonwealth Places Act was that that State laws are applied as Commonwealth laws. Accordingly, the only “potential” offence was a “federal offence” under the applied provision of s527C(1)(a) of the Crimes Act. The Appellant submitted that at no time was his charge amended “to provide for its federal status”.

37 The Solicitor General conceded that if when her Honour said “It is not a federal offence” her Honour meant that the source of the authority of the offence was not federal, then her Honour was in error. However, the Solicitor General submitted that when read in context, that is not what her Honour meant. It was submitted that her Honour’s statement merely recognised that s4(1) requires the court to construe the applied provisions “so that their character is not changed by reason of the operation of the Act”. This is because the State laws are applied “according to their tenor”.

38 The Solicitor General submitted that though it would have been “more accurate” to describe the offence as a charge under s527C(1) “as applied” by the Commonwealth Places Act, it had no effect in this case as the alleged error was not fundamental. The Solicitor General referred to R v Pinkstone [2001] WASC 172.

39 In Pinkstone, Roberts-Smith J at [23]:

“Whilst State laws are applied to such places by virtue of s4 of the Commonwealth Places Act, they apply as Commonwealth law. It follows that the present offences are Commonwealth offences and the trial of them is an exercise by this Court of federal jurisdiction.”

40 His Honour reiterated the proposition at [91], after referring to submissions made to him:

“His contention is quite simply that s14 of the Commonwealth Places Act dictates that the proceedings, initiated as they have been by a State prosecutor on a State indictment, but charging an offence which can only be one under the applied provisions, must continue as a prosecution of Commonwealth offence in the exercise by this Court of federal jurisdiction. I accept that submission.”

In oral submissions the Solicitor General accepted this as a correct statement.

41 I agree with Roberts-Smith J. The effect of s4 of the Commonwealth Places Act is to enact a Commonwealth law in the same terms as each State law which falls within its terms. Insofar as offences are created by such a law, they are Commonwealth offences. The phrase “according to its tenor” in s4 does not in any way prevent the transmogrification of a State law into a Commonwealth law. Any State law which is “applied” or is “deemed to have applied” by s4 becomes a Commonwealth law.

42 Numerous provisions of the Commonwealth Places Act and of the State Act describe the “applied provisions” as “corresponding” to the State laws. (See e.g. the Commonwealth Places Act ss4(9), 4(10), 4(11), 10 and 12; the State Act ss8, 9, 10 and 12.) That is an appropriate description of the relationship between the Commonwealth law and the State law which has been applied.

43 Her Honour distinguished between “a state offence under the applied provisions” and a “federal offence”. This reasoning is, in my opinion, erroneous. The offence was an offence under Commonwealth law. However, to conclude that her Honour erred in finding that “the charge … was not a federal offence” under par [4(3)] of the Stated Case, does not necessarily lead to the conclusion that any “determination” made by her Honour, as set out in par [3] of the Stated Case, was erroneous in point of law.

Defect in the Charge

44 The Appellant also submitted that the charge was defective because of the omission from that charge of an express reference to the fact that s527C of the Crimes Act operated as a Commonwealth law. He submitted that the charge should, after reference to the State section, have used words such as “as applied by s4 of the Commonwealth Places Act”. He submitted that these words represented an essential element of a Commonwealth offence and accordingly the charge did not disclose an offence known to the law.

45 It is not clear to me that this issue arises under the Stated case. It is, however, capable of being disposed of shortly in either of two ways: applying s12 or s14 of the Commonwealth Places Act.

46 I have set out above s12 of the Commonwealth Places Act. A charge in the form of a State offence appears to me to be the “institution” of proceedings, “in the same manner as though they were proceedings under the law of the State” within s12.

47 With respect to s14, in Holmes, King CJ said in reasoning which I should follow and with which, in any event, I entirely agree:

“There is no doubt that the offence would have been more accurately described if the count in the Information had alleged that the offence occurred in a Commonwealth place, namely Adelaide Airport, and had referred to the section of the Narcotic and Psychotropic Drugs Act 1934 (SA) as having been applied by the federal Act. Whether, apart from express statutory provision, that defect would have been fatal to the conviction need not be determined because the situation is provided for by s14 of the Commonwealth Places (Application of Laws) Act. …

The point was raised before the trial judge who was referred to s14. He allowed the proceedings to continue as though the appellant had been charged under the federal law. He was correct to do so as there could be no doubt that s5(2)(c) of the Narcotic and Psychotropic Drugs Act is a law that is inapplicable to the Adelaide Airport by reason of s 52 of the Commonwealth Constitution but as ‘part of the applied provisions corresponds to that law’.” (at 409)

was an application to quash an indictment. The applicant was charged with supplying and attempting to supply prohibited drugs in contravention of s6(1)(c) and s33 of the Misuse of Drugs Act 1981 (WA). The offences were said to have occurred at Perth Airport.

