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[1978] HCA 56
High Court of Australia
1978-07-01
Aickin JJ
Original judgment source is linked above.
The applicant made before the Court the several submissions which are fully set out in the notices to the Attorneys-General which I have already set out. It will be convenient to deal with them severally, though not in the precise order in which they appear in the notices. I shall identify each submission by the use of its enumeration in the notices.
A person shall not, in the declared fishing zone, have in his possession or in his charge a foreign boat equipped with nets, traps or other equipment for taking, catching or capturing fish.
Penalty: $1,000 or imprisonment for 6 months, or both.
In supporting the submission 1 (a), the applicant's counsel made it quite clear that he did not submit that every offence against a law of the Commonwealth must be tried on indictment by a jury. The claim was that s. 80 of the Constitution required the trial on indictment of all "serious" offences against a law of the Commonwealth and that a breach of s. 13AB (1) was such a serious offence. Counsel did not offer any definition of what constituted a "serious" offence for the purposes of his submission. He contended himself with the proposition that a breach of s. 13AB (1) was relevantly a "serious" offence and evidently was so considered by the Parliament having regard to the legislative history of the section. He pointed out that the Act as it was in 1968, consequent upon its amendment by No. 116 of 1967, provided by s. 13AA (1) for an offence of using in proclaimed waters a foreign boat for fishing and for an offence of having such a fishing boat in possession or charge. Upon summary conviction of one of those offences a penalty of not more than $1,000 or imprisonment for not more than six months, or both, was provided. But, for a conviction of either offence on indictment, a fine of not less than $1,000 and not more than $10,000 or imprisonment for not more than twelve months, or both, was provided. But summary proceedings for such an offence might not be taken except with the consent of the defendant.
However, by amendment made by No. 218 of 1973, s. 13AA was repealed and s. 13B (1) (c) enacted. It was thereafter an offence for a person to -
"have in his possession or in his charge a foreign boat for taking fish" unless there is in force a licence under sub-s. (2) of s. 9 authorizing the use of the boat in that area.
An offence against this subsection was made punishable -
(a) upon summary conviction - by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months, or both; or
(b) upon conviction on indictment - by a fine of not less than $1,000 and not exceeding $10,000 or imprisonment for a period not exceeding 1 year, or both.
Again, summary proceedings might not be taken without the consent of the defendant.
The applicant's counsel pointed to the possibility of forfeiture of the boat, its equipment, etc. as a consequence of conviction for any of the abovementioned offences and relied on that circumstance as an indication of the serious nature of the offence.
The contrast between the punishment provided by the 1968 and 1973 provisions for the then current offences and the provisions of s. 13AA (1) is obvious.
This legislative history showed, it was said, that both in 1968 and 1973 the Parliament had evidently considered an offence, having substantially the same elements as the offence created by s. 13AB (1), as a serious offence, both having regard to the prescribed penalty and the fact that the offender must be tried on indictment unless he consented to summary trial. This consideration counsel submitted sufficiently established that the offence of which complaint was presently made was a serious offence, indeed an "indictable" offence, and therefore required by s. 80 to be tried on indictment before a jury.
Quite apart from the submission as to the scope of s. 80 I find this proposition quite unacceptable. For one thing, the penalty for a breach of s. 13AB (1) is different from and less than that provided by the former sections. But, in any case, there is no logical basis for concluding the nature of an offence from what are supposed to be the views of the Parliament in relation to a former section, even if the offence it created were precisely identical with the offence now in question. Nor, in my opinion, is any assistance given to the applicant's submission by the circumstance that forfeiture of the boat and its equipment may follow upon conviction.
Further, if in truth from s. 80 you could derive the conclusion that, constitutionally, all "serious" offences must be tried on indictment by a jury, it would be for the Court and not for the Parliament to determine whether any given offence was relevantly a "serious" offence. The limited submission of the applicant that, for the reasons given on his behalf, the present offence was a "serious" offence, in my opinion, fails.
It should be added that, by reason of the limited extent of the imprisonment to which an offender under s. 13AB (1) can be sentenced, s. 43 of the Acts Interpretation Act, 1901 as amended, provides for summary trial. No contrary intention appears in the Fisheries Act as now amended, nor was any suggested by the applicant's counsel.
