Commonwealth DPP v Riddell

District Court of NSW|2006-05-19

CITATION: Commonwealth DPP v Riddell [2006] NSWDC 180

DECISION: The Appeal is upheld.; The finding of guilt and consequent orders are set aside and quashed.

CATCHWORDS: Criminal Law - Appeal - false passport - statutory construction - Constitution - foreign affairs power.

Passports Act 1938 Judiciary Act 1903 LEGISLATION CITED: Anti Terrorism Act (No 3) 2004 Australian Passports Act 2005 Acts Interpretation Act 1901 (Cth) Constitution Act 1900

Cooper Brookes (Wollongong) Pty Ltd v Federal Commision of Taxation (1981) 147 CLR 297 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Beckwith v The Queen (1976) 135 CLR 569 R v Lavender (2005) 79 ALJR 1850 R v Bailey [2003] NSWCCA 361 R v Sharkey (1949) 79 CLR 121 Bank of New South Wales v Commonwealth Bank (1948) 76 CLR 1 Street v Queensland Bar Association (1989) 168 CLR 461 Bond v The Queen (2000) 74 ALJR 597 Davis v Commonwealth (1988) 166 CLR 79 Polyukovich v The Commonwealth (1991) 172 CLR 501 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 CASES CITED: Cuncliffe v The Commonwealth (1994) 182 CLR 272 R v Adams (1935) 53 CLR 563 Murphy v Farmer (1988) 165 CLR 19 Lavender v The Queen (2005) 79 ALJR 1337 Krakouer v The Queen (1998) 155 ALR 586 K & S Lake City Freighters Pty Ltd v Gordon and Gotch Limited (1985) 157 CLR 309 Australian Boot Trade Employees Federation v Whybrow & Co (1910) 11 CLR 311 Bistricic v Rokov (1976) 11 ALR 129 Saraswait v The Queen (1991) 172 CLR 1 Avondale Motors (Ports) Pty Ltd v FCT (1971) 45 ALJR 280 Koowarta v Bjelke Peterson (1982) 153 CLR 168 Franklin Dam Case (1983) 158 CLR 1 Leask v Commonwealth (1996) 140 ALR 1

PARTIES: Stephen John Riddell - Appellant Commonwealth Director of Public Prosecution - Respondent

COUNSEL: Mr M Seymour - Appellant Mr A Abadee - Respondent

1 Stephen John Riddell ("the appellant") appeals to the District Court against a finding of guilt made against him in respect of an offence alleged pursuant to s. 9A(1)(f)(ii) Passports Act 1938 (the "Act").

2 The offence for which he was convicted alleged that he: " between 9 November 2001 and 16 November 2001 , at Sydney, did have in his possession or under his control within Australia a document (not being a passport issued by or on behalf of the government of a foreign country) that purported to be a passport issued by or on behalf of the government of a foreign country, in that he did have in his possession or under his control a document titled 'New Hebrides Passport-Passeport' …. in the name Stewart James Riddell, date of birth 20 January 1964".

3 The proceedings in the Local Court continued between November 2004 and March 2005, however when the matter was concluded in March 2005 the appellant failed to appear and the finding of guilt was made in his absence. He was apparently found guilty of a number of offences. On appeal to the District Court against those convictions, leave was granted to appeal against his conviction on only one of the charges dealt with at the Local Court. The Commonwealth Director of Public Prosecutions ("the respondent") opposes the appeal and seeks that it be dismissed.

4 At the hearing of the appeal the appellant did not contest that the evidence established beyond reasonable doubt that the relevant document the subject of the charge ("the passport" issued by "the government of the New Hebrides") was "in (his) possession or under (his) control", that the document was in the name of "Stewart James Riddell" and that it described itself as a "Passport" and declared itself to be the "property of New Hebrides" issued by "the competent authorities in New Hebrides …. ". There is no dispute that the photograph contained within the "passport" was that of the appellant and the document had affixed within it various "visa" stamps, which may be evidence that the document had been used as a "Passport".

5 It was established from the evidence, that "the government of New Hebrides", did not exist on the date of issue of the passport (6 September 1997). In fact, as at that date, the former British/French "colony" or "condominium" of "New Hebrides" had already become the Republic of Vanuatu, that the document in the possession of the accused had not been issued by the Republic of Vanuatu and that the document did not belong either to the Republic of Vanuatu or the formerly constituted "condominium" or colony of "New Hebrides". New Hebrides had been jointly administered by France and Great Britain between 1906 and 1980.

6 As the appeal was conducted the two critical issues for decision are: i. Properly construed did s.9A(1)(f) (ii) of the Act, extend to prohibit possession of "passports" issued by fictitious governments: ie could such a document "purport" to be issued by the government of a foreign country that did not exist (emphasis added), and if so, ii. if so, was such a provision within the constitutional power of the Commonwealth of Australia to legislate?

7 The appellant essentially contended that, properly construed, the document must be issued by a real political entity not a fictitious one and that the Commonwealth of Australia had no constitutional power to prohibit possession of documents that on their face could not have been issued by the existing government of a foreign country or one that had never existed. The parties have sent out s.78B Judiciary Act notices but no other parties have intervened.

8 S.9A(1) Passports Act 1938 provided, as at November 2001; 1) A person who: (a) in connection with travel or identification, uses an Australia passport that has been cancelled; (b) in connection with travel or indemnification, uses an Australia passport that was issued to another person; (c) being a person to whom an Australia passport has been issued, permits another person to use that passport in connection with travel or identification; (d) has in his or her possession or under his or her control an Australia passport that was not issued to him or her; (e) has in his or her possession or under his or her control: (i) an Australian passport that has been falsified; or (ii) a document (not being an Australian passport) that purports to be an Australian passport; (f) has in his or her possession or under his or her control within Australia : (i) a passport issued by or on behalf of the government of a foreign country, being a passport that has been falsified; or (ii) a document (not being a passport issued by or on behalf of the government of a foreign country) that purports to be a passport issued by or on behalf of the government of a foreign country; or (g) intentionally does an act that causes the defacing or destruction of an Australian passport; is guilty of an offence and is punishable, on conviction, by a fine not exceeding $5,000 or imprisonment for a period not exceeding 2 years.

10 No issue of "reasonable excuse" as set out in s.9A(2) arose for consideration in this matter. S.9A(1)(f)(ii) is hereafter referred to as "the relevant provision".

