Leask v Commonwealth [1996] HCA 29;

High Court of Australia|1996-11-05|Before: Kirby JJ

Background to the Act

The legislative history of the Act throws some light upon its subject-matter and that of s 31(1). It is convenient to start by looking at this.

In 1970 the Congress of the United States of America enacted the Currency and Foreign Transactions Reporting (sometimes called the ). That introduced the concept of cash transaction reporting as an exception to the normal confidentiality and secrecy expected of, and observed by, banks with respect to the banking affairs of their customers. For a time there was no move to copy that in Australia.

However, in 1984, the Royal Commission on the Activities of the Federated Ship Painters and Dockers Union (the Costigan Royal Commission) reported its findings and recommendations[167]. As a means of countering the "money trail" of illegal and corrupt transactions, the Royal Commissioner recommended that account holders in various financial institutions, including banks, should be required to verify their identity. He also recommended that financial transactions with overseas agencies should be monitored[168]. The Royal Commissioner was alert to the sensitivities involved in the establishment of a substantial computer data base. He suggested that information derived from taxation records should be expressly exempted. He concluded that financial institutions were frequently aware of when accounts held by them were being used to process ("launder") illicit profits[169]. He found that the staff of financial institutions sometimes engaged in dishonest dealings with corporate criminals and with other customers involved in illegal gambling. He reported that a serious trend of money being "laundered" through accounts bearing false names had been uncovered. The focus of the Royal Commission's report was not taxation law as such, still less the currency. It was what might be described as organised crime. To that extent it is misleading to describe the Costigan Royal Commission report as the principal inspiration for the Act [170].

Ostensibly in response to the Royal Commission report, the Australia Card Bill was introduced into the Parliament[171]. The universal identifier proposed by that Bill (to be known as the "Australia Card") was justified (amongst other grounds) by its suggested utility as a means of verifying banking and like financial accounts[172]. However, the Bill failed to pass the Senate. This led to the introduction of the Bill which, under a new title, subsequently became the Act in question in these proceedings. That Bill was presented to the Senate by the Minister for Justice in November 1987.

In December 1987 the Senate resolved to refer the Bill to the Standing Committee on Legal and Constitutional Affairs. The resulting report reflected continuing anxiety about the privacy aspects of the Bill, its effectiveness to reduce the "unlawful cash economy"[173] and the need for such a measure, given that no other comparable country had enacted similar legislation, following the United States precedent. A call was made for a review of the Act "not longer than 3 years, and that the review include the economic, taxation, privacy and law enforcement implications"[174]. The Government accepted this recommendation. The Bill then passed through the Parliament[175]. Under its original name the Act first came into effect, in part, in June 1988. Substantially, the Act did not commence to operate until 1990.

In 1993, the Senate Committee produced its follow-up report[176]. This recorded the activities of the Australian Transaction Reports and Analysis Centre (AUSTRAC) established by s 35 of the Act. With specific reference to s 31, which is challenged in these proceedings, the Senate Committee reported a number of suggested difficulties which had been brought to its attention. These included one submission calling for s 31 to be amended[177]:

"so that it only applies when there is an intention on the part of the alleged offender to evade the provisions of the Act. It is argued that the present formulation creates a strict liability offence and that this represents a departure from currently accepted criminal law principles."

According to the report, the Attorney-General's Department's submission recommended "the inclusion of mental elements in all the offences in the ... Act where there is presently none specified[178]." The Senate Committee accepted the foregoing submissions. It concluded[179]:

"[A] strict liability offence can infringe unacceptably upon the personal rights and liberties of individuals. The present formulation of section 31 creates a strict liability offence because it is not necessary to prove the guilty mind of the defendant."

The Senate Committee made a recommendation (number 17) that "there should not be strict liability under section 31". It suggested that the section be amended. No such amendment has been enacted.

The history of s 31 of the Act can thus clearly be traced to a provision in the United States Act designed to prevent the structuring of transactions with a "purpose of evading the reporting requirements ..."[180]. In the Supreme Court of the United States in Ratzlaf v United States[181], Ginsburg J, writing for the majority, explained "structuring" as:

"[T]o break up a single transaction above the reporting threshold into two or more separate transactions - for the purpose of evading a financial institution's reporting requirement."

