DRJ v Commissioner of Victims Rights - [2020] NSWCA 242 - NSWCA 2020 case summary — Zoe

NSWNSWCA

DRJ v Commissioner of Victims Rights

[2020] NSWCA 242

Court of Appeal (NSW)|2020-06-11|Before: Bell P, Meagher JA, Leeming JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2020-06-11

Before

Bell P, Meagher JA, Leeming JA

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

Background

The plaintiffs are five women of Yazidi ethnicity who say that in 2014 they were subjected to a series of acts of violence at the hands of an Australian man. Their names are the subject of a non-publication order made in this proceeding on 8 July 2020: DRJ v Commissioner of Victims Rights [2020] NSWCA 136. The acts of violence are said to have occurred in Syria and northern Iraq. The only connection with New South Wales is that the Australian man who is said to have committed acts of violence in 2014 lived in New South Wales until 2013. None of the plaintiffs has ever been to Australia. Each has been accepted as a refugee in a country where she now resides.
In July 2018, the plaintiffs' London-based solicitor, Ms Yasmin Waljee, the international pro bono director of Hogan Lovells International LLP, applied on their behalf for recognition payments and counselling under the Victims Rights and Support Act 2013 (NSW). The application was promptly dismissed, on the basis that none of the acts of violence occurred in New South Wales. Applications for internal review by a delegate of the Commissioner were dismissed on the same basis in November 2018.
In December 2018, the plaintiffs applied for administrative review by NCAT pursuant to s 51 of the Victims Rights and Support Act. NCAT, constituted by Deputy President Cole DCJ, dismissed the applications: DRJ v Commissioner of Victims Rights [2019] NSWCATAD 195. Part of the reasoning was that the acts of violence must have occurred in New South Wales in order for the Victims Rights and Support Act to apply. Her Honour held at [121]-[122]: "The text of s 19 and s 23 of the Victims Rights and Support Act, read with s 5(1) and (2) and s 12(1)(b) of the Interpretation Act, says that the 'act of violence' which is an essential part of the basis for any application for victims support under the Victims Rights and Support Act, must be an act of violence in and of New South Wales. An 'act of violence' 'in and of New South Wales' is an act or series of related acts which has apparently occurred in the course of the commission of an offence, that has involved violent conduct against one or more persons and that has resulted in injury or death to one or more of those persons. The offence and the violent conduct must be 'in and of New South Wales'. The injury or death must have been caused in New South Wales. The phrase 'in and of New South Wales' means occurring within New South Wales as well as being closely identified with New South Wales."

[2]

Statutory provisions

The Victims Rights and Support Act provides in s 23 that a "primary victim" of an "act of violence" is eligible for the support under the scheme provided in the Act. Section 26 provides that the support under the scheme for which a primary victim of an act of violence is eligible comprises counselling, financial assistance and in some cases a recognition payment.
"Act of violence" is defined quite elaborately in s 19. Part of the complexity of the definition turns on subsidiary definitions of "series of related acts" which treat conduct which would amount to separate offences as a single act of violence for the purposes of the statute (and, in particular, for the purposes of the payments which may be made under the statute). Omitting those aspects of the definition, and abbreviating some other aspects, s 19 provides: "19 Meaning of 'act of violence' (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. (2) For the avoidance of doubt, the reference to an offence in subsection (1)(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment. (3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence. ... (8) In this Act: sexual assault and domestic violence means any of the following: (a) sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with a person without his or her consent or with consent obtained by means of a non-violent threat, (b) sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with a child under the age of 16 years or with a person having a cognitive impairment (within the meaning of that Division), ... (f) any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons: (i) a person who is or has been married to the person who committed the offence, [there follow eight other classes of persons who are related to the offender]".
The Act refers to "primary victims", "secondary victims" and "family victims" of an act of violence. "Primary victims" are defined in s 20: "20 Meaning of 'primary victim' (1) A primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act. (2) A primary victim of an act of violence extends to a person who is injured, or dies, as a direct result of: (a) trying to prevent another person from committing that act, or (b) trying to help or rescue another person against whom that act is being committed or has just been committed, or (c) trying to arrest another person who is committing, or who has just committed, that act."
Thus in order for a person to be a primary victim of an act of violence, he or she must be a person who suffers injury, or dies, as a direct result of acts apparently in the course of an offence which involve violent conduct. That is to say, there must be violent conduct occurring at some place, which (a) has "apparently" occurred in the course of an offence and which (b) directly causes injury to or the death of the primary victim. (One circumstance accommodated by the word "apparently" is conduct which is not a crime because a person is mentally unwell; there may be other possibilities too, but nothing presently turns on this.)
It is true that one may readily conceive of acts of violence where the conduct occurs inside, but the injury outside, New South Wales. Those facts are not far removed from those arising when Mr Reed, standing near the bank of the Murray River, was fatally shot: Ward v The Queen (1980) 142 CLR 308; [1980] HCA 11. The quashing of Mr Ward's conviction for murder sharply exposes the territoriality of the criminal law, as Brennan J noted in Thompson v The Queen (1989) 169 CLR 1 at 28; [1989] HCA 30. But in most practical cases the act of violence and the injury will both occur in the same place.
The Victims Rights and Support Act does not in terms provide that the violent conduct of the offender must take place in New South Wales. Nor does it say in terms that the offence which is apparently committed must be an offence against the law of New South Wales.
Legislation directed to the same general purpose is found in other Australian jurisdictions, although there are significant variations. They are summarised in the Australian Law Reform Commission's Report 114, Family Violence - A National Legal Response (October 2010), at pars 4.110-4.113. The Victorian, Queensland and Northern Territory statutes explicitly require there to be an act of violence occurring within that jurisdiction: Victims of Crime Assistance Act 1996 (Vic), s 3 (definition of "act of violence"); Victims of Crime Assistance Act 2009 (Qld), s 25; Victims of Crime Assistance Act 2006 (NT), s 5 (definition of "violent act"). The Victims of Crime (Financial Assistance) Act 2016 (ACT) applies only where there has been an offence listed in the schedule or specified in the regulations, but is otherwise silent on location: see s 7; the scheme established by the earlier Victims of Crime (Financial Assistance) Act 1983 (ACT) required a victim's injury to have been "sustained in the ACT" in order for the victim to qualify for financial assistance: ss 4(1)(b), 10(1).
The Victims of Crime Act 2001 (SA) uses similar terminology but operates quite differently. Section 17 provides: "(1) A person is eligible to claim statutory compensation for injury caused by an offence if - (a) the person is an immediate victim of the offence; and (b) at least one of the following conditions is satisfied: (i) the offence involved the use of violence or a threat of violence against the person or a member of the person's immediate family; (ii) the offence created a reasonable apprehension of imminent harm to the person or a member of the person's immediate family; (iii) the offence is a sexual offence; (iv) the offence caused death or physical injury."
The Victims of Crime Assistance Act 1976 (Tas) is silent as to location, and the basic provision as to eligibility is merely that "compensation may be awarded under this Act where a person is killed or suffers injury as a result of the act of another person that constitutes an offence": s 4. The Criminal Injuries Compensation Act 2003 (WA) is similarly silent as to location.
Thus the various States and Territories have adopted different approaches in legislating with respect to the same general purpose. When the New South Wales Legislature enacted the current statute in 2013, replacing the Victims Support and Rehabilitation Act 1996 (NSW), it did so in a context where every other State and Territory had enacted statutes which made provision for compensation for victims of crimes.
That said, the New South Wales statute contains some provisions which explicitly refer to applicants who are outside New South Wales. Primary victims, secondary victims and family victims may all receive approved counselling services. Section 31(1) provides: "The Commissioner may: (a) approve professional counsellors who may provide approved counselling services for the purposes of this Act, or (b) in the case of counselling services to be provided to a victim of an act of violence who is resident outside Australia - give approval for the victim to select a professional counsellor of the victim's choice to provide the victim with approved counselling services for the purposes of this Act."
Similarly, s 32 authorises regulations to be made with respect to payments relating to approved counselling services to victims of acts of violence "whether resident in Australia or elsewhere".
"Family victims" are defined to mean the members of the immediate family of a primary victim who has died: s 22. "Secondary victims" are defined as other persons who are injured as a direct result of witnessing the act of violence that resulted in the injury to or the death of the primary victim: s 21(1). The term extends to parents and guardians who become aware of the act of violence, if the primary victim was under 18 (in which case they are taken to have witnessed the act of violence). While there is nothing express in the Victims Rights and Support Act to state whether the parent or guardian need be in New South Wales when he or she becomes aware of the act of violence to his or her child, it is easy to contemplate examples of overseas parents and guardians learning of acts of violence in New South Wales causing injury or death to their children.
In due course, it will be necessary to address other aspects of the Victims Rights and Support Act and its predecessors, but the foregoing were the principal provisions relevant to this appeal.
Aside from ss 31 and 32, the legislation is silent as to location. It is also silent as to whether the offence is an offence contrary to a law of New South Wales, or the Commonwealth, or some other jurisdiction, or indeed an offence at common law. For this reason, prominent in the parties' submissions was s 12 of the Interpretation Act 1987 (NSW), which is in the following terms: "12 References to New South Wales to be implied (1) In any Act or instrument: (a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales. (2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words 'New South Wales' or 'of New South Wales' merely because those words form part of the body's name or title."

[4]

The plaintiffs' submissions on ground 1

The first way in which the plaintiffs advanced the first ground was that NCAT erred in holding that an "act of violence" meeting the definition in s 19(1) of the Victims Rights and Support Act must occur in New South Wales. It was said that s 12(1) "requires no more than a nexus with New South Wales, and the term 'in' [in s 12(1)] is part of a compound statutory conception" which merely identifies the presumptive need for such a nexus.
At its core, this argument was to the effect that "conduct can have a sufficient nexus with New South Wales even though the conduct does not itself occur in New South Wales". Reliance was placed on a passage from O'Connor v Healey (1967) 69 SR (NSW) 111 at 114, a workers compensation travel claim, where the worker was travelling home to Victoria after working in New South Wales and where the employer contended that the starting point and the end point of the journey were required to be in New South Wales. Jacobs JA said this: "The submission, therefore, is that the site of the injury must be New South Wales, that the journey must be a New South Wales journey, and that the place of abode on the one hand and the camp or place on the other must all be related to New South Wales. In my view this is too strict an application of s 17 of the Interpretation Act. When there are a number of circumstances which have a local content, such as, in the present case, injury, journey, place of abode and place of work, I do not think that ordinarily it is possible to apply the terms of the Interpretation Act to each and every one of them as a matter of course. It seems to me that the intention of s 17 is to provide the natural limit of legislation, so that it applies in its subject matter to those situations which have a nexus with New South Wales. However, it is not every aspect of every sentence or clause of legislation which can be given the local New South Wales connotation." (emphasis added; the references to s 17 are to the Interpretation Act 1897 (NSW), which was the predecessor to s 12 of the Interpretation Act 1987 (NSW).)
The plaintiffs sought to apply the emphasised words directly to the facts of this case, and submitted that "the relevant acts here did have a sufficient nexus with New South Wales": "But the simple points I wish to make, your Honour, and we will either succeed or we will fail, is essentially whether or not the particular facts as agreed for the purpose of this application created a sufficient nexus with New South Wales for the plaintiffs to be able to proceed with their applications seeking support of compensation. If there is not a sufficient nexus then, as we've said in the tribunal and we say to the Court of Appeal, we will be unsuccessful."
The plaintiffs submitted, in the alternative, that if s 12(1) of the Interpretation Act did presumptively require conduct amounting to an "act of violence" for the purposes of s 19(1) of the Victims Rights and Support Act to have occurred in New South Wales, then there was a contrary intention displacing that presumption, said to be evident from the following considerations: 1. The Victims Rights and Support Act was a remedial statute, which should be accorded a liberal construction, as noted in Fleming v White [1981] 2 NSWLR 719 at 722. 2. The legislative history of victims compensation schemes, and specifically the history culminating in the present scheme provided for by the 2013 Act, manifested a "progressive expansion of access to compensation for victims of violent crime", which weighed against a narrow construction involving application of the presumption on the facts of this case. That history was set out in some detail in the appellants' written submissions, beginning with the former s 437 of the Crimes Act, which made provision for a court to direct that money be paid out of a convicted offender's property "to any aggrieved person, by way of compensation for injury" sustained by reason of the offender's felony. The initial scheme, under which victims compensation was only available after a conviction, was contrasted with subsequent schemes, and especially that commencing with the Victims Compensation Act 1987 (NSW), which were not subject to such a condition. 3. Sections 31 and 32 of the Victims Rights and Support Act expressly contemplated that victims of acts of violence might be resident outside Australia, indicating that there was no legislative intention to limit the benefits of the Act to those resident in New South Wales. 4. Compensation could be paid under the alternative compensation scheme in Pt 6 of the Act to victims of extra-territorial crimes, and it was improbable that the availability of compensation under Pt 6 would be broader than that available under Pt 4 of the Act. This was on the basis that Pt 6 of the 2013 Act "carried over (in substance) the pre-existing provisions for Court-ordered compensation following conviction", beginning with the former s 437 of the Crimes Act, which, the appellants submitted, "read naturally … would have encompassed an award of compensation to a person who suffered injury by reason of an offence committed outside New South Wales but which was heard and determined in a New South Wales court". 5. A broad construction of s 19(1) would be consistent with Australia's international obligations relating to victims compensation, including (as the plaintiffs identified in their original submissions to NCAT) the Rome Statute, the United Nations Convention against Transnational Organized Crime and its Palermo Protocol, as well as other instruments, all of which explicitly envisaged ensuring some form of compensation for victims of crimes such as those perpetrated against the plaintiffs.
According to the plaintiffs, these factors indicated the requisite contrary intention to rebut the presumption in s 12(1) of the Interpretation Act, such that: "s 19(1) [of the Victims Rights and Support Act] should be construed as encompassing … any act of violence which had a sufficient nexus with New South Wales".
The plaintiffs' second main submission was that NCAT erred in holding that both the violent conduct and the injury or death, referred to in the distinct limbs of the definition of "act of violence" in s 19(1)(b) and s 19(1)(c) of the Act, needed to occur in New South Wales. This approach was said to reflect the "fallacy", warned against by this Court in O'Connor v Healey and Law Society of New South Wales v Glenorcy Pty Ltd (2006) 67 NSWLR 169; [2006] NSWCA 250, of requiring each and every word of a statute to have the territorial connection presumed by s 12(1) of the Interpretation Act.
The plaintiffs also submitted that NCAT erred in giving weight to a 2012 report prepared for the New South Wales Department of Attorney General and Justice by PricewaterhouseCoopers, entitled Review of the Victims Compensation Fund, and referred to in the first and second reading speeches of the Victims Rights and Support Bill 2013. The gravamen of the report was that the previous victims compensation scheme was "financially unsustainable within current funding constraints".
Instead, the plaintiffs pointed to the text of the relevant provision of the predecessor to the current Act. Section 5(1) of that Act was expressed in terms identical to those in s 19(1) of the current Act. The anterior legislation which had been carried over without alteration into the 2013 Act was, in the plaintiffs' submission, a more reliable guide to the legislative purpose. It was said that s 5(1) of the 1996 Act was "substantially based" on an equivalent provision in the Victims Compensation Act 1987, which the appellants submitted was introduced with a purpose (expressed in the second reading speeches) of expanding the availability of victims compensation. However, the plaintiffs acknowledged that the 1996 Act, the most recent predecessor of the current legislation, was enacted with an intention "to narrow the eligible class" of those who might be able to claim victims compensation.