11 The Act is described in its title as "an Act relating to Passports". It has extra territorial operation, relating "to acts, matters and things outside Australia" and "to all persons irrespective of their nationality or citizenship", unless the contrary appears (s.4A).

12 S.5(4) states that a reference in ss.9A(1)(f) and 9B(b) "to a passport issued by or on behalf of the government of a foreign country shall be read as including a reference to a document of identity issued on behalf of the government of a foreign country for travel purposes …".

13 The Act has provisions relating to the issue of "Passports" in Australia and regulation of possession of such "Passports" ss.5, 7, 7A etc, 8, 8A, 9 of the Act. S.9A is entitled: "Offences relating to improper use or possession of passports etc". S.9A(1)(a) - (e) and (g) create offences relating to the use and abuse of Australian passports. S.9(f) creates offences involving possession of relevant "documents" within Australia issued or purportedly issued by the government of a foreign country.

14 S.9B of the Act creates offences relating to "Falsifying foreign passports etc", within Australia. S.9B(a) creates the offence of "falsify(ing) a passport issued by and on behalf of the government of a foreign country". S.9B(b) creates the offence of, "mak(ing) a document that is fake with intent that the false document may be used, acted on or accepted as if it were a passport issued by or on behalf of the government of a foreign country" (emphasis added).

15 Ss.9C,10 create further unrelated offences and s.11 is concerned with "Prosecution of Offences". The remaining provisions in the Act need not be referred to as they appear to have no relevance. The Act was substantially amended by the "Anti-Terrorism Act (No 3) 2004" including a definition for a "foreign passport" as "a passport issued by or on behalf of the government of a foreign country" and a definition for "foreign travel document". The Act was effectively "split" by repealing ss.9A(1)(f) and 9B, to create offences as to "Australian Passports" (Part 1) and as to "Foreign travel documents" (Part 3 ss.18-22).

16 In 2005 the Parliament enacted the Australian Passports Act. Reference will be made below to relevant provisions of the Commonwealth Acts Interpretation Act 1901.

17 Bearing in mind that the document in the possession of the appellant was not issued by the government of a foreign country that existed at the time of issue and was thus a false document, the question that arose was whether it could relevantly "purport to be a passport issued by or on behalf of the government of a foreign country". The supposed issuing "government" did not exist at the time of the offence and had not existed in the manner represented by the document since 1980, but the document had all the characteristics of a "Passport" with standard "representations" as to identity, purpose and visa stamps, some of which, at least, had hallmarks of fabrication. Evidence was given that the document did not look like one that would have been issued by New Hebrides or Vanuatu.

18 The appellant submitted that he should not have been convicted of an offence "as there is no government and no foreign country of New Hebrides" that could have issued the document to him and that therefore there could be no document "purporting" to have be issued by the government of a foreign country, being New Hebrides. The appellant traced the legislative history of the Passports Act, stating that the definition of "passport" under the Act was "a document of identity issued from official sources whether within or outside of Australia and having the characteristics of a passport". S.9A was inserted by a 1979 amendment, introduced with s.4A, which provided that the Act applied to "acts, matters and things outside of Australia" as well as "all persons irrespective of their nationality or their citizenship". It was submitted that from it's enactment the focus of an offence under s.9A(f)(ii) was to find a country that was a country "other than Australia" (emphasis added).

19 The appellant noted that in 1984, s.5 of the Act was amended to introduce ss(4) which provided that: "a passport issued by or on behalf of the government of a foreign country shall be read as including a reference to a document of identity issued by or on behalf of the government of a foreign country for travel purposes (whether or not also issued for any other purpose)".

20 Reference was made to amendments in 2004 and 2005 which repealed s.9A of the 1938 Act, and instituted the Australian Passports Act 2005, particularly s.20 of the new Act as earlier outlined.

21 The appellant submits principally, and repeatedly, that the literal construction of s.9A(1)(f)(ii) involves construing the provision to include a document not actually issued by a foreign country but that purports or represents to have been issued by the government of a foreign country (emphasis added), that is "an identifiable foreign country from which the document purports to have been issued". Relying upon the Macquarie Dictionary definition of the word "purport" it is submitted that the document must "profess, claim or convey" the meaning of being a document issued by the government of a foreign country that is an identifiable country, that is a "real", not "a fictitious", country.

22 The appellant seeks to draw comfort from the wording of s.20(4) of the subsequently enacted Australian Passports Act 2005, with its specific reference to an identifiable country. Each provision it is submitted has "the intent" that there is "a possibility of a government having issued the document", because "an element of the offence is that the particular government has not issued the document". It is submitted that the relevant provision, like the provision in the 2005 Act, made it clear that the intention was to make it improper to possess a document that could be taken to have been issued by a foreign government (emphasis added).

23 The appellant argues that as the document has no origin from, or connection to, a particular (ie. a real) government of a foreign country, it did not fall within the ambit of s.9A of the 1938 Act. It is submitted that the "definite articles" used twice in the relevant provision require that there be as a matter of objective fact an existing government of an existing foreign country capable of having issued the document. Construction of the provision in the context of the legislative history does not lend its support to the contention that the legislative intent was not to preclude possession of documents issued by fictitious countries but to prohibit possession of documents that appeared as if they were issued by a particular foreign country.

24 The respondent to the appeal in summary submits on this issue that the evidence establishes that the document found in the appellant's possession "was not a passport issued by or on behalf of the government of a foreign country". It is submitted that the "first limb" of the relevant provision is thus satisfied. The respondent states that, the "second limb" is also satisfied in that the document "purports to be a passport issued by or on behalf of the government of a foreign country", primarily because of the characteristics of the document.

25 The issue of fact clearly established from the evidence, it is submitted by the respondent, was that the document "purported to be" a document issued by or on behalf of the "government of New Hebrides". The issue of whether the document was "fake" and "noticeably so" is not to point. Further, it is submitted by the respondent that the appellant seeks to read further words into the relevant provision ie that the document has to "look like" or could "possibly" have been issued by the government of a foreign country". This construction is not in accordance with the words of the section. The relevant provision is concerned with two alternatives, a document that is issued by the government of a foreign country and one that is not, but is purportedly so. It is not a matter concluded by expert opinion. It is sufficient for the tribunal of fact to be satisfied that the document "purports to be" issued by a foreign government.

