Court of Appeal (WA)|2008-01-18|Before: Martin CJ

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANSFIELD [2008] WASCA 5 (18 January 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANSFIELD [2008] WASCA 5

Referral of legal questions - Constitutional law - Inconsistency of laws - Commonwealth Constitution, s 109

Proceeds of Crime - Criminal Property Confiscation Act 2000 (WA) - Whether prior to 15 July 2001 an offence against the Corporations Law was a 'confiscation offence' within the meaning of the state law for confiscation of property - Whether an offence against the Corporations Act 2001 (Cth) is a 'confiscation offence' within the meaning of the state law for confiscation of property

Federal jurisdiction - Whether the federal jurisdiction of the Supreme Court is invoked - Powers of state DPP to prosecute proceedings involving the exercise of federal jurisdiction in the absence of a conferral from the Commonwealth

Constitution of Australia Act 1901 (Cth), s 75, s 76, s 109

Corporations (Western Australian) Act 1990 (WA), s 3, s 5(1), s 5(2), s 7, s 26(a), s 28, s 28(2), s 29, s 29(1), s 31, s 31(1), s 33, s 56, s 56(1), s 56(3)

Corporations Act 1989 (Cth), s 82, s 100G(2)

Corporations Law (WA), s 1002G(2), s 1043A(1), s 1311

Proceeds of Crime Regulations 2002 (Cth), reg 4(f), reg 5, reg 6

Answer to Question 1: No; prior to 15 July 2001 an offence against the Corporations Law (WA) was not a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA).

Answer to Question 2: Yes; an offence against the Corporations Act 2001 (Cth), which pursuant to s 1400 is carried over from the Corporations Law (WA), is a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA).

Answer to Question 3: The primary proceedings are in Federal jurisdiction by reason of the claim by the respondent that the Criminal Property Confiscation Act 2000 (WA) is inconsistent with the Proceeds of Crime Act 1987 (Cth) and the Proceeds of Crime Act 2002 (Cth) within the meaning of s 109 of the Australian Constitution.

Answer to Question 4: The applicant does have the function or power to prosecute the primary proceedings.

Respondent to the Objectors : Director of Public Prosecutions (WA)

1 MARTIN CJ: Four questions have been referred to the Court of Appeal for hearing and determination pursuant to s 43(1) of the Supreme Court Act 1935 (WA). Those questions have arisen in the course of proceedings between the Director of Public Prosecutions for Western Australia (the DPP) and Nigel Cunningham Mansfield (Mr Mansfield). Those questions are:

Prior to 15 July 2001 was an offence against the Corporations Law (WA) a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA)?
Is an offence against the Corporations Act 2001 (Cth) which pursuant to s 1400 is carried over from the Corporations Law (WA) a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA)?
Does the relief sought in the applicant's further re-amended statement of claim dated 12 March 2007 invoke the exercise of federal jurisdiction?
If yes to question 3, does the applicant have the function or power to prosecute the proceedings in the absence of a conferral from the Commonwealth?

2 The Attorney General for Western Australia has intervened in these proceedings pursuant to s 78A of the Judiciary Act 1903 (Cth).

3 The questions which have been referred to this Court arise from a number of contentions which have been advanced on behalf of Mr Mansfield. Those contentions rely, in various ways, upon the transition of the laws regulating conduct in connection with corporations from a uniform regime of state laws, to Commonwealth laws as and from 15 July 2001. Counsel for Mr Mansfield argued that the transition in the legislative source of the law removes any potential liability of Mr Mansfield under the laws of Western Australia relating to the reparation of the proceeds of crime. For the reasons which follow, in my opinion, those contentions must be rejected.

4 By motion dated 12 July 2002, the DPP has sought a declaration pursuant to s 15(1) of the Criminal Property Confiscation Act 2000 (WA) (the CPCA) that Mr Mansfield had acquired a criminal benefit and a declaration specifying the assessed value of that benefit pursuant to s 18(2)(b) of the CPCA. On the same day, 12 July 2002, a Judge of this Court made an order freezing certain specified property pursuant to s 43(3)(c) of the CPCA. The effect of that order was to prohibit any dealings in that property (CPCA, s 50). Directions were also made for the security and management of the frozen property whilst the freezing order was in force.

5 The basis for the DPP's claim against Mr Mansfield is set out in a re-amended statement of claim filed by the DPP and dated 12 March 2007. The DPP alleges that between 9 June and about 3 August 2000, Mr Mansfield possessed specified information relating to the affairs of the listed company My Casino Ltd, of which information was not generally available, and was known by Mr Mansfield to have not been generally available over that period. The DPP further alleges that Mr Mansfield knew or ought to have known that if that information was generally available, it might have had a material effect on the price or value of the shares and options in My Casino Ltd. The DPP further alleges that between 13 June and 2 August 2000, Mr Mansfield dealt in securities issued by My Casino Ltd and thereby contravened subsection 1002G(2) of the Corporations Law (WA). The DPP further alleges that by virtue of s 1311 of the same law, each of the share transactions entered into by Mr Mansfield was an offence contrary to the Corporations Law (WA), by reason of which he incurred a criminal liability under that Act on each of the occasions he traded in shares between 13 June and 2 August 2000. The DPP alleges that each of those offences were 'confiscation offences' within the meaning given to that expression by s 141 of the CPCA.

6 The DPP further alleges, in the alternative, that as a result of s 6 of the Corporations (Ancillary Provisions) Act 2001 (WA), s 1002G and s 1311 of the Corporations Law (WA) ceased to operate of their own force in respect of the criminal conduct alleged on 15 July 2001. However, the DPP alleges that because those sections were corresponding provisions within the meaning of s 1400 of the Corporations Act 2001 (Cth), by virtue of that section on 15 July 2001, Mr Mansfield incurred a substituted liability under the corresponding provisions (s 1002G and s 1311 of the Corporations Act 2001 (Cth)).

7 The DPP further alleges that on or about 11 March 2002, s 1002G of the Corporations Act 2001 (Cth) was repealed by the Financial Services Reform Act 2001 (Cth). However, the DPP further alleges that by operation of s 8 of the Acts Interpretation Act 1901 (Cth), legal proceedings in respect of Mr Mansfield's alleged criminal conduct can be instituted against him as though the Financial Services Reform Act 2001 (Cth) had not been passed. The DPP also asserts, in the alternative, that s 1043A and s 1311 of the Corporations Act 2001 (Cth) are provisions which correspond, within the meaning of s 1400 of the Corporations Act 2001 (Cth), with s 1002G(2) and s 1311 of the Corporations Law (WA). On this alternative plea, the DPP asserts that by virtue of subsections 1400(2) and 1400(3) of the Corporations Act 2001 (Cth), on 11 March 2002 Mr Mansfield incurred a substituted liability under s 1043A and s 1311 of the Corporations Act 2001 (Cth). The DPP asserts that in each of the alternative cases he advances, the relevant offences were 'confiscation offences' within the meaning given to that expression by s 141 of the CPCA.

8 The DPP further alleges that Mr Mansfield derived $3,321,527.60 from the sales of the shares in My Casino Ltd which are said to constitute the confiscation offences committed by Mr Mansfield. The DPP alleges that Mr Mansfield has thereby acquired criminal benefits in the sum of $3,321,527.60, and seeks a declaration to that effect and an order that he forthwith pay that amount to the State of Western Australia pursuant to s 20 of the CPCA.

9 Mr Mansfield and his wife, Rosalind Mansfield, objected to the confiscation of the property the subject of the freezing order by notice of objection dated 7 August 2002. On 14 August 2002, Mr Mansfield was charged with two offences under the Crimes Act 1914 (Cth) and one offence under the Proceeds of Crime Act 1987 (Cth). On 9 July 2004, Mr Mansfield was charged with 339 offences against Commonwealth laws, including the offences which the DPP asserts gave rise to the commission of confiscation offences within the meaning of s 141 of the CPCA.

10 Against this background, I turn now to the questions which have been posed for determination by the Court of Appeal.

Question 1 - Prior to 15 July 2001 was an offence against the Corporations Law (WA) a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA)?

11 This question is posed in somewhat abstract terms. As expressed, it would require the court to determine whether, prior to 15 July 2001, any offence against the Corporations Law (WA) was a confiscation offence within the meaning of s 141 of the CPCA. However, plainly, the question should be construed as asking whether the offences allegedly committed by Mr Mansfield between June and August 2000 were confiscation offences, within the meaning of s 141 of the CPCA, prior to the coming into force of the Corporations Act 2001 (Cth) and the Corporations (Ancillary Provisions) Act 2001 (WA) on 15 July 2001.