As originally enacted by the Congress, the offence in the United States required proof that the accused was guilty of "wilfully violating" the anti-structuring provisions. Only then could a person be convicted of the offence[182]. Various appellate courts had divided on the question whether, under the United States law, a defendant's purpose to circumvent reporting obligations sufficed to sustain a conviction for "wilfully violating" the provision. The majority of the Supreme Court (Ginsburg J; with Stevens, Scalia, Kennedy and Souter JJ concurring) held that the prosecution had to prove that the defendant acted with knowledge that his conduct was unlawful. Blackmun J (with whom Rehnquist CJ, O'Connor and Thomas JJ joined) held to the contrary. As a result of the decision in Ratzlaf the United States Congress amended the section to delete the reference to "wilfulness". However, the section remains a penal one. It still talks of "the purpose of evading". It provides penalties for violations of the section.

Before the Australian Parliament the Minister, on the introduction of the Bill, described the types of conduct to which he asserted the measure was directed[183]:

" The Bill represents one of the most significant initiatives to counter the underground cash economy, tax evasion and money laundering. It is notorious that the underground cash economy provides great scope for tax evasion both domestically and internationally. It is clear that traditional investigative techniques have been ineffective in identifying financiers of major crime, because of the ease with which such persons are able to distance themselves from the actual criminal conduct. However, experience both in Australia and overseas has shown that criminal financiers associate more closely with the profits of crime. That experience also shows that cash is an important part of financing criminal activity.

The legislation is consistent with calls by a number of royal commissions and other inquiries in recent years for stronger measures to deal with the widespread abuse of the facilities of financial institutions in relation to tax fraud and other criminal activities."

Commentary on the Act has ranged from the sceptical and hostile[184] to the laudatory[185]. If the Act be within power, this Court is not concerned, as such, with the merits of the legislation, with its wisdom, the need for it or the reasonableness of its provisions. Those questions are for the Parliament. However, debates concerning the merits of a law may sometimes help to cast light upon a suggestion that a provision of the law is outside the scope of the constitutional grant of power or is so disproportional to the achievement of any constitutionally authorised subject-matter as to take it beyond power. These were the bases upon which Mr Leask challenged the validity of s 31(1) of the Act.

The constitutional validity of s 31 of the Act has not been the subject of examination by this or any other Court. However, in August 1995, the Court of Criminal Appeal of South Australia upheld the constitutional validity of s 24 of the Act dealing with offences relating to false bank accounts. In Rogers v The Queen[186] that Court held that, although the requirements of the section were sweeping, the constitutionality of s 24 of the Act was established. Doyle CJ said[187]:

"I am conscious of the fact that it is not sufficient to support the law to assert that it will assist in or remove impediments to the collection of Commonwealth taxation. More than that is required. But once one accepts, as I do, that the `cash economy' and the operation of accounts in false names are significant means of evading liability to pay Commonwealth tax, it seems to me that a measure which prevents the operation of accounts in a false name does disclose a sufficient connection to the power to make laws with respect to taxation. I have already explained why it does not seem to me that the law is not reasonably proportionate to the end in view."

Should a like conclusion be reached by this Court in respect of s 31? The principles which guide the approach of the Court in considering the constitutional validity of such a provision include, relevantly:

1. The primary task is the characterisation of the law in question. That is why it is useful to study the Act as a whole and to seek to understand its history and intended operation. Windeyer J once described the word characterisation as "uncouth for grammarians and those who care for English undefiled"[188]. However, it is now too late to extirpate it from this realm of discourse. The fact that a law may have several characters will not deprive it of constitutional validity if the impugned provision can fairly be characterised as a law with respect to one or more of the designated heads of legislative power contained in the Constitution [189].

2. In determining the characterisation of the law, it should be remembered that the words "with respect to" in s 51 of the Constitution are words of very wide connection and deliberately so[190]. Furthermore, as well as the express incidental power, account must be taken of the implied grant of legislative power inherent in the very fact that the heads of power appear in a constitution[191].

3. Whether it is alleged that the impugned law falls within the "core" of a grant of power under s 51, or within the incidental scope of the power, there is but a single grant[192]. The basic test for validity is still the same, viz whether a sufficient connection has been shown between the law in question and the subject-matter of the head of power[193].

4. In order to assess the sufficiency of the connection, the Court may begin by analysing how the impugned law would operate "by reference to the nature of the rights, duties, powers and privileges which [the law] changes, regulates or abolishes"[194]. In judging such sufficiency, it is not necessary to demonstrate an express link between impugned law and the power. Nor is it sufficient that the law expressly refers to the head of power or affects it in passing. It is enough that the practical effect of the law is accepted as having sufficient connection and thus the requisite character[195].