26 In construing the provision in its legislative context it is noted by the respondent that s.9A(1)(f) is the only provision, within the section, that deals with passports (or documents) in connection with "foreign countries". A reference to "foreign country" it is submitted should be taken to mean any country (whether or not an independent sovereign state) outside Australia and the external territories" (s.22(1) Acts Interpretation Act 1901 (Cth)). Further, in the legislative context s.9A(1)(f)(i), it is submitted "essentially", deals with the subject of falsified or official passports that have been tampered with or forged. This separate sub provision is significant given the way the appellant puts his case.

27 It is submitted by the respondent that the Court is required to give a "purposive approach" to the construction of the relevant provision (see s.15AA Acts Interpretation Act 1901 (Cth)). To ascertain the mischief that the provision was intended to cured it is submitted "it is legitimate to have recourse to extrinsic materials" and that it is submitted that rather than prefer the "literal meaning" of the words, giving rise to "inconvenience or improbability of result", the Court should prefer an "alternative" construction that more closely conforms to legislative intent (Cooper Brookes (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297 at 320-321). It is submitted that this is the "golden rule" of statutory construction which makes no distinction between penal and non penal statutes. As I understood the submissions of the respondent it was conceded that the supposed "literal", or as the respondent calls it, the "narrow", interpretation may accord the provision the meaning the appellant contends.

28 It is submitted that the relevant provision applies to documents that are "fabricated", relying upon the second reading speech of the Minister who introduced the provision (Mr Peacock in the House of Representatives) and his representative in the Senate (Senator Carrick). The provision was described when the Bill was introduced as being one "ushering in" offences relating to "the improper use or possession of an Australian passport, forgery and fabrication of passports and the wrongful use of passports" (eg. Senator Carrick - Hansard p1219 - 3 April 1979).

29 The respondent submits that a fabrication is established when the item is "made" and "it purports to be that which it is not". It is submitted that a document issued officially by a foreign government, but which is in some way altered or tampered with, so as to make it look like an official document, would be a forgery that may fall within the ambit of the relevant provision but more naturally would fall within s.9A(f)(i). It is submitted that the making of a document that simply "purports to be a passport" officially issued by a foreign government, enlivens the provision and no legislative purpose is served by a "narrow" or "literal" construction.

30 Further, it is submitted that the relevant provision is "a possession offence" and does not require proof of intent. The respondent referred repeatedly to s.9B(1)(f) (sic - I take this to be a reference to s.9B(b)), which is concerned with the "making of a document with intent to use it", as relevant to the construction of the relevant provision (Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (at 381-382)).

31 S.9B(b) as earlier noted relevantly provides: "A person who within Australia makes a document that is false with intent that the false document may be used, acted on or accepted as if it were a passport issued by or on behalf of the government of a foreign country other than Australia is guilty of an office" (emphasis added) .

32 It is submitted that it is a provision that "naturally complements" the relevant provision, that it more "explicitly embraces the concept of fabrication". It is submitted that it would be odd if s.9B(b) extended to proscribe fabrications, yet the relevant provision did not also so extend to fabrications. It is submitted that the words "false" and "as it were", really mean the same thing as "purports to be", importing a comparison between a document that has, as a matter of fact, been properly and officially issued by a foreign government and a document that has been made (ie a fabrication) which conveys or represents that fact, but which has not been officially issued by a foreign government. Further, the operation of s.9B(b), requires no necessity by the person who makes the document, to have knowledge as to whether the document might represent a "true document" properly issued by the government of a foreign country. The person's purpose is simply to create a document that will carry with it the false representation that the document carries the imprimatur of the government of a foreign country. It does not matter if the country exists or not.

33 It is submitted by the respondent that there is "no justification to construe the relevant section in an inconsistent manner". Neither the relevant provision nor s.9B(b) depends upon a requirement that the foreign country actually exists at the relevant time. It is submitted that the literal construction advanced by the appellant requires a "temporal requirement", which would produce "an inconvenient or improbable result" ie the offence would not be committed before the creation of Vanuatu, but not so afterwards. It is submitted by the respondent that the literal construction requires the existence of a government of a foreign country, at the time of the possession of the document, whereas there is no time requirement in the provision.

34 Further, it is submitted that the defence of reasonable excuse, prevented an injustice arising out of a construction other than a "literal" construction ie a person who has a hobby of possessing or making "replicas" of passports or "fictional" passports.

35 Finally, the respondent submits there is no ambiguity in the provision, however, even if there was, that it should be resolved in favour of the appellant represents "an outdated view of statutory construction". The Court should give primacy to s.15AA Acts Interpretation Act 1901 so as to construe penal legislation purposefully (Beckwith v The Queen (1976) 135 CLR 569, at 576, R v Lavender (2005) 79 ALJR 1337, at 1354, Stevens v Kabushiki Kaisha Sony (2005) 79 ALJR 1850, at 188). Only in "true ambiguity or doubt" should the provision be construed favourably. R v Bailey [2003] NSWCCA 361, should not be taken as holding to the contrary.

36 The appellant in response to the Crown's submission, reiterates previous submissions regarding the obvious fabrication the document represents and the need for the relevant passport under the relevant provision to be a document to be issued by a real government. It is submitted that the Crown's reliance on s.22(1) Acts Interpretation Act 1901 is "misplaced" as the relevant provision speaks for itself, needs no assistance from the Interpretation Act. It is submitted that the Australian Passports Act (2005), demonstrates the regulation of foreign passports is an express use of the external affairs power and that s.20 of the new Act illuminates and informs a construction of the relevant provision as contended by the appellant. He contends also there is a legislative policy served by a "narrow construction", that is to prevent potential liability to criminal sanctions upon possession of a "commercial gimmick which takes the form of a fabricated passport". The true legislative policy should be identified as, "a concern" that a document that is "dressed up" in the colours of a presently constituted and identifiable "government of a foreign country" represents a threat that should be regulated. However there must be exceptions, including, for example, a traveller outside a nation who became that victim of "regime change". A previously issued passport may no longer be valid but it would not be relevantly a "fabrication". Further, if it is found that the relevant provision requires the Crown to establish not only that the document purport to be a passport, but also that the passport has a connection with the government of a foreign country, the "purposive" interpretation intended for by the Crown should be rejected. It is submitted that there is "no temporal" requirement in the section, the requirement is rather that the Crown identify which foreign country has purportedly issued the passport.

37 In addition to the central proposition that the relevant provision was concerned with the alteration to passports issued by a particular foreign country, the appellant submits that constitutional considerations make it clear that the legislative intent was to prevent the possession of a document having a connection to, or origin from, an existing (at some time) foreign government.