49 Roberts-Smith J referred to s14 and s15 of the Act and their effect with respect to prosecutions of offences under the Act and said:

[89] … As I am satisfied the Misuse of Drugs Act (WA) and the Criminal Code (WA) are inapplicable to Perth Airport by reason of the operation of s52 of the Constitution in relation to Commonwealth places, but are part of the applied provisions and so correspond to those laws, the effect of s14 is mandatory: the proceedings ‘shall be continued’ as though these accused had been charged with the corresponding offence under those parts of the applied provisions.

[90] As the South Australian Court of Criminal Appeal said in Holmes, the present offences would have been more accurately described if the indictment had alleged the offences occurred in a Commonwealth place, namely Perth Airport, and had referred to the relevant sections of the Misuse of Drugs Act (WA) as having been applied by s4(1) of the Commonwealth Places Act, as was done in Tucs v Algie (supra). The form is not uncommon; it is used for instance in proceedings relating to charges of a ‘territory offence’ under s61(1) of the Defence Force Discipline Act 1982 (Cth). Nonetheless, although such a formulation here would have been preferable, the lack of it is not fatal for the reasons given in Holmes and Willoughby.

[91] I was informed by Mr Cock QC that the Commonwealth/State Agreement under s6(2) of the Commonwealth Places Act referred to in Willoughby and published in the ‘Commonwealth Government Gazette’ No 91 of 30 September 1971 at 6161 (exhibit A) (‘the Commonwealth/State Agreement’) is still operative. However, he expressly disavowed any reliance upon that here. His contention is quite simply that s14 of the Commonwealth Places Act dictates that the proceedings, initiated as they have been by a State prosecutor on a State indictment, but charging an offence which can only be one under the applied provisions, must continue as a prosecution of Commonwealth offences in the exercise by this Court of federal jurisdiction. I accept that submission.”

50 I agree with the analysis of King CJ and of Roberts-Smith J. I have set out s14 above. The Commonwealth offence created by s4(1) is an “applied provision” which “corresponds” with s527C of the State Act. By force of s14, proceedings are to be “continued” as if the Appellant “had been charged” with the Commonwealth offence. The Appellant’s contention in this respect should be rejected.

Powers of the State DPP

51 The legal error with respect to the characterisation of the proceedings as not involving a “federal offence” occurred in the course of her Honour dealing with issue (iii) i.e. the challenge to the standing of the State DPP.

52 Section 24 of the DPP Act refers to the capacity of officers of the DPP to conduct Commonwealth matters. It provides:

“If an Officer, with the consent of the Attorney General, holds an appointment, commission or authority to prosecute offences against laws of the Commonwealth, the Officer may institute and conduct (in accordance with the terms of the appointment, commission or authority) prosecutions for such offences.”

53 The Appellant submitted that the conduct of appeals was a distinct step in litigation (referring to Bond v The Queen (2000) 201 CLR 213). He submitted that ss8, 9 and 10 of the DPP Act contained ideas and processes relating to prosecutions and not to appeals. That submission must be rejected. Sections 9(1)(b), (c) and (d) expressly authorise the DPP to conduct appeals in matters that he or she has “taken over”.

54 The Appellant submitted that s24 “covered the field” of State DPP conduct of Commonwealth matters and that ss8, 9 and 10 do not apply to s24. Although the Appellant invoked terminology from s109 constitutional jurisprudence, the essential submission was that s24 represented a mini-code within the DPP Act with respect to the institution of proceedings for Commonwealth offences.

55 On that basis, the Appellant submitted that to the extent that the State Act and the Arrangement under s6(2) of the Act consented to the exercise by “Officers” (within s24 of the DPP Act) of powers in relation to offences under the applied provisions of the Commonwealth Places Act, the State Act was “wholly repealed” by s24 of the DPP Act, the DPP Act being a latter Act. The Appellant submitted that since s24 of the DPP Act “covers the field” in respect of the State DPP’s powers relating to Commonwealth offences, it has “put an end to” the Arrangement.

56 There is no warrant for construing s24 as some kind of mini-code with respect to Commonwealth offences. It empowers a specific officer to institute and conduct prosecutions. It is a facultative provision. It is not necessary to decide whether the conduct of an appeal would, in any event, fall within the reference to “conduct prosecutions”. The mechanism for “taking over” an appeal provided in s9 and s10 can plainly operate without any inconsistency with s24. Sections 9 and 10 are applied as Commonwealth law under either s4(1) or s6(2) of the Commonwealth Places Act. Sections 4 and 5 of the State Act authorise the NSW DPP to perform these functions.

57 The Solicitor General submitted that the source of the DPP’s authority was the Commonwealth Places Act and the Arrangement. This authority covered the circumstances of this case, in which the DPP “took over” the matter pursuant to s9 of the DPP Act.

