Bropho v Western Australia

Bropho v Western Australia - [1990] HCA 24 - HCA 1990 case summary — Zoe

[24]

The rule that statutory provisions worded in general terms are to be construed as prima facie inapplicable to the Crown was initially confined to provisions which would have derogated from traditional prerogative rights (see, e.g., Street, The Effect of Statutes upon the Rights and Liabilities of the Crown, University of Toronto Law Journal, vol. 7 (1948), 357; Hogg, Liability of the Crown, 2nd ed. (1989), pp. 202, 242-243) or, alternatively, was said to be subject to very broad exceptions in that it did not apply if the intention of the statute was to provide "for the public good", or "the advancement of religion and justice", or "to give a remedy against a wrong" or to prevent fraud or "tortious usurpation" (see, e.g., Sydney Harbour Trust Commissioners v. Ryan [1] ). It has, however, been clearly accepted in more recent cases in the Court that the rule is of general application (see, in particular, The Commonwealth v. Rhind [2] ; Bradken Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. [3] ; China Ocean Shipping Co. v. South Australia [4] ; and see also, as to the United Kingdom, Lord Advocate v. Dumbarton District Council [5] ; as to the United States of America, Corpus Juris Secundum, vol. 82, p. 554; and cf., as to Canada, Interpretation Act, R.S.C. 1985, c.I-21, s. 17 and the discussion in the judgment of Stephen J. in the China Ocean Shipping Co. Case [6] ). In Madras Electric Supply Corporation Ltd. v. Boarland [7] , Lord Keith of Avonholm expressed the view that the rule is not "just a rule of statutory construction" but reflects a prerogative power of the Crown to override "words in a statute capable of applying" to it. This notion of a prerogative to override the provisions of a duly enacted statute was rejected by Lord MacDermott [8] and Lord Reid [9] in Madras and, as Lord Reid intimated [10] , is quite contrary to the whole course of British constitutional development since 1688 (see, also, A. v. Hayden [11] , and Lord Advocate v. Dumbarton District Council [12] ). It certainly has no place in the law of this country where it has been consistently accepted that the rule that legislative provisions worded in general terms are prima facie inapplicable to the Crown is a rule of statutory construction which identifies a presumption to be applied in ascertaining the relevant legislative intent (see, e.g., R. v. Sutton [13] ; Minister for Works (W.A.) v. Gulson [14] ). Being a judge-made rule of construction, the presumption which the rule embodies may be supplemented, modified or reversed by legislative provision (see, e.g., Acts Interpretation Act 1931 Tas., s. 6(6); The Acts Interpretation Act of 1954 Q., s. 13; Acts Interpretation Act 1924 N.Z., s. 5(k); Interpretation Act, R.S.B.C. 1979 (British Columbia), c. 206, s. 14; Interpretation Act 1981 (Prince Edward Island), c. 18, s. 14). It is not suggested, however, that there is any such legislative provision applicable in the present case.

[29]

The problem of principle in relation to the rule lies in judicial statements of its content and operation which have tended to discount the significance of its character as an aid to statutory construction and to treat it as if it were an inflexible principle which, in the absence of express reference to the Crown, precludes a statute from binding the Crown unless a test of "necessary implication", which "is not easily satisfied", is applied and satisfied (see, e.g., Brisbane City Council v. Group Projects Pty. Ltd. [17] ; Province of Bombay v. Municipal Corporation of Bombay [18] ). It is true that the phrase "necessary implication" has often been used in this context in the flexible and non-technical sense of requiring little more than that an intention to bind the Crown can be discerned when the words of the statute are construed in the general context of the subject matter, disclosed policy and mischief to be redressed (see, e.g., Roberts v. Ahern [19] ; Minister for Works (W.A.) v. Gulson [20] ). That use of the phrase "necessary implication" does not, however, conform with the weight of more recent authority which has given the phrase, as used in this context, the character of a formularized test. Thus, it has been authoritatively stated that "necessary implication" means that it "must be manifest, from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound" (see, e.g., Brisbane City Council [21] ; Province of Bombay [22] ; Premchand Nathu & Co. Ltd. v. Land Officer [23] ; China Ocean Shipping Co. [24] ). In determining whether the test of "manifest from the very terms of the statute" is satisfied, it is permissible to take account of the statute's apparent purpose. Even there, however, an eye of the needle test has been applied: it must be possible to affirm "that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound" (Province of Bombay [25] , emphasis added; and see, also, Brisbane City Council [1] ; China Ocean Shipping Co. [2] ). That last-mentioned test is obviously a very stringent one which is likely to be satisfied only in the case of a statute dealing with a special subject which, of its nature, necessarily involves the Crown (e.g. a statute dealing with proceedings for excess of governmental power: cf. Alberta Government Telephones v. Canadian Radio-television and Telecommunications [3] ).