12 Section 141 of the CPCA is in the following terms:

Confiscation offences

(1) In this Act, 'confiscation offence' means -

(a) an offence against a law in force anywhere in Australia that is punishable by imprisonment for 2 years or more; or

(b) any other offence that is prescribed for the purposes of this definition.

(2) An offence of a kind referred to in paragraph (1)(a) is a confiscation offence even if a charge against a person for the offence is dealt with by a court whose jurisdiction is limited to the imposition of sentences of imprisonment of less than 2 years.

13 By its plain and ordinary language, s 141 extends the meaning of 'confiscation offence' to include offences punishable by the requisite period of imprisonment, irrespective of whether those offences are created by a law of the State of Western Australia, or a law of the Commonwealth, or a law of any other state or territory in Australia.

14 However, on behalf of Mr Mansfield, it is submitted that despite the clear and unequivocal language used in s 141 to define the expression 'confiscation offence', that expression should be construed as not extending to an offence against the Corporations Law (WA). This superficially startling proposition is said to be sustained by the history of the national scheme for corporate regulation in Australia.

15 I describe the proposition put on behalf of Mr Mansfield as superficially startling because the clear and unequivocal language of s 141 of the CPCA does not distinguish between offences by reference to their jurisdictional source, but rather, embraces all offences against a law in force anywhere in Australia. But the essence of the argument advanced in support of the proposition put on behalf of Mr Mansfield is to distinguish between offences which have their source in a law of the State of Western Australia, and offences which have their source in a law of the Commonwealth. Such a distinction is, however, contrary to the clear and obvious meaning of s 141 of the CPCA.

16 It has not been suggested that by enacting s 141 of the CPCA the Parliament of Western Australia exceeded its power to legislate for the 'peace, order and good Government' of Western Australia (Constitution Act 1889 (WA), s 2). It has, however, been submitted on behalf of Mr Mansfield that to the extent that s 141 of the CPCA extends to and embraces offences against Commonwealth law, it is invalidated by the operation of s 109 of the Constitution of Australia Act 1901 (Cth) (Australian Constitution). That argument is put in the context of questions 3 and 4, and will be addressed in that context. Subject to the resolution of that issue, the submissions put on behalf of Mr Mansfield in relation to question 1, and which depend upon a distinction being drawn between an offence having its source in the law of the State of Western Australia, and an offence having its source in a law of the Commonwealth, must be rejected by reason of the clear and unequivocal language of s 141 of the CPCA.

17 However, because the argument put on behalf of Mr Mansfield was put on a rather more sophisticated basis, I will deal specifically with that argument. The argument relied upon provisions of the Corporations (Western Australia) Act 1990 (WA), which were in operation prior to 15 July 2001. Reliance is placed upon s 26 of that Act, which provided that:

The object of this Part is to help ensure that:

(a) the Corporations Law of Western Australia, and the Corporations Law of each jurisdiction other than Western Australia, are administered and enforced on a national basis, in the same way as if those laws constituted a single law of the Commonwealth; ...

18 Reliance is also placed upon s 28 of that Act which provided:

(1) The object of this Division is to further the object of this Part by providing:

(a) for an offence against an applicable provision of Western Australia to be treated as if it were an offence against a law of the Commonwealth; and

(b) for an offence against an applicable provision of another jurisdiction to be treated in Western Australia as if it were an offence against a law of the Commonwealth.

(2) The purposes for which an offence is to be treated as mentioned in subsection (1) include, for example (but without limitation) -

(a) ...

(h) proceeds of crime ...

(1) The Commonwealth laws apply as laws of Western Australia in relation to an offence against the applicable provisions of Western Australia as if those provisions were laws of the Commonwealth and were not laws of Western Australia.

(2) For the purposes of the law of Western Australia, an offence against the applicable provisions of Western Australia -

(a) is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth; and

(b) is taken not to be an offence against the laws of Western Australia.

...

20 Reliance is also placed upon s 31(1) of the Corporations (Western Australia) Act 1990 (WA), which relevantly provided:

A Commonwealth law applying because of section 29 that confers on an officer or authority of the Commonwealth a function or power in relation to an offence against the applicable provisions of the Capital Territory also confers on the officer or authority the same function or power in relation to an offence against the corresponding applicable provision of Western Australia.

21 Counsel for Mr Mansfield also sought to rely upon s 33 of that Act which provided:

Where, by reason of this Division, a function or power is conferred on an officer or authority of the Commonwealth, that function or power may not be performed or exercised by an officer or authority of the State.

22 It is submitted on behalf of Mr Mansfield that these provisions reveal a legislative intention to create a national scheme whereby the same laws would apply uniformly throughout Australia for all purposes, including reparation of the proceeds of crime. It is submitted that the only exception to the uniformity intended by the legislature is that for which express provision was made by s 56 of the Corporations (Western Australia) Act 1990 (WA), which expressly applied the laws of Western Australia in respect of the arrest and custody in Western Australia of offenders or persons charged with offences, and also the laws of Western Australia relating to criminal procedure in relation to persons in respect of whom jurisdiction is conferred on a court of Western Australia. So, because laws in respect of the reparation of proceeds of crime are not laws in respect of arrest and custody or criminal procedure, it is argued that it was the intention of the legislature, evident in the Corporations (Western Australia) Act 1990 (WA), that only uniform national laws should apply in respect of such issues as the recovery of the proceeds of crimes committed in contravention of the uniform national scheme.

23 The fundamental flaw in this argument is that there is no provision of the Corporations (Western Australia) Act 1990 (WA) which either expressly or impliedly precludes state laws relating to the recovery of proceeds of crime from applying to crimes committed in contravention of laws enacted pursuant to the uniform scheme. While it can readily be accepted that the combined effect of s 28 and s 29 of that Act was to produce the consequence that, for the purposes of a law of Western Australia, an offence against one or more of the provisions of the uniform scheme is to be taken to be an offence against the laws of the Commonwealth and not as an offence as against the laws of Western Australia, for, inter alia, the purposes of proceeds of crime legislation, that conclusion is irrelevant to the question of the extent to which the laws of Western Australia in respect of recovery of the proceeds of crime apply to the proceeds of Commonwealth offences. That question is to be resolved by reference to the terms of the Western Australian law, the legislative powers of the Parliament of Western Australia, and the operation of s 109 of the Australian Constitution. As I have observed, the terms of the CPCA make it abundantly clear that it is intended to apply to the proceeds of offences committed against laws of the Commonwealth. It has not been suggested that s 141 of the CPCA exceeds the legislative powers of the Parliament of Western Australia and the submissions made in respect of the operation of s 109 of the Australian Constitution are addressed below.

24 More specifically, s 26 of the Corporations (Western Australia) Act 1990 (WA) simply provided that the object of the part is to create the same effect as if the laws of each state were laws of the Commonwealth. That would not prevent the Parliament of Western Australia from legislating with respect to the recovery of proceeds of offences treated as Commonwealth offences, assuming such legislation has the requisite territorial nexus with Western Australia.

25 Section 28 did not provide that the laws of Western Australia cannot make provision for the recovery of the proceeds of crimes committed against the laws of other jurisdictions, including the Commonwealth (assuming, of course, that those laws had the requisite territorial nexus with the State of Western Australia to bring them within the legislative competence of the Parliament of Western Australia). Rather, the effect of s 28 was to enable Commonwealth laws in respect of the proceeds of crime to apply to offences against the uniform scheme as if they were Commonwealth laws. Subject to questions of inconsistency arising under s 109 of the Australian Constitution, there was nothing in s 28 which prevented the state from also legislating in respect of the recovery of the proceeds of those crimes.

26 Section 31 and s 33 of the Corporations (Western Australia) Act 1990 (WA) were concerned only with the powers and authority of officials under the Commonwealth laws, or laws which had effect because of that Act. Those sections told one nothing of the powers and authorities of officials under state laws such as the CPCA, which were enacted and take effect outside the uniform scheme.

27 Subject to the resolution of the question posed under s 109 of the Australian Constitution, it follows that there is nothing in the provisions of the Corporations (Western Australia) Act 1990 (WA), or the uniform scheme viewed as a whole which would preclude s 141 of the CPCA being given its natural and ordinary meaning, which extends to and embraces offences against Commonwealth law and, for that matter, offences against the law of any state or territory.

