Tasmania v Green and White (No 2)
[2007] TASSC 81
•7 November 2007
[2007] TASSC 81
CITATION: Tasmania v Green and White (No 2) [2007] TASSC 81
PARTIES: TASMANIA (STATE OF)
v
GREEN, Bryan Alexander
WHITE, John Charles
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL
FILE NO/S: 12/2007
DELIVERED ON: 7 November 2007
DELIVERED AT: Hobart
HEARING DATE: 16 October 2007
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Criminal Law – Particular offences - Miscellaneous offences and matters – Other offences – Doing an act intended to interfere with the free exercise of a Minister's duty or authority – Elements in the offence – Whether the actus reus must have capacity or tendency to interfere with the free exercise of a Minister's duty or authority.
Criminal Code (Tas), s69.
R v Rogerson (1992) 174 CLR 268; Meissner v R (1995) 184 CLR 132; Hinch v The Attorney-General (Vict) (1987) 164 CLR 15; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, referred to.
Aust Dig Criminal Law [416]
Constitutional Law – The non-judicial organs of government – The Crown – Liabilities of the Crown – In contract – Enforcement and discharge – Whether contractual term to exercise discretion in a particular manner in the future void as offending against public interest.
Building Act2000 (Tas), Pt4.
Ansett Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; Attorney-General (NSW) v Quinn (1990) 170 CLR 1, applied.
Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163; Ransom & Luck Limited v Surbiton Borough Council [1949] 1 Ch 180, followed.
L'Huillier v State of Victoria [1996] 2 VR 465, distinguished.
Aust Dig Constitutional Law [47]
REPRESENTATION:
Counsel:
Crown: T J Ellis SC and J E Williams
Bryan Alexander Green: M Daly
John Charles White: D J Porter QC
Solicitors:
Crown: Director of Public Prosecutions
Bryan Alexander Green: Rae and Partners
John Charles White: Page Seager
Judgment Number: [2007] TASSC 81
Number of paragraphs: 55
Serial No 81/2007
File No 12/2007
TASMANIA v BRYAN ALEXANDER GREEN
and JOHN CHARLES WHITE (No 2)
REASONS FOR JUDGMENT UNDERWOOD CJ
7 November 2007
The background
By an indictment dated 28 March 2007, both accused and one Guy Ronald Leonard Nicholson, were charged with interfering with an executive officer, contrary to the Criminal Code, s69, and conspiracy to commit the crime of interfering with an executive officer, contrary to the Code, s297. The particulars of the former charge alleges that:
"… on or about the 15th and 16th day of February 2006 [each of the accused] did an act, namely entering into a written agreement between John Charles White as a Director of the Tasmanian Compliance Corporation and for and on behalf of that corporation and Bryan Alexander Green as Minister for Infrastructure Energy and Resources for and on behalf of the Tasmanian Government, that the Minister will not exercise powers under s 20(2) of the Building Act 2000 to authorise a body to be an authorised body, an act intended to interfere with the free exercise by a Minister of the Crown of the duties and [sic] authorities of his office."
Each accused entered a plea of not guilty to both charges. There followed a hearing pursuant to the power contained in the Code, s361A, to determine certain questions of law that were likely to arise at the trial. Those questions were answered on 18 July 2007. See Tasmania v Green, Nicholson and White [2007] TASSC 54.
Subsequently, the Crown determined not to proceed against Mr Nicholson and pursuant to the Code, s350(1)(b), he was discharged from all further proceedings on the indictment. More recently the Crown determined not to proceed with the charge of conspiracy against either of the remaining two accused. A jury has yet to be empanelled to try the issues between the Crown and Messrs Green and White on the charge of interfering with an executive officer.
The present issues
Counsel for the accused now submit that I should determine two further questions of law before the trial begins:
(1)what is the nature and extent of the relevant duty or authority conferred by the Building Act 2000, s20(2)? and
(2)before an accused is guilty of the crime contrary to the Code, s69, must the jury be satisfied to the requisite degree that the pleaded actus reus had a tendency or the capacity to interfere with a Minister's free exercise of any of the duties or authorities of his office?