[5]

The Commissioner's submissions on ground 1

In her written submissions, the Commissioner argued that the relevant "act or series of acts" must occur in New South Wales, and that a mere nexus between the act or acts and New South Wales did not suffice. The Commissioner stressed the limited legislative competence of the New South Wales Parliament to legislate only for the peace, order and good government of New South Wales, requiring there to be a geographical nexus between Pt 4 of the Victims Rights and Support Act and New South Wales.
The Commissioner accepted that if, as she argued, the relevant act or acts must have occurred in New South Wales, then there might be an argument that the injury or death referred to in s 19(1)(c) need not have been suffered in New South Wales as well. She said that question need not be resolved in order to dispose of the summons.
The Commissioner pointed to ss 31 and 32, in support of a submission that while the statute could not be impliedly limited so as to apply only to New South Wales residents, this tended to reinforce the existence of other geographical limitations in the legislation, and contended that "[t]he absence of any other coherent territorial nexus, express or implied, tells strongly against section 12 being displaced in relation to 'acts of violence'".
The Commissioner rejected each of the factors relied on by the plaintiffs to displace the presumption in s 12(1) of the Interpretation Act, in submissions which need not be summarised, and invited the Court to have regard to considerations such as the inconvenience and improbability of permitting persons who had never resided in New South Wales and were victims of violence perpetrated abroad by non-New South Wales residents to obtain compensation under the Act. It was also said that the coherence of the statute would be undermined if foreign victims of violence perpetrated abroad could claim compensation from a New South Wales fund sourced (at least partly) by fines and levies extracted from violent offenders - moneys which could only be obtained, as a matter of legal or practical reality, from offenders actually present in New South Wales.

[6]

The plaintiffs' submissions in reply

The plaintiffs cautioned against the approach taken by the Commissioner in respect of the references to victims resident abroad in ss 31 and 32 of the Act, which was said to amount to a "veiled expressio unius submission". They emphasised once more the statutory history of s 19(1) and argued that the Commissioner had provided no cogent response to their arguments made on the basis of that history.
In reply to the Commissioner's submission that there needed to be some geographical nexus between the act of violence and New South Wales, the plaintiffs submitted that it would be sufficient if there were some "identifiable nexus", which might arise from the characteristics of the offender, the characteristics of the offence or the characteristics of the victim. This was a question which, in their submission, NCAT failed to ask, and which was apt for determination on a remitter.
The plaintiffs invoked the historical rationales for s 12 as a guide to understanding how s 12 operates. One was comity, and the plaintiffs submitted that no comity issue arose here on their construction. A second was legislative competence. After referring to the historically narrower extraterritorial legislative competence of the States, the plaintiffs submitted that "[t]he limit now, such as there is, is that a State can enact laws with respect to the peace, order and good government of the legislature and at least provided they have a sufficient connection with the State". Again the plaintiffs submitted that nothing in their construction took the statute beyond competence.
Finally, the plaintiffs addressed the alleged incoherence identified by the Commissioner in a construction of s 19(1) of the Act permitting compensation to be obtained by victims out of a fund to which the offender could not practically be made to contribute. The more incoherent construction was said to be that advanced by the Commissioner, which would permit funds to be sourced from extra-territorial offending, while that very offending could not itself constitute an "act of violence".

[7]

Grounds 2 and 3

The second and third grounds of the summons were: "The Tribunal erred in law in holding (at [99]) that an offence which is proscribed by the Criminal Code (Cth) by reason of the operation of s 15.4 of the Criminal Code cannot be an offence 'in and of' New South Wales. The Tribunal erred in law in failing to apply (at [84]-[86]) the presumption that the content of foreign law is the same as the law of the forum."
The second ground reflects the plaintiffs' alternative case that it is sufficient that the act of violence be an offence under the law of the Commonwealth, irrespective of where in the world it be committed. The third ground reflects an aspect of the plaintiffs' submission that the extraterritorial provisions in ss 10A-10E of Pt 1A of the Crimes Act cause the violent acts perpetrated upon them in Iraq and northern Syria to be offences against the law of New South Wales.
Those grounds, if made out, would constitute errors of law on the face of the record. However, they were rightly relegated to secondary status in the parties' submissions. Neither side developed these grounds orally, and both sides' written submissions in support of them were relatively brief (three pages in the case of the plaintiffs, two pages in the case of the Commissioner). If the act of violence must occur in New South Wales, it does not matter whether either or both of the errors in these grounds are made out. Conversely, success on either or both of these grounds will not of itself mean that the Commissioner should have accepted the plaintiff's applications.
Identifying errors in NCAT's decision is of no avail to the plaintiffs unless in some way the Victims Rights and Support Act extends to them. There is nothing in the statute (nor did the plaintiffs suggest to the contrary) displacing the usual implication that "any error of law on the face of the record does not render a decision liable to be set aside unless, as a pre-condition, the error was material in the sense that it 'affected' the decision", as Edelman J said in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [65]; see also to the same effect Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 and 384; [1990] HCA 33 (in the context of decisions which "involve" an error of law for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth)). As Basten JA said in Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 at [47]: "it is not in doubt that, even with respect to an administrative decision, the court will refuse an applicant relief where the tribunal was bound by the governing law to refuse the application. The reason is that the tribunal cannot have acted without jurisdiction if it made the only order available to it. The exercise of the supervisory jurisdiction, as with an appeal, is directed to the legally effective order of the tribunal; the court does not intervene merely to correct error in the reasons." (footnote omitted)
On the view I take, these grounds cannot affect the outcome of the appeal. The operation of Pt 1A of the Crimes Act is important and should be left for determination in a case in which it matters. So too is the analysis of when and how State legislation picks up Commonwealth legislation. Both should not be undertaken unnecessarily in a case where the parties have declined to advance oral submissions. This accords with what was said in Boensch v Pascoe [2019] HCA 49; 94 ALJR 112 at [7]-[8] and [101].

[9]

Legislative history

The legislative history is straightforward. The original statute was an enactment of the Legislative Council in 1852 (16 Vict No 1), known contemporaneously as the Acts Shortening Act, which predated representative government in the colony. Section 8 of the 1852 Act provided as follows: "When any officer or office is referred to in any enactment the same shall be taken to refer to the officer or office of the description designated within and for the Colony of New South Wales and all references to localities jurisdictions and other matters and things shall be taken to relate to such localities jurisdictions and other matters and things within and of the said Colony unless in any such case the contrary shall appear to have been intended by the Legislature".
Section 8 of the Acts Shortening Act 1852 was extended to every Act of the reconstituted Legislature of New South Wales by s 1 of the Acts Shortening Act 1858 (NSW) (22 Vict No 12). Section 17 of the Interpretation Act 1897 (the very first bill produced by the Statute Law Consolidation Commission tasked with revising the entirety of New South Wales statutes: see Hansard, LC, 19 May 1897, p 510) was merely a consolidation of what had preceded it. There are slight variations between the text of the 1852 and 1897 statutes and s 12 of the current 1987 statute, the most important of which is that the exception for cases where there was a contrary intention which is now found in s 5(2) (see below) appeared in the text of the provision itself. The words "in and for" and "in and of" in paragraphs (a) and (b) of s 12 derive from "within and for" and "within and of" in the 1852 Act. I do not see that anything turns on those differences of drafting, which has the consequence that the (numerous) decisions on the colonial legislation are apt to apply to s 12.
Parts of the 1852 Act derive from legislation enacted at Westminster two years earlier, 13 & 14 Vict c 21 (1850). For example, s 4 of that statute provided that "in all Acts words importing the masculine gender shall be deemed and taken to include females, and the singular to include the plural, and the plural the singular, unless the contrary as to gender or number is expressly provided ..."; this closely resembles s 6 of the 1852 colonial statute. As Roger Therry recorded, part of the duty of colonial Attorneys General was "to attend to the Acts of each session of the British Parliament, and apprise the local Government of such measures as might advantageously be adopted and declared to extend to New South Wales": R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria (facsimile of 2nd ed 1863 published 1974, Sydney University Press), p 316. The point, according to one well-known missive from the Colonial Office, was to "[k]eep up the family resemblance between your law as well as ours", and see E Campbell, "Colonial Legislation and the Laws of England" (1964-7) 2 U Tas L Rev 148 and D Ward, "Legislation, Repugnancy and the Disallowance of Colonial Laws: The Legal Structure of Empire and Lloyd's case (1844)" (2010) 41 Victoria University of Wellington L Rev 381 at 388-389. But (like much of the legal analysis arising on the plaintiffs' summons) the position was much more nuanced, as may be seen in Swinfen's careful study of instructions to colonial governors in the mid-nineteenth century, replete with references to the primary sources: D Swinfen, Imperial Control of Colonial Legislation 1813-1865 (Clarendon Press, Oxford, 1970), pp 64-77. Colonial innovation was by no means uncommon, nor was it necessarily deprecated by the Colonial Office.
The English statute which was the template for parts of the colonial Acts Shortening Act has no counterpart to s 8. The (handwritten) minutes of the proceedings in committee of the whole Legislative Council on 15 June 1852 record an amendment on the motion of the Solicitor-General (William Manning) "in reference to the mention in any instrument of officer or office, localities or jurisdictions. Read and carried": see (right hand column, next to item "8"). So far as I can see, this is the origin of the subsection. But it sheds little light upon the legislative purpose.

[10]