[31]

One can point to other "rules of construction" which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such "rules" are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights (see, e.g., Benson v. Northern Ireland Road Transport Board [4] ), which would operate retrospectively (see, e.g., Maxwell v. Murphy [5] ), which would deprive a superior court of power to prevent an unauthorized assumption of jurisdiction (see, e.g., Magrath v. Goldsbrough, Mort & Co. Ltd. [6] ) or which would take away property without compensation (Attorney-General v. De Keyser's Royal Hotel [7] ). The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used" (Potter v. Minahan [8] , and see, also, Ex parte Walsh and Johnson; In re Yates [9] ). If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear.

[35]

Whatever force such considerations may continue to have in relation to legislative provisions which would deprive the Crown "of any part of [the] ancient prerogative, or of those rights which are essential to [the] regal capacity" (see per Griffith C.J., Sydney Harbour Trust Commissioners v. Ryan [13] ), they would seem to have little relevance, at least in this country, to the question whether a legislative provision worded in general terms should be read down so that it is inapplicable to the activities of any of the employees of the myriad of governmental commercial and industrial instrumentalities covered by the shield of the Crown. So to say is not to assert the possibility of drawing a clear and fixed distinction between functions which are properly or essentially governmental and those which are not (cf. per Windeyer J., Ex parte Professional Engineers' Association [14] ). It is simply to point to the fact that the historical considerations which gave rise to a presumption that the legislature would not have intended that a statute bind the Crown are largely inapplicable to conditions in this country where the activities of the executive government reach into almost all aspects of commercial, industrial and developmental endeavour and where it is a commonplace for governmental commercial, industrial and developmental instrumentalities and their servants and agents, which are covered by the shield of the Crown either by reason of their character as such or by reason of specific statutory provision to that effect, to compete and have commercial dealings on the same basis as private enterprise. It is in that contemporary context that the question must be asked whether it is possible to justify the preservation in our law of an inflexible rule which, in the absence of express reference, requires a reading down of the general words of a statute to exclude the Crown (and its instrumentalities and agents) unless it is "manifest from the very terms of the statute" that it was the legislative intent that the Crown should be bound and which, in ascertaining whether such a legislative intent is manifest, allows account to be taken of the purpose of the statute only if it is possible to affirm that that purpose must be "wholly frustrated" unless the Crown is bound.

[37]