The facts
Counsel agreed that for the purpose of determining these questions, the facts were:
(a)those facts stated in my previous ruling;
(b)the facts stated in the reasons for judgment of Evans J in Building Professions Accreditation Corporation Tasmania Ltd v Minister for Infrastructure, Energy and Resources [2005] TASSC 73 ("the Building Professions' case"); and
(c)that on 13 August 2003, the Tasmanian Compliance Corporation Pty Ltd was authorised as "an authorised body to accredit building practitioners pursuant to s20(1) of the [Building] Act."
I set out below the paragraphs in my reasons for judgment that detail the facts upon which my previous ruling was based:
"… it was agreed that:
(1)the document appearing in the Crown papers, pages 1 to 3 inclusive ('the agreement'), was signed by Mr Green and Mr White; and
(2)at the time of signing, Mr Green was a Minister of the Crown in the State of Tasmania.
Before referring to the agreement, it is necessary to mention the Building Act 2000, as enacted at the time the agreement was signed. The preamble to that Act describes it as 'An Act to regulate the construction and maintenance of buildings and building and plumbing matters and to provide for permits, enforcement matters and resolution of disputes'. At the time the agreement was signed, the Building Act, s3(1), defined an 'authorised body' to be a body authorised under Pt4 of the Act to accredit building practitioners. Section 23(1) made it an offence to carry out the work of a building practitioner to a value in excess of $5,000 without appropriate accreditation issued in accordance with Pt4 of the Act. The Building Act, s19, provided that an incorporated body or statutory body could apply to the Minister to be an authorised body for the purpose of accrediting a specified category of building practitioner. Section 20 provided:
'(1) The Minister may authorise a body to be an authorised body if satisfied that ¾
(a)the body has competence and expertise in accrediting building practitioners; and
(b)the statements referred to in section 19 demonstrate that the body is suitable to be an authorised body; and
(c)the proposed scheme meets any guidelines determined by the Minister.
(2) The Minister may authorise more than one body to be an authorised body for accrediting a specified category of building practitioner.
(3) The Minister may authorise a body to be an authorised body subject to any conditions the Minister considers appropriate.
(4) The Minister, by public notice, is to notify the authorisation of an authorised body.
(5) The Minister may issue guidelines in respect of matters relating to a scheme under which accreditation is granted.'
The agreement describes itself as a 'Service Level Agreement' and asserts that it relates to the conditions of authorisation of the Tasmanian Compliance Corporation Pty Ltd by the Minister as an authorised body pursuant to the Building Act, s20. It describes Mr White as 'company secretary' and states that he signed 'for and on behalf of the Tasmanian Compliance Corporation Pty Ltd'. The recitals to the agreement refer to concerns should the corporation cease to provide building accreditation services, and a need for an orderly handover of records and the like. The agreement comprises 11 clauses, the ninth of which provides:
'9 The Minister agrees that he will not exercise powers under Section 20 (2) of the Act to authorise any additional body to accredit building practitioners, while the TCC remains so authorised, without first giving the TCC written notice 3 years prior to that authorisation'."
Accordingly, the Crown asserts against each accused that he signed an agreement that contained cl 9 with the intention of interfering with the Minister's duties and authorities, by requiring him to give Tasmanian Compliance Corporation Pty Ltd three years' written notice prior to their exercise and/or by prohibiting the Minister from exercising those powers and duties unless and until he has given the company three years' written notice that he intends to do so.
There are difficulties applying the facts stated in the reasons for judgment of Evans J in the Building Professions' case, although as the arguments progressed, there was little, if any, need to rely upon them. The Building Professions' case concerned an application brought pursuant to the Judicial Review Act 2000 for a review of the Minister's refusal to authorise the applicant as an authorised body for the purpose of accrediting specific categories of building practitioners under the Building Act. The factual material in the reasons for judgment almost wholly comprised correspondence by, or to, the Minister, much of it concerning the Minister's reasons for declining to authorise the applicant. The Minister made his view clear that he did not favour having two authorised bodies with respect to the same category of building practitioner.
In support of his contentions concerning the proper construction of the legislation, Mr Porter QC, counsel for Mr White, who put the arguments on behalf of both accused, adopted much of what the Minister wrote in this correspondence. This, of course, was perfectly proper, but it was argument, not evidence. The evidence in the reasons for judgment in the Building Professions' case was no more than that the Minister and others wrote words in letters. Although those words might provide fuel for argument in this case, it appears to me that those words, written long after the enactment of the Building Act, are irrelevant to the issues presently for determination.