Three sources of s 12(1)'s complexity

Subsection 12(1) is much more complicated than it may seem. Its complexity operates at a number of levels.
First, the words "New South Wales" are used in two different senses. In paragraph (a), they are references to the polity within the Australian federation. In paragraph (b), they are references to a place within the Australian continent. One paragraph is institutional; the other geographical. "Officer", "office" and "statutory body" all have an essential institutional relationship with New South Wales as a polity, which need not necessarily be geographically confined. A New South Wales statute referring, say, to a "judicial officer" would prima facie apply to a judge of the Supreme Court of New South Wales (and might well apply even if he or she was taking evidence on commission in London), but not to a judge of the Supreme Court of Western Australia visiting Sydney on holiday.
"Polity" is itself an imprecise term. The words "New South Wales" in s 12(1)(a) are apt to denote variously the legal person, the executive government, and the political entity, as explained (by reference to the same imprecision in the word "Commonwealth") by Sir William Harrison Moore in his The Constitution of the Commonwealth of Australia (2nd ed 1910), pp 72-74 and see more recently S Hartford Davis, "The Legal Personality of the Commonwealth of Australia" (2019) 47 Fed L Rev 3 and Hocking v Director-General of the National Archives of Australia [2020] HCA 19; 94 ALJR 569 at [74]-[76]. Substantially the same points may be made of the term "New South Wales". However, it is not necessary for present purposes to give separate consideration to the different ways in which "New South Wales" is used in paragraph (a); the focus of this appeal is paragraph (b).
The geographic aspect in s 12(1)(b) is much clearer, especially if one adopts Harrison Moore's language, as Dixon J did in R v Sharkey (1949) 79 CLR 121 at 153; [1949] HCA 46, and speaks of "the territory occupied by New South Wales".
Plainly enough, the reference in s 12(1)(b) to "locality" is quintessentially geographical. In its context following "locality", it seems tolerably clear that s 12(1)(b) employs the geographical sense of "jurisdiction", which has been summarised as "the geographical area within which authority to decide can be exercised": Masson v Parsons [2019] HCA 21; 93 ALJR 848 at [57]. The same seems to be true of the words "or other matter or thing". But that gives rise to a separate source of complexity, because statutes not uncommonly apply to intangible property and things (such as obligations to pay interest, or contracts for the supply of recreational services, to take two examples which have resulted in decisions mentioned below). As Kitto J said in Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411 at 451; [1960] HCA 94, intangible property cannot possess geographical situation. That does not prevent the law attributing a geographical location to property for a range of purposes, one of which is to determine whether a statute applies to the property.
Secondly, each paragraph discloses an unusual conjunction of prepositions, described in the plaintiffs' submissions as a "compound statutory conception". Paragraph (a) requires references to officers, offices and statutory bodies to be "in and for" New South Wales. Paragraph (b) requires localities, jurisdictions and other matters or things to be treated as localities, jurisdictions, matters or things "in and of" New South Wales. What is the force of the conjunction of prepositions, and why the change in language from the first paragraph to the second? This was given some prominence in the plaintiffs' submissions, to fend off a simple construction that "act of violence" was to be understood as including "act of violence in New South Wales"; with this in mind the plaintiffs maintained that the words "in and of" could not be divided. They relied on a passage in McTiernan J's reasons in Wanganui-Rangitikei Electric Power Board (1934) 50 CLR 581 at 612-613; [1934] HCA 3: "The phrase 'in and of' imports both situation and a close identification of the matter or thing with New South Wales. The phrase is a composite one and perhaps should not be divided."
But McTiernan J was not expressing any concluded view of the words "in and of".
This language, and the distinction between "in and for" and "in and of" is quite old. It may be seen, for example, in s 21 of the Acts Interpretation Act 1901 (Cth) (both in its current form and as originally enacted), and in colonial legislation, and appears to derive from the words inserted in 1852. It may also be noted that the language "in and for" duplicates the terms of the grant of legislative power in s 16 of the Constitution Act 1975 (Vic) considered in Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27, which was said at [10] to be "not different in substance" from the grant of legislative power conferred in terms of "peace, order and good government" or "peace, welfare and good government" of the State. It also duplicates that conferral of jurisdiction upon the Supreme Court of South Australia which was ultimately determinative of the result in Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65 see esp at [98] and [121]-[124].
Plainly enough, the words "in and of" denote an association with New South Wales. Once it be accepted that s 12(1)(b) may apply to intangible things, such as laws and obligations, which lack any natural geographical sense, then sense may readily be given to the width of the words "in and of". Even if the intangible thing is not physically "in" New South Wales, it may still make sense to construe a New South Wales statute so that it only applies to laws or obligations which may be said to be "in and of" New South Wales. But it is not necessary for present purposes to pursue this in order to resolve the plaintiffs' summons. On no view were the "acts of violence" on which the plaintiffs' application is based, which occurred in Syria and northern Iraq, "in and of" New South Wales. The plaintiffs' success depends on "act of violence" extending to conduct on the other side of the world from New South Wales.
Thirdly, s 12 needs to be read with two other provisions in the Act which speak to its relationship with judge-made law. Section 5(2) and (4) provide, under the heading "Application of Act": "(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. … (4) Nothing in this Act excludes the application to an Act or instrument of a rule of construction applicable to it and not inconsistent with this Act."
Most of the provisions of the Interpretation Act instruct how other statutes are to be construed. In contrast, ss 5(2) and 5(4) are application provisions. They instruct how other provisions within the Interpretation Act are to be construed, and both do so by reference to judge-made law. However, each operates quite differently.
Section 5(2) requires regard to be had to whether the Interpretation Act or a particular Act or instrument under consideration evinces a contrary intention. So much is trite, and would be the case even if s 5(2) did not expressly provide (as was clear to Lords Selborne (Robinson v Local Board for the District of Barton-Eccles, Winton and Morton (1883) 8 App Cas 798 at 801) and Maugham (Knightsbridge Estates Trust Ltd v Byrne [1940] AC 613 at 621) and is implicit in the reasoning of Jordan CJ in Hall v Jones (1942) 42 SR (NSW) 203 at 207-209). This reflects the fact that s 12 is not an unqualified rule of universal operation. Its operation is much more nuanced. In particular, if there is a contrary intention, s 12 is not reached.
This immediately gives rise to a chicken-and-egg problem. If the statute on its proper construction discloses a contrary intention, then s 12 does not apply. However, s 12 prima facie applies to determine the proper construction of the statute. This was exposed at the outset of the hearing: "BELL P: There is the s 12 question. Do the common law presumptions which are referred to in the written submissions as to extraterritorial operation of legislation, do you say that they don't arise for consideration because s 12 represents the universe of matters which fall for consideration in relation to the territorial operation of the Act. Or, alternatively, do those presumptions need also to be considered as a separate matter? EASTMAN: I think, your Honour, our submission is that s 12 is no narrower or broader than the common law presumptions and with respect to the operation of s 12 it's not necessary to refer also to the common law presumptions because they're unlikely in the circumstances to add anything."
Section 5(4), somewhat more subtly, recognises that there may be "rules of construction" - which is to say, principles of statutory construction developed by judge-made law - which are capable of applying. If so, and they are applicable and not inconsistent with s 12, then they are not excluded. One way of describing the effect of s 5(4) is that s 12 (and other provisions of the Act) is not to be regarded as a code. But once again, the position is quite nuanced.
It may assist to give an outline of the essential reasoning which is developed in the remainder of these reasons.
There are two related but distinct common law rules of construction. Quite commonly, both are assimilated under the rubric of general words being read down so as not to have extraterritorial effect. Thus Emmett JA and Ball J, with whom Bathurst CJ, Beazley P and Macfarlan JA agreed, said that "[a] basic canon of statutory interpretation is that legislation is presumed not to have extra-territorial effect": Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212; 302 ALR 101 at [145]. Their Honours cited the joint judgment in Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47 at [9] which referred explicitly to a "general rule of construction" confining State legislation in that fashion. Likewise, McHugh J said in the same case at [37] that "[i]t is a long recognised rule of statutory construction that a reference to courts, matters, things and persons in the legislation of a State is a reference to courts, matters, things and persons in that State".
However, expressed at that level of abstraction, the rule may provide insufficient guidance as to precisely how the statute is read down. The present case is an example: is the statute confined to criminal "acts of violence" that occur in New South Wales, or to "acts of violence" which are an offence contrary to the laws of New South Wales? That question is dispositive of the plaintiffs' summons.
The solution to the issues posed by the plaintiffs' summons is to recognise two things. The first is that the rules of construction are more nuanced. In the case of statutes which create offences, then the rule of construction is that every physical element is prima facie required to be in New South Wales. In the case of other statutes, then the question is to identify by reference to the statute's context and subject matter the manner by which the generality of the statute is confined to New South Wales, which is normally by a single integer. It is for this reason that I accept the plaintiffs' submission that there was error on the part of NCAT in requiring each element of the statute - the act of violence, the death or injury, and the criminality - to be in New South Wales. That mechanical literalistic approach is not how s 12 works.
The second thing is that s 12(1)(b) is but one part of the process of statutory construction. Section 12(1)(b) is not an inflexible rule. It is expressly defeasible by s 5(2) when a contrary intention is discerned. More generally, the "rules of construction" preserved by s 5(4) overlap with, and are more nuanced than, s 12(1)(b). How then does one determine a "contrary intention", and what are the other "rules of construction" which impose geographic limitations upon the application of statutes?
Cases where a definition, or an interpretation provision, is displaced by reason of a contrary intention are often highly contestable. In part that is because the contrary intention is often claimed to emerge impliedly from the statutory context or purpose, and there is, as Mahoney JA insightfully observed, "no simple formula for determining what is a 'contrary intention' for this purpose": Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 at 108. However, it is clear that discerning a contrary intention requires giving legal meaning to the statute, and hence the judge-made rules of construction must be applied as part of the process.
A further difficulty in the application of s 12 is that one may very readily consider examples where there are more than one "locality, jurisdiction or other matter or thing" to which s 12 is capable of applying. How does one determine whether the limitation applies to one matter, but not another, in the same section? For if one thing is clear, it is that s 12 does not bear its literal meaning. One does not read every reference to every locality, every jurisdiction, every matter and every thing in a provision as a reference to that locality, jurisdiction, matter and thing in and of New South Wales. This was the "fallacy" identified by Jacobs JA and Mason P which was rightly at the forefront of the plaintiffs' challenge to parts of the reasoning of the Deputy President, to which the Commissioner made only a muted response. After all, as Dixon J observed in Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 at 422; [1932] HCA 52, once there are two expressions in a statute to which a section like s 12 is capable of applying, then "as soon as this restriction is applied to one of these expressions, the prima facie need for a territorial limitation is met and to that extent there is less reason for the other". How then to choose?
As will be seen below, Dixon J's influential approach in Wanganui-Rangitikei Electric Power Board gives primacy to common law, appreciating that a simple mechanistic approach to s 12 is not correct. His Honour was the only member of the High Court in that appeal who applied that approach, but it was followed by Kitto J in Kay's Leasing Corporation Pty Ltd v Fletcher (1964) 116 CLR 124; [1964] HCA 79 and has more recently been endorsed by what the unanimous High Court said in Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16 at [28]: "[A]s was explained by Kitto J in Kay's Leasing Corporation Pty Ltd v Fletcher, the question of geographical limitation arises regardless of the engagement of a provision such as s 12(1)(b) of the Interpretation Act."
Those words are important. They compel the conclusion that the solution to the sorts of problems that arise in the present case transcends the operation of s 12(1)(b). That carries with it the advantage that the absence of an equivalent to s 12(1)(b) in South Australia (see Lipohar at [15]) probably does not alter the way in which South Australian legislation is construed.
The passage in Kitto J's judgment which was endorsed in Insight Vacations is this: "The New South Wales Act speaks of hire-purchase agreements in general terms. It does not specify in what way the generality of its language is to be reconciled with the geographical limitation to which the legislative power of the State Parliament is subject. The necessary reconciliation is not supplied by the provision in s 17 of the Interpretation Act of 1897 to the effect that references to matters and things prima facie relate to matters and things 'in and of New South Wales'. The necessary restriction of the operation of ss 26C and 31 is therefore to be implied or imported upon a consideration of the context and the subject matter."
The emphasis I have given above to the judge-made law diverges from the submissions of the parties, which focussed on s 12. However, that does not deny the correctness of Ms Eastman's observation that, at least in the present case, whether one starts with statute or judge-made law might make little difference.
The balance of these reasons takes the following form. 1. The common law presumption(s); 2. State extraterritorial legislative competence; 3. Statutory construction, not legislative competence; 4. How do the common law presumptions apply? 5. What is the central focus or central conception of the Victims Rights and Support Act? 6. Miscellaneous points; 7. Conclusion and orders.

[11]

The common law presumption(s)

A general law rule of construction limiting the operation of statutes to within a State's territorial limits has long been applied. In Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10 at 30-31; [1966] HCA 11, Taylor J referred to the principle of statutory interpretation that "the persons, property, and events in respect of which Parliament has legislated are presumed to be limited to those in the territory over which it has jurisdiction", and that "it is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according the comity of nations, the jurisdiction properly belongs to some other sovereign or State". This rule of construction has regularly been approved and applied: see Seaegg v The King (1932) 48 CLR 251 at 255; [1932] HCA 47, Vicars v Commissioner of Stamp Duties (NSW) (1945) 71 CLR 309 at 345; [1945] HCA 24, Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 at 426, Solomons at [9] and [37]; Worldplay Services Pty Ltd v Australian Competition and Consumer Commission (2005) 143 FCR 345; [2005] FCAFC 70 at [17]; D151 v New South Wales Crime Commission (2017) 94 NSWLR 738; [2017] NSWCA 143 at [19]-[21], and Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development [2018] NSWCA 174 at [154]-[156].
Dixon J formulated this rule, or an aspect of this rule, rather more precisely, in Wanganui-Rangitikei Electric Power Board. After noting (at 600) that the concluding words of s 17 of the Interpretation Act 1897 did not "supply any guide as to the exact nature of the limitation to be placed upon the general words" of the statute, Dixon J said at 600-601: "It appears to me that it is necessary in such a case to rely upon the ordinary rules of the common law for a rule of interpretation which will supply the restriction subject to which the words will be read. The case is one for applying what I believe to be the well settled rule of construction. The rule is that an enactment describing acts, matters or things in general words, so that, if restrained by no consideration lying outside its expressed meaning, its intended application would be universal, is to be read as confined to what, according to the rules of international law administered or recognized in our Courts, it is within the province of our law to affect or control. The rule is one of construction only, and it may have little or no place where some other restriction is supplied by context or subject matter. But, in the absence of any countervailing consideration, the principle is, I think, that general words should not be understood as extending to cases which, according to the rules of private international law administered in our Courts, are governed by foreign law. As the present statute deals with the discharge pro tanto of obligations, it ought to be understood as confined to those obligations which arise under the law of New South Wales."
This formulation has consistently been endorsed, noting of course that it may be displaced by the context in any appropriate case. The joint judgment in Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37 at [4] labelled it as an ordinary principle of statutory construction.
The rule of construction had the benefit, in the case of colonial legislatures, of tending to lead to legislation which was valid, there being doubt following Macleod v Attorney General for New South Wales [1891] AC 455 of their competence to enact extra-territorial legislation. That doubt proved to be exaggerated (as Windeyer J explained in Bonser v La Macchia (1969) 122 CLR 177 at 225-226; [1969] HCA 31) but there was no doubt that the limits were real, not least by a series of decisions striking down State legislation, such as Commissioner of Stamp Duties (NSW) v Millar (1932) 48 CLR 618; [1932] HCA 63 and Welker v Hewett (1969) 120 CLR 503; [1969] HCA 53. Prior to 1986, State legislative competence was unquestionably subject to some territorial limitations, which had no counterpart in the Imperial Parliament. And sometimes the rule has been expressed in terms of promoting a construction which is within legislative power: Hunt v BP Exploration Co (Libya) Ltd (1980) 144 CLR 565 at 566-570, 571; [1980] HCA 7. However, care must be taken when considering formulations written prior to the conferral of extraterritorial legislative competence on the States, by s 2 of the Australia Acts 1986 (UK) and (Cth). Indeed, this was anticipated by Dixon J, who emphasised in Barcelo at 427 that the more limited legislative competence of a State legislature did not alter the operation of the presumption: "The rule of construction confining general words to an operation which accords with the principles adopted in our Courts for the exterritorial recognition of rights would, I think, be applied to a statute of the sovereign British Parliament containing provisions expressed as those of the Victorian enactment. There is no reason to consider it less applicable to the statute of a subordinate legislature."
Almost three decades later, Dixon CJ added in R v Foster; ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 at 275; [1959] HCA 10 that: "Indeed it may fairly be said that when the consequence of invalidity is removed from extra-territorial legislation it becomes more important to give effect to the presumption governing the interpretation of English legislation."
On this view, it does not matter that the States' extraterritorial legislative competence has expanded throughout the twentieth century, as described below.

