Dugan v Mirror Newspapers Ltd

Dugan v Mirror Newspapers Ltd - [1978] HCA 54 - HCA 1978 case summary — Zoe

[24]

It hath been held that, if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every English subject, are immediately there in force But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to the condition of an infant Colony; such, for instance, as the general rules of inheritance and protection from personal injuries. The artificial requirements and distinctions incident to the property of a great and commercial people, the laws of police and revenue (such especially as are enforced by penalties), the mode of maintenance of the established Church, the jurisdiction of spiritual Courts, and a multitude of other provisions are neither necessary nor convenient for them, and therefore are not in force. The same test has been adopted under s. 24 of 9 Geo. IV c. 83 which applied to New South Wales the laws and statutes in force in 1828. The question has been said to be, was the law "suitable or unsuitable in its nature to the needs of the Colony", or could it "be reasonably applied in the existing circumstances of the Colony": see Quan Yick v. Hinds [6] . In applying these tests it would not be right, in my opinion, to ask whether the law in question was applicable to the conditions existing in a penal settlement. The ordinary rules relating to the adoption of English law in a settled colony have been held to be applicable in relation to New South Wales: Cooper v. Stuart [7] . It would indeed be a poor birthright if the common law inherited by the settlers of New South Wales was only that applicable to the condition of persons living in an open penitentiary. In any case, "as the population, wealth and commerce of the Colony increase, many rules and principles of English law which were unsuitable to its infancy, will gradually be attracted to it": per Lord Watson in Cooper v. Stuart [8] . That statement of course does not mean that statutes enacted in England after 1828 were introduced into the law of New South Wales; what Lord Watson probably meant was that that part of the common law which is suited to a more advanced state lies dormant until occasion arises for enforcing it: see Delohery v. Permanent Trustee Co. of N.S.W. [9] , per Barton and O'Connor JJ. The argument advanced on behalf of the applicant in the present case rests on the assumption that only the law applicable to the primitve state of society in New South Wales in 1828 became part of the law of the colony, but that assumption is in my opinion erroneous. 1. (1905) 2 C.L.R. 345, at pp. 356, 367, 378. 2. (1889) 14 App. Cas. 286, at p. 291. 3. (1889) 14 App. Cas., at p. 292. 4. (1904) 1 C.L.R. 283, at p. 291.

[35]

If then attention be exclusively confined to the express terms of ss. 416 to 421 of the Colonial Act of 1883 the proper conclusion would be, not that by mere silence the pre-existing common law had in some way been impliedly repealed, but rather that this enactment left unaffected, as part of the subsisting common law, those disabilities which flowed from attainder and which in England, by s. 8 of the Imperial Act of 1870, no longer depended upon the common law but were now, instead, dealt with by statute. This conclusion would be confirmed by the fact that a comparison of the two measures would reveal that whereas both abolish forfeiture only the United Kingdom Act, by s. 1, abolishes attainder, the corresponding section of the Colonial Act, s. 416, making no reference to attainder or its abolition. It is true that the sidenote to s. 418, "Disabilities of felony", might then appear inappropriate in so far as it suggests that the section is the exclusive repository of those disabilities which are to be visited upon felons. But sidenotes are at most only a quite minor aid, "a most unsure guide", in statutory interpretation (Reg. v. Schildkamp [14] ) and can in no way prevail against failure of the statute either expressly or by necessary implication to repeal the pre-existing common law. The statute's silence on the question of attainder would thus leave its common law consequences untouched. The reaching of this conclusion is, of course, assisted by the fact that the Act of 1883 is itself no criminal code, comprehensive and exclusive: although the Commissioners' Report does refer to their draft Bill as "this extensive code", the use of this term is then immediately, and very properly, qualified by the parenthetical disclaimer, "if the term may be thought not too ambitious". Being no more than what its title indicates, namely "An Act to consolidate and amend in certain respects the Criminal Law", its provisions provide no necessarily definitive and exclusive source of law for the subject matter with which it deals. That it deals with some aspects only of a particular topic by no means signifies that the common law no longer governs aspects on which it is silent.

[44]