28 This analysis also disposes of the alternative submission put on behalf of Mr Mansfield to the effect that, by virtue of s 5 of the Corporations (Western Australia) Act 1990 (WA), s 141 of the CPCA is not to be interpreted as amending or repealing, or otherwise altering the effect or operation of that Act. That is because there is no express provision in the CPCA providing that it is to amend, repeal or otherwise alter the effect or operation of the Corporations (Western Australia) Act 1990 (WA). If the CPCA was to be construed as having that effect, there may be some substance in this argument (see Loo v Director of Public Prosecutions (Vic) [2005] VSCA 161; (2005) 12 VR 665).

29 However, the general effect of the Corporations (Western Australia) Act 1990 (WA) was to treat contraventions of the uniform scheme laws as if they were contraventions of laws of the Commonwealth and not contraventions of laws of the state, and to enable laws of the Commonwealth to apply accordingly. There is nothing in s 141 of the CPCA which amends, repeals or otherwise alters the effect or operation of the Corporations (Western Australia) Act 1990 (WA). The Corporations (Western Australia) Act 1990 (WA) was not concerned with recovery of the proceeds of crime. Its limited operation in relation to that subject was to provide that contraventions of state law are to be treated, for the purposes of laws in respect of proceeds of crime, as if they were contraventions of Commonwealth law. And as I have already observed, that tells one nothing of the extent to which the legislature of the state can validly enact laws in respect of the recovery of the proceeds of crimes committed in contravention of the laws of other jurisdictions, including laws of the Commonwealth - a power which it has exercised in s 141 of the CPCA.

30 Nor did s 31 and s 33 of the Corporations (Western Australia) Act 1990 (WA) have any application to the powers conferred upon the DPP by the CPCA. The general effect of s 31 was to confer powers bestowed under Commonwealth law upon officers or authorities of the Commonwealth in respect of offences against provisions of the uniform scheme laws as if those laws were laws of the Commonwealth, and notwithstanding that those laws were enacted by the State of Western Australia. Because the CPCA is not a Commonwealth law, s 31 of the 1990 Act had no application to the CPCA.

31 The general effect of s 33 of the Corporations (Western Australia) Act 1990 (WA) was to provide that where a function or power is conferred on an officer or authority of the Commonwealth by reason of the Division, because, for example, a law of the state is to be treated as if it were a law of the Commonwealth, the relevant function or power may not be performed or exercised by an officer or authority of the state. But in the present case, the CPCA does not purport to confer any functions or powers on an officer or authority of the Commonwealth. Section 33 therefore has no application. If the intended conferral of power on the DPP to initiate proceedings for its recovery of proceeds of offences against Commonwealth law evident in the CPCA is ineffective, it can only be because of s 109 of the Australian Constitution (see below).

32 As there is nothing in the CPCA which amends, or repeals or otherwise alters the effect or operation of the Corporations (Western Australia) Act 1990 (WA), s 5 of that Act therefore has no application.

33 As I have concluded, for reasons which are set out below, that s 109 of the Australian Constitution does not invalidate the CPCA insofar as it applies to Commonwealth offences, for the reasons I have set out above, question 1 should be answered in the affirmative - that is to say, the offences which Mr Mansfield is alleged to have committed against the Corporations (Western Australia) Act 1990 (WA) were, prior to 15 July 2001, confiscation offences within the meaning of s 141 of the CPCA.

Question 2 - Is an offence against the Corporations Act 2001 (Cth) which pursuant to s 1400 is carried over from the Corporations Law (WA) a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA)?

34 Counsel for Mr Mansfield accepted that if the submissions advanced on his behalf in respect of question 1 were rejected, it followed that the submissions advanced on his behalf in respect of question 2 must also be rejected and that question answered in the affirmative. That is sufficient to dispose of the issues in respect of question 2, but it may be helpful if I shortly explain why that concession was properly made.

35 Section 1400 of the Corporations Act 2001 (Cth) (the 2001 Act) provides:

(1) Subject to subsection (4), this section applies in relation to a right or liability (the pre-commencement right or liability), whether civil or criminal, that:

(a) was acquired, accrued or incurred under a carried over provision of the old corporations legislation of a State or Territory in this jurisdiction; and

(b) was in existence immediately before the commencement.

However, this section does not apply to a right or liability under an order made by a court before the commencement.

(2) On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability), equivalent to the pre-commencement right or liability, under the corresponding provision of the new corporations legislation (as if that provision applied to the conduct or circumstances that gave rise to the pre-commencement right or liability).

(3) ...

36 The effect of s 1400 is therefore to substitute for a 'pre-commencement liability', a substituted right or liability which is equivalent to the pre-commencement right or liability, as if the provisions of the 2001 Act had applied to the conduct or circumstances that gave rise to their pre-commencement right or liability. Its operation is conditioned upon the existence, at the time of the commencement of the 2001 Act, of a liability, whether civil or criminal, accrued under preceding state corporations legislation. The effect of the section is to replace that liability with a substituted and equivalent liability for a liability arising from a contravention of preceding corporations legislation which existed at the time of commencement of the 2001 Act, liability of which is extinguished by the operation of s 7(2) of the Corporations (Ancillary Provisions) Act 2001 (WA). However, by virtue of s 6 of the Corporations (Ancillary Provisions) Act 2001 (WA), the state corporations legislation preceding the Corporations Act 2001 (Cth), continues to operate of its own force in relation to matters arising before 15 July 2001 and which are not dealt with by the Commonwealth corporations legislation which came into force on that date - such as any liability under the CPCA which depended upon contravention of preceding corporations legislation.

37 The argument put on behalf of Mr Mansfield in relation to question 2 was that because, for the reasons advanced in relation to question 1, Mr Mansfield could not have committed any confiscation offences within the meaning of s 141 of the CPCA as at 15 July 2001, he could not then have had a pre-commencement liability under the CPCA which was picked up and applied as a substituted liability under s 1400 of the 2001 Act. It is further submitted that because the effect of the Corporations (Ancillary Provisions) Act 2001 (WA) was to cease the operation of the 1990 Act, and to extinguish any liabilities accrued under that Act (subject, of course, to s 1400 of the 2001 Act), there can be no question of Mr Mansfield having a continuing liability under the CPCA because of contraventions of the 1990 Act.

38 It will immediately be seen that the acceptance of these propositions is dependent upon the acceptance of the proposition that Mr Mansfield did not have a pre-commencement liability under the CPCA as at 15 July 2001 because he could not have committed a confiscation offence within the meaning of s 141 of the CPCA for the reasons advanced in support of the answer for which Mr Mansfield contended in relation to question 1. And because the Commonwealth corporations legislation which came into force on 15 July 2001 did not deal with proceeds of crime, s 6 of the Corporations (Ancillary Provisions) Act 2001 (WA) continues the operative effect of preceding state corporations legislation for the purposes of the CPCA. Accordingly, the concession, that if the arguments advanced in relation to question 1 were rejected, it followed that the arguments advanced in relation to question 2 must also be rejected, was properly made.

39 The CPCA came into force on 1 January 2001. As at that date, if Mr Mansfield had committed a confiscation offence, his liability under the CPCA accrued as and from that date. It was a liability under the CPCA, not a liability under 'a carried over provision of the old corporations legislation of a state' within the meaning of s 1400 of the Corporations Act 2001 (Cth).

40 The only accrued liability of Mr Mansfield under 'the old corporation legislation of a state' as at 15 July 2001, was his liability to a criminal penalty if he had by then committed offences against the Corporations Law (WA). If Mr Mansfield had committed a confiscation offence within the meaning of s 141 of the CPCA as at 15 July 2001, by reason of his contravention of s 1002G(2) and s 1311 of the Corporations Law (WA) (being state laws - see Macleod v ASIC [2002] HCA 37; (2002) 211 CLR 287, 292 [8]), his criminal liability for contravention of those state laws was replaced with a liability created under s 1400 of the 2001 Act. The effect of s 1400 of the 2001 Act, combined with the Corporations (Ancillary Provisions) Act 2001 (WA), was therefore to extinguish any pre-commencement liability for criminal penalties which Mr Mansfield had under state law, and to substitute it with an equivalent liability under s 1400 of the 2001 Act. However, as the operation of the CPCA and Mr Mansfield's accrued liability under it (if any), arising from any contravention of state laws, is unaffected by s 1400 of the Corporations Act 2001 (WA), the commencement of that Act had no effect on his liability under the CPCA.