[12]

State extraterritorial legislative competence

A State has extraterritorial legislative competence if "there is any real connexion - even a remote or general connexion - between the subject matter of the legislation and the State": Pearce v Florenca (1976) 135 CLR 507 at 518; [1976] HCA 26. That test, broader than what preceded it, but predating the Australia Acts, propounds a sufficient condition, as opposed to a necessary condition.
In Mobil Oil Australia Pty Ltd v Victoria at [48], Gaudron, Gummow and Hayne JJ said that Gibbs J's formulation in Pearce v Florenca had twice been adopted by unanimous judgments of the court and should be regarded as settled. The two decisions were Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14; [1988] HCA 55 and Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 372; [1989] HCA 49. Those decisions did not resolve whether the "new dispensation" in s 2 of the Australia Acts, to be read with the wholesale deemed reenactment of New South Wales legislation pursuant to s 34A of the Interpretation Act, might alter the position, with the position being expressly left open in Union Steamship ("the new dispensation may do no more than recognize what has already been achieved in the course of judicial decisions. Be this as it may, it is sufficient for present purposes to express our agreement with the comments of Gibbs J in Pearce ..."). Port MacDonnell took the position no further. That a remote and general connection was a sufficient test was confirmed by the joint judgment in Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8 at [18].
Some of the submissions made during argument in this Court proceeded on the basis that the test from Pearce is not only sufficient but is also necessary. True it is that statements to that effect may be seen in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 at [40] and XYZ v Commonwealth (2006) 227 CLR 532; [2006] HCA 25 at [14] and [187]. As much has been held in Balajan v Nikitin (1994) 35 NSWLR 51 and Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508. Further, there is the non-dispositive statement by the High Court in Insight Vacations at [29]: "As Kitto J pointed out in Kay's Leasing, it is necessary to reconcile the generality of the language used in a provision like s 5N with the geographical limitation to which the legislative power of a State parliament is subject. And that reconciliation must be undertaken upon a consideration of the context and the subject matter of the Act in question."
With the utmost respect, it may be that the source and nature of any such limitation has not been fully elucidated. It seems plain to me that there are two quite different potential limitations upon State extraterritorial legislative competence. No doubt there may be a geographical limitation which is derived from the Australian States as constituent polities within the federation; the joint judgment in Lipohar at [121] proceeded on this basis. Each colony's Constitution continued, at Federation, "subject to" the new federal Constitution: s 106. It seems clear that when South Australia surrendered (what was then known as its) Northern Territory to the Commonwealth pursuant to s 122 of the Constitution, or when New South Wales granted the Australian Capital Territory as the seat of Government pursuant to s 125, there was a subtraction from the legislative power those States had formerly enjoyed over territory no longer occupied by South Australia or New South Wales. It is also at least arguable (although their precise nature may be elusive) that there are limits on the legislative competence of the States in respect of things wholly located within other States, impliedly deriving from the Constitution. But limitations derived from federation are unlikely to impact extraterritorial legislative competence with respect to matters wholly external to Australia.
Can the New South Wales Legislature criminalise cigar-smoking in Paris? If not, why? Any such limitation might perhaps be grounded in s 2 of the Australia Acts, which confers or confirms "full power to make laws for the peace, order and good government of [the relevant State] that have extra-territorial operation". It might be said that a law which operates outside the State with no connection, not even a general or remote connection, with the State can scarcely be said to be for the peace, order and good government of that State. But that may rest on an incorrect understanding of the force of the words "peace, order and good government", as Professor Trindade influentially observed in "The Australian States and the Doctrine of Extra-territorial Legislative Incompetence" (1971) 45 ALJ 233, and as may be implicit in Basten JA's reference to this being derived "somewhat curiously": Lavender at [156]. It is not necessary presently to elaborate on the meaning of the words "peace, order and good government", save to note that reasoning derived from that plenary grant of legislative power leads to a difficulty when the identical language applicable to Commonwealth legislative power (s 51 of the Constitution read with s 3 of the Statute of Westminster 1931) is considered. If those words are limited, then it would seem to follow that there is a similar territorial limitation at the federal level, and that would collide with, inter alia, Windeyer J's reasons in R v Foster; ex parte Eastern and Australian Steamship Co Ltd at 306: "By way of emphatic illustration of this argument extravagant hypotheses were suggested, such as Australian legislation dealing with marriages of foreign people in foreign lands, or with pensions, or weights and measures in foreign places, and so forth. But any Commonwealth statute if it be a law in respect of one of the subjects mentioned in s 51 is constitutionally valid. If it purported to affect the internal affairs of another country it might be unenforceable, ineffectual and contrary to the comity of nations. It would be ultra vires, in the sense in which Dicey used the expression for the purposes of private international law. But it would not be ultra vires the Commonwealth Parliament in a constitutional sense. ... If the Commonwealth Parliament were to legislate gratuitously in respect of foreign persons in foreign territory, in one of the ways fancifully suggested in argument, an Australian court could not hold the legislation was invalid - provided, always, that it was in respect of one of the matters in s 51".
Thus there is the traditional Diceyan view that the Parliament at Westminster can ban smoking in the streets of Paris. Even sceptics such as Jennings accepted this as an axiomatic aspect of Parliamentary supremacy: W Ivor Jennings, The Law and the Constitution (5th ed, University of London Press, 1959), p 170. Whether one refers to "ultra vires in a constitutional sense" or, following Dicey, to the concept of "legal sovereignty", British authority is to that effect: see for example Cail v Papayanni (1863) 1 Moo PC (NS) 471 at 474 (Dr Lushington) and Mortensen v Peters (1906) 14 SLT 227 at 230 (Lord Dunedin) and see Halsbury's Laws of England (5th ed 2014), Vol 20 pp 104-105. Why should the Commonwealth Parliament be in any sense inferior in legislative competence?
These are very large questions, of the utmost importance at least as a matter of principle, and need not be further considered. The parties proceeded on the common basis that the Pearce test was necessary and sufficient. That is enough to resolve the issues on the plaintiffs' summons, and I shall proceed accordingly.

[13]

Statutory construction, not legislative competence

On any view of the extraterritorial legislative competence of New South Wales, there is undoubted power to enact a scheme whereby persons who suffer harm caused by New South Wales residents, or which is an offence contrary to the laws of New South Wales, are given support through the payment of money or the provision of counselling, even if the criminal conduct and the injury occur outside New South Wales.
But the question is one of construction, not power. As Dixon J famously said in Broken Hill South Ltd (Public Officer) v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 375; [1937] HCA 4: "it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers."
The plaintiffs repeatedly sought to characterise the issue differently, as to whether there was a sufficient connection between the acts of violence which occurred in Iraq and northern Syria and New South Wales. That submission bears a distracting resemblance to the test for extraterritorial legislative competence. But the question is not whether the New South Wales Legislature has legislative capacity to make a law providing for payments to victims of crimes committed by former residents outside the State (it seems plain to me that it is able to do so if it so chooses). The question is whether the legislation which it has enacted applies to the plaintiff's claims.
The plaintiffs invoked the passage from Jacobs JA in O'Connor v Healey at 114 reproduced above, emphasising "the intention of s 17 is to provide the natural limit of legislation, so that it applies in its subject matter to those situations which have a nexus which New South Wales". The plaintiffs said there was a nexus with New South Wales and that their claims therefore fell within the scheme and should have been assessed on their merits. But that submission takes Jacobs JA's words out of context. Jacobs JA is not to be understood as saying that s 12's predecessor, s 17 of the 1897 Act, causes a statute as a whole to be read so as to apply in all of those, and only those, situations which have a nexus with New South Wales. I pass over the difficulties which would arise if that course had been adopted (analogous difficulties concerning reading down are mentioned in G Williams, S Brennan and A Lynch, Blackshield and Williams Australian Constitutional Law and Theory (7th ed 2018), pp 256-7). Section 12 of the Interpretation Act does not produce the result that legislation is to be given a legal meaning such that it applies to the maximal extent of extraterritorial competence.
Dixon J wrote of this in Barcelo at 428: "Where the enactment relates to or deals with no matter involving a connection with Victoria and indicates no intention of conditioning its operation on any fact, circumstance, or event, in or connected with Victoria, but is expressed in general terms and deals with a subject matter which is independent of locality, like the discharge of private obligations, the constitutional restriction, while it reinforces the need of a restrictive interpretation, gives no further assistance in determining upon what connection with Victoria the operation of the enactment must be understood to depend. To ascribe to it an operation defined as co-extensive with the power of the Legislature may perhaps appear a possible, even an attractive, alternative to applying the rule of construction which presumes consistency with the principles of private international law. But the extent of the power to legislate in and for Victoria cannot provide a definition of the extent of the operation of a general enactment relating to the discharge of obligations, because the power includes authority to adopt any fact or matter or thing concerning Victoria as the ground of exercising legislative jurisdiction over any right or obligation affecting such fact, matter or thing; and this is precisely what the Legislature has not done."
The plaintiffs' submission that the Victims Rights and Support Act is limited by the extraterritorial legislative competence of the New South Wales Legislature is precisely what Dixon J rejected in that passage.
In Barcelo and the related decision of Wanganui-Rangitikei Electric Power Board, the question of construction was quite awkward: to what intangible obligations to pay interest did State legislation enacted in response to the Great Depression apply. Dixon J placed little weight upon interpretation provisions, and relied on confining the statutes to those obligations which had as their proper law the law of Victoria and New South Wales respectively. As Kay's Leasing and Insight Vacations illustrate, that approach may be inapplicable, if it would frustrate the purpose of the statute or does not accord with the legislative scheme. As it happens, in this appeal, the process of construction is confined to much more tangible things: the place of the act of violence, the former residence of the perpetrator, and the law creating the offence.

[15]

Criminal law

In cases where legislation creates an offence, there is a presumption that every element will be subject to the presumption that it occurs in the relevant jurisdiction. For example, in Grannall v C Geo Kellaway and Sons Pty Ltd (1955) 93 CLR 36; [1955] HCA 5, the High Court considered s 23(1) of the Farm Produce Agents Act 1926 (NSW), which provided relevantly that no farm produce agent should "charge, sue for or recover any fees, charges, commission, reward or other remuneration" for or in respect of the sale or disposal of farm produce beyond the prescribed commission (which was then 7.5%). A person whose address was in Tasmania caused 144 cases of apples to be consigned from Tasmania to a farm produce agent in Sydney, after receiving from the latter a letter stating that the rate to be charged on all consignments would be 10%. The offence of overcharging was held to require communication, that communication was not effective until the letter was delivered in Tasmania, and thus an essential element occurred outside New South Wales. A unanimous High Court said at 52-53: "This question depends on the meaning of the word 'charge' in s 23(1)(a) and upon the application to that meaning of the rule that all offences are local and territorial. That rule is reinforced by s 17 of the Interpretation Act of 1897 of New South Wales … It is not a question of the jurisdiction of the forum. Nor is it altogether a question of the territorial power of the legislature. For doubtless the acts or conduct of the defendant company in the present case include elements sufficiently connected with New South Wales to enable the legislature of that State to deal with them. But, just as the words in s 23(1)(a) 'sue for' and 'recover' must be understood as 'sue for or recover in New South Wales', so must the word 'charge' be interpreted as 'charge within New South Wales'." (emphasis added)
A similar approach requiring all (but only those) elements of the offence to take place in New South Wales may be seen in R v Porter (2004) 61 NSWLR 384; [2004] NSWCCA 353, which was an appeal against conviction for an offence under s 527C(1) of the Crimes Act 1900. That section provided relevantly that "[a]ny person who … has anything in his or her custody … which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction". The charge against the appellant was that he had in his custody $150,000 upon arrival in Sydney on a flight from Perth. The question on the stated case before the Court of Criminal Appeal was whether, as a matter of construction of s 527C, it was an essential element of the offence that the Crown prove that the goods stolen or otherwise illegally obtained were stolen or obtained in the State of New South Wales. There was no evidence suggesting that the cash was the result of any unlawful activity occurring in New South Wales. The appellant, relying upon s 12(1) of the Interpretation Act, argued that the words "being stolen or otherwise unlawfully obtained" should be interpreted to refer to a theft or an obtaining in the geographic area of New South Wales. Spigelman CJ, with whom Barr and Hoeben JJ agreed, dealt with the argument at [24]: "The relevant 'matter or thing' which is the subject of a 'reference' in s 527C(1) is first, the custody and, secondly, the suspicion. If both exist in New South Wales, then the offence is complete. … There is no 'reference' in s 527C(1) to the 'stealing' or 'unlawful obtaining' for purposes of s 12(1)(b) of the Interpretation Act. These words in s 527C(1) simply describe the content of the suspicion."
In Thompson v The Queen (1989) 169 CLR 1 at 33, [1989] HCA 30, Deane J referred to "a general thesis of the common law and an incident of the doctrine of sovereignty under international law that crime is essentially local or domestic", a statement to which Gleeson CJ returned in Lipohar at [25], noting that "[t]he implications, constitutional and otherwise, of treating the States as separate law areas for various purposes associated with penal laws have not yet been fully explored." I think that remains true today. However, in this area the more complicated (and indeed, more directly relevant) problem concerns the interaction of State laws inter se within the geographical Australian territory. The Diceyan question - whether a New South Wales law could criminalise cigar-smoking on the streets of Paris - is unaffected by the constraints and implications inherent in a federal constitution.
But in legislation that does not create an offence, resort to the adage that "crime is local" does not assist. As Dixon J explained in Wanganui-Rangitikei Electric Power Board at 600, neither questions of legislative competence nor the Interpretation Act assisted. "Under the State Constitution the Legislature of New South Wales might validly enact a law reducing the interest upon any debt which was for any reason so connected with New South Wales that the statute could not be treated as wholly relating to a subject with which New South Wales had no possible concern. So long as the statute selected some fact or circumstance which provided some relation or connection with New South Wales, and adopted this as the ground of its interference, the validity of an enactment reducing interest would not be open to challenge. The residence or domicil in New South Wales of debtor or creditor would, for instance, suffice. In the present case there can be no doubt that the fact that the place of payment is in New South Wales would enable the New South Wales Legislature, by a statute grounded on that circumstance, constitutionally to reduce the interest payable. But, because there are such a number and such a variety of ways in which a transaction may be connected with the State sufficiently to found the constitutional jurisdiction, the territorial limitation of legislative power gives no guidance when it is necessary to construe perfectly general words which select or indicate none of these grounds."
Forced to deal with whether the statute applied to an obligation owed by a New Zealand statutory authority to pay interest to a New South Wales lender, Dixon J resorted to questions of comity and the presumption that the local statute would only apply where the proper law of the obligation was that of New South Wales. Of course, that may be rebutted in an appropriate case. In Kay's Leasing, Kitto J explained this at 143: "Where a provision renders an agreement void for non-compliance by the parties or one of them with statutory requirements, especially where the requirements can be seen to embody a specific policy directed against practices which the legislature has deemed oppressive or unjust, a presumption that the agreements in contemplation are only those of which the law of the country is the proper law according to the rules of private international law has no apparent appropriateness to recommend it, and indeed, for a reason of special relevance here, it would produce a result which the legislature is not in the least likely to have intended. It would mean that provisions enacted as salutory reforms might be set at nought by the simple expedient adopted in the present case of inserting in an agreement a stipulation that validity should be a matter for the law of some other country."
But these complexities do not directly arise in relation to the Victims Rights and Support Act. One or more of the "act of violence", the offence, and the residence of the perpetrator, is concededly to be linked to New South Wales. How does one choose? The following four decisions provide guidance.