5. The connection between the law and the subject-matter of the power will not be sufficient if it is remote, tenuous, insubstantial, exiguous or fortuitous[196]. The enactment of the law as a "peg" upon which to hang legislation which, properly analysed, is really a law with respect to a different subject-matter, will on that ground fail the test of sufficient connection required to support constitutional validity[197];

6. Whilst the title to an Act, its preamble and statement of objects may sometimes be usefully referred to in aid of a task of constitutional characterisation, they may not usurp the function of the courts[198]. Neither by the title and preamble nor by any statutory statement of an Act's objects can the Parliament cure constitutional invalidity where the Court finds such invalidity to exist. Nor can a Ministerial statement speak the Act into constitutional validity where such validity is missing. The duty of the Court is to scrutinise the purpose of Parliament as expressed in the words enacted, not in the Minister's statement or other documents[199].

7. In considering the sufficiency of the suggested connection between the law, so characterised, and the constitutional head of power relied on, some recent observations in this Court have remarked that it may be useful to apply a test of "proportionality" to the impugned provision[200]. This test has not enjoyed universal favour. Behind the expressed doubts lies more than resistance to a legal concept with an origin outside the common law. The risk that assessments of proportionality may take a court into evaluation of policy and judgment on the desirability of the means employed by the law occasions the hesitation to embrace the notion of proportionality as a universal criterion for constitutional validity. Distinctions have been drawn (repeated in this case) between the value of the concept in cases where the constitutional power is conferred in purposive terms, cases where the power is expressed as restricted by a limitation and other cases[201]. Such distinctions find no reflection in the concept of proportionality in the legal systems from which that concept was originally derived. They were not mentioned in the authorities by which the concept originally found its way into the jurisprudence of this Court. They are difficult to reconcile with the essential idea of proportionality. They are not universally accepted by the opinions expressed within the Court. It is difficult, in principle, to embrace the proposition that proportionality might be an appropriate criterion for some paragraphs of s 51 of the Constitution yet impermissible in respect of others. The same basic question is in issue in every case: namely where the boundary of federal constitutional power lies. Whilst there is no settled doctrine on the use of the concept of proportionality in resolving constitutional disputes, recent cases suggest a growing acceptance of the notion as a useful test of general application[202]. It may provide a means to help the mind of the decision-maker to answer the question whether the impugned law is "in truth" one with respect to a designated grant of power, as mandated by Kitto J in Fairfax v Federal Commissioner of Taxation[203]. That question is not readily answered by repeating, as a mantra, the puzzle: "Does the law have sufficient connection with the constitutional head of power?" In the words "sufficient" and "connection" lie much room for differences of opinion. Such well-worn phrases merely state what the judicial task is. They do not really elucidate how it is to be performed. That is why the attempt has been made by some members of the Court to find a subsidiary or additional test which, because of its functional nature, may be useful in the task of characterisation. Proportionality is certainly a concept of growing influence on our law more generally[204]. I consider that it may sometimes be helpful in the context of constitutional characterisation.

8. Consistent with the function of this Court, neither the task of characterisation nor the application of the concept of proportionality affords any authority for judging the desirability of the law or the means employed by the lawmaker. Provided the law is within power, the means adopted will not ordinarily be a matter for the Court. In this regard McHugh J's remarks on an analogous problem are appropriate[205]:

"[T]he fact that the Parliament has chosen to make liability to forfeiture independent of the fault of the owner does not make [the section impugned] unreasonably disproportionate to the purpose which it seeks to achieve. The section is not invalid because, among a range of reasonable measures to combat breaches of the Act, the Parliament has chosen a particularly drastic one."

Courts may, for good reason, be reluctant to construe legislation, especially criminal legislation, as reversing the onus of proof[206] or creating an offence without need to establish a guilty intention[207]. However, such provisions certainly exist in legislation enacted by the Parliament and undoubtedly within power. Of themselves, these features of a law will not deprive it, if otherwise within power, of constitutional validity. They merely show that the Parliament has chosen a drastic remedy for an attack on the problem which is the subject of the enactment. Of course, a point may eventually be reached where the drastic turns into the invalid. The law, or part of it, may lose the quality of sufficient connection with the constitutional head of power. Put another way, it may be so disproportionate to the legitimate attainment of the subject-matter of the grant of power as to take it outside that grant. When that happens the boundary of constitutional validity will have been passed. This Court is the ultimate guardian of that boundary[208]. By the Constitution it has been entrusted with the responsibility of identifying where the boundary lies.