41 For these reasons, question 2 should be answered in the affirmative.

Question 3 - Does the relief sought in the applicant's further re-amended statement of claim dated 12 March 2007 invoke the exercise of federal jurisdiction?

42 Question 3 asks whether the relief sought in the statement of claim served by the DPP invokes the exercise of federal jurisdiction. It is, I think, implicit in the submissions of both parties and the intervener that, enunciated in those terms, the question is not particularly helpful or useful. Rather, it is implicit in the way those submissions were presented that both parties and the intervener accept that the relevant question is whether the proceedings brought by the DPP against Mr Mansfield, and the objections which he and his wife have lodged, are within federal jurisdiction.

43 Both parties and the intervener are agreed that those proceedings involve the exercise of federal jurisdiction, albeit for different reasons. Mr Mansfield submits that because his prospective liability under the CPCA derives from alleged contraventions of the 2001 Act, federal jurisdiction is invoked. Counsel for the Attorney General of Western Australia submits that even if the relevant confiscation offence was an offence against a law of the Commonwealth, the relief sought by the DPP does not result in the proceedings relating to a matter arising under Commonwealth law, so as to result in the invocation of federal jurisdiction. At the risk of over-simplification, the essential basis for that proposition is that liability to an order under the CPCA does not depend upon proof of the commission of a particular offence.

44 However, both the Attorney General and the DPP accept that because Mr Mansfield asserts that the CPCA is invalid by reason of inconsistency with Commonwealth legislation by virtue of the operation of s 109 of the Australian Constitution, irrespective of the correctness of that contention, its advancement involves a matter arising under the Australian Constitution or involving its interpretation within the meaning of s 76(i) of the Australian Constitution and pursuant to s 39(2) of the Judiciary Act 1903 (Cth) (see Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529, 541), with the consequence that the whole of the proceedings involve an exercise of federal jurisdiction (see Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251, 262 [30]). Accordingly, as all parties and the intervener are agreed that the CPCA proceedings involve the exercise of federal jurisdiction, it is unnecessary and inappropriate to determine the precise basis for that conclusion, and equally unnecessary and inappropriate to answer question 3 in the terms in which it is expressed.

Section 109 of the Australian Constitution

45 Although not directly relevant to question 3, in that context it was submitted on behalf of Mr Mansfield that, to the extent that the CPCA would apply to render him liable by reason of contraventions of Commonwealth laws, it is invalid because it is, to that extent, inconsistent with the Proceeds of Crime Act 1987 (Cth) (the 1987 Act), and the Proceeds of Crime Act 2002 (Cth) (the 2002 Act). It is submitted that because each of the 1987 Act and 2002 Act have, as their object, the recovery of the proceeds or benefits derived from the commission of offences against the laws of the Commonwealth, to the extent that the CPCA would have the same result, it is inconsistent with those Acts and, to that extent, invalid.

46 Before turning to the particular issues which arise in this case, it is helpful to restate the principles governing the application of s 109 of the Australian Constitution. They were conveniently summarised by Dixon J (as he then was) in Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 (at 483):

When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and sec. 109 applies. That this is so is settled, at least when the sanctions they impose are diverse (Hume v. Palmer). But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter. (footnote omitted)

47 The 1987 Act applies to the proceeds from the commission of 'indictable offences'. Section 4 of the 1987 Act defines 'indictable offence' to mean 'an offence against a law of the Commonwealth, or a law of a Territory that may be dealt with as an indictable offence'. As I have observed, the offences allegedly committed by Mr Mansfield, at least on the primary case advanced by the DPP, are offences against state laws, not Commonwealth laws, albeit that his potential liability to a criminal penalty, is a substituted liability taking its force from Commonwealth law (s 1400 of the Corporations Act 2001). His prospective liability under the CPCA is a liability which derives from his alleged commission of offences against state laws, not Commonwealth laws. And, of course, the Corporations (Western Australia) Act 1990, being a state Act, only has the effect of applying Commonwealth laws as if they were state laws. It does not, and obviously could not have the effect of converting a state law, such as s 1002G and s 1311 of the Corporations Law (WA) into Commonwealth laws.

48 It follows that on the DPP's primary case, the 1987 Act can have no application, as a Commonwealth law, to any proceeds from the offences allegedly committed by Mr Mansfield against state law, and therefore no question of inconsistency between the 1987 Act as a Commonwealth law, and the CPCA can arise.

49 Further, since the 2002 Act came into operation on 1 January 2003, the 1987 Act has no continuing effect other than in respect of property which was made the subject of a restraining order under the 1987 Act (see s 14(2)(b)). Accordingly, as Mr Mansfield was not convicted prior to the commencement of the 2002 Act, nor was any of his property made the subject of a restraining order under the 1987 Act, it can have no possible application to him. So far as he is concerned therefore, the 1987 Act cannot now have any application.

50 However, the situation is complicated by the DPP's alternative cases, in which he alleges (in pars 9J and 10A of the statement of claim) that Mr Mansfield committed offences against s 1002E and s 1311 of the Corporations Act 2001 (Cth), or alternatively s 1043A and s 1311 of the Corporations Act 2001 (Cth) (when those provisions came into force on 11 March 2002), and that those offences were 'confiscation offences' within s 141 of the CPCA.

51 On that assumption, the freezing order made on 12 July 2002 under the CPCA would have been made on the basis of the alleged commission of offences which were 'indictable offences' within the meaning of the 1987 Act. As I have observed, the 1987 Act was not applied and cannot now be applied to Mr Mansfield or his property. Nor is there any provision of the 1987 Act which seeks to constrain the legislative powers of the states in respect of the recovery of the proceeds of offences against Commonwealth laws. Accordingly, no question of direct inconsistency arises.

52 It follows that the CPCA would only be inconsistent with the 1987 Act, for the purposes of s 109 of the Australian Constitution, if the 1987 Act is construed as 'covering the field' in respect of the recovery of the proceeds of offences against Commonwealth laws to the exclusion of state laws. But the 1987 Act cannot be construed as covering the field in respect of the reparation of the proceeds of the commission of offences against Commonwealth laws, to the exclusion of state laws including the CPCA. By s 4 of the 1987 Act, the expression 'interstate restraining order' is defined to mean 'an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition'. In the same section, the expression 'corresponding law' is defined to be 'a law of a State that is declared by the regulations to be a law that corresponds to this Act'. Later provisions of the 1987 Act make express provision for the effect of 'interstate restraining orders'. So the 1987 Act expressly recognises that orders may be made under state laws which will impact upon the operation of the 1987 Act, and makes express provision for that impact. Those provisions are not consistent with a construction of the 1987 Act which would 'cover the field' to the exclusion of state laws.

53 Following the passage of the CPCA, by virtue of reg 4 of the Proceeds of Crime Regulations 2002 (Cth), the CPCA was declared to be 'a corresponding law' and by virtue of reg 7 of the Proceeds of Crime Regulations 2002 (Cth) freezing orders made pursuant to s 43 of the CPCA were declared to be of a kind falling within the definition of 'interstate restraining order' for the purposes of the 1987 Act. And, of course, the CPCA clearly and unequivocally applies to the proceeds of offences against Commonwealth laws. It was nevertheless declared to be a 'corresponding law' for the purposes of the 1987 Act. So, to borrow from the terminology of Ex parte McLean, it is clear that the Commonwealth law 'was intended to be supplementary to or cumulative upon State law' and that it was not the intention of the Commonwealth Parliament 'to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter' (at 483).

54 For these various reasons, there is neither direct nor indirect inconsistency between the CPCA and the 1987 Act, even if one assumes that the alleged offences committed by Mr Mansfield giving rise to the prospective liability under the CPCA were offences against Commonwealth laws.

55 A similar process of reasoning applies to the 2002 Act. The scope and operation of that Act is, relevantly for present purposes, restricted to the proceeds of serious or indictable offences, each of which pursuant to s 338 of that Act are defined to mean offences against Commonwealth law, and to 'indictable offences of Commonwealth concern', which embraces offences against laws of a state or a self-governing territory, but only where the proceeds of that offence were, or were attempted to have been dealt with in contravention of a law of the Commonwealth in one or more of three specified subject areas. Accordingly, the 2002 Act has no application to Mr Mansfield, except under the DPP's alternative cases, to the effect that it is contraventions of the Corporations Act 2001 (Cth) that give rise to the liability under the CPCA.