The nature and extent of the duty or authority conferred by the Building Act, s20(2)
The Director of Public Prosecutions, Mr Ellis SC, submitted that the words of the Building Act, s20(2), as enacted at the relevant time, should be given their ordinary and natural meaning, viz, the Minister had the duty or authority to authorise more than one body to accredit building practitioners, and the entry into the agreement containing cl 9 interfered with the free exercise of that duty or authority.
Mr Porter submitted that because the Tasmanian Compliance Corporation had been appointed the authorised body to accredit all categories of building practitioners, the Minister's authority or power had been exhausted and therefore cl 9 of the agreement could not, and did not, interfere with the free exercise of any relevant power or authority.
At the relevant time the Building Act, s3(1), envisaged that for the purposes of the Act, there would be three categories of building practitioner. It provided:
"'building practitioner' means a person of one of the following categories:
(a) a designer, other than a plumber, who is responsible for the design, documentation or certification of the design or inspection of building work, plumbing work, buildings or plumbing installations;
(b) a building surveyor or assistant building surveyor who is responsible for document assessment, certification, determination or inspection of building work or buildings;
(c)a builder who is responsible for the management, carrying out or certification of building work"
Section 19(2)(a)(iii) required an applicant for authorisation as an accrediting body to specify in its application (inter alia), "the categories, and classes of those categories, of accreditation available …". So far as I have been able to ascertain, the Act made no provision for classes of categories of building practitioners. I was handed a copy of some Ministerial guidelines for schemes for the accreditation of building practitioners. It refers to classes within each category, but I could find no statutory authority for this, other than the general authority to provide guidelines. However, I do not think this affects the resolution of the first question.
Mr Porter submitted that the scheme enacted by the Building Act, Pt4, in particular s20(1) and (2), empowered the Minister to authorise one body to accredit all building practitioners, or to authorise more than one body, but each to accredit a different category or categories of building practitioner. Thus, once a body had been authorised to accredit a specified category or categories of building practitioner, there remained no discretion to appoint another body to accredit that category or categories. It may be noted that an authorisation continued in force until action is taken pursuant to the Building Act, s21:
"21 ¾ The Minister, by public notice, may withdraw the authorisation of a body to be an authorised body if ¾
(a)the body fails to comply with any condition of the authorisation; or
(b)the Minister is no longer satisfied as to any matter referred to in section 20(1)."
The submission on behalf of the accused was that the Minister authorised the Tasmanian Compliance Corporation to accredit all categories of building practitioner, that that authority was extant at the time the agreement containing cl 9 was executed, and accordingly that clause could not interfere with the discretion conferred by the Building Act, s20, because the discretion had been exhausted.
It was submitted that the words of s20(1) and (2) disclosed an intention to give the Minister two options. He could authorise one body to accredit all building practitioners, or he could authorise several bodies, each to authorise a different category or categories. But there was no discretion to authorise more than one body to accredit the same class of building practitioners. Mr Porter contended that this construction was likely because of the difficulties inherent in a system that permitted authorisation of more than one body for the accreditation of the same category or categories of building practitioner. Some of these difficulties are set out in the correspondence published in the reasons for judgment in the Building Professions' case. They include:
"Ÿ Ability to shop between Authorised Bodies to achieve lowest requirement;
· Inconsistent requirements between Authorised Bodies;
· Conflicts of interest (perceived or real) between membership and discipline;
· Inconsistent conditional accreditation;
· Multiple points of complaint/discipline;
· Inconsistency of investigation/audit/outcome;
· Potential for conflicting decisions to be referred to the Director of Building Control;
· Different standards/approaches to determine competence;
· Contrary to best practice considering consistency, transparency and the like;
· Increased consumer cost due to reduced viability of current Authorised Body:
· General experience is that tied bodies (membership organisations) do not, or are not, perceived as providing competent and unbiased review of their members' performance."
Obviously, there is validity in those propositions, but there are contrary propositions, including, for example, it might be thought desirable to authorise more than one body to facilitate accreditation in different parts of the State. It might also be thought desirable to authorise more than one body for a category or categories of building practitioner because competition might lower charges and improve services. If the authority or power to authorise is limited to one body for all categories of building practitioner, a sudden unexpected failure of that body could prove detrimental to the building industry. It may be noted that the provisions of the agreement that are at the centre of these proceedings acknowledge this risk.