Verbal formulae, such as those collected above, are offered in the hope of supporting a principled, consistent and predictable decision in a disputed case of constitutional characterisation. Yet, in the end, such formulae can only go so far. Unavoidably, such decisions involve an exercise of judgment. It is futile to pretend that words and phrases are sufficient, without more, to yield the solution in every case. Were it so, there would be no dissenting opinions in cases of constitutional characterisation. Disagreement exists because different judicial minds see the boundaries of constitutional power differently located. The verbal tests afforded by the Court's past authority are not precise enough to command a single, simple solution. The most that they can offer are techniques by which to test the impugned law. They provide expressions which point the decision-maker in the direction of some of the considerations which, in the past, have been found to be useful for the ultimate judgment which has to be made.

I turn to the application of these principles to the present case.

The Act does not, in s 31, any more than in s 24, expressly relate its provisions to the purposes of taxation[209]. However, once it is accepted (as I am willing to do) that, for the enforcement of taxation laws enacted by the Parliament, the problem of the "cash economy" is one fairly and reasonably justifying legislative attention, the enactment of a law such as the Act and of a provision such as s 31, are revealed as sufficiently connected with the taxation power. Put another way, a provision such as s 31 of the Act cannot be said to be unreasonably disproportionate to the achievement of the effective administration and enforcement of federal taxation laws. It may not be directed to the "core" of the grant of taxation power. But it is certainly within the matters reasonably incidental to the reach of that power.

Without a provision such as s 31, it would be comparatively easy, if sometimes a trifle inconvenient and time-consuming, for a determined cash operator, wishing to escape the operation of the Act, to do so. Such a person would need do no more than Mr Ratzlaf did in the case in the United States Supreme Court already referred to[210]. As disclosed by the report, he ran up a debt of $160,000 at a casino in Reno, Nevada. He was given a week to pay the debt. He returned with cash of $100,000 in hand. He was told that transactions involving more than $10,000 in cash would have to be reported to State and federal authorities. If he presented bank cheques for less than that amount he would not trigger any reporting requirement. The casino "helpfully" (to use Ginsburg J's description) placed a limousine at his disposal. It assigned an employee to accompany him to banks in the vicinity so that he could secure cheques for less than $10,000, each from a different bank. Based on this endeavour, when it came to the notice of the authorities, he was charged with "structuring transactions" ("smurfing"[211]). Without a provision such as s 31, a determined cash operator in Australia could easily evade the reporting obligations of the Act in the same way. An important means of ensuring that the "cash economy", which facilitates and promotes the evasion of liability to taxation, would be lost.

If the Act, looked at as a whole, can fairly be characterised as having a sufficient connection with the administration and enforcement of taxation laws, the provision of the sanction in s 31(1), to prevent evasion, is likewise sufficiently within that connection. Given that questions of degree are always involved and that complete precision is impossible, a practical approach should be taken. Approaching the sub-section in that way it is sufficiently connected to the administration and enforcement of federal taxation laws. The sanction in the sub-section may be seen as reasonably proportionate to the achievement of the object which the Parliament, by the legislation, has validly pursued.

I do not, by the foregoing, mean to suggest that any law which might make the task of tax gathering easier would necessarily fall within the grant of power provided to the Parliament by s 51(ii) of the Constitution, properly understood. Otherwise, a network of informers and draconian provisions for intrusion into personal privacy would be condoned when such was clearly not the purpose of the grant of power nor within its contemplation. It remains in every case of challenge to submit the impugned provision to characterisation by the test of sufficiency of connection. Proportionality may sometimes help in the application of that test. The Act in question here passes both those tests so far as s 31(1) is concerned. It is a valid law of the Commonwealth.

It is not necessary for me to determine the question whether s 31(1) of the Act, properly construed, requires proof of mens rea or not. The Commonwealth accepts that it does. Certainly there are a number of indications to support that conclusion. Conformably with its concession in this case, it may be expected that the prosecutor for the Commonwealth will accept the obligation to establish mens rea in the prosecution of Mr Leask. Certainly, the concession, if it be correct, helps in this case to meet Mr Leask's principal criticism that the removal of a requirement to establish mens rea involved the Act in a wholly disproportionate response to the problem being tackled and one which infringed the values traditionally protected by the common law[212]. It is not necessary to determine the point of construction in order to decide the challenge to constitutional validity. Either way the law is valid. It may be drastic. But it is not outside the scope of a sufficient connection with the taxation power. Nor is it a disproportionate exercise of that power. It is within the permissible ambit of the Parliament's judgment in giving effect to its valid purpose.