One starts with the Attorney-General's statement that the clause applied to misdemeanours as well as to felonies, a statement which was calculated to make any late nineteenth century legislature recoil from a measure which was thus said to apply notions of "civil death" to every convicted person, no matter how trivial the misdemeanour of which he had been convicted or how short the term of imprisonment he was to serve. This perhaps explains the Attorney-General's ready acceptance of the major reshaping of the clause which was the immediate sequel. Moreover that reshaping seems itself to have been infected by still further misconceptions. In seeking the retention of a prisoner's right to dispose of his property the mover of the amendment is plainly disregarding an important feature of the scheme involved in these six sections, a feature upon which the Commissioners prided themselves in their Report, namely the use of the Colony's Insolvency Act provisions so that a felon's property might be vested in an administrator and administered for the benefit of his creditors and his wife and children. This, together with superadded misconceptions, is again reflected in the objection voiced to the latter part of the clause as implying that a prisoner's wife would derive no benefit from his property: under the clauses, both as proposed and as enacted - see ss. 420 and 421 - a felon's wife and children might derive benefit from his property by means of distributions made by the administrator from his sequestrate estate. But in any event the latter part of cl. 420 was wholly irrelevant to all this; it was directed to a distinct subject matter, having as its wholly benevolent aim the conferring upon a felon's wife of capacity to sue and to acquire property in her own right during her husband's disability, despite her status as a married woman. To omit this provision served no purpose at all germane to the concern of the mover of the motion, that a wife might derive benefits from her convicted husband's property. The Attorney-General's reintroduction of the provision into cl. 420 some weeks later was no doubt prompted by a belated recognition of this.

[54]

One concluding observation on this topic may be permitted. The important place which legislative history has assumed this century in the United States seems to me likely to mislead if sought undiscriminatingly to be applied to our own legislation, the product of a legislature operating on the Westminster model. Even on its home ground its full acceptance is of relatively recent growth. Holmes J. could still speak, in 1922, of speculation about the purposes or construction of a statute based upon the vicissitudes of its passage through the legislature as "a delicate business" (Pine Hill Coal Co. Inc. v. United States [18] ): and see generally Mr. Justice Frankfurter, Some Reflections on the Reading of Statutes, Columbia Law Review, vol. 47 (1947), p. 526, the recent paper by Professor Murphy on the "plain meaning rule" in the Columbia Law Review, vol. 75 (1975), p. 1299, the note on recent Canadian developments by Professor Hudon in the Canadian Bar Review, vol. 55 (1977), p. 370 and American Jurisprudence 2d, vol. 73, pars. 169 et seq. What was said by Jackson J. in Schwegmann Bros. v. Calvert Distillers Corporation [19] , that the court should "not go beyond Committee Reports, which presumably are well considered and carefully prepared", whether or not it represents the majority view in the United States, does draw attention to one reason why United States' practice in statutory interpretation is likely to prove inappropriate to our Westminster system. From Congress' legislative process there emerges legislation differing quite markedly in form from that to which we are accustomed in this country; accompanying that legislation are Committee Reports of which there are here no local equivalents. Professor Corry's treatment of all this in his paper, The Use of Legislative History in the Interpretation of Statutes, Canadian Bar Review, vol. 32 (1954), 624, esp. at pp. 633-635 , demonstrates why the quite different legislative environment of the United States is inherently unlikely to provide appropriate guidance to the use of legislative history in our parliamentary system.

[66]

I turn now to the question whether the law as it had developed in England was a law which could be applied in the colony at the time when 9 Geo. IV c. 83 was passed. What would that law be if it were applied and as it would be applied in the colony? It would be that a person who had been sentenced to death for a felony committed in New South Wales and who was kept to penal servitude as a condition of the penalty of death being respited was disabled to bring any action in New South Wales. The question to be determined is no wider than that. Whether or not a person sentenced to death in England and transported to New South Wales for life or for a term of years not then expired was disabled to bring an action in New South Wales is a different question. It was not determined by Bullock v. Dodds [24] because in that case it was sought to bring the action in England. In the argument on the present application the reasons advanced why the English law was not applicable, as being unsuited to the needs of the colony, envisaged circumstances where emancipated transportees would have been unable to sue upon contracts or for wrongs done to them after their emancipation but before complete performance of the condition of respite from death and before any pardon under the Great Seal. Reliance was placed on Bullock v. Dodds [24] . But there are at least two answers to an argument based on this decision. First, Bullock v. Dodds [24] was a case where action was brought in England where the judgment of death had been given; it does not follow that a person lawfully at large outside the realm of England and in part of the King's dominions to which he had been transported was in those circumstances extra legem positus in that place. In England the person attainted under the common law was out of the protection of the King of England and lost the benefit of the King's writ. The writs were the writs of the King's courts in England. The attainder made the felon civiliter mortuus in the place under whose laws the judgment was pronounced. Thus attainder in the Court of Admiralty for an offence upon the high seas did not result in forfeiture of lands in England unless a statute so provided: see Co. Litt. 391 a. It therefore does not follow that an emancipated convict was out of the protection of the King in the place to which he had been transported. I would not be disposed to hold that he was and the law cannot be made to comprehend this different kind of case in order to establish that it was not suited to the conditions of the colony at the time. But when the law is taken to be that a person attainted in one place of the King's jurisdiction lost the benefit of bringing an action in that place so long as he was attainted, then there is no reason which I can see why that law was not suitable to be applied in the colony of New South Wales. But secondly, even if the rule be expressed more widely, the general subject matter had by 1828 received the attention of the Imperial Parliament. By 5 Geo. IV c. 84, s. 26 it was provided as follows:

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