The fact that at the time the Ministerial decision was made in the Building Professions' case the Minister was clearly in favour of authorising only one body for all categories of building practitioner does not assist the resolution of the statutory construction point. Further, application of the provisions of the Acts Interpretation Act 1931, s24(d), does not assist, for the conversion of the singular to the plural and vice versa in s20 can be enlisted to support both arguments.
At the relevant time an exercise of the primary power to authorise a body, set out in the Building Act, s20(1), was activated by a body making an application to be an authorised body. This was provided for by s19. The words of that section clearly contemplated that an application may be for the purpose of accrediting either one, or more than one, category of building practitioner, for s19(2)(iii) required an applicant to detail "the categories, and classes of those categories, of accreditation available …".
There was nothing in s20(1) to suggest that if a body had been authorised with respect to the accreditation of one or more categories of building practitioner, the power is exhausted so far as it concerned accreditation of that category or categories. Further, it seems to me that s20(2) was enacted to make the intention of Parliament plain, namely, that the Minister may authorise more than one body to accredit the same category or categories of building practitioner. It is true that the Building Act, s3(1), defines an authorised body to mean a body authorised under Pt4 to accredit building practitioners, but I do not see the use of the plural in the definition section translating to s20(1), so that that the reference in the latter subsection to "authorised body" should be construed as a reference to one body authorised to accredit all building practitioners, leaving subs(2) to empower the Minister to authorise more than one body, but each to accredit a different category or categories of building practitioner.
I accept Mr Ellis' submission that the contentions advanced on behalf of the accused are tantamount to writing into s20(2), "provided no body is then so authorised", or words to the like effect. Had subs(2) of s20 not been enacted, there would have been considerable strength in the proposition that once the Minister had authorised a body for a category or categories pursuant to s20(1), the discretion was exhausted with respect to that category or categories and remained exhausted until the accreditation was withdrawn, pursuant to s21.
Mr Porter advanced an alternative argument to support the proposition that the discretion to authorise more than one body to accredit the same category or categories of building practitioner did not exist at the material time. The starting point of this alternative submission was that by enacting the Building Act, s20(2), Parliament only intended to create a discretionary authority. It was not an "absolute power" in the sense that it had to be always available for exercise.
It was submitted that the Minister's discretion was unfettered and that he or she was therefore entitled to determine that there would be only one body authorised to accredit all categories of building practitioners. A passage in the reasons for judgment in the Building Professions' case at par20 was said to support this proposition. However, in that paragraph, Evans J said no more than the Minister's discretion was completely unfettered, and that he was entitled to refuse the applicant's application because he considered it inappropriate to authorise more than one body for a category or categories of building practitioner. With respect, I agree with his Honour that the Minister's discretion is unfettered. But as I understand it, Mr Porter's submission went further. It was that by signing the agreement containing cl 9, the Minister was exercising the discretion. He was entitled to exercise that discretion by way of contract. Signing the agreement containing cl 9 was an exercise of the discretion to determine that there would be only one body authorised to accredit all building practitioners, and by this exercise, the power conferred by s20(2) was disabled for the period specified in cl 9. Accordingly, as a matter of law, upon signing the agreement, any relevant duty or authority to authorise a body to accredit a category of building practitioner thereupon ceased to exist for the stated period.
Mr Ellis submitted that the power conferred by s20(2) was conferred on the Minister for the time being and was available for exercise from time to time. He submitted that it was not within the power of any one Minister to fetter or cut down the power conferred by Parliament. Although it was accepted that the Minister's discretion was unfettered, and that the Minister may have refused an application because he considered it would not be appropriate to authorise more than one body to accredit the same category or categories of building practitioner, this did not authorise a Minister to cut down or restrict a power conferred upon him or her, and his or her successors, by exercising a power to enter into a contract. Mr Ellis relied in part, on the Acts Interpretation Act, ss20 and 45(1), which provided:
"20 Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed ¾
(a)from time to time as occasion may require; and
(b)if conferred or imposed on the holder of any office, position or appointment as such, by the holder for the time being of such office, position or appointment."