38 The appellant cites observations in R v Sharkey (1949) 79 CLR 121 as authority for the proposition that the Commonwealth Parliament had no power to "preserve peace, order and good government by the enactment of criminal law". Citing Bank of New South Wales v Commonwealth Bank (1948) 76 CLR 1, it is submitted that the determination of the validity of the law, requires construing the law and determining it's operation and effect and then to determine the relationship that the Act has to a subject matter in respect of which it is contended that the Commonwealth had power to make laws (at 186, per Latham CJ).

39 The appellant argues that the "literal" construction it contends applies makes it clear that s.9A(1)(f)(ii) of the Act is concerned with documents that "look like or impersonate" those issued by a "particular foreign government". Insofar as the provision regulates "documents that are not referrable to Australia", particularly "documents that "look like" they had been issued by "the government of a foreign country" then the intended source of "power" is the "external affairs power".

40 It is submitted that this being so, bearing in mind that the 'external affairs' power can only be utilised to make laws with respect to; i. matters of international law, ii. matters external to Australia and iii. Australia's relations to and with other countries, (citing Blackshield & Williams "Australian Constitutional Law and Theory (2nd Ed)" Federation Press (1998) at 676-681).

41 None of these aspects of "external affairs power" arise if the provision is one that arises from the construction contended by the respondent.

42 It is also submitted that the "law of passports" is a matter of "municipal" regulation, that the issue of a document that has not been issued by the government of a foreign country raises no matter "physically external" to Australia. Nor are there any characteristics of the appellant or the document itself that suggest that in a "geographical" sense the document has a connection to a place external to Australia and, as the document does not relevantly "look like" a document issued by a "particular foreign government" (contending that New Hebrides has never had the status of a "foreign country", nor did it relevantly exist at the time of the issue of the passport), there was no issue that arose in relation to the regulation of Australia's relationships with other nations.

43 The appellant submits that as it is for Crown to demonstrate there is a sufficient application of Federal law to the Defendant, the Federal law may not apply in a particular circumstance if the essential factual or other criteria necessary for the law to operate under the Constitution is unfulfilled (citing Street v Queensland Bar Association (1989) 168 CLR 461: Bond v The Queen (2000) 74 ALJR 597).

44 Thus, if the law appears unconstitutional, the operation of s.15A Acts Interpretation Act 1901 (Cth) will be relevant to ascertain if the legislation can be read down so that the potential invalidity does not arise. In this matter there is "no external affair" to establish a connection between the alleged offence and the external affairs power. So far as s.15A Acts Interpretation Act 1901 (Cth), is concerned it is submitted this would operate to construe the validity of the legislation only if the "passport" came from a presently existing foreign country from which the document purported to have been issued.

45 With regard to any incidental power to legislate, the appellant submits that it arises in two situations, either attached to the grant of power itself to make it "effective" and that expressly granted in s.51(xxxix) Constitution Act (which grants power to make laws for the peace, order and good government of the Commonwealth with respect to matters incidental to any power vested by the Commonwealth in the Parliament).

46 It is submitted that the latter provision is of no assistance to the Crown because the legislative power incidental to the execution of executive power does not extend to the creation of the offences except where it is needed to protect the efficacy of the execution by the Executive Government of it's powers and capacity (Davis v Commonwealth (1988) 166 CLR 79 (at 113 per Brennan J).

47 Neither is there an incidental power, to make the grant of power effective, because of the "careful drafting" of the relevant provision, where the focus is "clearly upon recognition of documents that look like those issued by the government of a foreign country" (emphasis added). It is submitted that the purpose of the provision is to "harmonise" relations between Australia and "foreign countries" and that it serves no part of this purpose, even incidentally, for this provision to extend to prohibition against documents that look like those issued by non existent countries.

48 The respondent, in response submits that at the time of the enactment of the legislation there was a "country" called New Hebrides, that is "(a) territory of …. a nation or state", (Black's Law Dictionary (8th Ed)), and was to be regarded as a "foreign country", for the purposes of the interpretation of the relevant provision, applying s.22 Acts Interpretation Act 1901. In that provision "foreign country" is defined as "any country (whether or not an independent sovereign state) outside Australia and the external territories".

49 The Commonwealth submits that adopting the categories of circumstances relevant to the external power, the relevant provision "is a law with respect to matter external to Australia and Australia's relations with foreign countries". The external affairs power extends to "a place, person, matter or thing" outside the geographical limits of Australia then it is external to it and falls within the meaning of the phrase "external affairs" (Polyukovich v The Commonwealth (1991) 172 CLR 501- at 632, per Dawson J). The circumstances in which Australia or "foreign governments" authorise citizens to leave and re-enter respective territories was a matter concerning Australia's relationships with foreign countries and the efficacy of the system of regulating passports is integral to Australia's relations to other countries, "since the presence in this country of fabricated foreign passports will tend to undermine Australia's ability to rely in, or place trust upon, foreign passports generally."

50 The second reading speeches, cited by the respondent, reinforced the notion that the general subject of passport regulation at the time the relevant provision was enacted, was not motivated by domestic concerns but rather with Australia's relationships with and obligations to foreign countries.

51 The respondent submits that if the relevant provision was concerned with persons, arriving in Australia with forged or tampered official government passports, then in 1979 when the provision was passed, Australia would have been concerned to ensure that citizens of the "country" known as "New Hebrides" did not enter or cross Australia's aerial space without the official sanction of "the government of New Hebrides" and that that foreign country would be interested or concerned in an Australian resident having a document in his possession that would enable him to pass himself off as a resident of that foreign country or at least having the authority to leave and re enter that foreign country.

52 The Crown contends that the provision is not merely limited to forgeries of officially issued passports, but " fabrications", where a document is created to represent that it has the sanction of a foreign country to leave and re enter that country. That the territory known as "New Hebrides" had changed it's name and it's political structure did not detract from the fact that this territory, with altered name and political structure, remains external to Australia. Alternatively, even if the relationship between Australia and New Hebrides was really concerned with Australia's relationship with United Kingdom and/or France, the joint administrators of "New Hebrides", that did not detract from, but rendered, a fortiori, the notion that there is an external affair.