Having reached this opinion, it is also unnecessary for me to decide whether the other heads of power relied on by the Commonwealth, or any of them, support the impugned provision. However, I express some doubts as to whether the power granted by s 51(xii) of the Constitution to make a law with respect to "currency", supports s 31(1) of the Act. It is not the currency, as currency, that is the object of the Act or of the sub-section. I am inclined to think that the currency power has quite a different purpose and will not support any law simply because it is expressed to refer to cash, money or other forms of currency or uses the word "currency" itself, as s 31 does[213]. Were it otherwise any subject referred to by its money value might arguably come within this head of power whose ambit I take to be much narrower. But I do not need finally to resolve this point nor the relevance of other heads of power invoked by the Commonwealth. I will therefore refrain from doing so.

[5] s 7(1)(c) and (d).

[9] Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 186; see also Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169 at 216; The Commonwealth v Tasmania. The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 152.

[10] Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1 at 7.

[11] The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 152, 245; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 315.

[13] [1994] HCA 44; (1994) 182 CLR 272 at 319.

[14] See per Dawson J in Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 352.

[15] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523.

[16] The different forms of mens rea are discussed in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 569-582.

[17] [1994] HCA 44; (1994) 182 CLR 272 at 317-326.

[18] [1994] HCA 44; (1994) 182 CLR 272 at 321.

[19] See, for example, Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 398-399.

[20] Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79 at 100; Australian Capital Television Pty Ltd v The Commonwealth (ACTV) [1992] HCA 45; (1992) 177 CLR 106 at 143-144, 157, 217-218, 235, and cf 174; Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436 at 473-474; Cunliffe (1994) 182 CLR 272 at 324.

21 [1994] HCA 44; (1994) 182 CLR 272 at 324.

[22] ACTV [1992] HCA 45; (1992) 177 CLR 106 at 157.

[23] [1992] HCA 45; (1992) 177 CLR 106 at 195.

[24] [1990] HCA 1; (1990) 169 CLR 436 at 473-474.

[25] [1992] HCA 45; (1992) 177 CLR 106 at 195.

[26] ACTV [1992] HCA 45; (1992) 177 CLR 106 at 159; Cunliffe (1994) 182 CLR 272 at 325.

[27] [1979] HCA 53; (1979) 144 CLR 374 at 382, 397-400, 409-410.

[28] cf the description of "money" proposed by F A Mann in The Legal Aspect of Money, 5th ed (1992) at 8.

[29] Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110 at 138-139.

[37] The name of the Act was originally the Cash Transaction Reports Act 1988 (Cth).

[38] Second Reading Speech to the Cash Transaction Reports Bill 1987, Senate, Parliamentary Debates (Hansard), 25 November 1987 at 2413.

[41] cf Ratzlaf v United States [1994] USCA9 667; (1994) 126 L Ed (2d) 615.

[42] [1985] HCA 43; (1985) 157 CLR 523 at 591.

[43] [1985] HCA 43; (1985) 157 CLR 523 at 528.

[48] [1980] HCA 5; (1980) 142 CLR 342 at 346, 348.

[49] [1985] HCA 43; (1985) 157 CLR 523 at 566.

[50] [1941] HCA 28; (1941) 67 CLR 536 at 540.

[51] See also Sweet v Parsley [1969] UKHL 1; [1970] AC 132 at 152; Gammon Ltd v Attorney-General (Hong Kong) [1985] AC 1 at 14.

[52] [1985] HCA 43; (1985) 157 CLR 523 at 570.

[54] See Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116 at 133-134 per Latham CJ.

[57] [1994] HCA 44; (1994) 182 CLR 272 at 296.

[58] See Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 356-357; Minister for Resources v Dover Fisheries [1993] FCA 366; (1993) 43 FCR 565 at 575 per Gummow J.

[60] R v Minister for Agriculture, Fisheries and Food; Ex parte FEDESA [1990] 5 ECR I-4023.

[62] [1990] 5 ECR I-4023 at I-4063-I-4064.

[63] [1995] HCA 16; (1995) 183 CLR 323 at 368-369.

[64] The Commonwealth v Tasmania (the Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 152.

[65] Herald & Weekly Times Ltd v The Commonwealth [1966] HCA 78; (1966) 115 CLR 418 at 440; the Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 152.

[66] Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 79.

[67] [1952] HCA 30; (1952) 86 CLR 169 at 179.

[68] [1966] HCA 78; (1966) 115 CLR 418 at 437.

[69] [1994] HCA 44; (1994) 182 CLR 272 at 318.

[70] Bank of NSW v The Commonwealth (the Bank Nationalization Case) [1948] HCA 7; (1948) 76 CLR 1 at 354 per Dixon J.