"45 ¾ (1) In an enactment ¾
'the Minister' shall mean the Minister of the Crown for the time being administering the enactment in which, or in respect of which, the expression is used."
There is a line of authority that establishes the proposition encapsulated by Mason J (as he then was) in Ansett Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 74 – 75:
"… the public interest requires that neither the government nor a public authority can by a contract disable itself or its officer from performing a statutory duty or from exercising a discretionary power conferred by or under a statute by binding itself or its officer not to perform the duty or to exercise the discretion in a particular way in the future."
See also Ransom & Luck Limited v Surbiton Borough Council [1949] 1 Ch 180 at 193; Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623; Watson's Bay and South Shore Ferry Co Ltd v Whitfield (1919) 27 CLR 268. His Honour expressed the same view after his appointment as Chief Justice in Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 17 when he said:
"The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power:" [authorities omitted]
As Mason J pointed out in the Ansett Industries' case at 77, the question of whether an agreement constitutes an impermissible fetter on the exercise of a statutory discretion "is closely connected with the question whether the agreement is authorized by statute, or is prohibited by, or incompatible with it."
Mr Porter's contention was that cl 9 of the agreement was authorised as an incident of the exercise of the statutory power authorising the Tasmanian Compliance Corporation as an authorised body, or as an exercise of the Minister's general authority to enter into a contract, and is neither prohibited nor incompatible with the Building Act, specifically Pt4. Mr Ellis joined issue with that contention.
Mr Porter relied upon a passage in the reasons for judgment of Fox LJ in R v Hammersmith and Fulham London Borough Council; Ex parte Beddowes [1987] 1 QB 1050 at 1064, a passage cited in City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 at 183, viz:
"It is clear that a local authority cannot, in general, make declarations of policy which are binding in future on the council for the time being. The council cannot extinguish statutory powers in that way. But it may be able to do so by the valid exercise of other statutory powers. If a statutory power is lawfully exercised so as to create legal rights and obligations between the council and third parties, the result will be that the council for the time being is bound, even though that hinders or prevents the exercise of other statutory powers."
In their judgment in the Camberwell Shopping Centre case, Marks and Gobbo JJ listed some of the cases relied upon by Fox LJ to support the passage I have cited and said, also at 183, that those cases concerned an attempt to fetter in advance the exercise of statutory powers, "otherwise than by the valid exercise of the statutory power. [Those] cases are not concerned with the position which arises after a statutory power has been validly exercised."
Thus, it is argued that if a power is exercised by contract and that exercise is authorised by statute, the contract is valid even if a consequence of the exercise of the power is to impose a fetter on the future exercise of powers and duties.
The following passage is taken from the joint judgment in the Camberwell Shopping Centre case at 184:
"The judgments in Ansett make it clear that a self-imposed contractual fetter on the exercise of discretionary power is only unlawful where it is alone without power. Where the contract, which is said to have the effect of fettering the exercise of a statutory power or discretion in the future, is itself authorised by a power, it is lawful."
The answer to the question raised by the alternative submission that at the relevant time there was no power with which the accused could intend to interfere, depends upon a proper categorisation of the effect of cl 9 of the agreement and the legislative scheme in which s20(1) and (2) was enacted. If cl 9 could be categorised as a proper exercise of the discretion, then the clause was valid and the discretion to authorise more than one body for the same category or categories of building practitioner was disabled for the period it specifies. If cl 9 was not authorised by the statute and fettered the discretion conferred by s20(1) and (2), it was void and did not operate to disable the discretion conferred by either subsection.
In order to succeed on the alternative submission, the accused need to show that cl 9 was authorised by statute. Mr Porter correctly pointed out that the clause did not remove the power to authorise more than one body to accredit the same category or categories of building practitioner; it merely postponed any such appointment from taking effect for a period of three years. However, that does not mean that cl 9 was authorised by the Building Act. The clause provides that the Minister will not exercise the powers under s20(2) (should read 20(1) because s20(2) is an elaboration of the extent of the power conferred by s20(1)), without first giving the Tasmanian Compliance Corporation notice three years prior to the authorisation. If valid, that clause deprived the Minister from exercising his or her discretion in favour of signing an authorisation authorising a body until he or she had given the notice and three years had elapsed. It seems to me that that clearly constitutes a fetter on the free exercise of the discretion conferred by s20.