53 Further, it is also to be inferred that the current Vanuatuan government, should have an interest in, and concern with, documents purportedly issued by "the government" in its former name. The governing body of a foreign country, however that is named and whatever political structure may prevail from time to time, has an actual or potential interest or concern in Australian residents having documents that purportedly (but contrary to the fact) represent the holder of the document has the licence or the authority to travel out of that country when that licence or authority has not been given. It is submitted that the right to travel, leave and re-enter a country, is commonly considered as an incident of sovereignty and the Vanuatuan Government's, actual or potential interest or concern in an Australian resident having in his possession a document purporting to be a New Hebrides passport is not likely to have ceased from the onset of independence. It makes no difference whether the passport was in the appellant's possession in November 2001 (as was the case here) rather than the day after independence occurred, and the political system and name of the relevant territory changed.

54 Additionally, the respondent submits that the provision was a valid exercise of the Parliament's power in that the Parliament had legislative authority to pass laws in relation to "acts, matters and things the control of which was necessary to effectuate it's main purpose" (Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77). At the very least the provision should be construed as incidental to the external affairs power. There is at least an incidental power in regulating Australia's relations with foreign countries to prohibit persons fabricating documents that purport to be passports issued by countries that previously went by another name. Further and alternatively, prohibiting persons from having in their possession "fake" foreign passports is said to be incident to the "immigration and/or aliens powers regulating the movement of non citizens into Australia and citizens out of Australia (Cuncliffe v The Commonwealth (1994) 182 CLR 272 - at 294-5, 315-26, 373-4 and 394-5).

55 In response it is submitted by the appellant that in effect the concern of the Commonwealth government with foreign passports is limited to their recognition. However, the issue of who should be eligible for passports and the type of passport that should be issued was a "municipal concern", and thus fell outside the ambit of any "external affair". It is submitted "there is no external affair (and no offence) where there is no foreign nation to be recognised". Further, it is not an expression of "nationhood" for Australia to recognise foreign documents.

56 The provision to be construed is a penal provision. In R v Adams (1935) 53 CLR 563 at 567-8, the High Court said: "No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that it's denotation is uncertain and no more conclusion can be reached by consideration of the provisions and the subject matter of the legislation, then it ought no to be construed as extending any penal category".

57 This view was recently approved in R v Bailey [2003] NSWCCA 361 at [24]. Although the relevant legislation to be construed in Bailey was not a penal statute, the 'criminal' law was required to enforce the legislation and thus considerations such as those in Adams were "unavoidable" [27].

58 In Beckwith v The Queen (1976) 12 ALR 333, Justice Gibbs (at 339) observed: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of the penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences."

59 In Murphy v Farmer (1988) 165 CLR 19, at 28-29, the majority favoured the strict interpretation of the provision considered, "in favour of the subject". In that judgment the majority approved the view, "that those who contend that [a] penalty may be inflicted must shew (sic) that the words of the Act distinctly enact that it should be incurred under the present circumstances. They must fail, if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty" (at 29).

60 These observations are however subject to more fundamental principles of statutory interpretation.

61 S.15AA of the Acts Interpretation Act 1901, provides: "In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferable to a construction that would not promote that purpose or object."

62 S.15AB of this Act provides that in the interpretation of a provision of an Act, regard may be had to extrinsic material, either to confirm that the meaning of the provision is the ordinary meaning, taking into account it's context and the Act and the purpose or object underlying the Act or to determine the meaning of the provision when the provision is ambiguous or obscure or the ordinary meaning may lead to a result which is "manifestly absurd or is unreasonable". In determining whether consideration should be given to such material, regard is to be had to the desirability to persons being able to rely upon the ordinary meaning conveyed by the test to the provision, taking into account it's context and the Act and its purpose or object and the need to avoid prolonging legal or other proceedings without compensating advantage.

63 In Lavender v The Queen (2005) 79 ALJR 1337, Kirby J (at 1355) observed that 'strict' interpretation was a rule of 'last resort', coming into operation when normal rules had 'runout', after firstly giving effect to the purpose of the legislation as expressed in the language of the legislation (at [93][94]). The authors of Pearce observe courts should not "depart from a strict application of the words of a penal provision" and courts should not extend a statute to cover a particular situation merely because it appears that the legislature has acted inadvertently (Pearce and Geddes "Statutory Interpretation in Australia" (5th Ed 2001)).

64 Justice McHugh in Krakouer v The Queen (1998) 155 ALR 586 (at 600) further said: "Still less should a Court ignore the clear words of a provision so as to give it a meaning that would or might make it easier to convict an accused person if the intention of the legislature is at best a matter of contestable opinion".

65 These views, if they differ, are still subject to the "cardinal rule" of statutory interpretation that requires that the words of a statute be read in their proper context (Cooper Brooks (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297 at 302,319-320: K & S Lake City Freighters Pty Ltd v Gordon and Gotch Limited (1985) 157 CLR 309 at 315) and "to construe the relevant provision so that it is consistent with the language and purpose of ... the provisions of the statute" (Project Blue Sky v Australian Broadcasting Authority at 381) which are applicable here.

66 Where the words or phrases in an Act are clear in their meaning they must be interpreted literally, unless "it would lead to some absurdity, or some repugnance or inconstancy with the rest (of the legislation), (Australian Boot Trade Employees Federation v Whybrow & Co (1910) 11 CLR 311 at 341). Courts may also take into account the consequences of competing interpretations so as to choose a reasonable rather than an "absurd" construction of the legislation (Bistricic v Rokov (1976) 11 ALR 129 - at 136 per Jacobs J.)

67 In Saraswati v The Queen (1991) 172 CLR 1, McHugh J (at 21) observed "In many cases, the grammatical or literal meaning of a statutory meaning will give effect to the purpose of the legislation. Consequently, it will constitute the "ordinary meaning" to be applied. If, the however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as "the ordinary meaning" and cannot prevail. It must give way to a construction which will promote the underlying purpose of object of the Act. … More over once a Court concludes that the literal or grammatical meaning of the provision does not conform to the legislative purposes ascertained from the statute as a whole including the policy which might be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from or clarification of the particular provision …. " "But where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is "the ordinary meaning" to be applied. A Court cannot depart from the "ordinary meaning" of a legislative provision simply because that meaning produces anomalies" (at 22-23) .

68 It is open to construe the relevant provision on one view as establishing that the document in the possession of the appellant, or under his control, was relevantly a document which was not a passport issued by or on behalf of the government of a foreign country (because that "country" did not relevantly exist at the time of the offence or on the purported date of issue of the document), but was a document "that purports to be a passport issued by the government of a foreign country". "Purports" I take to mean "professes, conveys or claims", in other words, represents or holds itself out to be "a passport issued by the government of a foreign country".