There seems to us to be but one real argument of substance favouring the preservation of such an inflexible and stringent rule. It lies in the weight of authority. There are undoubtedly decisions and statements of the highest authority which, while falling short of endorsing Lord Campbell C.J.'s description of such a rule as a sacred one, support its recognition as a fundamental and rigid rule of construction. On the other hand, there has been a growing tendency to question the appropriateness of the rule to modern circumstances (see, e.g., State of West Bengal v. Corporation of Calcutta [15] ) and to confine its applicability either by limitation of its scope (e.g. to statutory provisions which would affect the Crown "to its prejudice": see Madras Electric Supply Corporation Ltd. [16] , but cf. Lord Advocate v. Dumbarton District Council [17] ) or by engrafted exceptions from or qualifications to its operation (see, e.g., Alberta Government Telephones v. Canadian Radio-television and Telecommunications [18] ). That tendency is not surprising in the context of the range of modern governmental activities and of recent developments in the approach to statutory construction. Indeed, the contemporary approach to statutory construction, with its added emphasis on legislative purpose (see, e.g., Kingston v. Keprose Pty. Ltd. [19] ) and permitted reference to a range of extrinsic materials for the ascertainment of that purpose (see, e.g., Acts Interpretation Act 1901 Cth, s. 15AB; Interpretation Act 1984 W.A., s. 19; Hoare v. The Queen [20] ), has added an element of anachronism to a judicial confinement of the permissible basis for discerning a legislative intent that the Crown be bound to what is "manifest from the very terms of the statute" (cf. Cross, Statutory Interpretation, 2nd ed. (1987), p. 187). On the other hand, there is considerable superficial appeal in the argument that the effect of past recognition of the rule is that it can be assumed that the legislature would ordinarily have proceeded on the basis that legislation would be construed conformably with the rule and that, accordingly, any intention to bind the Crown or any of its instrumentalities or agents would be made manifest by express words or by "necessary implication" in the sense explained. Close examination reveals, however, that that argument is unconvincing when advanced as the foundation of the rule in a stringent and unqualified form. The reason why that is so is that the expansion of the identity and the activities of governmental instrumentalities and agents and the operation of statutory provisions subjecting such instrumentalities and agents to the effect of general legislative provisions defining the obligations of subjects (see, e.g., Judiciary Act 1903 Cth, s. 64) have made it inevitable that there are not infrequent occasions where it is the legislative intent to bind all persons indifferently but where the legislature has not adverted to the possible need to single out the Crown or those acting on its behalf for distinct mention. In such cases, the existence of the rule is likely to divert attention from the need to formulate legislative intent rather than found an accurate assumption of a legislative intent that general words are not intended to bind the Crown and its instrumentalities or agents. The various Criminal Codes and general criminal law statutes, which contain no express general provision to the effect that they apply to servants of the Crown acting in the course of their duties as such, provide obvious examples of such legislative provisions. It could scarcely be said to be "manifest from the very terms" of those Codes or statutes that it was the legislative intent that they would bind employees and agents of the Crown or that the inapplicability of their provisions to such persons would wholly frustrate their purpose. It is, however, clear that it simply would not occur to any legislature of this country that a failure to indicate by express words or necessary implication that the provisions of a Criminal Code or general criminal statute were applicable to servants of the Crown in the course of their duties as such would result in a situation where Crown servants were placed beyond the reach of the ordinary criminal law in so far as they were acting with the authority of the Crown (see, generally, A. v. Hayden [21] ; Olmstead v. United States [22] ).

[43]

In the case of legislative provisions enacted subsequent to this decision, the strength of the presumption that the Crown is not bound by the general words of statutory provisions will depend upon the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arises. If, for example, the question in issue is whether the general words of a statute should be construed in a way which would make the Sovereign herself or himself in the right of the Commonwealth or of a State liable to prosecution and conviction for a criminal offence, the presumption against a legislative intent to that effect would be extraordinarily strong (cf. Canadian Broadcasting Corporation v. Attorney-General (Ontario) [24] ). On the other hand, if the question in issue is of the kind involved in the present case, namely, whether the employees of a governmental corporation engaged in commercial and developmental activities are bound by general provisions designed to safeguard places or objects whose preservation is of vital significance to a particular section of the community, the presumption against the applicability of general words to bind such employees will represent little more than the starting point of the ascertainment of the relevant legislative intent. Implicit in that is acceptance of the propositions that, notwithstanding the absence of express words, an Act may, when construed in context, disclose a legislative intent that one of its provisions will bind the Crown while others do not and that a disclosed legislative intent to bind the Crown may be qualified in that it may, for example, not apply directly to the Sovereign herself or to a Crown instrumentality itself as distinct from employees or agents. Always, the ultimate questions must be whether the presumption against the Crown being bound has, in all the circumstances, been rebutted, and, if it has, the extent to which it was the legislative intent that the particular Act should bind the Crown and/or those covered by the prima facie immunity of the Crown.