[71] Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 319 per Brennan J.

[72] Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 354.

[73] Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 351-352.

[74] [1994] HCA 44; (1994) 182 CLR 272 at 296.

[75] cf Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 356 where I expressed the view that there is no real scope for any implied incidental power in relation to a truly purposive power.

[76] [1994] HCA 44; (1994) 182 CLR 272 at 296-297.

[77] [1994] HCA 44; (1994) 182 CLR 272 at 296.

[78] [1936] HCA 52; (1936) 55 CLR 608 at 674.

[79] See Victoria v The Commonwealth (1996) 70 ALJR 680 at 690, 739; 138 ALR 129 at 147, 215.

80 [1983] HCA 21; (1983) 158 CLR 1.

[81] [1983] HCA 21; (1983) 158 CLR 1 at 259.

[82] See Victoria v The Commonwealth (1996) 70 ALJR 680 at 739; 138 ALR 129 at 215.

[83] [1994] HCA 44; (1994) 182 CLR 272 at 352.

[84] cf Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 31 per Mason CJ; Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 297 per Mason CJ.

[85] See Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 183; Cunliffe (1994) 182 CLR 272 at 363.

[86] See Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 354.

[87] See Victoria v The Commonwealth (1996) 70 ALJR 680 at 739; 138 ALR 129 at 215.

[88] See Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261 at 326.

[89] [1992] HCA 45; (1992) 177 CLR 106 at 195.

[90] Compare the approach of the European Court of Justice to the validity of measures providing for the forfeiture of deposits in the context of regulating a common agricultural market: eg, Buitoni v FORMA [1979] 1 ECR 677 at 685; Atalanta v Produktschap voor Vee en Vlees [1979] 2 ECR 2137 at 2151. On the distinction between "principal" or "primary" obligations and "incidental" or "secondary" obligations in relation to forfeiture of deposits, see Emiliou, The Principle of Proportionality in European Law: A Comparative Study, (1996) at 212-223.

[91] See the definition in s 3(1).

[92] See the definition in s 3(1).

[93] The Australian Transaction Reports and Analysis Centre, established by s 35.

[94] "Both 'coinage' and 'legal tender' involve quite specific and narrow concepts, the former being concerned with coins as money and the latter with the prescription of that which is, at any particular time, to be a lawful mode of payment within a polity.": Watson v Lee [1979] HCA 53; (1979) 144 CLR 374 at 398 per Stephen J.

[95] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 27 per Mason CJ.

[96] Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; (1955) 93 CLR 55 at 77 per Dixon CJ, McTiernan, Webb and Kitto JJ.

[97] [1995] HCA 16; (1995) 183 CLR 323 at 352.

[99] [1979] HCA 53; (1979) 144 CLR 374 at 410.

[100] Northern Suburbs General Cemetery Reserve Trust v The Commonwealth [1993] HCA 12; (1993) 176 CLR 555 at 569-570 has some relevance in that regard.

[101] [1994] USCA9 667; (1994) 126 L Ed (2d) 615; 16 F (3d) 1078.

[102] United States v Thompson [1979] USCA5 1686; (1979) 603 F 2d 1200 at 1203; United States v Tobon-Builes [1983] USCA11 670; (1983) 706 F 2d 1092 at 1097-1099.

[103] United States v Varbel [1986] USCA9 69; (1986) 780 F 2d 758; United States v Anzalone [1985] USCA1 277; (1985) 766 F 2d 676.

[104] [1975] HCA 20; (1975) 132 CLR 307 at 316.

[106] s 38(1)(d); see also s 38(3) and (4) and s 41.

[109] Commonwealth, (Senate), Parliamentary Debates, 25 November 1987 at 2413.

[110] See generally Lee, "Proportionality in Australian Constitutional Adjudication", Lindell (ed), Future Directions in Constitutional Law, (1994) at 126.

[111] [1994] HCA 44; (1994) 182 CLR 272.

[112] [1994] HCA 44; (1994) 182 CLR 272 at 371-372.

[113] [1992] HCA 46; (1992) 177 CLR 1 at 29.

[114] [1992] HCA 46; (1992) 177 CLR 1 at 89.

[115] [1994] HCA 10; (1994) 179 CLR 270.

[116] See [1994] HCA 10; (1994) 179 CLR 270 at 285-286 per Deane and Gaudron JJ, 294-295 per McHugh J.

[117] The Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 260 per Deane J; Polyukhovich v The Commonwealth (War Crimes Act Case) [1991] HCA 32; (1991) 172 CLR 501 at 592 per Brennan J; Nationwide News [1992] HCA 46; (1992) 177 CLR 1 at 30-31 per Mason CJ; Ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270 at 286 per Deane and Gaudron JJ; Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 296-297 per Mason CJ.