[17]

Law Society of New South Wales v Glenorcy Pty Ltd

Law Society of New South Wales v Glenorcy Pty Ltd concerned claims upon the Fidelity Fund based on the dishonesty of a solicitor. Simplifying the facts somewhat, the solicitor at all relevant times was admitted in New South Wales, but prior to September 1996 when he surrendered his Queensland practising certificate, he operated from premises in Coolangatta; thereafter he continued to practise from Tweed Heads. The New South Wales statute (s 80 of the Legal Profession Act 1987 (NSW)) provided that the fund was "held, and is to be applied, by the Law Society for the purpose of compensating persons who suffer pecuniary loss because of a failure to account". There was also a provision, applicable to some of the claims, authorising the Law Society to disallow a claim "if satisfied that the claim does not have sufficient connection with practice as a New South Wales solicitor in Australia". The Law Society submitted that losses when the solicitor was practising in Queensland and held a Queensland practising certificate were not a claim within s 80. The Law Society submitted that the "statutory springboard" was the definition of "failure to account", and asked the words "in New South Wales" to be read after "failure" and "the solicitor's practice".
Mason P, with whom McColl JA and Basten JA agreed, said that the Law Society's submissions contained the fallacy identified by Jacobs JA in O'Connor v Healey and read the statute as requiring only that the solicitor be a New South Wales solicitor. His Honour's dispositive reasons on this issue focussed upon the contributions required to be made to the fund, pursuant to s 76, by New South Wales solicitors and the unlikelihood or absurdity of the Law Society's construction (at [39]-[45]): "[Section] 76 has confined its operation to solicitors having a stated connection with this State, one that obviously made it appropriate for them to be required to contribute to the Fund. More importantly, that was the judgment of the Legislature. Smith was required to contribute to the Fund in this State on the basis that he applied for and obtained a practicing certificate in this State. He was thereby a 'solicitor' to whom s 80 applied expressly (see s 80(4)) and implicitly, (see s 80(1), which picks up the definition of failure to account with its own reference to 'solicitor'). The terms of s 80(4) further undercut the Society's argument, because they clearly recognise that the Fund may be amenable to claims by New South Wales solicitors who practice anywhere in Australia. ... There is an obvious correlation between requiring a particular group of practitioners to contribute to the Fund and recognising that their misconduct will be the occasion for allowing claims on the Fund. There is no discernible purpose in reading the scheme in the cramped manner proposed by the Society. My construction of the legislation satisfies the constitutional and other reasons that underpin the law's readiness to interpret statutes as having an identifiable nexus with the jurisdiction of the enacting Parliament. It also avoids the absurdities inherent in the Society's approach to the legislation, thereby promoting an interpretation consonant with the evident purpose of the statutory scheme. To accept an interpretation that exempted the Fund from liability with respect to a solicitor enrolled in this State and having a local practising certificate, on the basis that the solicitor's failure to account occurred beyond the borders of the State, would ignore the nature of modern legal practice in this country. It is impossible to conceive why it would be just or sensible to construe the scheme as exempting a Sydney-based solicitor who while temporarily in the Australian Capital Territory took instructions by phone to deal with his or her client's money; or whose instructions given in Sydney were to deal with the money in a particular way while in that Territory. Equally improbable is some presumed legislative intent that this scheme would not embrace clients who dealt with solicitors whose practice was similar to that of Smith or whose office was located near a State border. The legal profession in Australia has been moving towards both an interstate and national outlook for many years. In this, it has followed the needs and demands of its clientele as well as the realities of modern life. These developments have been particularly significant for both lawyers and clients who live near State borders, for obvious reasons."

[19]

Insight Vacations

Section 5N of the Civil Liability Act 2002 (NSW) permitted parties to a contract for the supply of recreation services to exclude, restrict or modify any liability in negligence. One issue in Insight Vacations was whether s 5N was available to a contract which was governed by the laws of New South Wales, for the supply of recreation services which was to be performed outside New South Wales. If so, it could be availed of by the appellant in answer to Mrs Young's claim. The Court held that s 5N of the Civil Liability Act only applied to contracts for the supply of recreation services in New South Wales. The Court began its discussion of the geographical limitation at [27]: "The reference in s 5N(1) to 'a term of a contract for the supply of recreation services' should be read as subject to a geographical limitation to its application. Although the contract between Mrs Young and Insight was governed by the law of New South Wales it was to be performed wholly outside the state."
The Court said at [28] that s 12(1)(b) of the Interpretation Act "may be reason enough to read s 5N as subject to a geographical limitation", but then gave a more detailed account of the issue at [33]: "What geographical limitation is there to the operation of the Civil Liability Act? The central focus of the whole of Pt 1A of that Act is liability for negligence (an act or omission involving a failure to exercise reasonable care and skill). As noted earlier, s 5A(1) provides that Pt 1A applies to any claim for damages for harm resulting from negligence, regardless of how the claim is framed. As also noted earlier, one natural geographical limitation that could be given to s 5A(1) is to read 'any claim' as 'any claim in the courts of New South Wales', leaving the applicability of the provisions of the Act in a claim brought in a court of another jurisdiction to the application of principles governing the choice of law. Or, 'any claim' could be read as 'any claim where the law governing that claim is the law of New South Wales'. It is not necessary in this case to decide whether those are the only available constructions or to choose between them. The relevant geographic limitation is to be identified in the provisions of Div 5 of Pt 1A." (footnote omitted)
Section 5N was to be read with s 5J(1), which limited the application of Div 5 of Pt 1A to "liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff". In the result, and alluding to the importance of reading a provision in its statutory context and in light of its purpose, the Court concluded at [35]-[36]: "Taken together, ss 5J(1) and 5K point decisively to reading s 5N as reaching all cases in which the contract in question (wherever it is made and by whatever law it is governed) is for the supply of recreation services in New South Wales. That construction of the provision reads 'contract for the supply of recreation services' as a compound expression. The relevant geographical limitation of the compound expression directs attention to the place of performance of the contract. Where are the relevant recreation services to be supplied? And once that reading is adopted, it follows that it is neither necessary nor appropriate to construe the sub-section as importing any other geographical limitation (or extension) of its operation. … Reading s 5N(1) as hinging on the place of performance of the contract best gives effect to the purposes and text of the provision when it is read in its statutory context."

[22]

Legislative purpose

A useful starting point is the legislative purpose. All statutes are to be construed so as to further their purpose: Interpretation Act, s 33.
Section 17, which is the first provision in Pt 4, makes express provision for the legislative purpose of that Part: "The object of this Part is to establish a scheme for the provision of support for victims of acts of violence."
There is a large literature concerning the absence of any coherent purpose to victims' compensation schemes. Patrick Atiyah wearied "of pointing out the inconsistencies, the anomalies, the irrationality of it all": P Atiyah, Accidents, Compensation and the Law (1970), p 444. Most obviously, the New South Wales schemes, and most of those enacted all around the world, are confined in their operation to "victims" of "acts of violence". (The schemes made in the United Kingdom in 1964 and 1995 referred to substantially the same effect to "crime of violence": see D Miers, State Compensation for Criminal Injuries (1997, Blackstone Press), pp 31, 243, 266, and see R v Criminal Injuries Compensation Appeals Panel; ex parte August [2001] QB 774; [2000] EWCA Civ 331). It would of course be possible to extend a scheme to persons who suffer physical harm from, say, environmental offences, or who suffer psychiatric injury from property offences (such as burglary) or economic loss from offences of fraud and theft. Writing of the British counterpart, one commentator has said: "The Scheme, like virtually all its foreign counterparts, restricts the payment of compensation essentially to those whose injuries result from a 'crime of violence'. Many commentators have argued that there is no satisfactory justification for limiting eligibility in this way. Certainly, none of the traditional rationales for criminal injuries compensation provides a sound reason for the exclusion of persons injured as a result of other types of crime": P Duff, "Criminal Injuries Compensation: The Symbolic Dimension" (1995) The Juridical Review 102 at 109.
Those considerations suggest that the gist of the scheme implemented by the Victims Rights and Support Act is not so much an offence contrary to New South Wales law, but the committing of a particular class of offence - acts of violence - which cause physical injury or death to a victim.
The words used in s 17 to summarise the scheme are "for the provision of support for victims of acts of violence". Each of the terms "victims" and "act of violence" is defined. Indeed, each term is quite elaborately defined. Further, s 23 makes provision for the support for which primary victims, secondary victims and family victims are eligible under the scheme. The upshot is that s 17 read with the definitions of "victims" and "act of violence" lends support to the conclusion that the two central elements of the scheme established by Pt 4 are "act of violence" and the persons who are affected by such acts, namely, victims.
In contrast, the statute does not mention residence, and does not elaborate upon the requirement that the act of violence be an "offence" except to dilute that requirement by "apparently", a point to which I shall return.

[25]

The operation of the statute and its predecessors has traditionally been confined to acts of violence in New South Wales

The history of victims compensation also suggests it is confined to acts of violence occurring in New South Wales. For many decades, the legislation has been confined to cases where there has been a criminal prosecution in a New South Wales court. Until the enactment of Pt 1A of the Crimes Act with effect from 31 July 2000, insofar as the act of violence constituted the actus reus of the crime, that could only occur when the acts of violence took place in New South Wales.
Briefly, ss 416 and 417 of the Criminal Law Amendment Act 1883 (46 Vict No 17) provided that a conviction for felony did not effect an escheat or forfeiture, but that the court was empowered to direct a sum not exceeding £500 to be paid "to any aggrieved person by way of compensation for injury or loss sustained through or by reason of such felony", and that such direction would, after entry in a book maintained by the Prothonotary of the Supreme Court, be enforceable by execution as if it were a judgment, and any alienation of property by the offender after the offence and within twelve months before conviction would be void against such a writ.
Section 416 was reenacted as s 437 of the Crimes Act 1900. It was supplemented, in 1967, by the Criminal Injuries Compensation Act 1967 (NSW), which permitted applications to be made when a person was acquitted or an information was dismissed (as explained in Re Applications of Foster [1982] 2 NSWLR 481 at 485).
Those provisions were repealed in 1987 and replaced by the Victims Compensation Act 1987 (NSW), which put in place a scheme which resembled the current regime, but which had a broader definition of "act of violence". The Victims Compensation Act 1996 (NSW) narrowed the definition of "act of violence" to a form which is equivalent to s 19(1) of the current statute.
The plaintiffs submitted that s 437, read naturally, "would have encompassed an award of compensation to a person who suffered injury by reason of an offence committed outside New South Wales but which was heard and determined in a New South Wales court". I do not agree. As presently advised, I do not understand how an offence committed wholly outside of New South Wales (with the exception of certain offences on the high seas on vessels connected with New South Wales) could traditionally have been heard and determined by a New South Wales court.
True it is that from 31 July 2000, with the insertion of Part 1A of the Crimes Act, the extraterritorial legislative competence of the State has been exercised by extending the Crimes Act to cases where "there is the nexus required by [Pt 1A] between the State and the offence": s 10A(2). That includes cases where one of the physical elements of an offence take place outside New South Wales, so long as other elements take place in New South Wales. Passing over the effect of s 10C(2), Pt 1A applies to an offence committed wholly outside New South Wales only if it is an offence which is also an offence in that place (s 10D(2)(a)) or, if it is not an offence in the place where it is committed, the trier of fact is satisfied that the offence constitutes "such a threat to the peace, order or good government of [New South Wales] that the offence warrants criminal punishment in [New South Wales]" (s 10D(2)(b)).
This requirement of proving that conduct is an offence in the place outside New South Wales where it is committed was relevant to ground 3 of the summons. It is not necessary to express a view on the operation of s 10D to the facts of this case, and as noted above, there is good reason not to do so. However, it is plain that Pt 1A effects a signal change. Sometimes the enactment of one statute has unforeseen consequences on other statutes. However, I do not think that the enactment of Pt 1A in 2000 altered the operation of the common law rule of construction, or s 12, upon "act of violence" when it appeared in the Victims Compensation Act 1996 or when it was re-enacted in the 2013 statute.