56 On that presumption, the CPCA would only be inconsistent with the 2002 Act if it could be asserted that the 2002 Act was intended to cover the field to the exclusion of laws of the states or territories dealing with the proceeds of crime. But such a construction would be inconsistent with the express terms of s 15 of the 2002 Act, which provides:

It is the intention of the Parliament that this Act is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.

57 Further, as with the 1987 Act, express provision is made within the 2002 Act for the operation of orders made under corresponding state and territory laws (see, for example, s 330(4)(e) of the 2002 Act). Section 338 of the 2002 Act defines a 'corresponding law' to mean a law 'declared by the regulations to be a law that corresponds to the [2002 Act]'. The CPCA is such a law (Proceeds of Crime Regulations 2002 (Cth), reg 4(f)). Accordingly, under the scheme of the 2002 Act, property which might otherwise be subject to orders made under that Act, might be excluded from the operation of that Act if subject to orders made under corresponding laws of the states or territories. There can therefore be no suggestion that the 2002 Act was intended by the Commonwealth Parliament to cover the field to the exclusion of the laws of the states and territories.

58 Accordingly, as there is neither direct nor indirect inconsistency between the 1987 Act and CPCA, or between the 2002 Act and the CPCA, the CPCA is not inconsistent with either Commonwealth Act within the meaning of s 109 of the Australian Constitution.

Question 4 - If yes to question 3, does the applicant have the function or power to prosecute the proceedings in the absence of a conferral from the Commonwealth?

59 It is submitted on behalf of Mr Mansfield that because the proceedings are within federal jurisdiction, the Parliament of Western Australia cannot validly empower the DPP to prosecute those proceedings. It is submitted that the power to prosecute proceedings which involves the exercise of federal jurisdiction requires a specific conferral of authority under Commonwealth law, and the authorisation to receive that conferral under Western Australian law (relying upon R v Duncan; Ex parte Australian Iron and Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535; Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28; (1987) 163 CLR 117; Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1; R v Hughes (2000) 202 CLR 535).

60 However, those submissions overlook the provisions of the Judiciary Act 1903 (Cth). As I have noted, all parties and the intervener agree that these proceedings involve the exercise of federal jurisdiction, albeit for different reasons. It follows that the Supreme Court of Western Australia can exercise the jurisdiction conferred upon it by s 39(2) of the Judiciary Act. It also follows that s 79 of the Judiciary Act 1903 has the effect that the laws of Western Australia are to apply, except as otherwise provided by the Australian Constitution or by the laws of the Commonwealth. The CPCA therefore applies. It confers power upon the DPP to bring the proceedings which he has brought, (CPCA, s 41 and s 43). Those proceedings have given rise to the justiciable controversy which is, for one reason or another, now within federal jurisdiction. The provisions of state law which confer authority upon the DPP to prosecute proceedings under the CPCA are picked up and applied by s 79 of the Judiciary Act 1903 in the same way as the substantive provisions of that Act which have given rise to the justiciable controversy now within federal jurisdiction, are picked up and applied (see ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 588 - 589, [60] - [61]). Unlike Macleod v Australian Securities and Investments Commission, there has been no suggestion in this case that a law of the Commonwealth has 'otherwise provided' the law governing the standing required to apply for orders under the CPCA, so as to exclude those provisions of the CPCA which confer that standing upon the DPP from the operation of s 79 of the Judiciary Act 1903. Accordingly, for these reasons, question 4 should be answered in the affirmative, that is, to the effect that the state DPP does have power to prosecute these proceedings.

61 For these reasons, I would answer the questions referred to the Court of Appeal for hearing and determination as follows:

Question 3: yes, on the basis that the question is construed as asking whether the pending proceedings are proceedings within federal jurisdiction.

62 McLURE JA: The primary judge reserved four questions for the consideration of the Court of Appeal pursuant to s 43 of the Supreme Court Act 1935 (WA). The relevant background material is set out in the reasons of the Chief Justice. I would answer the first question in the negative and the substance of the other questions in the affirmative. These are my reasons for doing so.

Question 1 - Prior to 15 July 2001 was an offence against the Corporations Law (WA) a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA)?

63 At the time the insider trading offences were allegedly committed in 2000, the national corporations law scheme applied. In 1990 the Commonwealth amended the Corporations Act 1989 (Cth) (1989 Act) to recast it as a law for the Australian Capital Territory which applied the Corporations Law as set out in s 82 of that Act (Corporations Law). Western Australia then enacted the Corporations (Western Australia) Act 1990 (WA) (1990 Act) which adopted the Corporations Law as the law of Western Australia. Each State did likewise. The Corporations Law (WA) so adopted was State law: Macleod v ASIC [2002] HCA 37; (2002) 211 CLR 287, [8].

64 In July 2002 the Director of Public Prosecutions for Western Australia (DPP) obtained a freezing order and commenced proceedings against the respondent for a criminal benefits declaration under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act). It is alleged in those proceedings that the respondent committed offences against the Corporations Law (WA). The respondent contended that, on a proper construction of the 1990 Act, the Confiscation Act does not apply to offences against the Corporations Law (WA).

65 The Confiscation Act, which came into force on 1 January 2001, expressly applies to confiscation offences committed before or after its commencement (s 5(2)(b)). The expression 'confiscation offence' is broadly defined in s 141 to include an offence against a law in force anywhere in Australia that is punishable by imprisonment for 2 years or more. Thus, it applies to offences under Commonwealth laws. The offence of insider trading under the Corporations Law (WA) is punishable by imprisonment for a maximum term of 5 years. The Confiscation Act replaced the Crimes (Confiscation of Profits) Act 1988 (WA) which did not apply to offences under Commonwealth law.

66 The respondent contended that: (1) the 1990 Act picked up and exclusively applied Commonwealth law relating to the confiscation of the proceeds of crime which, at the material time, was the Proceeds of Crime Act 1987 (Cth) (1987 Crime Proceeds Act); and (2) the Confiscation Act did not amend or otherwise alter the effect or operation of the 1990 Act.

67 The respondent relies on s 26(a), s 28, s 29, s 31(1), s 33 and s 56 of the 1990 Act in support of its first proposition. Save for s 56, those sections are in Pt 8 which is headed 'National administration and enforcement of the Corporations Law'. Section 26(a) identifies the object of that part as being to help ensure that the Corporations Law (WA) and the Corporations Law of each jurisdiction other than Western Australia are administered and enforced on a national basis, in the same way as if those Laws constituted a single law of the Commonwealth.

68 Section 28 sets out the object of Div 2 of Pt 8. Section 28 provides:

(1) The object of this Division is to further the object of this Part by providing -

(a) for an offence against an applicable provision of Western Australia to be treated as if it were an offence against a law of the Commonwealth; and

(b) for an offence against an applicable provision of another jurisdiction to be treated in Western Australia as if it were an offence against a law of the Commonwealth.

(2) The purposes for which an offence is to be treated as mentioned in subsection (1) include, for example (but without limitation) -

(a) the investigation and prosecution of offences; and

(b) the arrest, custody, bail, trial and conviction of offenders or persons charged with offences; and

(c) proceedings relating to a matter referred to in paragraph (a) or (b); and

(d) appeals and review relating to criminal proceedings and to proceedings of the kind referred to in paragraph (c); and

(e) the sentencing, punishment and release of persons convicted of offences; and

(f) fines, penalties and forfeitures; and

(g) liability to make reparation in connection with offences; and

(h) proceeds of crime; and

(i) spent convictions.

69 Relevantly for present purposes, an applicable provision in relation to a jurisdiction means a provision of the Corporations Law of that jurisdiction (s 3), in this case Western Australia. Thus, the object of Div 2 is to provide for an offence against the Corporations Law (WA) to be treated as if it were an offence against a law of the Commonwealth for the specified purposes including the proceeds of crime. The substantive provisions relied on are s 29, s 31 and s 33.

(1) The Commonwealth laws apply as laws of Western Australia in relation to an offence against the applicable provisions of Western Australia as if those provisions were laws of the Commonwealth and were not laws of Western Australia.

(2) For the purposes of a law of Western Australia, an offence against the applicable provisions of Western Australia -

(a) is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth; and

(b) is taken not to be an offence against the laws of Western Australia.

71 The expression 'Commonwealth law' is defined in s 3 to mean any of the written or unwritten laws of the Commonwealth. Thus, the 1987 Crime Proceeds Act applies as State law in relation to an offence against the Corporations Law (WA) as if the Corporations Law (WA) were a law of the Commonwealth. Further, for the purposes of a law of Western Australia, an offence against the Corporations Law (WA) is taken not to be an offence against the laws of Western Australia. The effect of s 29 is to make the 1987 Crime Proceeds Act apply as State law to offences under the Corporations Law (WA). However, it does not expressly do so to the exclusion of State law on the same subject matter.