It was submitted that L'Huillier v State of Victoria [1996] 2 VR 465 supported the accuseds' contention. That case concerned the appointment of a senior public servant by Order-in-Council for a term of five years. The order provided that if the appellant was not to be reappointed for a subsequent five years, he was to be given formal notice twelve months before the end of the term. The issue arose as to whether the provision concerning twelve months' notice was void because it fettered in advance, discretionary powers which, if they were to be exercised in favour of the appellant, would have to be exercised by reference to the public interest at the end of the appellant's term, not twelve months earlier.
So, on behalf of the accused, it was contended that if the Minister had an unfettered discretion to authorise one, or more than one, body to accredit the same category or more categories of building practitioner, that discretion had been exercised in favour of appointing one body to accredit all categories by the entry into the agreement containing cl 9. As Kellaway JA in L'Huillier's case at 479, "the question is whether the discretion was properly exercised at the time the contract was made, not whether the contract would impede the due exercise of the discretion a few days later". His Honour added, "Whether a power is of that kind, and how far in advance it may be exercised, depends upon the nature of the power, its purpose and the terms of any relevant statute."
In this case it is important to recall that the statutory scheme for the authorisation of a body or bodies to accredit a category or categories of building practitioner envisages a process that is enlivened by the lodgement of an application for authorisation, accompanied by the statements (and fee) prescribed by the Building Act, s19(2)(a) and (b). Upon receipt of such an application, the Minister had an unfettered discretion to grant or refuse authorisation if he was satisfied of the existence of the matters prescribed by s20(1)(a) – (c). In effect, s20(2), was an explanation that the discretion conferred in the manner I have just set out, extended to authorising more than one body for the same category or categories of building practitioner. The Building Act did not confer a "blanket discretion" whereby a Minister could declare that for a specified period of time there would be only one authorised body for accrediting a specified category or categories of building practitioner. The terms of the Building Act, Pt4, clearly contemplated that the discretion conferred by s20(1) and (2) must be available for exercise upon the receipt of an application for authorisation and be determined in accordance with the public interest at that time. There might well be a policy to the effect that there will be only one authorised body for accrediting all building practitioners, but policy is not a fetter on the free exercise of the statutory discretion.
Mr Porter submitted that at the time of the authorisation of the Tasmanian Compliance Corporation, it would have been a proper exercise of the Minister's discretion to have effected the authorisation by entering into a contract with it, and the power to authorise was wide enough to authorise inclusion of a clause in the terms of cl 9 of the agreement. I do not accept the second part of that submission, but even if it is correct, it does not assist the accused, for the plain fact of the matter is that at the time of the relevant act, viz, the signing of the agreement, the Tasmanian Compliance Corporation was an authorised body under the Building Act, and cl 9 was not an exercise of any statutory discretion under the Building Act but, in effect, an agreement with the Corporation that for a period of three years, the Minister would not authorise any applicant who made an application pursuant to the Building Act, s19, during that three-year period to be an authorised body, no matter how meritorious the applicant might be. That is plainly a fetter on the statutory discretion conferred by s20(1) and (2). I am also of the view that had such a clause appeared in an initial authorisation by contract, it would have offended against public interest because the scheme enacted by the Building Act, Pt4, conferred a discretion on the Minister to authorise more than one body to accredit the same category or categories of building practitioner, and this discretion must be exercisable at any time in the future upon the receipt of an application for authorisation.
The Victorian Court of Appeal held that the relevant provisions in Mr L'Huillier's contract did not offend against any public law principle and were valid. However, the terms of that contract are far removed from the agreement that is at the heart of this litigation. A provision in an employment contract requiring the exercise of a discretion to continue that employment, to commence twelve months after the exercise of the discretion, is one thing; to belatedly make a contract concerning authorisation pursuant to the Building Act, Pt4, to the effect that the authorisation will be an exclusive one for three years, is quite another. It cannot be said that cl 9 was a proper incident of the authorisation, or part of the contractual framework surrounding such authorisation providing security of tenure because at the time the agreement was signed the Tasmanian Compliance Corporation had tenure for so long as there was compliance with any condition of authorisation and the Minister remained satisfied with respect to the matters referred to in s20(1).