[27]

Conclusion and orders

Some geographical limitation must be given to the Victims Rights and Support Act 2013 (NSW); this was common ground. Where as here there is a choice of concepts upon which that common law rule read with s 12 of the Interpretation Act can operate, it is resolved by ascertaining what the central focus or central conception of the legislation is. Examples of this process may be seen in: 1. the suffering of an injury in New South Wales by a worker in O'Connor v Healey, even while on a work-related journey with a Victorian destination; 2. the regulation of solicitors in New South Wales (including payment of levies) in Glenorcy, rather than the location where there was a failure to account; 3. the performance of work in an industry (as opposed to the proper law of the contract) in Old UGC; 4. the place of performance of recreational services in Insight Vacations, rather than the proper law of the contract.
Senior counsel for the plaintiffs submitted: "I've said to your Honours and I don't want to repeat what I've said is that there are the two relevant connecting factors. It's the personal connection as the last known place of residence and the second is that the nature of the particular acts of violence do have an extraterritorial operation to the extent that if there had been a prosecution in Australia then the Australian Courts, including the courts in New South Wales, could have prosecuted these crimes. ... If those factors alone are not a sufficient connection we accept that we will be unsuccessful."
Contrary to the plaintiffs' submission, the central focus and conception in the scheme established by Pt 4 of the Act is "act of violence". Only those persons who are victims of an act of violence (as opposed to any other crime) are eligible. There is no sound basis to confine the scheme by reference to perpetrators of acts of violence who are residents (or former residents) of New South Wales. It may be accepted that conduct which occurs outside New South Wales may still be an offence contrary to New South Wales law, but the fact that committing an offence is neither sufficient nor necessary, in contrast with the indispensability of there being an "act of violence", points to the latter being the central concept of the scheme.
In part, the plaintiffs' submissions rested on a misconception of s 12. The effect of s 12 is not to expand the operation of New South Wales legislation so that it extends to all matters and things with a nexus with New South Wales. Both the common law rules of construction, and the interpretative rule in s 12, operate to impose a territorial restriction on one or more of the generally worded terms of the statute.
On its proper construction, the act of violence which is the central concern of the scheme created by the Victims Rights and Support Act 2013 must occur in New South Wales. Even if committed by a New South Wales resident on holiday overseas, or even if the act of violence amounts to an offence contrary to a New South Wales law, the victim is not eligible under the scheme. It follows that the Commissioner was correct to refuse the applications, and NCAT was correct to dismiss the application for administrative review.
The plaintiffs' summons should be dismissed. Costs should follow the event. The parties advised that they had agreed to a cost-limiting regime, to which the costs order I propose will be subject.

Parties

Applicant/Plaintiff:

DRJ

Respondent/Defendant:

Commissioner of Victims Rights

Legislation Cited (65)

Acts Shortening Act 1852(NSW)

Acts Shortening Act 1858(NSW)

Cataract and Nepean Bridges Act 1852(NSW)

Vict Civil Liability Act 2002(NSW)

Criminal Injuries Compensation Act 1967(NSW)

Criminal Law Amendment Act 1883(NSW)

Farm Produce Agents Act 1926(NSW)

Gunpowder Magazine Act 1852(NSW)

Interpretation Act 1897(NSW)

Legal Profession Act 1987(NSW)

Environment Operations Act 1997(NSW)ss 109

Railways Gauge Act 1852(NSW)

New South Wales Steam Navigation Act 1852(NSW)

Victims Compensation Act 1987(NSW)

Victims of Crime (Financial Assistance) Act 1983(ACT)

Victims Support and Rehabilitation Act 1996(NSW)

Workers Compensation Act 1928(Vic)

(Acts Interpretation Act 1901(Cth)s 21(1)(b))

Cataract and Nepean Rivers (Cataract and Nepean Bridges Act 1852(NSW)

New South Wales (Railways Gauge Act 1852(NSW)

Goat Island (Gunpowder Magazine Act 1852(NSW)

Steam Navigation" (The New South Wales Steam Navigation Act 1852(NSW)

"act of violence"); Victims of Crime Assistance Act 2009(Qld)

"violent act"). The Victims of Crime (Financial Assistance) Act 2016(ACT)

Victims Compensation Act 1996(NSW)

Interpretation Act 1987(NSW)s 12

Victims Rights and Support Act 2013(NSW)

Acts Interpretation Act 1901(Cth)

Acts Interpretation Act 1931(Tas)s 27(b)

Acts Interpretation Act 1954(Qld)s 35(1)(b)

Administrative Decisions (Judicial Review) Act 1977(Cth)

Australia Act 1986(Cth)

Australian Border Force Act 2015(Cth)s 7

Biodiversity Conservation Act 2016(NSW)

Building and Construction Industry Security of Payment Act 1999(NSW)s 32E

Competition and Consumer Act 2010(Cth)

Constitution Act 1975(Vic)

Corporations Act 2001(Cth)s 908AF

Crimes Act 1900(NSW)

Criminal Code Act 1995(Cth)

Criminal Injuries Compensation Act 2003(WA)

Fair Trading Act 1987(NSW)

Industrial Relations Act 1996(NSW)

Interactive Gambling Act 2001(Cth)

Interpretation Act 1978(NT)s 38(1)(b)

Interpretation of Legislation Act 1984(Vic)s 48(b))

Law Reform (Miscellaneous Provisions) Act 1946(NSW)

Legislation Act 2001(ACT)s 122(1)(b)

Migration Act 1958(Cth)

Mining Act 1992(NSW)s 387B

Pesticides Act 1999(NSW)s 33

Petroleum (Onshore) Act 1991(NSW)s 129A

Privacy Act 1988(Cth)s 5B

Road Vehicle Standards Act 2018(Cth)s 10.

Student Assistance Act 1973(Cth)

Supreme Court Act 1970(NSW)

Victims of Crime Act 2001(SA)

Victims of Crime Assistance Act 1976(Tas)

Victims of Crime Assistance Act 1996(Vic)

Victims of Crime Assistance Act 2006(NT)

Victims of Crime Assistance Act 2009(Qld)

Victims of Crime (Financial Assistance) Act 2016(ACT)

Water Management Act 2000(NSW)s 340D

Work Health and Safety Act 2011(NSW)s 155A.

Civil Liability Act 2002(NSW)

Cases Cited (110)

Legal Profession Act 1987 (NSW), s 80 Legal Profession Uniform Law 2014 (NSW), s 4 Legislation Act 2001 (ACT), s 122 Migration Act 1958 (Cth), s 228A Mining Act 1992 (NSW), s 387B National Energy Retail Law 2012 (NSW), s 17 Pesticides Act 1999 (NSW), s 33 Petroleum (Onshore) Act 1991 (NSW), s 129A Privacy Act 1988 (Cth), s 5B Protection of the Environment Operations Act 1997 (NSW), ss 109, 212B Railways Gauge Act 1852 (NSW) 16 Vict 5 Road Vehicle Standards Act 2018 (Cth), s 10 Statute of Westminster 1931 (UK), s 3 Student Assistance Act 1973 (Cth), s 342 Supreme Court Act 1970 (NSW), ss 48, 69 The New South Wales Steam Navigation Act 1852 (NSW) 16 Vict 46 Victims Compensation Act 1987 (NSW) Victims of Crime Act 2001 (SA), s 17 Victims of Crime Assistance Act 1976 (Tas), s 4 Victims of Crime Assistance Act 1996 (Vic), s 3 Victims of Crime Assistance Act 2006 (NT), s 5 Victims of Crime Assistance Act 2009 (Qld), s 25 Victims of Crime (Financial Assistance) Act 1983 (ACT), ss 4, 10 Victims of Crime (Financial Assistance) Act 2016 (ACT), s 7 Victims Rights and Support Act 2013 (NSW), ss 17, 19, 20, 21, 22, 23, 26, 31, 32, 51 Victims Support and Rehabilitation Act 1996 (NSW), s 5 Water Management Act 2000 (NSW), s 340D Work Health and Safety Act 2011 (NSW), s 155A Workers Compensation Act 1928 (Vic), s 5 Cases Cited: ACI Resources Ltd v Commissioner of Stamp Duties (NSW) (1986) 86 ATC 4810 American Banana Co v United Fruit Co 213 US 347 (1909) APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101; [1995] FCA 1012 Balajan v Nikitin (1994) 35 NSWLR 51 Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391; [1932] HCA 52 Boensch v Pascoe [2019] HCA 49; 94 ALJR 112 Broken Hill South Ltd (Public Officer) v Commissioner of Taxation (NSW) (1937) 56 CLR 337; [1937] HCA 4 Cail v Papayanni (1863) 1 Moo PC (NS) 471 Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212; 302 ALR 101 Clark (Inspector of Taxes (UK)) v Oceanic Contractors Inc [1983] 2 AC 130 Commissioner of Stamp Duties (NSW) v Millar (1932) 48 CLR 618; [1932] HCA 63 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Croft v Dunphy [1933] AC 156 D151 v New South Wales Crime Commission (2017) 94 NSWLR 738; [2017] NSWCA 143 Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 DRJ v Commissioner of Victims Rights [2019] NSWCATAD 195 DRJ v Commissioner of Victims Rights [2020] NSWCA 136 Fleming v White [1981] 2 NSWLR 719 Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418; [1970] HCA 31 Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 Gosper v Sawyer (1985) 160 CLR 548; [1985] HCA 19 Grannall v C Geo Kellaway and Sons Pty Ltd (1955) 93 CLR 36; [1955] HCA 5, Hall v Jones (1942) 42 SR (NSW) 203 Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508 Hocking v Director-General of the National Archives of Australia [2020] HCA 19 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Hunt v BP Exploration Co (Libya) Ltd (1980) 144 CLR 565; [1980] HCA 7 Huntingdale Village Pty Ltd (receivers and managers appointed) v Corrs Chambers Westgarth [2018] WASCA 90; 128 ACSR 168 Hyde v Agar (1998) 45 NSWLR 487 Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16 Kay's Leasing Corporation Pty Ltd v Fletcher (1964) 116 CLR 124; [1964] HCA 79 Knightsbridge Estates Trust Ltd v Byrne [1940] AC 613 Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development [2018] NSWCA 174; (2018) 336 FLR 37 Law Society of New South Wales v Glenorcy Pty Ltd (2006) 67 NSWLR 169; [2006] NSWCA 250 Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65 Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411; [1960] HCA 94 Macleod v Attorney General for New South Wales [1891] AC 455 Masson v Parsons [2019] HCA 21; 93 ALJR 848 McMillan v Mannix (1993) 31 NSWLR 538 Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10; [1966] HCA 11 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27 Mortensen v Peters (1906) 14 SLT 227 Myer Emporium Ltd v Commissioner of Stamp Duties (1967) 68 SR (NSW) 220 Mynott v Barnard (1939) 62 CLR 68; [1939] HCA 13 O'Connor v Healey (1967) 69 SR (NSW) 111 Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274; [2006] HCA 24 Olefines Pty Ltd v Valuer-General of New South Wales [2018] NSWCA 265; 234 LGERA 444 Pearce v Florenca (1976) 135 CLR 507; [1976] HCA 26 Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340; [1989] HCA 49 R v Criminal Injuries Compensation Appeal Panel; ex parte August [2001] QB 774; [2000] EWCA Civ 331 R v Foster; ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256; [1959] HCA 10 R v Porter (2004) 61 NSWLR 384; [2004] NSWCCA 353 R v Sharkey (1949) 79 CLR 121; [1949] HCA 46 Re Applications of Foster [1982] 2 NSWLR 481 Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397; [2003] HCA 43 Robinson v Local Board for the District of Barton-Eccles, Winton and Morton (1883) 8 App Cas 798 Schmidt v Government Insurance Office (NSW) [1973] 1 NSWLR 59 Seaegg v The King (1932) 48 CLR 251; [1932] HCA 37 Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47 Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8 The Appollon 22 US 362 (1824) Thompson v The Queen (1989) 169 CLR 1; [1989] HCA 30 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55 University of Birmingham and Epsom College v Commissioner of Taxation (Cth) (1938) 60 CLR 572; [1938] HCA 57 Vicars v Commissioner of Stamp Duties (NSW) (1945) 71 CLR 309; [1945] HCA 24 Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 Walker v New South Wales (1994) 182 CLR 45; [1994] HCA 64 Waller v Freehills (2009) 177 FCR 507; [2009] FCAFC 89 Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581; [1934] HCA 3 Ward v The Queen (1980) 142 CLR 308; [1980] HCA 11 Welker v Hewett (1969) 120 CLR 503; [1969] HCA 53 Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37 Worldplay Services Pty Ltd v Australian Competition and Consumer Commission (2005) 143 FCR 345; [2005] FCAFC 70 XYZ v Commonwealth (2006) 227 CLR 532; [2006] HCA 25 Texts Cited: ALRC Rep 114 Family Violence - A National Legal Response (October 2010) P Atiyah, Accidents, Compensation and the Law (1970) H L Buxbaum, "Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy" (2017) 27 Duke J Comp & Int'l L 381 E Campbell, "Colonial Legislation and the Laws of England" (1964-7) 2 U Tas L Rev 148 W Coote, History of the Colony of Queensland from 1770 to the Close of the Year 1881 (William Thorne, 1882) P Duff, "Criminal Injuries Compensation - The Symbolic Dimension" (1995) The Juridical Review 102 S Dutson, "The Conflict of Laws and Statutes: The International Operation of Legislation Dealing with Matters of Civil Law in the United Kingdom and Australia" (1997) 60 MLR 668 S Dutson, "The Territorial Operation of Statutes" (1996) 22 Mon LR 69 J T Gleeson, "Extraterritorial Application of Statutes Proscribing Misleading Conduct" (2005) 79 ALJ 296 Halsbury's Laws of England (5th ed 2014), Vol 20 S Hartford Davis, "The Legal Personality of the Commonwealth of Australia" (2019) 47 Fed L Rev 3 D G Hill, "Constitutional Power and Extraterritorial Enforcement" (1996) 19 UNSWLJ 45 D Ireland-Piper, "Extraterritorial Criminal Jurisdiction: Does the Long Arm of the Law Undermine the Rule of Law?" (2012) 12 Melb J Int'l L 1 W Ivor Jennings, The Law and the Constitution (5th ed, University of London Press, 1959) P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) D Miers, State Compensation for Criminal Injuries (1997, Blackstone Press) W Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) Pricewaterhouse Coopers, Review of the Victims Compensation Fund (2012) M C Pryles "The Applicability of Statutes to Multistate Transactions" (1972) 46 ALJ 629 D Swinfen, Imperial Control of Colonial Legislation 1813-1865 (Clarendon Press, Oxford, 1970) R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria (2nd ed, 1863, facsimile, Sydney University Press, 1974) F Trindade, "The Australian States and the Doctrine of Extra-territorial Legislative Incompetence" (1971) 45 ALJ 233 A Twomey, The Constitution of New South Wales (Federation Press, 2004) D Ward, "Legislation, Repugnancy and the Disallowance of Colonial Laws: The Legal Structure of Empire and Lloyd's case (1844)" (2010) 41 VUW L Rev 381 G Williams, S Brennan and A Lynch, Blackshield and Williams Australian Constitutional Law and Theory (7th ed, 2018) Category: Principal judgment Parties: DRJ (First applicant) DRK (Second applicant) DRL (Third applicant) DRM (Fourth applicant) DRN (Fifth applicant) Commissioner of Victims Rights (Respondent) Representation: Counsel: K Eastman SC, D Hume (Applicants) J Emmett (Respondent)