58 The Solicitor General submitted that s24 of the DPP Act does not operate as an implied repeal. The Solicitor General referred to Butler v Attorney General (Vic) (1961) 106 CLR 268 at 275-276 where Fullagar J said that for a latter statute to repeal an earlier one “actual contrariety” needed to be “clearly apparent”. He submitted that there was insufficient indication of any such intention in the DPP Act.

59 The State Act is part of a national collaborative scheme between the Commonwealth and all the States. The proposition that one State has impliedly repealed one of the provisions of this scheme without consultation, lacks even a scintilla of force. There is a strong presumption that a legislature in a federal system would not alter a statute that forms part of a collaborative and uniform national scheme, save in express terms. There is nothing express here.

60 In the course of oral submissions the Appellant propounded an alternative argument to the effect that on the proper construction of the Commonwealth Places Act, the Commonwealth DPP was given exclusive authority to conduct the proceedings of the character involved in this case. This submission turned on ss5(3) and (4) of the Commonwealth Places Act which provide:

“5(3) Where there is in force an arrangement with the Governor of a State under subsection (2) of the next succeeding section, the provisions of the Acts set out in the Schedule to this Act do not apply to or in relation to matters arising under the applied provisions having effect in or in relation to a Commonwealth place in that State.

(4) Paragraph 6(1)(e) of the Director of Public Prosecutions Act 1983 applies, in relation to a State to which subsection (3) applies, only to proceedings instituted under the applied provisions by:


(a) the Director of Public Prosecutions;

(b) an officer of, or a person employed by, the Commonwealth or a body established by or under an Act or by or under a law of a Territory (other than the Northern Territory); or

(c) a person holding office under an Act or under a law of a Territory (other than the Northern Territory).”

61 The Schedule to the Act under s5(3) excludes ss6(1)(a), (b), (baa), (ba), and (f), ss9(1), (3), (3A), (4) and (5) and s11 of the Director of Public Prosecutions Act 1983 (Cth) (“the Commonwealth DPP Act”).

62 The Appellant submitted that the pertinent provisions opf the Commonwealth DPP Act which continue to apply are sections 6(1)(c), (d) and (e) which state:

“6(1) The functions of the Director are:

…


(c) to institute proceedings for the commitment of persons for trial in respect of indictable offences against laws of the Commonwealth; and

(d) to institute proceedings for the summary conviction of persons in respect of offences against the laws of the Commonwealth; and

(e) to carry on proceedings of a kind referred to in paragraphs (c) or (d) (whether or not instituted by the Director)”.

63 In view of the submission that the powers of the Commonwealth DPP were exclusive, the Court gave the Commonwealth and opportunity to make submissions. The Attorney General of the Commonwealth intervened and filed a written submission. The Commonwealth submitted that the powers were not exclusive.

64 The words in parenthesis in s6(1)(e) indicate clearly that the Commonwealth Parliament was not intending to confer an exclusive power on the Commonwealth DPP. The power in s6(1)(e) to carry on proceedings expressly envisages, in terms, proceedings having been instituted by someone else (i.e. “whether or not instituted by the Director”).

65 Section 5(4), inserted by the Statute Law (Miscellaneous Provisions) Act (No 2) 1986 (Cth), of the Commonwealth Places Act reinforces the conclusion of non-exclusivity by expressly providing that the s6(1)(e) power may be exercised, in the case of a State with a s6(2) Arrangement, only if the original proceedings had been instituted by a Commonwealth officer. Section 5(4) operates to the same effect as if the Schedule to s5(3) included a reference to s6(1)(e) of the Commonwealth DPP Act with respect to proceedings instituted by officers of a State.

66 Accordingly, where, as here, a s6(2) Arrangement applies to proceedings, the Commonwealth DPP may not “carry on” the proceedings, because they were instituted by officers of the State.

67 The NSW DPP was authorised to perform the Commonwealth function by ss4 and 5 of the State Act. He had standing to respond to the appeal.

68 The Appellant’s submissions should be rejected. There was no error in her Honour’s determination 3(iii).

The Powers of State Police

69 The Appellant submitted that even if the relevant provisions of the Crimes Act applied to Commonwealth places, New South Wales police only had the power to arrest for State offences.

70 As quoted above, s4(1) of the Commonwealth Places Act applies the laws of the State “in accordance with their tenor” in Commonwealth places. The laws in issue were s352 and s357E of the Crimes Act which it is unnecessary to set out. They govern the power of New South Wales police to arrest and search in New South Wales for State offences. The Solicitor General contended that s4(1) “picked up” laws relating to such powers as well as substantive offences. The Solicitor General submitted that it was sufficient, however, to invoke s6 of the Act. Her Honour had found that to be so. I agree.