69 Here the document held itself out to be a passport from the "country" known as "New Hebrides" with the identity of a real person in it (the appellant) and with various features consistent with a passport. I agree with the Crown's submission that it was beside the point that an expert readily identified the document as a "fake", not representing an official document of either "Vanuatu" or "New Hebrides". That it was readily identifiable by that "expert" as such a document did not as such prevent the document "purporting" to be "a passport issued by or on behalf of the government of a foreign country". The quality of the fabrication per se is also beside the point. The issue was what the document professed or claimed itself to be.

70 "New Hebrides" had been up until 1980, subsequent to the creation of s.9A of the Act, a real place. It was relevantly a real "foreign country", being a recognised discreet "territorial entity" (Oxford Dictionary) although not an "independent sovereign state" (s.22 Acts Interpretation Act 1901) I understood the evidence of Mr Longwah to be that the condominium had a "government", ie. a form of system of rule, or an administering body that issued passports. That it did not exist as at 1997, the supposed date of issue, or in November 2001, the date of possession, may however not be determinative as to whether the document conveyed or claimed to be a passport of the government of a foreign country.

71 The document had all the extrinsic features of an official government document and particularly a passport. It described itself to be a "Passport". It stated "The President of New Hebrides requests and requires in the Name of the government of New Hebrides ….etc" (sic). The "Notes" of the 'Passport' state (at 2.) "New Hebrides passports are issued by the competent Authorities in New Hebrides".

72 That an expert from the Government of Vanuatu could identify it as a "fabrication", did not mean that a person exercising official government functions relating to the use of passports in Australia or elsewhere would do so. As it was the document tendered at the hearing had other indicia of use as a travel document or a document of identity. For example there was a departure stamp from "British Guiana (sic) 18 October 1998", and stamps for other locations including Noumea and elsewhere. Interestingly, there were arrival and departure stamps at "Port Villa" …. "New Hebrides (sic)" on dates when "New Hebrides" did not exist. Even assuming these latter entry and exit stamps were "fabrications", they lend support for the proposition that the relevant document had the character of a "Passport", relevantly issued by "the government of New Hebrides". The issue is, whether this is the government of a foreign country for the purposes of the Section.

73 One legislative context of the relevant provision is said to support the construction contended by the respondent. 9A(1)(f)(i) is a provision concerned with a real "passport" issued by or on behalf of the government of a foreign country that is "falsified". The appellant's 'literal' interpretation of the relevant provision may leave no "work (for the relevant provision) to do" for it given the terms of s.9A(1)(f)(i) depending upon the meaning of falsified. However, the 'relevant provision' is concerned in its terms with a different situation, that is a "document" (not a "passport") that "purports (claims, conveys, professes) to be "a passport" issued on behalf of "the government of a foreign country". That, in its normal meaning, without ambiguity, suggests "fabrications" of passports and their source as opposed to "real" passports that are falsified. Whether as to the appearance of the document or the authenticity of its issue.

74 The Crown's contention essentially is that it does not matter that the purported "government of a country" exists or not, it is the "purport" of the document that is the critical feature of the offence not whether the purport of the document is based on the existence of the particular government at the time of possession or even on the date of issue. The problem with this contention is that the provision would only have this meaning unambiguously if the word "passport" appearing for the second time in the provision was considered in isolation, without regard to the qualifying words or, if the qualifying words were not present in the provision, which cannot be done and which they are not.

75 It should be pointed out that notwithstanding use of the definite article in the last phrase it does not necessarily mean literally that the relevant "government" actually exists. It may mean that it "purports" to be issued by a government, real or not. The two situations, ie "purported" issue by a real, or a fictitious, government of a foreign country may be covered by the provision. Thus can be seen some ambiguity giving the words "the government of a foreign country" their ordinary or literal meaning in isolation.

76 Although the respondent's construction is said to be supported by the legislative context of its relationship to s.9B Passports Act, as discussed in the Crown's submissions, this example begs the ultimate question. There is no anomaly if the relevant phrase, "the government of a foreign country", in ss.9A(1)(f)(ii) and 9B(b) are given the same meaning. Although nothing in s.5(4) of the Act, in my view, contradicts the construction contended by the respondent, in reality that definition or interpretation is a neutral matter in the debate. It is concerned with the definition of "passport" not the issue of whether is the relevant "government etc" is real of fictional. The explanatory note to the Bill and the terms of the Second reading speech at the time of the introduction of the provision support either construction contended. They certainly do not resolve any ambiguity. The reference to Clause 12 (now s.9A) in the speech is itself ambiguous in meaning. The reference to "fabrications" in context may be either a reference to the fabrication of "passports" supposedly issued by real countries or to 'fabrications' of documents merely to look like "Passports". In Brear v James Hardie (2000) 50 NSWLR 388 (at 397) Mason P. noted the 'restraint' required in construing on enactment as regards the intended effect of it in light of a Minister's speech. Subsequent legislation does not in my view inform the construction of the provision.

77 As to any purposive construction, clearly the provisions are designed to prevent access to the possession of forged, altered or fabricated documents being passed off as 'real' passports. The fact that a "country" is identified in a relevant document by a name, formerly used for a real "country", nation or territory, may lend aid to the assertion that the "document" in question "purports" to be a passport issued by the government of a foreign country, but that matter is an issue of fact to be resolved on the evidence.

78 In The Queen v Lavender (2005) 79 ALJR 1337 (at 1345) the majority emphasised the importance of "context" resolving questions of statutory construction. The context here is not just the context of the relevant provision, but also the context of related provisions and those provisions considered in the context of the Act itself (Lavender at 1345-1346). The relevant provision must be considered in the context of related or connected provisions such as ss.9A(1)(f)(i) and 9B(b), where the expression "the government of the foreign country" appears and the wider context of these provisions, particularly other provisions in s.9A(1).