A need to exercise a discretion under the Building Act, Pt4, did not arise until an application had been made to the Minister in accordance with s19. Thus, the discretion had to be exercised in the future in the light of the public interest at that future time. As Callaway JA said in L'Huillier's case at 481, "[I]n such a case a provision of the contract will be void if it purports to prevent the due exercise of the discretion at the time required by law."
I reject the submissions put on behalf of the accused that at the relevant time there was no discretion to be exercised by the Minister pursuant to the Building Act, Pt4.
The nature of the act proscribed by the Code, s69
In the written submissions put on behalf of the accused, the following argument was advanced:
· the act referred to in the Code, s69, (in this case, signing the agreement containing cl 9) must be an act that has a tendency or capacity to interfere with the Minister's free exercise of his or her authority or duty;
· if cl 9 is void, it cannot have such a tendency or capacity.
During the course of submissions in support of this argument, Mr Porter accepted that whether an act had a tendency or capacity to interfere with a Minister's free exercise of his or her duty or authority was a question of fact, not of law, and whether the signing of the agreement containing cl 9 had such a capacity or tendency would be a question for the jury to decide, depending on the evidence adduced at trial.
Notwithstanding that concession, Mr Porter adhered to his submission that guilt of the crime charged, necessitated proof beyond reasonable doubt that an accused signed the agreement containing cl 9 with the intention of interfering with the free exercise of the Minister's duties or authorities of office, and that that act had the capacity or tendency to interfere with that free exercise.
The basis for the submission was that it was "clearly necessary", although why this was so was not entirely clear to me. It was correctly said that proof that an act had a tendency to pervert the course of justice, as well as be accompanied by an intention to do just that, was necessary to establish the common law crime of conspiracy to pervert justice and the crime of perverting justice, as enacted in the Code, s105. Authorities for that proposition include R v Rogerson (1992) 174 CLR 268 and Meissner v R (1995) 184 CLR 132. The crime of perverting justice and the crime of interfering with an executive officer appear to have different origins. The development of the crime of perverting justice from the offence of conspiracy to pervert justice, to an attempt to pervert justice, to perverting justice, is traced in the following paragraphs taken from McHugh J's judgment in R v Rogerson (supra) at 297 - 299:
"To attempt to pervert the course of justice is a common law misdemeanour Reg v Vreones [1891] 1 QB 360, at p 367; Reg v Murphy (1985) 158 CLR 596, at p 609. The origin of the offence is obscure but it appears to have developed from the law which came to be categorised as a conspiracy to pervert the course of justice; Archbold, Pleading, Evidence and Practice in Criminal Cases, 43rd ed (1988), p 2462. As the English Court of Appeal pointed out in Reg v Rowell [1978] 1 WLR 132, at p 138, however, the 'use of the word "attempt" in this context is misleading'. The essence of the offence is 'the doing of some act which has a tendency and is intended to pervert the administration of public justice' Vreones [1891] 1 QB, at p 369; Murphy (1985) 158 CLR, at p 609. An attempt to pervert the course of justice is a substantive and not an inchoate offence Machin (1980) 71 Cr App R 166, at p 170. In Machin, the Court of Appeal pointed out that the word 'attempt' ibid:
'is convenient for use in the case where it cannot be proved that the course of justice was actually perverted but it does no more than describe a substantive offence which consists of conduct which has tendency and is intended to pervert the course of justice'.
It is the tendency of the conduct which is decisive, and it is irrelevant whether the conduct did or did not bring about a miscarriage of justice.