71 The Solicitor General submitted that members of the New South Wales police force are “authorities” for the purposes of s6 and the Arrangement. Accordingly, any “powers, duty or function” of the police may be “exercised or performed” under the applied substantive provisions.

72 To reinforce his submission, the Solicitor General referred to s5(3) of the Act which states that if there exists an arrangement under s6(2) “the provisions of the Acts set out in the Schedule … do not apply to or in relation to matters arising under the applied provisions having effect in or in relation to a Commonwealth place”. The Schedule includes “Part 1AA (other than section 3Z)” of the Crimes Act 1914 (Cth), which Part governs search and arrest. It was submitted that the exclusion of these provisions is “a clear indication” that State powers of search and arrest were intended to apply to matters arising under the applied provisions.

73 The Solicitor General’s submissions should be upheld. A police officer is an “officer or employee of the State” within par (e) of the definition of “authority” in s3, as quoted above.

74 On the basis that the offence is a Commonwealth offence, in my opinion s6(2) contemplates, and the Arrangement implements, a co-operative regime in which State authorities may exercise powers, inter alia of arrest and search, conferred by a State Act, and may do so with respect to Commonwealth offences.

75 The powers of arrest and search in s352 and s357E of the Crimes Act are a “power or … function” within both s6(2) of the Commonwealth Places Act and the Agreement. By force of that section and the Agreement, the arrest and search was carried out by State police officers “under the applied provisions”. They were authorised to act as they did in a Commonwealth place by Commonwealth law.

76 The long title of the Act extends to both the “Application” and the “Administration” of laws. Section 4 applies laws of a State to Commonwealth places which encompass a range of Commonwealth enclaves of differing size and significance. The purpose of the collaborative Commonwealth and State Acts was to fill the lacuna that the High Court had revealed to exist both in the application and the administration of State laws, long thought to have applied seamlessly throughout the territorial area of a State including, as each State had long done, numerous Commonwealth enclaves.

77 The purpose of this legislation is overwhelmingly better served by ensuring that the administration of State laws, including criminal investigation laws, operate as seamlessly as they had long done. That was a purpose of the wholesale application of all such laws, which the Commonwealth Parliament enacted in s4. There is no warrant for reading down the reference to “power … or function” in s6(2).

78 The Appellant relied on an observation by Dennis Rose in his article “The Commonwealth Places (Application of Laws) Act 1970” (1971) 4 FLR 263 where the learned author said:

“Moreover, s4(14) confirms that State authorities may exercise any State powers outside Commonwealth places in relation to conduct inside Commonwealth places. However, in view of the decision in Phillips this will not apply to powers of arrest for criminal offences concerning conduct in Commonwealth places.” (at 276)

79 In this passage there is reference only to s4(14). Mr Rose did not mention s6(2) and the Arrangement pursuant to that subsection. Phillips may well stand for the proposition that a State may not authorise an arrest in a place to which s52(i) of the Constitution applies. However, a Commonwealth Act may, in my opinion, authorise a State officer to effect an arrest or conduct a search at such a place and to do so in accordance with a State legislative scheme.

80 The Appellant’s contention in this regard should be rejected. There was no error in her Honour’s determination 3(ii).

Section 109 Inconsistency

81 The Appellant contended that there was an inconsistency, within the meaning of s109 of the Constitution, between s527C of the Crimes Act and s82 of the Proceeds of Crimes Act 1987 (Cth).

82 Section 82 states, relevantly:

“82(1) A person who, after the commencement of this Act, receives, possesses, conceals, disposes of or brings into Australia any money, or other property, that may reasonably be suspected of being proceeds of crime is guilty of an offence against this section punishable, upon conviction, by:

(a) if the offender is a natural person – a fine not exceeding $5,000 or imprisonment for a period not exceeding 2 years, or both … ”

83 Section 527C of the Crimes Act states, relevantly:

“527C(1) Any person who:

(a) has any thing in his or her custody;
(b) has any thing in the custody of another person;
(c) has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another; or
(d) gives custody of any thing to a person who is not lawfully entitled to possession of the thing,
which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, shall be liable on conviction before a Local Court constituted by a Magistrate sitting alone to imprisonment for 6 months, or to a fine of 5 penalty units.”

84 The Appellant submitted that s82 of the Proceeds of Crime Act “covers the field” of possession of proceeds of crime from the commission of a Commonwealth indictable offence.

85 This submission was entirely misconceived. As noted above, by force of s4(1) of the Commonwealth Places Act, s527C of the Crimes Act relevantly operates as a Commonwealth law. In the circumstances, there is no “law of a State” within s109.

86 Her Honour did not err in determination 3(iv).

Conclusion

87 Paragraph [5] of the Stated Case should be answered “No determination was erroneous in law”.

I agree with the Chief Justice.

I agree with the Chief Justice for the reasons given by his Honour.

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