79 On the other hand the relevant provision seen in the context of the entire subparagraph or in context of the other provisions in the Section supports the appellant's contention as to what he categorised as the literal meaning of the previsions. The other subparagraphs of s.9A(1) are concerned with offences relevant to possession and use of Australian passports. S.9A(1)(f) is the only one concerned with passports or documents from, or purported to be from places external to the Commonwealth of Australia. In this context the words "issued by or on behalf of the government of a foreign government" ought have a meaning consistent with those words appearing in s.9A(1)(f)(i) and elsewhere. Looked at this way the relevant words in the provision may have the meaning contended for by the appellant, that is a concern about a real, not a fictitious, government of a foreign government (Avondale Motors (Ports) Pty Ltd v FCT (1971) 45 ALJR 280 - at 283). In the context of what is provided for in s.9A(1)(e) (concerned with falsified or purported Australian passports), where the offences created are concerned with "falsifying" (s.9A(1)(e)(i)) or "fabricating" (s.9A(1)(e)(ii)) a passport or document coming from or purporting to be from the same source, a consistent meaning for the source or purported source of a foreign government that issued passport makes sense. It does not lead to absurd consequences.

80 This construction is consistent with the purpose of the legislation, to make unlawful the use and possession of falsified or fabricated passports or documents. This is also consistent with the expressions of purpose and objective of the proposed legislation having regard to the Act as a whole or the second reading speech(es) of the Minister(s).

81 Subparagraphs (e) and (f) seen together with their respective sub subparagraphs (ii) compared to (i) invite a consistency of approach, as the 'literal' interpretation suggests.

82 Contrary to the submissions of the respondent this construction does not create any anomaly with the terms of s.9B. That provision may likewise be concerned with a consistent circumstance, prohibiting the "fabrication" of real passports, not those of non existent governments of foreign countries at the time of making the document. Consistency of meaning to common terms in both provisions does not lead to absurd outcomes or outcomes inconsistent, necessarily, with the purpose of the legislation.

83 The 'supposed temporal connection' issue raised by the prosecution is not a matter that informs the proper construction or for that matter or will lead to absurd outcomes as suggested by the prosecution. The offence is committed on the date (or between the dates) particularised in the charge. Contrary to the submission of the Crown the relevant time for considering when the document "purports" to be a "passport" must be at the time of possession. The application of the provision is dependant on establishing possession which must, of necessity be fixed in time. The date of claimed issue as well as the appearance of the document are factual issues relevant to determining whether the offence is made out. Whether the offence is made out is not determined by establishing the relevant facts and then relating those facts back to situations at the date of the enactment or immediately thereafter. The relationship of the purport of the document to the relevant dates(s) and the identity of the purported "government" is an issue of fact, relevant to whether the document purports to be what is required to be proved. If the government of a foreign country no longer exists in the name of 'the country' on 'the document' at the time of possession, then that may be relevant to the issue of whether the charge is proved, but only if the relevant 'government' had existed at the time of claimed issue of the document or the circumstances of the possession bore a realistic relationship to establishing that the document relevantly purported to be what was to be proved. Illustrations of name changes of nations or governments of foreign country(ies) between date of issue of the document and the date of possession are not to point in this matter. The 'entity', or 'territory', or 'country' "New Hebrides" ceased to exist in 1980, 17 years before the relevant 'document' was "purportedly" issued. The illustration of events post passage of s.9A and pre-independence for Vanuatu has no salience in this matter given the facts. The supposed 'absurd' consequences are hypothetical not real.

84 Thus the provision seen in context, endeavouring to give relevant words their literal or normal meaning, with no patently absurd consequence, may have two competing meanings creating doubt or ambiguity. This brings the matter back to the observations in Beckwith, Murphy v Farmer and elsewhere, that when the meaning of the penal statute, when subjected to the ordinary rules of construction, remains doubtful or ambiguous, the ambiguity or doubt may be resolved in favour of the subject, by refusing to extend the category of criminal offences. This is such a situation given the competing issues raised. On balance, considering the normal meaning of the words in context the position is either evenly balanced (as discussed in Murphy) or slightly in favour of the appellant's contention as to the meaning of the provision particularly when seen in context. Notwithstanding the hallmarks of a "passport" represented in the document, the document did not relevantly purport to be a passport issued by the government of a foreign country.

85 Having regard to the above conclusions there is no need to fully consider the constitutional issue, except to point out that on the appellants contention, neither construction submitted had constitutional authority for the Parliament to legislate. I will shortly deal with the issue as it is clear that neither contention was within the authority of the Commonwealth Parliament to legislate.

86 Taking the approach advised by the Bank of New South Wales case, once the provision is construed, one must determine the subject matter in which it is contended the Commonwealth had power to make laws. Here the relevant power to consider, as agreed by the parties, is the "external affairs" power.

87 Further, as a law of the Commonwealth it is to be construed in terms of s.15A Acts Interpretation Act 1901. That states: "Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being an excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power".

88 As to the issue of the relevant power of the Parliament to make laws "for the order and good government of the Commonwealth with respect to external affairs", (s.51 xxix Constitution Act), such laws amongst other things may relate to the relations between Australia and other countries (Zines at 292).

89 The power extends to matters external to Australia in which Australia has an interest. It has been very widely construed in Koowarta v Bjelke Peterson (1982) 153 CLR 168, where Gibbs J. in a different context observed (at 201) "A law which regulates transactions between Australia and other countries, or between residents of Australia and residents of other countries, would be a law with respect to external affairs, whatever its subject matter".

90 In Sharkey (cited by the appellant) a charge of exciting "disaffection against the Government … of any of the King's Dominions" was held to be valid under the external affairs powers, principally because "relations" between Australia and other countries outside Australia fell within the external affairs power, including maintaining "friendly relations" (Latham CJ - at 136-7, McTiernan J at 157, Dixon J - at 149, Webb J - at 163).

91 In Polyukhovich v Commonwealth (the "War Crimes Case") (1991) 172 CLR 501 the High Court held that a law that operated upon conduct which took place outside Australia and made that conduct a criminal offence in Australia was a law with respect to external affairs within s.51(xxxix) of the Constitution.

92 Mason CJ said: "Discussion of the scope of the external affairs power has naturally concentrated upon its operation in the context of Australia's relationships with other countries and the implementation of Australia's treaty obligations. However, it is clear that the scope of the power is not confined to these matters and that it extends to matters external to Australia. I have previously expressed the view that the grant of legislative power with respect to external affairs should be construed with all the generality that the words meant and that, so construed, the power extends to matters and things, as well as relationships outside Australia …. the power extended to persons, as well as matters and things outside Australia." (at 528).

93 Justice Dawson, also part of the majority, in Polyukhovich observed: "Whilst I have never been able to accept the view that the external affairs power … extends to matters of a purely domestic character merely because they form the subject of an international treaty or may otherwise be shown to be of international concern, I have never doubted that the power extends to places, persons, matters or things physically external to Australia. The word affairs is imprecise, but is wide enough to cover places, persons, matters or things. The word "external" is precise and unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase "external affairs" (at 632) .