[118] [1994] HCA 44; (1994) 182 CLR 272 at 376.

[119] [1994] HCA 44; (1994) 182 CLR 272 at 320.

[120] And see Victoria v The Commonwealth (1996) 70 ALJR 680 at 690; 138 ALR 129 at 147.

[121] Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 377-378.

[122] Victoria v The Commonwealth (1996) 70 ALJR 680 at 690, 707; 138 ALR 129 at 146-147, 170.

[123] See the discussion by Kirby P in State of NSW v Macquarie Bank Ltd (1992) 30 NSWLR 307 at 321-324, also Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 116 ALR 54 at 64.

[124] Soering v United Kingdom [1989] ECHR 14; (1989) 11 EHRR 439 at 468.

[125] Handyside v United Kingdom [1976] ECHR 5; (1976) 1 EHRR 737 at 754-755. See generally Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights, (1995) at 11-12.

[126] Mathieu-Mohin and Clerfayt v Belgium [1987] ECHR 1; (1987) 10 EHRR 1 at 16; Fayed v United Kingdom [1994] ECHR 27; (1994) 18 EHRR 393 at 415-416.

[127] See the cases mentioned by Kirby P in State of NSW v Macquarie Bank Ltd (1992) 30 NSWLR 307 at 323. See generally Emiliou, The Principle of Proportionality in European Law: A Comparative Study, (1996).

[128] [1992] HCA 46; (1992) 177 CLR 1 at 47 per Brennan J.

[129] [1992] HCA 57; (1992) 177 CLR 292 at 300 per Mason CJ and McHugh J.

[130] [1994] HCA 46; (1994) 182 CLR 104 at 130 per Mason CJ, Toohey and Gaudron JJ.

[131] [1995] HCA 26; (1995) 184 CLR 348 at 367-368 per Brennan CJ, Deane, Dawson and Toohey JJ.

[132] [1992] HCA 46; (1992) 177 CLR 1 at 93-94.

[133] Burton v Honan [1952] HCA 30; (1952) 86 CLR 169 at 179; Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 101.

[134] [1992] HCA 46; (1992) 177 CLR 1.

[135] [1992] HCA 46; (1992) 177 CLR 1 at 88.

[136] In addition, specific provision for the issue of paper money is made by s 51(xiii). This confers legislative power with respect to:

"Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money".

"A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts."

[137] Section 36(1) is a valid law of the Commonwealth: Re Skyring's Application (No 2) (1985) 59 ALJR 561; 58 ALR 629.

[139] Pub L 99-570, Title I, Subtitle H, _SS_1354(a). The provision was construed by the Supreme Court in Ratzlaf v United States [1994] USCA9 667; (1994) 126 L Ed (2d) 615; 16 F (3d) 1078, and then amended by Pub L 103-325, Title IV, SSSS411, 413.

[140] [1964] HCA 15; (1964) 113 CLR 207 at 225-226.

[142] [1995] HCA 16; (1995) 183 CLR 323 at 368-369.

[143] [1947] HCA 26; (1947) 74 CLR 31 at 79.

[144] See also Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 315 per Brennan J.

[145] [1986] HCA 41; (1986) 161 CLR 376 at 387-388.

[146] [1982] HCA 23; (1982) 150 CLR 169 at 192-194.

[147] [1979] HCA 53; (1979) 144 CLR 374 at 410.

[148] [1979] HCA 53; (1979) 144 CLR 374 at 382, 398-399.

[149] See Jolley v Mainka [1933] HCA 43; (1933) 49 CLR 242 at 259-261, 266-269.

[150] Burton v Honan [1952] HCA 30; (1952) 86 CLR 169 at 179.

[151] [1986] HCA 41; (1986) 161 CLR 376 at 388-389.

[152] [1944] HCA 36; (1944) 69 CLR 457 at 471; see also Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 192-193.

[153] Murphyores Incorporated Pty Ltd v The Commonwealth [1976] HCA 20; (1976) 136 CLR 1 at 11-12, 20; Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 89; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 323, 355.

[154] See Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 192-194.

[157] [1994] HCA 44; (1994) 182 CLR 272 at 296-297.

[158] [1975] HCA 20; (1975) 132 CLR 307.

[159] [1975] HCA 20; (1975) 132 CLR 307 at 315-316.

[160] [1975] HCA 20; (1975) 132 CLR 307 at 318-319; cf He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 545-546, 587-588.