…
Offences for conduct which would now be categorised as conspiracies to pervert the course of justice are among the oldest offences known to the English common law. The modern law of conspiracy developed from the writ of conspiracy, which was created by the Statute of Conspirators 'of the probable date, 21 Ed. I' [1293] Winfield, History of Conspiracy and Abuse of Legal Procedure (1921), p 51; and see Wright, Law of Criminal Conspiracies and Agreements (1873), pp 5-6. That statute made it an offence to combine falsely and maliciously to indict or cause others to be indicted or to combine falsely to move or maintain pleas of the Crown Winfield, op cit, pp 51-52. By the end of the seventeenth century, however, the types of agreement punishable as conspiracies to pervert the course of justice had been greatly extended. Yet it was not until 1933 that anybody appears to have suggested that by itself a wilfully false statement made to a police officer in relation to an actual, alleged or suspected crime might constitute the offence of attempting to pervert the course of justice. No trace of such a suggestion can be found in the eighteenth (see for example, Blackstone, Commentaries on the Laws of England (1769), vol IV, pp 127 ff) or nineteenth (see for example, Hawkins, A Treatise of the Pleas of the Crown, 8th ed. (1824), vol 1, pp 412-477; Archbold's Criminal Pleading, 19th ed. (1878), pp 1005-1014; Chitty, Practical Treatise on the Criminal Law, 1st ed (1816), vol 3, pp 1138-1193; Russell, Treatise on Crimes and Misdemeanours, 5th ed (1877), vol 3, pp 109-176) century writers. Moreover, it was not until 1956 that any court adopted the suggestion. English (see Reg v Thomas [1979] QB 326; Reg v Selvage [1982] QB 372) and Irish (see Reg v Bailey [1956] NI 15) courts, however, have now accepted that by itself a false statement to a police officer in relation to an actual, alleged or suspected crime can constitute the offence of attempting to pervert the course of justice. Nevertheless, I cannot accept that such a statement by itself is an offence under the common law of Australia."
In my reasons for the first rulings given in this trial: [2007] TASSC 54 at [22 ff], I traced the likely origins of the crime of interfering with an executive officer to Parliament's inherent right to punish for contempt and right to protect parliamentary privilege.
When considering the elements of the crime enacted by the Code, s69, it might be thought useful to look at the law of criminal contempt of court, for out of court publications that prejudice or embarrass, or have a tendency to prejudice or embarrass, the conduct of current or forthcoming legal proceedings amount to a contempt of court ("the sub judice rule"). Wilson J said in Hinch v Attorney-General (NSW) (1987) 164 CLR 15 at 34 that to constitute a criminal contempt the publication "must exhibit a real and definite tendency to prejudice or embarrass pending proceedings".
Thus, it might be argued by analogy that the act proscribed by the Code, s69 must be one that exhibits a real and definite tendency to interfere with the Minister's free exercise of the authorities and duties of his or her office. The difficulty with applying the analogy is that the offence of criminal contempt is complete upon proof of publication of material that has the requisite tendency. Proof that the publisher intended to prejudice or embarrass legal proceedings is not required. See Hinch v The Attorney-General (Vict) (supra); John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371; Lane v Registrar of the Supreme Court of NSW (1981) 148 CLR 245.
In the Code, s69, Parliament expressly enacted that an intention to interfere with the free exercise of the Minister's authorities or duties is an element in the crime of interfering with an executive officer. By the enactment of s69, the Parliament expressly chose to attach a specified intention to the proscribed act, but remain silent with respect to the nature of the act. I can see no authorisation for the Judiciary attributing to Parliament an intention to restrict s69 to those acts that have a certain tendency or capacity just because that is the case with the crime of perverting justice, when that crime has a different history, nor because that is the case with one kind of criminal attempt when that offence does not require proof of any mens rea. There is no basis for analogous reasoning.
Also, it is significant that of the crimes enacted by the Code, ChVII, only s69 refers to "an act". Section 70 refers to "force or fraud or threats or intimidation of any kind". Section 71 refers to "any property or benefits of any kind", as does s72.
The statutory equivalents of the Code, s69, enacted in Queensland and Western Australia, referred to in the reasons for my first ruling at pars28 and 29, speak of doing an act "calculated to interfere with the free exercise" of the Minister's authorities and duties which, as I said, tend to suggest an objective description of the acts. That expression, or a similar expression, does not appear in the Tasmanian statute.
The submission put on behalf of the accused is tantamount to a submission that s69 should be rewritten to read, "Any person who does any act that has the tendency to interfere with the free exercise by the Governor, or by any member of the Executive Council, or by a Minister of the Crown, of any of the duties or authorities of his office, with the intention of so interfering with that free exercise is guilty of a crime." I can see no warrant for doing that.
The Rulings
1 At all material times, the Building Act, s20(1) and (2), reposed in the Minister a discretion to
authorise one or more bodies to be an authorised body to accredit the same category or categories of building practitioner.
2That "act" referred to in the Code, s69, is not confined to acts that have the tendency or capacity to interfere with the Minister's free exercise of any of the duties or authorities of his or her office.
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7
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