94 In Polyukhovich the High Court did hold that the provision in the War Crimes Act was within the external affairs power because it did not relate to conduct within Australia. The offences set out in s.9A(1)(f) include conduct within Australia. That does not mean however that this offence, concerned with offences committed within Australia, must thus be outside the scope of the legislation. The majority each pointed out that they did not have to decide whether the operation of treaties and other international obligations operated to make domestic acts, related to an "external affair", within power.

95 In the Franklin Dam Case (1983) 158 CLR 1, Gibbs CJ said: "If a matter can properly be said to relate to other nations or to things external to Australia, the Parliament may pass laws with respect to it, even if not regulated by international agreement" (at 190) .

96 Given the scope of the external affairs power, whether or not it is correct to state that the "law of passports" is a matter of municipal regulation, it is not accurate to categorise the issue of documents purporting to be issued by the government for a foreign country as not raising any matter external to Australia even if the prohibited conduct is within Australia. The issue of such "documents" permits travel to and from Australia and over Australia, irrespective of whether a visa duly entered on the document permits entry to a particular country. Australia's relations with other countries, nations or government are concerned with, amongst other things, the integrity and validity of documents used for international travel. In an era of transnational, fraud, terrorism and other crimes the capacity of Australia to monitor and regulate the conduct of foreign nationals and/or its relations with governments of foreign countries is very much determined by the capacity of Australia to maintain and determine the integrity of documents issued by the governments of foreign countries or purporting to so do so. A clever fabrication of a "real passport", to the untrained eye, is just as much a threat to the security of Australia, and for the security of other countries with whom Australia has relations, as a genuine document altered or forged.

97 The prosecution in greater detail pointed out many reasons for the Australian Government to have a concern to legislate in relation to matters categorised as domestic conduct that related to "external affairs" power, some of which are referred to above.

98 In relation to the issue of the relevance of the issue of passports to the external affairs power, reference was made to the discussion about the external affairs power in "Commentaries on the Constitution Powers of the Parliament" and it's treatment of the topic. I was also referred to a document edited by Patrick Brazil, published by the Australian Government Publishing service (in 1981) entitled "Opinions of Attorney Generals of the Commonwealth of Australia", particularly to opinions expressed in 1906 as to the status of New Hebrides at that time and the Commonwealth's power to issue passports visa vie the external affairs power.

99 The opinion of the Attorney General in 1906 was that the New Hebrides was not a "foreign country", "nation" or "state", in the sense that those words were used in treaties to prefer "favoured nations" status to certain foreign countries by which the Commonwealth was bound, most of which were treaties signed before the establishment of the Commonwealth. That opinion however, does not assist in relation to this matter given the context in which it was expressed.

100 The opinion of the Attorney General in relation to the power of the Commonwealth to regulate the issue of passports, was concerned with the question, that arose during World War 1, as to whether, after the War, the States may resume the issue of passports. The Attorney General, William Morris Hughes, was of the opinion that a passport is in substance "a document, issued by government for identifying a citizen and authenticating his right to protection when in a foreign country". More relevantly, he was of the opinion that the issue of passports clearly came within the scope of "external affairs" and that the Commonwealth Parliament should legislate to regulate the issue of passports to overcome the "undesirable" situation of the States issuing passports. Of course, the Commonwealth of Australia's interest in regulating the possession and usage of falsified or fabricated passports issued by other countries, within the Commonwealth of Australia, could not be in doubt. The Commonwealth, at least, has an interest in it's relationship with countries, nations and territories outside of Australia, in ensuring that such documents are prevented from future use, or circulation, outside of the "issuing" country, when that issue arises from conduct within Australia.

101 As to the issue of whether the regulation of passports is a matter of "municipal concern", or of "municipal law", I am not satisfied on the basis of the Melbourne University Law Review article to which I was referred, "The Evolution of Australian Passport Law", that the circumstances attaching to the prohibition upon the possession of fabricated passports, or documents purporting to be passports, is outside the scope of "external affairs power" simply because the author "suggests" that the prescribing of the kind of identity documents, which the Commonwealth requires the traveller to have in his possession, is solely a matter of "municipal law" and thus falls outside the scope of the external affairs power.

102 This proposition is based upon the statement that a passport "is a document of identity, which a state may require alien travellers within its territories to have in their possession". This is not the sole purpose of a passport and in any event the Commonwealth's interest in purported passports issued outside the Commonwealth of Australia is not limited to matters of identity per se, but includes an interest preventing the use of fabricated documents to aid the commission of transnational crime or risks to the security of the Commonwealth of Australia and foreign countries by assisting movement between countries.

103 There is no suggestion in the appellant's submissions that the Commonwealth does not have power to make laws as to the regulation of passports in the various ways contemplated in other provisions of the Passports Act 1938 or particularly passports not issued in Australia. The terms of s.4A are not claimed to be "ultra vires". The scope of the legislation is made clear by the operation of s.4A of the Act. There can be no doubt in my view that the Commonwealth has power to regulate and prohibit the use and possession of documents which "purport" to be passports, whether the government on the document exists or not as a fact. It is the "purport" of the document as "a passport" which the law regulates and prohibits. The origins of the document, its actual appearance and the particulars of the document (so long as the document holds itself out to be a passport) are irrelevant to the issue as to whether the relevant legislative provision has been passed without power.

104 In any event, there is an express incidental power (s51 (xxxix) of the Constitution Act) and an implied incidental power arising under each head of power in s.51 of the Constitution Act. The implied power exists, or the relevant connection with a head of power exists, if the impugned law has a "real connection" to the constitutional subject matter. It does not matter what "test" is applied (eg Leask v Commonwealth (1996) 140 ALR 1 per Kirby J - (at 40), Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55, (at 77) or D'Emdem v Pedder (1904) 1 CLR 91 (at 109)), to define the scope or nature of an implied power, or incidental power. The power to make laws relating to the prohibition of the possession, or use, of documents purporting to be passports, however fabricated for that purpose, can be clearly seen, at least, as, incidental to the external affairs power. Here any incidental power that arises is that needed to protect the efficacy of the execution by the Executive Government of its powers and capacities, including the exercise of the external affairs power to regulate and protect Australia's borders and security.

106 The finding of guilt and consequent orders are set aside and quashed.

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