[161] See also [1975] HCA 20; (1975) 132 CLR 307 at 321 per Jacobs J. It has been suggested that there are indications in the judgments of Mason J and Jacobs J that the need to establish a reasonable suspicion might well provide a sufficient connection with s 51(i) of the Constitution to have supported s 233B(1)(ca): Lindell, "Duty to Exercise Judicial Review" in Zines (ed), Commentaries on the Australian Constitution, (1977) at 181. It is unnecessary to explore the application of that reasoning to the law in question in the present case.

[162] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 29.

[163] Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270 at 295.

[164] See Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 297.

[165] Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; 179 CLR 270 at 286; cf Minister for Resources v Dover Fisheries [1993] FCA 366; (1993) 43 FCR 565 at 575 per Gummow J.

[166] Pub L 91-2508, Title II; 84 Stat 1118; 31 USC SS5311-5325.

[167] Royal Commission on the Activities of the Federated Ship Painters and Dockers Union (the Costigan Royal Commission), Final Report (1984).

[168] Costigan Royal Commission, Final Report (1984) vol 1 at par 7.018. See also Royal Commission of Inquiry into Drug Trafficking (Stewart Royal Commission), Report (1983).

[169] Costigan Royal Commission, Final Report (1984) vol 1 at par 8.036; vol 4 at par 9.026.

[170] Hewett and Kalyk, Understanding the Cash Transaction Reports Act, (1990) at 10-11.

[172] House of Representatives, Parliamentary Debates (Hansard), 4 June 1987 at 3956.

[173] Senate Standing Committee on Legal and Constitutional Affairs, Report on the Cash Transaction Reports Bill 1987, (1988). See also Australian Law Reform Commission, Privacy, ALRC Report No 22 (1983) at 1195.

[174] Senate Standing Committee on Legal and Constitutional Affairs, Report on the Cash Transaction Reports Bill 1987, (1988) at xi.

[175] Hewett and Kalyk, Understanding the Cash Transaction Reports Act, (1990) at 15.

[176] Senate Standing Committee on Legal and Constitutional Affairs, Checking the Cash - A Report on the Effectiveness of the Financial Transaction Reports Act 1988, (1993).

[177] Senate Standing Committee on Legal and Constitutional Affairs, Checking the Cash - A Report on the Effectiveness of the Financial Transaction Reports Act 1988, (1993) at par 10.34 (submission of the Victorian Council for Civil Liberties).

[178] Senate Standing Committee on Legal and Constitutional Affairs, Checking the Cash - A Report on the Effectiveness of the Financial Transaction Reports Act 1988, (1993) at par 10.36.

[179] Senate Standing Committee on Legal and Constitutional Affairs, Checking the Cash - A Report on the Effectiveness of the Financial Transaction Reports Act 1988, (1993) at par 10.38.

[181] [1994] USCA9 667; (1994) 126 L Ed (2d) 615 at 619.

[183] Second Reading Speech on the Cash Transaction Reports Bill 1987, Senate, Parliamentary Debates (Hansard), 25 November 1987 at 2413.

[184] Bostock, "Observations on the Cash Transactions Legislation" (1989) 18 Australian Tax Review 147 at 154. Other critical observations appear in Senate Standing Committee on Legal and Constitutional Affairs, Checking the Cash - A Report on the Effectiveness of the Financial Transaction Reports Act 1988, (1993).

[185] Hewett and Kalyk, Understanding the Cash Transaction Reports Act, (1990) at 49. The authors say that by early 1989 there had been a successful prosecution of an offence against s 24 as a result of an account being opened in a false name: "Significantly, an amount of approximately $1.7 million of unpaid taxes was recovered as a by-product of the prosecution."

[187] (1995) 64 SASR 280 at 292-293 per Doyle CJ with Prior and Nyland JJ concurring.

[188] Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 at 130.

[189] Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169 at 192; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 295.

[190] Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 369.

[191] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 26.

[192] British Medical Association v The Commonwealth [1949] HCA 44; (1949) 79 CLR 201 at 274-275; Burton v Honan [1952] HCA 30; (1952) 86 CLR 169 at 177; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 319; cf Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 86, 93.

[193] Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 319-320, 351, 376; cf Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 27-28, 86, 93.

At a glance

Court

Decision date

Before

Source

Judgment (232 paragraphs)

Parties

Cases Cited (52)

Leask v Commonwealth [1996] HCA 29; (1996) 187 CLR 579; (1996) 140 ALR 1; (1996) 70 ALJR 995 (5 November 1996)