A Commonwealth law applying because of section 29 that confers on an officer or authority of the Commonwealth a function or power in relation to an offence against the applicable provisions of the Capital Territory also confers on the officer or authority the same function or power in relation to an offence against the corresponding applicable provision of Western Australia.

73 Thus, an officer of the Commonwealth who performs a function or power under the 1987 Crime Proceeds Act in relation to an offence against the Corporations Law (ACT) has the same function or power in relation to an offence against the Corporations Law (WA).

74 Section 33 provided at the relevant time that where a function or power is conferred on an officer or authority of the Commonwealth, 'that function or power may not be performed or exercised by an officer or authority of the State'. The respondent contends the effect of s 33 is to deprive State officers of their functions and powers under corresponding State laws, including the Confiscation Act, thereby achieving exclusivity for Commonwealth laws. That must be so unless the Commonwealth had conferred on State officials or authorities the same function or powers under relevant Commonwealth laws. However, there is no equivalent to s 31 in the relevant Commonwealth legislation. Further, there is support for the respondent's contention in R v Hughes (2000) 202 CLR 535. The High Court said:

Where, by reason of the operation of Div 2 [of Pt 8 of the 1990 Act], a function or power is conferred on an officer or authority of the Commonwealth, that function or power may not be performed or exercised by an officer or authority of Western Australia. Section 33 so specifies. This provision appears to have been designed to implement cl 27.1 of the Alice Springs Agreement. This stated that the DPP was to 'have responsibility' for the prosecution of offences under the new national scheme legislation. Undoubtedly this responsibility includes the exercise of what in argument was referred to as the 'prosecutorial discretion'. But it also is apparent that the responsibility which is withdrawn by the State legislation from State authorities is to be conferred on officers or authorities of the Commonwealth as a matter of obligation to which they are subjected, not as a power or function the exercise of which by them is merely permitted [21] (emphasis added).

75 The last sentence is consistent with Commonwealth officers having exclusive powers. That is consistent with the second reading speech for the 1990 Act which states:

Part 8 - National administration and enforcement of the Corporations Law: This part will apply ancillary Commonwealth laws so that these apply to the functions and powers of the Australian Securities Commission. In particular, in the areas of investigation and prosecution of offences, Commonwealth officers will be responsible for these functions. These provisions of Commonwealth criminal laws will be applied - to the exclusion of relevant State laws - relating to offences, so that for all practical purposes offences against the applied laws will be treated as if they were offences against Commonwealth law.

This part will also confer powers on the Commonwealth Director of Public Prosecutions and the Australian Federal Police in connection with matters arising under the applied laws. These powers will not be exercised by State authorities, except in accordance with arrangements made between the Commonwealth and the State concerned (8912 - 8913).

76 There is no evidence of any relevant arrangements. Moreover exclusivity of Commonwealth applied laws is also consistent with the explanatory memorandum for the Corporations Legislation Amendment Act 1990 (Cth) (1990 Amendment Act (Cth)) which was enacted to meet the Commonwealth's obligations under the agreement with the States and the Northern Territory for the national corporations law scheme. The 1990 Amendment Act (Cth) amended the 1989 Act to remove its then constitutional underpinnings and recast it as a law of the Australian Capital Territory. There is no explanatory memorandum for the 1990 Act. However, as the Commonwealth explanatory memorandum is referring to the Alice Springs agreement and model State legislation was prepared by Commonwealth and State officials, I would treat the explanatory memorandum as part of the relevant context (R v Hughes [1]). The explanatory memorandum states:

The 'federalising' of Corporations Law offences will achieve the result that, for all intents and purposes, an offence against the Corporations Law of any jurisdiction will be treated as if it were an offence against a nationally-operating Commonwealth law. Thus, each State will apply the relevant provisions of Commonwealth law (ie the Crimes Act 1914, Australian Federal Police Act 1979 and so on) covering the investigation and prosecution of offences, arrest, bail, trial, conviction, sentencing, proceeds of crime etc, as State law in respect of offences against the Corporations Laws. The federalising mechanism will also provide that those laws insofar as they confer authority and power on Commonwealth officers or bodies apply according to their tenor, and that they apply to the exclusion of any relevant State law in that respect. Generally speaking, State investigating and prosecuting authorities will have no involvement in the enforcement of the Corporations Law [43].

77 Further, by s 56(1) of the 1990 Act the laws of Western Australia respecting the arrest and custody of persons charged with offences, and criminal procedure in Western Australia, apply in Western Australia to persons who are charged with offences against the Corporations Law (WA). The application of those laws is stated to be in addition to and not in derogation of the application of laws effected by Pt 8 (s 56(3)).

78 The 1990 Act does not in terms expressly provide that Commonwealth laws relating to proceeds of crime exclusively apply to an offence against the Corporations Law (WA). Moreover, the concurrent application of State and Federal law in relation to proceeds of crime connected with an offence against the Corporations Law (WA) is not necessarily inconsistent with the object of the national scheme which is to administer and enforce the Corporations Law as if it were a single law of the Commonwealth. On the other hand, the combination of the application of Commonwealth laws as State law, the express reference to proceeds of crime in s 28(2) which marks that subject matter as part of the enforcement of the Corporations Law (WA), the express (concurrent) application of specified State laws by s 56 and the terms of s 31 and s 33 support the conclusion, consistent with the contextual documents, that the applied Commonwealth law was intended to exclusively apply.

79 The State legislature could alter that position by amending the 1990 Act. However, s 5(1) of the 1990 Act provides that an Act enacted after the commencement of s 5 is not to be interpreted as amending or repealing or otherwise altering the effect or operation of the 1990 Act or the Corporations Law (WA). Section 5(2) provides that s 5(1) does not affect the interpretation of an Act that expressly provides that it is to have effect despite the 1990 Act or the Corporations Law (WA). As there is no suggestion that the 1990 Act can be entrenched, s 5 must be a rule as to the interpretation of a subsequent statute.

80 The Confiscation Act does not contain a provision to the effect described in s 5(2) of the 1990 Act. An example of such a provision is s 5 of the Corporations (Ancillary Provisions) Act 2001 (WA) (Ancillary Provisions Act). Accordingly, the 1987 Crime Proceeds Act exclusively applied to offences against the Corporations Law (WA) and s 141 of the Confiscation Act must be read down to exclude such offences. I would answer question 1 in the negative.

Question 2 - Is an offence against the Corporations Act 2001 (Cth) which pursuant to s 1400 is carried over from the Corporations Law (WA) a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA)?

81 Doubt was cast on some aspects of the validity of the national corporations law scheme. As a result, the States referred to the Commonwealth legislative power to enact the Corporations Act 2001 (Cth) (Corporations Act). This Act, which came into force on 15 July 2001, largely replaced the separate but uniform Corporations Law of the States and Territories.

82 The respondent contended that the substituted liability under the transitional provisions of the Corporations Act is not a confiscation offence under s 141 of the Confiscation Act.

83 The DPP contended that the words 'law in force' in s 141 of the Confiscation Act means a law in force at the time the offence was committed, which was the Corporations Law (WA), not any substituted liability under the Corporations Act. The Attorney General also contends that each confiscation offence was and remained a State offence under the Corporations Law (WA) on that and other grounds.

84 It is impossible to follow the submissions of the parties without reference to the precise terms of the relevant legislation, in particular s 1400 of the Corporations Act and s 6 and s 7 of the Ancillary Provisions Act.

85 Section 1400 of the Corporations Act relevantly provides:

(1) [Pre-commencement rights or liabilities under old Corporations Law in force before commencement]

Subject to subsection (4), this section applies in relation to a right or liability (the pre-commencement right or liability), whether civil or criminal, that:

(a) was acquired, accrued or incurred under a carried over provision of the old corporations legislation of a State or Territory in this jurisdiction; and

(b) was in existence immediately before the commencement.

However, this section does not apply to a right or liability under an order made by a court before the commencement.

(2) [Substituted rights or liabilities]

On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability), equivalent to the pre-commencement right or liability, under the corresponding provision of the new corporations legislation (as if that provision applied to the conduct or circumstances that gave rise to the pre-commencement right or liability).

86 'Commencement' means commencement of the Corporations Act which occurred on 15 July 2001 (s 1371(1)).