In my opinion, the major submission should be rejected. First of all, the language of s. 80 does not lend itself to any qualification such as is suggested. It relates to " any offence against any law of the Commonwealth". It seems to me to be impossible by any process of construction to treat the section as relating only to some offences against some laws, or to offences of a particular nature against any law.
Further, to so reduce the universality of the language of the section would be insufficient to create a constitutional guarantee that those offences must be treated as indictable offences. The applicant's submission in reality is that s. 80 postulates that some offences are of their nature, or of their nature and circumstances, "indictable" offences, i.e. offences which may not be prosecuted except on indictment. The applicant describes these offences as "serious" offences.
Section 80, however, only operates on indictment. Its language was chosen in the knowledge of Art. 3 of the Constitution of the United States and of the experience of that country with the construction and operation of that article over the considerable period of time which had elapsed before the terms of s. 80 were accepted.
Two aspects of s. 80 have been the subject of decision by this Court, (1) whether the section creates a constitutional guarantee of trial by jury of all offences against Commonwealth law and (2) whether it is applicable to offences created by an exercise of the powers given to the Parliament by s. 122 of the Constitution. The second of these questions was the subject of discussion in R. v. Bernasconi [28] . The first question was discussed in R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [29] .
Notwithstanding the views expressed obiter by the dissenting Justices in R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [30] , it is, in my opinion, not possible to conclude, apart of course from the expressed intention of the Parliament in the relevant statute, that an offence is of its nature "indictable". Summary prosecution for a wide variety of offences has a long history, though punishment upon summary conviction is generally limited so far as imprisonment is provided to a term of twelve months or less. It was unanimously decided in R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [29] that the section placed no impediment in the way of the Parliament providing for the summary prosecution of an offence.
The foregoing afford reasons why I would reject the applicant's submission 1 (a).
In any case, however, the meaning and scope of s. 80 have been explored on earlier occasions. The Court's settled interpretation of it has been acted upon by the Parliament over a very considerable time, and, in my opinion, that interpretation is correct. Consequently, as I remarked in Zarb v. Kennedy [1] , the question of its meaning and scope ought not now to be reopened. The other members of the Court were all of the same opinion [2] .
Submission 1 (b), with which submissions 3 and 4 are associated, is developed upon the definitions of Australian waters, proclaimed waters and the declared fishing zone in s. 4 of the Act. The terms of the proclamation fixing the relevant proclaimed waters were made available to the Court. It is plain from the proclamation that waters within the three miles from low water mark are excluded from the proclaimed waters. The definition of the declared fishing zone includes waters adjacent to Australia from the baseline by reference to which Australian territorial waters are defined for international purposes and to the prescribed outer limit to the extent to which they are proclaimed waters. Without a proclamation it would not be possible merely by the use of the definition of the declared fishing zone to determine what are the waters within a declared fishing zone. But, given a proclamation which confines itself to waters within the limits of the definition of the declared fishing zone, there is no uncertainty in the identification of the limits of the fishing zone. Of course, constitutional limitations will require the proclamation to exclude waters within the territorial limits of a State as they have been defined by the decisions of this Court. The proclamation in this case does so. Thus, the submission that the definition of declared fishing zone is incapable of legal application must, in my opinion, be rejected.
The applicant relied upon the provisions of the Seas and Submerged Lands Act 1973, and particularly Pt II thereof, and Art. 3 of the Convention on the Territorial Sea and the Contiguous Zone, scheduled to that Act, for the submission that, in default of a large scale map officially recognized by Australia defining the low water line along the Australian coast, or at least along the Australian coast in the vicinity of the presently relevant part of the declared fishing zone, i.e. of the Gulf of Carpentaria, it was not possible to determine the baseline of the territorial sea and therefore the outer limits of the declared fishing zone.