[49]

I should begin by stating what I understand by the question whether the Crown is bound by the provisions of s. 17 of the Aboriginal Heritage Act 1972 W.A. ("the Act"). Only a natural person can be a principal offender of an offence created by s. 17 which, relevantly, prohibits a person from excavating, destroying, damaging, concealing or in any way altering any Aboriginal site. More precisely, to adopt the language of s. 7(a) of The Criminal Code of Western Australia, only a natural person can be a "person who actually does the act or makes the omission which constitutes the offence". Clearly s. 17 of the Act and s. 7(a) of the Code do not purport to impose criminal liability on the Crown as a principal offender: the provisions, whether singly or in combination, simply do not apply to the Crown. In this respect, s. 17 is to be distinguished from s. 18 of the Re-establishment and Employment Act 1945 Cth which was considered in Cain v. Doyle [25] . Under that statute, only an employer could be the principal offender and the question was whether the Crown, as the employer of a protected person, could be a principal offender of the offence of terminating the employment of a protected person. The view was taken that the defendant in that case, a servant of the Crown, could not be convicted as an aider or abettor unless the Crown were guilty of an offence. It was held that the principle that the Crown is not liable to be sued criminally for a wrong had not been displaced by the general words of the statute creating the offence and that there is "the strongest presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature": per Dixon J. [26] . In this case, if it were possible for the Crown to be a party to an offence under s. 17, it could only be as a secondary party made liable under s. 7(b), (c) or (d) of The Criminal Code for an offence actually committed by its servant or agent. But pars (b), (c) and (d) of s. 7, which are part of a provision codifying the law relating to parties to criminal offences, are not expressed, and cannot be taken to intend, to impose on the Crown criminal liability for an offence actually committed by a servant or agent. Moreover, it is beyond the power of the Crown to authorize a servant or agent to commit an offence and any attempt to confer authority to do so in fact is void in law. As Griffith C.J. said in Clough v. Leahy [27] :

[52]

To adopt in such a context a stringent formulation of the presumption (such as that found in Brisbane City Council v. Group Projects Pty. Ltd. [29] and in Province of Bombay v. Municipal Corporation of Bombay [30] ) would be to confer on the activities of the Executive Government an extremely wide exemption from the operation of the general criminal law. It can be conceded that Parliament must have intended that the Executive Government should be exempt from some provisions of the general criminal law, but Parliament can hardly have intended to exempt all activity engaged in on the Government's authority from the general criminal law unless the stringent conditions referred to in the Brisbane City Council and Bombay cases are satisfied. Historically, the courts distinguished between some areas of Crown activity which have and some which have not been immune from affection by statutory provisions of general application: see Sydney Harbour Trust Commissioners v. Ryan [31] , per Griffith C.J. True it is, as Professor Friedmann pointed out ("Public Welfare Offences", Modern Law Review vol. 13 (1950) 24, at pp. 31-32), that the language in which the distinction was expressed in earlier times is not satisfactory for contemporary application, but I would respectfully agree with the majority that it is appropriate to determine the scope of the exemption of Crown activity by reference to all the circumstances which might legitimately reveal the actual or imputed intention of the legislature or assist in imputing to the legislature an intention which it might reasonably have formed had the legislature adverted to the question. Thus the presumption cannot be put any higher than this: that the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances. As the Court must determine whether the legislature intended (or would have intended had the question been addressed) that the statute should affect the activities of the Executive Government, the circumstances which properly relate to that question must be considered. Those circumstances include the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute, and the nature of the activities of the Executive Government which would be affected if the Crown is bound.

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Before

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Judgment (58 paragraphs)

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