87 The 'old corporations legislation' means, in this jurisdiction, the Corporations Law (WA), the 1990 Act and (in par (c) of the definition) the laws of the Commonwealth applying to the Corporations Law (WA) before the commencement as laws of Western Australia because of Pt 8 of the 1990 Act (s 1371(1)). That is a reference to Commonwealth law applied as State law under s 29(1) of the 1990 Act.

88 A 'carried over provision' of the old corporations legislation means a provision of the old corporations legislation that was in force immediately before the commencement and corresponds to a provision of the new corporations legislation (s 1371(1)).

89 The 'new corporations legislation' relevantly means the Corporations Act and 'the laws of the Commonwealth referred to in paragraph (c) of the definition of old corporations legislation, being those laws as they apply after the commencement' (s 1371(1)).

90 A provision of the old corporations legislation corresponds to a provision of the new corporations legislation if the old and new provisions are substantially the same unless the Regulations otherwise provide (s 1371(2)).

91 Thus, the old corporations legislation includes the Corporations Law (WA) and the 1987 Crime Proceeds Act. The new corporations legislation means (at commencement) the Corporations Act and the 1987 Crime Proceeds Act.

92 Section 1002G(2) of the Corporations Law (WA) corresponded with s 1002G(2) of the Corporations Act (and later s 1043A(1)); s 1311 of the Corporations Law (WA) corresponds with s 1311 of the Corporations Act; and the relevant provisions of the 1987 Crime Proceeds Act remained the same.

93 Section 6 of the Ancillary Provisions Act provides:

National Scheme laws

(1) The national scheme laws of this jurisdiction operate of their own force only in relation to -

(a) matters arising before the relevant time; and

(b) matters arising, directly or indirectly, out of such matters,

in so far as those matters are not dealt with by the new corporations legislation, the new ASIC legislation or the co-operative scheme laws.

(2) Except as provided by subsection (1) and section 9, the national scheme laws of this jurisdiction have no operation of their own force at and after the relevant time.

94 The 'national scheme laws' means, relevantly, the 1990 Act and the Corporations Law (WA). The new corporations legislation means, relevantly, the Corporations Act. The 'relevant time' means the time when the Corporations Act came into operation, being 15 July 2001.

95 Section 7 of the Ancillary Provisions Act materially provides:

Effect of section 6

(1) To the extent that a national scheme law of this jurisdiction ceases to operate of its own force because of section 6, the effect is that which would have resulted had this Act and that law been Commonwealth Acts in relation to which the Acts Interpretation Act 1901 of the Commonwealth as in force on 1 November 2000 applied.

Note: Part III of the Acts Interpretation Act 1901 of the Commonwealth contains provisions dealing with the effect of repeal of an Act. These provisions protect accrued rights and liabilities and allow legal proceedings in respect of them to be commenced or continued. However, this section and section 9 have the effect of cancelling certain rights and liabilities and terminating certain legal proceedings.

(2) Despite subsection (1), if by force of Chapter 10 of the new

Corporations Act ... a person acquires, accrues or incurs a right or liability in substitution for a pre-commencement right or liability, the pre-commencement right or liability is cancelled at the relevant time and ceases at that time to be a right or liability under a law of the State.

(3) ...

(4) ...

(5) In subsection (2) 'pre-commencement right or liability' means a right or liability, whether civil or criminal, other than a right or liability under an order made by a court before the relevant time or a liability referred to in section 1397(4) of the new Corporations Act, that -

(i) a carried over provision of the old corporations legislation ... or

(ii) a provision of the old corporations legislation ... that was no longer in force immediately before the relevant time;

and

(b) was in existence immediately before the relevant time.

96 Section 8 of the Acts Interpretation Act 1901 (Cth) deals with the effect of repeal of an Act and relevantly provides:

Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

...

(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed.

97 In order to understand the effect of s 6 and s 7 it is necessary to know that the 1990 Act has not been repealed (although s 33 has been deleted) and s 7 of that Act presently provides, relevantly, that:

The Corporations Law set out in section 82 of [1989 Act] as in force immediately before the repeal of that section -

(a) applies as a law of Western Australia.

98 The 1989 Act was repealed with effect from 15 July 2001 by the Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth).

99 In summary, the combined effect of s 6 and s 7 of the Ancillary Provisions Act is as follows:

(1) if a matter falls within s 6(1)(a) or (b) and is not dealt with by the Corporations Act then the 1990 Act and the Corporations Law (WA) operate of their own force in relation to that matter;

(2) otherwise, the 1990 Act and the Corporations Law (WA) have no operation of their own force at and from 15 July 2001;

(3) in the event the national scheme laws cease to operate of their own force under s 6(2), s 8 of the Acts Interpretation Act applies unless (4) below applies;

(4) if a person acquires, accrues or incurs a substituted right or liability under Ch 10 of the Corporations Act, the pre-commencement right or liability is cancelled and ceases to be a right or liability under State law.

100 Against that background I now turn to the submissions of the parties, starting with those advanced on behalf of the Attorney General. It was contended that: (1) at the time of commencement of the Confiscation Act on 1 January 2001 the DPP had an accrued right and Mr Mansfield an accrued liability to orders under the Confiscation Act arising from Mr Mansfield's alleged commission of the confiscation offences; (2) s 1400 of the Corporations Act does not apply because the accrued right and liability under the Confiscation Act did not arise under a carried over provision of the old corporations legislation; (3) the Corporations Law (WA) operates of its own force under s 6(1) of the Ancillary Provisions Act because the DPP's accrued right and Mr Mansfield's liability under the Confiscation Act was a matter arising before 15 July 2001; (4) alternatively, if the Corporations Law (WA) has no operation of its own force under s 6 then the matter falls within s 7(1) of the Ancillary Provisions Act and is governed by s 8 of the Acts Interpretation Act. (Section s 7(2) of the Ancillary Provisions Act does not apply if s 1400 of the Corporations Act does not apply).

101 Proposition (1) is inconsistent with my conclusion that the Confiscation Act does not apply to offences under the Corporations Law (WA). Further, the correctness of proposition (3) depends upon how the relevant 'matter' is characterised for the purposes of s 6(1) of the Ancillary Provisions Act. Counsel for the Attorney General characterised the DPP's accrued right and Mr Mansfield's accrued liability as being to orders under the Confiscation Act. However, if the matter was characterised as Mr Mansfield's liability to have the proceeds of crime confiscated as a result of contravention of the Corporations Law (WA), that would be dealt with by the new corporations legislation in which event the Corporations Law (WA) would have no operation of its own force at and after 15 July 2001 and s 7(2) would apply to cancel the right and liability under the Corporations Law (WA). The broader characterisation is in my view correct because it identifies the substance of the controversy rather than simply the cause of action and it advances the purpose or object of the transitional arrangements.

102 It was also contended on behalf of the Attorney General, and I accept, that the transitional provisions in Ch 10 of the Corporations Act (s 1400 and s 1401) do not operate retrospectively: Forge v ASIC [2006] HCA 44; (2006) 228 CLR 45, 92; Kennedy v ASIC [2005] FCAFC 32; (2005) 142 FCR 343 [67] - [71]. The Full Court in Kennedy v ASIC expressly stated at [69] that the transitional provisions of Ch 10 of the Corporations Act do not make the legislation operate retrospectively but rather create present rights and liabilities by reference to historical facts. A related issue is whether the transitional provisions create offences under the Corporations Act or just new rights and liabilities.

103 Section 7(2) of the Ancillary Provisions Act has the effect of extinguishing any rights and liabilities that existed under the Corporations Law (WA) where equivalent rights and liabilities are created by the transitional provisions of the Corporations Act. If s 7(2) applies it follows that the 1990 Act and Corporations Law (WA) are no longer in force. The Full Court in Kennedy v ASIC said that '[s]ince the offences under the old legislation have been abolished, and it is plainly intended that a person incurs an equivalent liability under the new legislation, it must follow that there are new offences under the new legislation' [70].

104 I respectfully agree with that conclusion. Section 1400(2) of the Corporations Act expressly provides that the substituted right or liability is under the corresponding provisions of the Corporations Act which provisions are the source of the prohibition and the offence. Thus, there is an offence under the Corporations Act that is capable of falling within the meaning of a confiscation offence under s 141 of the Confiscation Act. However, that does not mean the Corporations Act operates retrospectively. Legislation only operates retrospectively if it provides that rights and liabilities are changed with effect prior to the commencement of the legislation. The Corporations Act operates prospectively by reference to historical conduct but effects no change in the substantive law. Only the source of the rights and liabilities have changed. Question 2 is framed on the basis that the transitional provisions create an offence under the Corporations Act. That is consistent with Kennedy v ASIC which I would follow.