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Huynh v Attorney General

Judgment

BELL P: I have had the very real benefit of reading in advance the lucid exposition and careful analysis of Leeming JA. I agree with his Honour's reasons and conclusion. These reasons are supplementary to those of Leeming JA and are directed to the importance and desirability of clear and explicit legislative drafting as to the territorial reach and operation of legislation.
As Leeming JA explains, this proceeding raises a superficially simple question. The question is one of statutory construction. It arises in relation to the Victims Rights and Support Act 2013 (NSW), which provides that a primary victim of an act of violence is eligible for support under the scheme provided for in the Act.
What connection, if any, must such a victim have with New South Wales to be eligible for compensation? Does the act of violence have to occur in New South Wales? Does the violence have to be perpetrated by a person ordinarily resident in New South Wales? Would that connecting factor be sufficient to engage the Act if there were no other connection with New South Wales? Would the Act apply if, for example, the victim and the perpetrator of the violence both resided outside of New South Wales but were temporarily present in New South Wales when the relevant act of violence occurred?
Questions such as these frequently arise in circumstances where a statute employs general or apparently universal language and where the subject matter which the statute addresses may occur or exist outside as well as within the territory in which the relevant legislature is located. They go to the extent of the application of a statute to property which may be situated, or conduct which occurs, either outside the territory of the enacting legislature or partly outside that territory.
In Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16 at [28] (Insight Vacations), the High Court asked the following series of questions in relation to s 5N(1) of the Civil Liability Act 2002 (NSW), which provides that "[d]espite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill": "So, is it the reference to a 'contract' in s 5N that is limited? Is the reference to a 'contract' to be read as limited to contracts that are made in the State, or to contracts, wherever made, whose proper law is that of the State? Or is there some geographical limitation to be applied by reference to the compound notion of 'a contract for the supply of recreation services?' That is, is s 5N limited to those supplies that are to be made in New South Wales?" The answer to none of these questions appeared explicitly in the text of the statute.
Another prominent example of a statutory provision, silent as to the sphere of its intended territorial operation, is the now repealed s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), of which it had been said that "ambiguity may be its only clear feature": McMillan v Mannix (1993) 31 NSWLR 538 at 542B. The section relevantly provided: "(1) If any person (hereinafter in this part referred to as the insured) has, whether before or after the commencement of this Act, entered into a contract of insurance by which the person is indemnified against liability to pay damages or compensation, the amount of the person's liability shall on the happening of the event giving rise to the claim for damages or compensation, and notwithstanding that the amount of such liability may not then have been determined, be a charge on all insurance moneys that are or may become payable in respect of that liability. … (4) Every such charge as aforesaid shall be enforceable by way of an action against the insurer in the same way and in the same court as if the action were an action to recover damages or compensation from the insured; and in respect of any such action and of the judgment given therein the parties shall, to the extent of the charge, have the same rights and liabilities, and the court shall have the same powers, as if the action were against the insured …"
Section 6 was considered by this Court in Chubb Insurance Company of Australia Ltd v Moore (2013) 302 ALR 101; [2013] NSWCA 212 (Chubb). One of the questions referred to the Court of Appeal and reproduced by Emmett JA and Ball J at [66] of their joint judgment was as follows: "Does section 6 [of the Law Reform (Miscellaneous Provisions) Act] create a charge on insurance moneys that are or may become payable under the Policies only where: the law of New South Wales is the governing law of the Insured's cause of action against the Plaintiffs in relation to indemnity for the Claimants' claim against the Insured; the locus of the relevant event that gives rise to the Claimants' claim against the Insured is in New South Wales; the law of New South Wales is the proper law of the Policy; the law of New South Wales is the law governing the cause of action of the Claimants said to give rise to the charge; the situs of the Insured's choses in action against the Plaintiffs under the Policies is New South Wales; the law of New South Wales is the law with the closest and most real connection to the Policy; and/or there is some other territorial connection between the Policy or the claim made by the Claimants, and New South Wales?"
Questions such as these and those raised in Insight Vacations and in the present proceedings are questions which s 12 of the Interpretation Act 1987 (NSW) (Interpretation Act) provides some assistance in answering. That section provides: "(1) In any Act or instrument - (a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales. (2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words 'New South Wales' or 'of New South Wales' merely because those words form part of the body's name or title."
The assistance provided in the interpretation of a statute by s 12 of the Interpretation Act and its Commonwealth (Acts Interpretation Act 1901 (Cth) s 21(1)(b)) and state analogues (see Legislation Act 2001 (ACT) s 122(1)(b); Interpretation Act 1978 (NT) s 38(1)(b); Acts Interpretation Act 1954 (Qld) s 35(1)(b); Acts Interpretation Act 1931 (Tas) s 27(b); Interpretation of Legislation Act 1984 (Vic) s 48(b)) is somewhat limited, however, principally because s 12 is subject to the contrary intention appearing in either the Interpretation Act itself or, more commonly, in the statute being construed: Interpretation Act s 5(2). And the "contrary intention" may appear not only expressly but by implication.
Contrary legislative intention sufficient to rebut or displace the operation of s 12 of the Interpretation Act may be evinced by any of the following: (i) express words: see, for example, Waller v Freehills (2009) 177 FCR 507; [2009] FCAFC 89; (ii) necessary implication: see, for example, Macleod v Attorney-General (NSW) [1891] AC 455 at 457-458 (Macleod); (iii) reading the Act as a whole: see, for example, University of Birmingham and Epsom College v Commissioner of Taxation (Cth) (1938) 60 CLR 572 at 579-80; [1938] HCA 57 (Birmingham University); (iv) if the legislative purpose would otherwise be frustrated: see, for example, Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101; [1995] FCA 1012; or (v) if the contrary intention is indicated by "the object, subject matter or history of the enactment": see, for example, Schmidt v Government Insurance Office (NSW) [1973] 1 NSWLR 59 at 67-68. See generally P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [9.280] (Herzfeld and Prince).
Section 12 of the Interpretation Act thus provides at best a starting point for the analysis. The same may be said for certain common law principles of statutory interpretation sometimes expressed as presumptions: see, for example: (i) the presumption that legislation does not apply to persons and matters outside the territory to which the legislation extends, i.e. that it does not have extraterritorial application or operation: Seaegg v The King (1932) 48 CLR 251 at 255; [1932] HCA 47; Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10 at 30-31; [1966] HCA 11 (Meyer Heine); D151 v New South Wales Crime Commission (2017) 94 NSWLR 738; [2017] NSWCA 143 at [19]-[21]; Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development (2018) 336 FLR 37; [2018] NSWCA 174 at [154]-[156]; (ii) the converse presumption that legislation applies both to locals and foreigners, and local and foreign matters, within the territory to which the statutory instrument extends: Walker v New South Wales (1994) 182 CLR 45 at 49-50; [1994] HCA 64; Clark (Inspector of Taxes (UK)) v Oceanic Contractors Inc [1983] 2 AC 130 at 145; and (iii) the presumption that legislative provisions do not apply to cases which, according to conflict of laws rules, are governed by foreign law: Wanganui-Rangitikei Electric Power Board (NZ) v Australian Mutual Provident Society (1934) 50 CLR 581 at 601; [1934] HCA 3 (Wanganui); Gosper v Sawyer (1985) 160 CLR 548; [1985] HCA 19; Insight Vacations at [30].
Leeming JA has located the origins of s 12 of the Interpretation Act in s 8 of the Acts Shortening Act 1852 (NSW) 16 Vict 1, the text of which is set out in [92] of his Honour's reasons for judgment. Unlike many other colonial statutes or provisions of colonial statutes, s 8 of the Acts Shortening Act does not appear to derive from a cognate provision or enactment in the United Kingdom. It is "home grown" and its origins are likely to be explained by the historical context of the early 1850s and, in particular, the enactment at Westminster in 1850 of "an Act for the better Government of Her Majesty's Australian Colonies" (Australian Constitutions Act (No 2) 1850 (Imp) 13 & 14 Vict c 59) (Australian Constitutions Act). This significant piece of constitutional legislation made provision for the separation of territory from the colony of New South Wales and for the establishment of the colony of Victoria. This occurred in 1851: see A Twomey, The Constitution of New South Wales (Federation Press, 2004) at 39 (Twomey).
The Australian Constitutions Act also made provision in s 34 for the future further separation of what was to become, in 1859, the colony of Queensland. But agitation for the creation of such a colony was a hot button political issue in both New South Wales and Moreton Bay in the years immediately preceding the passage of the Acts Shortening Act in 1852: see William Coote, History of the Colony of Queensland from 1770 to the Close of the Year 1881 (William Thorne, 1882) chs v-vii.
In other words, with the emergence and prospective emergence of closely neighbouring colonies with their own legislative authority, the progenitor of s 12 of the Interpretation Act, namely s 8 of the Acts Shortening Act, operated, subject to contrary intention, to delimit the sphere of operation of New South Wales' laws to "localities jurisdictions and other matters and things … within and of the said Colony" in circumstances where it was no doubt anticipated that the legislatures of the newly created colonies would shortly enact laws over and in respect of territory to which the laws of the colony of New South Wales previously applied and over which the Legislative Council of the Colony of New South Wales had enjoyed and exercised legislative competence.
In one sense, the purpose of s 8 of the Acts Shortening Act may have been to contract or confine the operation of existing New South Wales statutes consistent with the physical contraction of the size of the colony contemplated in the Australian Constitutions Act and effected, in relation to the territory that had become the colony of Victoria, by the time of the passage of the Acts Shortening Act in 1852.
In another sense, s 8 of the Acts Shortening Act may have been otiose: Professor Twomey has suggested that "[e]arly cases concerning the powers of colonial legislatures suggested that their legislative powers were confined to the area of their territory and could not have an extraterritorial operation": Twomey at 53 (footnote omitted). See also D G Hill, "Constitutional Power and Extraterritorial Enforcement" (1996) 19 UNSWLJ 45 at 50 (Hill); and Croft v Dunphy [1933] AC 156 at 162.
That was certainly the case with regard to crime: "All crime is local" said Lord Halsbury LC in Macleod at 458, a case concerning s 54 of the Criminal Law Amendment Act 1883 (NSW) 46 Vict 17 which provided that, "whosoever being married marries another person during the life of the former husband or wife wheresoever such second marriage takes place shall be liable to penal servitude for seven years" (emphasis added). Mr Macleod had married Mary Manson in 1872 at Darling Point and, during her lifetime, had also married Mary Cameron in 1889 at St Louis in the State of Missouri. He was later tried and convicted in New South Wales for the offence of bigamy. In setting aside the conviction and delivering the advice of the Privy Council, the Lord Chancellor said (at 456-457): "There is no limit of person, according to one construction of 'whosoever'; and the word 'wheresoever' is equally universal in its application. Therefore, if their Lordships construe the statute as it stands, and upon the bare words, any person, married to any other person, who marries a second time anywhere in the habitable globe, is amenable to the criminal jurisdiction of New South Wales, if he can be caught in that Colony. That seems to their Lordships to be an impossible construction of the statute; the Colony can have no such jurisdiction, and their Lordships do not desire to attribute to the Colonial Legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with the powers committed to a colony, and, indeed, inconsistent with the most familiar principles of international law. It therefore becomes necessary to search for limitations, to see what would be the reasonable limitation to apply to words so general; and their Lordships take it that the words 'Whosoever being married' mean, 'Whosoever being married, and who is amenable, at the time of the offence committed, to the jurisdiction of the Colony of New South Wales.' The word 'wheresoever' is more difficult to construe; but when it is remembered that in the Colony, as appears from the statutes that have been quoted to their Lordships, there are subordinate jurisdictions, some of them extending over the whole Colony, and some of them, with respect to certain classes of offences, confined within local limits of venue, it is intelligible that the 54th section may be intended to make the offence of bigamy justiceable all over the Colony, and that no limits of local venue are to be observed in administering the criminal law in that respect. 'Wheresoever,' therefore, may be read, "Wheresoever in this Colony the offence is committed."
The limited view of the legislative reach of a sovereign state, being confined to that polity's territorial borders (with an exception for the acts beyond those borders of a nation's citizens), was also the received position in the United States in the 19th century: see The Appollon 22 US 362 (1824) at 370; and American Banana Co v United Fruit Co 213 US 347 (1909) at 357.
The exercise of statutory construction which arises in the present case is not dissimilar to that which arose in Macleod but one important difference is that the view expressed in that case as to the ability of a colonial legislature to pass legislation with extraterritorial effect has undergone significant change: see Twomey at 53-56. For a similar shift in the federal and state law of the United States, see H L Buxbaum, "Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy" (2017) 27 Duke J Comp & Int'l L 381 at 386-388. And it is no longer accurate to describe all crime as local: D Ireland-Piper, "Extraterritorial Criminal Jurisdiction: Does the Long Arm of the Law Undermine the Rule of Law?" (2012) 12 Melb J Int'l L 1 and see, for example, s 10C of the Crimes Act 1900 (NSW) reproduced at [31] below. See also Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65 at [18]-[19].
It is now well established that state legislatures may pass laws with extraterritorial operation and effect at least so long as there is a sufficient territorial nexus with the state enacting the relevant legislation: Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55. The nexus may be relatively slight and a state legislature is competent to "make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of [any liability]": Broken Hill South Ltd (Public Officer) v Commissioner of Taxation (NSW); (1937) 56 CLR 337 at 375; [1937] HCA 4 (Broken Hill South). In the same case, Dixon J said (at 375) that "[i]f a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers".