105 As previously noted, the case advanced on behalf of the Attorney General depends upon the correctness of the proposition that, in relation to Mr Mansfield, the respective rights and liabilities accrued under the Confiscation Act before the commencement of the Corporations Act. As I have concluded the Confiscation Act does not apply to offences under the Corporations Law (WA) there can be no such accrued right or liability.

106 The DPP contended that the term 'confiscation offence' in s 141 of the Confiscation Act means an offence against a law in force at the time of the conduct giving rise to the offence. A 'law in force' means a law that is operative at the relevant time. A repealed statute (or offence) is not in force. Even assuming (without deciding) that the DPP's contention is correct, it does not assist because the Confiscation Act does not apply to offences under the Corporations Law (WA).

107 That brings me to the respondent's case. It was contended that: (1) immediately before 15 July 2001 Mr Mansfield incurred a potential liability under s 1002G(2) of the Corporations Law (WA) and a potential liability under the 1987 Crime Proceeds Act but not under the Confiscation Act; (2) by virtue of s 1400(2) of the Corporations Act, as from 15 July 2001 Mr Mansfield had a substituted (potential) liability under the Corporations Act and 1987 Crime Proceeds Act; (3) by virtue of s 7(2) of the Ancillary Provisions Act, Mr Mansfield's pre-commencement liability under the Corporations Law (WA) was cancelled and ceased to be a right or liability under a law of the State; (4) as there was no liability under the Confiscation Act before the cancellation of any liability under the Corporations Law (WA), the substituted liability under the Corporations Act cannot now be the basis for liability under the Confiscation Act.

108 I have concluded that the Confiscation Act does not apply to offences against the Corporations Law (WA) and that the transitional provisions of the Corporations Act create an offence, albeit by reference to conduct that preceded its creation. I accept the correctness of the respondent's propositions (1) to (3) but see no logical basis for proposition (4). The Corporations Law (WA) and Pt 8 of the 1990 Act no longer apply to Mr Mansfield. As the Corporations Act creates an offence giving rise to substituted liability (and in the absence of any relevant inconsistency, an issue discussed below) I see no basis to read down s 141 of the Confiscation Act to exclude an offence against the Corporations Act. I would answer question 2 in the affirmative.

Question 3 - Does the relief sought in the DPP's further re-amended statement of claim dated 12 March 2007 invoke the exercise of federal jurisdiction?

109 Federal jurisdiction is the authority to adjudicate derived from s 75 of the Commonwealth Constitution and laws made under s 76 of the Constitution in relation to the matters specified therein: ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559, [3]. Section 76 of the Constitution relevantly refers to any matter:

(i) arising under this Constitution, or involving its interpretation:

(ii) arising under any laws made by the Parliament.

110 The interpretation of a law of the Commonwealth does not without more involve the exercise of federal jurisdiction: Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, 382 - 383; LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575, 581. It is sufficient but not essential for the cause of action or form of relief to owe its existence to a federal law. A matter will also arise under a federal law if a right or duty in question in the matter owes its existence to a federal law or depends upon such a law for its enforcement or is the source of a defence to the application: Felton v Mulligan (408). Federal jurisdiction will be attracted if the court finds it necessary to decide, as a step in a proceeding, whether a right or duty based in federal law exists: Moorgate Tobacco Company Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457, 476.

111 However, the test may be broader. In LNC Industries Ltd v BMW the plaintiff held licences granted under the Customs (Import Licensing) Regulations (Cth) to import into Australia a number of cars during 1978 and 1979. The legislation permitted importers with quotas to transfer the entirety, or part of their quota. If quotas were allocated in the year following a transfer, the transferee would be allocated a quota based on the extent to which each quota had been used in a previous period. The plaintiff brought an action in the Supreme Court of New South Wales alleging that under contracts between the plaintiff and the defendant the plaintiff agreed to transfer part of its quota to the defendant but that any benefit accruing after the 1978 and 1979 years would be held to the benefit of the plaintiff. The plaintiff failed in its claim for a declaration that the defendant held on trust for the plaintiff a number of quota units for the importation of cars in 1981. The unsuccessful plaintiff applied to the High Court for leave to appeal to the Privy Council. If the matter was within federal jurisdiction there could be no appeal to the Privy Council. The High Court held that the claim arose under a law of the Commonwealth within the meaning of s 76(ii) of the Constitution. The court said:

When it is said that a matter will arise under a law of the Parliament only if the right or duty in question in the matter owes its existence to a law of the Parliament that does not mean that the question depends on the form of the relief sought and on whether that relief depends on federal law. A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which is the creation of federal law, the claim arises under federal law (581).

112 The subject matter of the contract in that case was the benefit of rights and privileges under the Regulations. However, the existence of the rights and their enforcement depended on the contract made between the parties rather than laws of the Commonwealth. It was sufficient that the subject matter of the contractual right was property which owed its existence to federal law.

113 The term 'matter' in s 76 refers to the subject matter for determination in a legal proceeding not the legal proceeding itself: Re The Judiciary Act 1903 - 1920 [1921] HCA 20; (1921) 29 CLR 257, 265. For there to be a matter there must be a justiciable controversy for the determination of the court: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 533, 570.

114 The matter the subject of the proceedings in this case is whether the DPP is entitled to a criminal benefits declaration under s 15 to s 17 of the Confiscation Act which, if made, will render the respondent liable to pay to the State the amount specified in the declaration as the assessed value of the criminal benefit (s 20). However, a question to be determined as a step in the proceedings is whether it is more likely than not that the respondent was involved in the commission of offences against the Corporations Act. A respondent is conclusively presumed to have been so involved if he has been convicted of the offence (s 16(2)). The respondent has been charged but not convicted of the offences the subject of the proceedings.

115 The Confiscation Act does not require the DPP to prove that the respondent committed an offence against the Corporations Act because that would require it to establish each element of the offence beyond reasonable doubt. The DPP has to establish the same elements of the offence but on the civil standard. In those circumstances it cannot be said that a step in the proceedings depends on whether a right or duty based on federal law exists. There is no reliance on the consequences or operative effect of the Corporations Act. The right or duty is based on conduct identified by reference to Commonwealth law and involving its interpretation but that is not sufficient. Nor are any federal rights and duties the subject matter of the right to be vindicated in the proceedings. Accordingly, the matter does not arise under federal law.

116 However, the respondent raises as a defence to the claim an allegation that the Confiscation Act is inconsistent with the 1987 Crime Proceeds Act and the Proceeds of Crime Act 2002 (Cth) (2002 Crime Proceeds Act) within the meaning of s 109 of the Constitution. This defence to the claim involves a matter arising under the Constitution or involving its interpretation: Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529, 541. The whole of the primary proceedings involve an exercise of federal jurisdiction: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251, 262.

117 I accept the submission put on behalf of the Attorney General that an appropriate answer to question 3 would be:

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANSFIELD [2008] WASCA 5 (18 January 2008)

At a glance

Court

Decision date

Before

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Source

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Judgment (239 paragraphs)

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANSFIELD [2008] WASCA 5 (18 January 2008)

Question 1 - Prior to 15 July 2001 was an offence against the Corporations Law (WA) a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA)?

Question 2 - Is an offence against the Corporations Act 2001 (Cth) which pursuant to s 1400 is carried over from the Corporations Law (WA) a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA)?

Question 3 - Does the relief sought in the applicant's further re-amended statement of claim dated 12 March 2007 invoke the exercise of federal jurisdiction?

Question 4 - If yes to question 3, does the applicant have the function or power to prosecute the proceedings in the absence of a conferral from the Commonwealth?

Question 1 - Prior to 15 July 2001 was an offence against the Corporations Law (WA) a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA)?

Question 2 - Is an offence against the Corporations Act 2001 (Cth) which pursuant to s 1400 is carried over from the Corporations Law (WA) a 'confiscation offence' within the meaning of s 141 of the Criminal Property Confiscation Act 2000 (WA)?

Question 3 - Does the relief sought in the DPP's further re-amended statement of claim dated 12 March 2007 invoke the exercise of federal jurisdiction?

Question 4 - If yes to question 3, does the DPP have the function or power to prosecute the proceedings in the absence of a conferral from the Commonwealth?

Legislation Cited (18)

Cases Cited (24)