In Mynott v Barnard (1939) 62 CLR 68; [1939] HCA 13 (Mynott), decided two years after Broken Hill South, it fell to the Court to construe s 5(1) of the Workers Compensation Act 1928 (Vic). Latham CJ observed at 73 that: "Some territorial limitation must be introduced in the construction of the section. The court has been offered an embarrassing choice of possible limitations."
The potential difficulty for the task of statutory interpretation is further compounded by the fact that, although any one of a number of potential connecting factors may supply the requisite territorial nexus, it is not necessary for every possible aspect or element of a legislative provision to be read as territorially limited: Herzfeld and Prince at [9.290].
State legislatures thus may pass laws which operate or purport to regulate conduct or actions which occur either wholly outside the state (at least so long as there is a sufficient nexus with the state) or to conduct or actions that occur partly within and partly outside the territory. The extent to which a legislature has intended to use its legislative competence to pass laws with extraterritorial effect, and the connecting factor or factors by reference to which it has chosen to exercise such power, are regrettably not always and indeed are frequently not made apparent on the face of any given enactment.
Further, in the interpretation of such legislation, there may be something of a tension between s 12 of the Interpretation Act and s 31(1) of the same Act which provides that New South Wales legislation is to "be construed as operating to the full extent of, but so as not to exceed, the legislative power" of the State Parliament cf Insight Vacations at [28]. This potential tension may also contribute to the difficulty faced by a court tasked with ascertaining the intended territorial reach of a given statute.
It is essential for lawyers and those who seek legal advice about their legal rights and obligations to know whether and to what extent a statute applies to particular conduct or occurrences which have a connection with a particular territory but which may not occur wholly within that territory. As has been noted at [9] above, s 12 of the Interpretation Act provides only limited assistance in this regard. Whilst its pedigree which has been observed above is of considerable historical interest, in terms of cross-border activity, the world was radically different in 1852 when the Acts Shortening Act was passed than it is today. Then, the concern of the colonial legislature included the completion of bridges over the Cataract and Nepean Rivers (Cataract and Nepean Bridges Act 1852 (NSW) 16 Vict), the definition of the width of gauges for railways to be constructed in the colony of New South Wales (Railways Gauge Act 1852 (NSW) 16 Vict 5), the establishment of the colonial gunpowder magazine on Goat Island (Gunpowder Magazine Act 1852 (NSW) 16 Vict 47) and the consolidation and amendment of the "Laws relating to Steam Navigation" (The New South Wales Steam Navigation Act 1852 (NSW) 16 Vict 46).
It is more than trite to observe that, with developments in transport and technology, vastly more commercial activity traverses territorial borders and boundaries than it did in the 1850s. This is so not only in terms of the physical movement of people and goods but also in terms of the provision of services and other activities such as electronic funds transfer, publications and contract formation via the internet where the use of technology means that physical boundaries are wholly bypassed.
It is less trite to observe that, despite these vast changes, we find, in s 12 of the Interpretation Act and its cognate provisions in other States and the Commonwealth, the same or at least a virtually unchanged legislative tool that was created almost 170 years ago still being relied upon as a default guide to the territorial reach and operation of legislation. Its value and utility has, however, diminished, both with the times and with changing attitudes to the extraterritorial operation of laws, cf the changing attitude to what was once described as long-arm or "exorbitant" jurisdiction: Hyde v Agar (1998) 45 NSWLR 487 at 506-511. As Kirby P observed more than a quarter of a century ago in Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 at 428: "Modern means of transport and other forms of communication make an excessively narrow approach to territorial connection inappropriate and likely to defeat the intended operation of at least some State statutes."
These observations and the trends they reflect make all the more acute the need for clear legislative guidance to be given to the geographical or territorial reach of statutory enactments.
Sometimes, useful and clear legislative guidance is given as to the territorial reach and intended operation of particular statutes. The guidance may employ different drafting formulae or techniques.
Examples in the Commonwealth sphere include: 1. the Competition and Consumer Act 2010 (Cth), s 5(1) of which provides that: "Each of the following provisions … extends to the engaging in conduct outside Australia by: … (g) bodies corporate incorporated or carrying on business within Australia; or (h) Australian citizens; or (i) persons ordinarily resident in Australia …"; 1. the Criminal Code Act 1995 (Cth), s 272.6 of which provides: "A person must not be charged with an offence against this Division that the person allegedly committed wholly outside Australia unless, at the time of the offence, the person was: (a) an Australian citizen; or (b) a resident of Australia; or (c) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or (d) any other body corporate that carries on its activities principally in Australia"; 1. the Interactive Gambling Act 2001 (Cth), s 14 of which provides that: "Unless the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia"; 1. the Migration Act 1958 (Cth), s 228A of which provides that: "This Subdivision [People smuggling and related offences] applies in and outside Australia"; 1. the Student Assistance Act 1973 (Cth), s 342(1) of which provides that "This division extends to: (a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and (b) all people irrespective of their nationality." See also Australian Border Force Act 2015 (Cth) s 7; Corporations Act 2001 (Cth) s 908AF; Privacy Act 1988 (Cth) s 5B; and Road Vehicle Standards Act 2018 (Cth) s 10.
Examples of New South Wales legislation where clear guidance is given as to the territorial operation and reach of the statute include: 1. the Biodiversity Conservation Act 2016 (NSW), s 12.25 of which provides that: "A notice may be given under this part to a person in respect of a matter even though the person is outside the State or the matter occurs or is located outside the State, so long as the matter affects the environment of this State"; 1. the Crimes Act 1900 (NSW), s 10C of which provides that: "(1) If - (a) all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and (b) a geographical nexus exists between the State and the offence, the person alleged to have committed the offence is guilty of an offence against that law. (2) A geographical nexus exists between the State and an offence if - (a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or (b) the offence is committed wholly outside the State, but the offence has an effect in the State." 1. the Fair Trading Act 1987 (NSW), s 5A of which provides that: "(1) This Act is intended to have extraterritorial application in so far as the legislative powers of the State permit. (2) Without limiting subsection (1), this Act extends to conduct either in or outside the State that: (a) is in connection with goods or services supplied in the State; or (b) affects a person in the State; or (c) results in loss or damage in the State."; 1. the Legal Profession Uniform Law 2014 (NSW), s 4 of which provides that: "The operation of this Law is, as far as possible, to include operation, according to its terms, in relation to the following - (a) things situated within or outside the territorial limits of this jurisdiction; (b) acts, transactions and matters done, entered into or occurring within or outside the territorial limits of this jurisdiction; (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction." See also Building and Construction Industry Security of Payment Act 1999 (NSW) s 32E; Mining Act 1992 (NSW) s 387B; National Energy Retail Law 2012 (NSW) s 17; Pesticides Act 1999 (NSW) s 33; Petroleum (Onshore) Act 1991 (NSW) s 129A; Protection of the Environment Operations Act 1997 (NSW) ss 109 and 212B; Water Management Act 2000 (NSW) s 340D; and Work Health and Safety Act 2011 (NSW) s 155A. For a valuable analysis of the extraterritorial operation of statutes proscribing misleading or deceptive conduct, see J T Gleeson, "Extraterritorial Application of Statutes Proscribing Misleading Conduct" (2005) 79 ALJ 296.
Writing extra-judicially in 1996, Justice Hill of the Federal Court observed that it was a feature of modern stamp duty legislation that the territorial nexus was often clearly spelled out: Hill at 49, citing Myer Emporium Ltd v Commissioner of Stamp Duties (1967) 68 SR (NSW) 220 cf ACI Resources Ltd v Commissioner of Stamp Duties (NSW) (1986) 86 ATC 4810.
Sometimes, as in the case of s 12 of the Interpretation Act, legislative guidance is provided but is of limited utility. As I have already noted at [11], that section is at best a starting point for the analysis but it is a starting point that may be readily rebutted.
Often, however, and perhaps more commonly, no guidance is given at all by legislatures as to the territorial reach and operation of a particular statute and it is often necessary to litigate in order to secure an answer or at least to bring clarity to the question. Recent examples of this include this Court's decision in Chubb and that of the High Court in Insight Vacations.
Where no guidance is given, courts have had to resort to concepts such as the "hinge" around which a particular statute operates: see, for example, the decisions of the High Court in Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274; [2006] HCA 24 at [22] and Insight Vacations. At [30] of its judgment in Insight Vacations, the Court held that such a "hinge" must be determined on the relevant Act's "proper construction", taking into account its context and subject matter. This approach was adopted in Chubb, with Emmett JA and Ball J (at [146]-[147]) emphasising the primacy of the statutory context and subject matter over the presumed limitation of territorial scope to matters governed properly by the lex fori: Wanganui at 601, or to the legislative competence of the parliament: Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 at 406; [1932] HCA 52.
In Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2018] WASCA 90, Mitchell and Beech JJA clarified the conceptual nature of the legislative "hinge" and reconciled it with the established principles of statutory construction. Their Honours said at [167]: "An approach taken in some cases is to identify the central concern of the legislation to see if that reveals the criterion, or 'hinge', by reference to which the Act operates: Insight Vacations at [30]; Chubb at [144]. There are many cases in which an approach along these lines is taken … In our view, they demonstrate that the ascertainment of the territorial scope or the criterion of a statute is a matter of construction of the legislation on which the use of a presumption will often be of very limited, if any, assistance …" and continued at [172]-[173]: "In Insight Vacations, the High Court considered the spatial reach or criterion of operation of s 5N of the Civil Liability Act 2002 (NSW). That provision concerned contracts for the supply of recreation services. It was part of div 5 of that Act, which applied in respect of liability in negligence for harm to a person resulting from a recreational activity engaged in by that person. The court construed the legislation as identifying the relevant geographical limitation as the place of performance of the contract, regardless of the proper law of the contract. … [T]he criterion of operation [i.e. 'hinge'] of the statute was discerned by a process of proper construction, paying close attention to the subject matter, purpose and context of the Act in question. That is the approach we take …"
The identification of the relevant "hinge" or "central conception" is frequently far from straightforward and the passage of legislation on the basis of "unstated assumptions" as to its reach (see Insight Vacations at [16]) is less optimal than clear legislative guidance on the subject. In matters which may be of great significance, a definitive answer to the operation of a statute may require litigation right up the appellate chain, as the history of the current case demonstrates. The weakness of the presumption to which s 12 of the Interpretation Act gives effect and the multiplicity of connecting factors upon which a particular statute may be "hinged", coupled with the scope for differences of opinion as to that matter, calls for far greater, more explicit and more regular attention to be paid to this matter by legislative drafters in the discharge of their important responsibilities.
Even with the best will in the world and the assistance of the most able of counsel, there will often be considerable difficulty entailed in teasing out from a statute that is otherwise silent the intended sphere of its operation. And, as Leeming JA explains, cases where an interpretation provision is displaced by reason of an identified contrary intention are frequently highly contestable. As Emmett JA and Ball J acknowledged in Chubb at [205], having concluded that the territorial "hinge" of s 6 of the Law Reform (Miscellaneous Provisions) Act was the institution of a claim in a New South Wales court: "… the answer suggested above is certainly not without doubt. The answers advanced by the various parties discussed above have some merit, despite the anomalies that may result. Indeed, no doubt there are anomalies in the approach suggested above. Nevertheless, the suggested approach accords with the language and policy of s 6 and has the additional merit of providing, despite the complexity and opacity of s 6, some measure of certainty as to whether s 6 will apply in any particular case."
Difficulties of the kind described above are by no means novel: see, for example, the discussion in M C Pryles "The Applicability of Statutes to Multistate Transactions" (1972) 46 ALJ 629; S Dutson, "The Territorial Operation of Statutes" (1996) 22 Mon LR 69. See also S Dutson, "The Conflict of Laws and Statutes: The International Operation of Legislation Dealing with Matters of Civil Law in the United Kingdom and Australia" (1997) 60 MLR 668.
The present case, Insight Vacations and Chubb are simply recent examples of the difficulty of lacunae as to territorial operation being left in important legislation. Earlier examples which required litigation all the way through to the High Court in order to achieve a definitive answer to the sphere of a statute's territorial operation include Birmingham University; Mynott; Meyer Heine; Kay's Leasing Corporation Pty Ltd v Fletcher (1964) 116 CLR 124; [1964] HCA 79; Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418; [1970] HCA 31; and Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397; [2003] HCA 43.
The legislation under consideration in the present case provides no explicit answer to the question of the extent of the Victims Rights and Support Act's application to primary victims who sustain injuries beyond New South Wales. As indicated at the outset of these reasons, I agree with Leeming JA's analysis of and answer to the question but the complexity and contestability of the analysis underscores my observation as to the desirability of explicit legislative guidance on such questions.
MEAGHER JA: I agree with Leeming JA.
LEEMING JA: This proceeding raises a superficially simple question of construction of the Victims Rights and Support Act 2013 (NSW), a statute which permits applications to be made for recognition payments and counselling by persons who are "victims" of an "act of violence". Does the statute apply to the plaintiffs' claims for recognition payments and counselling? More precisely, if the act of violence occurs outside New South Wales, but is either committed by a former resident of New South Wales or an offence contrary to New South Wales law (or, perhaps, federal law), or both, then does the statute apply?
For the reasons which follow, I agree with the conclusions expressed by officers acting on behalf of the Commissioner of Victims Rights, and by NCAT on administrative review, that the Act does not apply and the plaintiffs' applications were rightly dismissed.