The Court was given the advantage of perusing an Admiralty chart of the relevant part of the Gulf of Carpentaria which bore the authentication of the Commonwealth. This chart showed the coastline which I understand to represent the mean low water mark. But, in any case, it seems to me that the baseline by reference to which the territorial limits of Australia for the purposes of international law are defined is the low water line along the coast of Australia. That line does not depend for its existence and significance upon any chart. The precise position of that line is a fact to be determined if occasion demands by a court of law. No doubt a hydrographer's chart will provide cogent evidence of that fact, and a chart conforming to the specification in Art. 3 of the Treaty may be decisive internationally, particularly if a conventional baseline were adopted. But the fact of the low water mark cannot depend upon the existence of any such chart. It is sufficient to dispose of the submission numbered 4 to say that, in default of any conventional baseline, the relevant baseline is the low water mark on the coast of the Gulf of Carpentaria adjacent to the point where the boat, of which the applicant was said to be in charge, was when observed by the officer commanding the Naval vessel H.M.A.S. Aware.
The final submission of the applicant was that the evidence of the Naval officer who boarded the said boat was inadmissible because the action of that officer in boarding the boat was illegal. The illegality was said to result from the fact that he was a member of the defence forces of Australia, a fact which was said to preclude him acting under the Fisheries Act in the detection of an offence against a provision of that Act. But, in my opinion, there is no substance in his submission. There is no constitutional objection to the employment of a member of the defence forces in the performance of acts in furtherance of the provisions of the Fisheries Act: and, in any case, the suggested illegality, if made out, would not render the evidence of the officer inadmissible. At most, it would make available to the magistrate the discretion dealt with in Reg. v. Ireland [3] , and more recently the subject of discussion in Bunning v. Cross [4] .
The various submissions of the applicant should therefore be overruled and the matter remitted to the magistrate for further hearing.
The facts of this case and the relevant statutory provisions are discussed in the judgment of the Chief Justice which I have had the advantage of reading. I would very briefly add a statement of my reasons for the conclusion which the Court has reached.
The submission that s. 13AB (1) of the Fisheries Act 1952 Cth, as amended, contravenes s. 80 of the Constitution would be stated more accurately by saying that ss. 13AB and 15 of theFisheries Act and s. 43 of the Acts Interpretation Act 1901 Cth, as amended, in combination contravene that section. The submission is of course impossible to maintain in the existing state of the authorities, which have given to s. 80 the effect attributed to it by Higgins J. in R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [5] : "if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment.": see also R. v. Bernasconi [6] ; R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [7] ; Sachter v. Attorney-General (Cth) [8] ; Zarb v. Kennedy [9] . This is not an appropriate case in which to consider further the scope of s. 80 - here the offence is not grave in its nature, the term of imprisonment for which the offender may be sentenced does not exceed six months, the prosecution was instituted in an inferior court and the complaint was laid by an officer attached to a fisheries unit. On no possible view could the trial be said to be a trial on indictment. Neither the fact that the offence is only slightly different from that created by s. 13B (1) (c) of the Fisheries Act (in the form which it took from 1973 until 1975, when the present s. 13AB was inserted) which did provide for an offence which was indictable and was triable summarily only by consent, nor the fact that the boat used in the commission of the offence is liable to forfeiture under s. 13C of the Fisheries Act, in my opinion affects this conclusion.
It was next submitted that it could not be, or at least had not been, proved that the applicant had the fishing boat in his possession in the declared fishing zone. The declared fishing zone is defined in s. 4 of the Fisheries Act to mean "(a) the waters adjacent to Australia and having as their inner limits the baselines by reference to which the territorial limits of Australia are defined for the purposes of international law and as their outer limits lines seaward from those inner limits every point on each of which is distant twelve international nautical miles from the point on one of those baselines that is nearest to the first-mentioned point but does not include any waters that are not proclaimed waters". The boat was 10.7 nautical miles from the shore in the Gulf of Carpentaria and it was not within proclaimed waters within the meaning of the Fisheries Act. However it was said that there are no baselines by reference to which the territorial limits of Australia are defined for the purposes of international law and that consequently neither the inner nor the outer limits of the zone can be determined. This argument depended upon Art. 3 of the Convention on the Territorial Sea and the Contiguous Zone (the Geneva Convention), which forms the first schedule to the Seas and Submerged Lands Act 1973 Cth. Article 3 provides:
Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state. The applicant's argument was that there are no large-scale charts officially recognized by Australia on which the low-water line is marked (at least in respect of the coast in question), and therefore no baselines.
On the application to remove the matter into this Court it was conceded by counsel for the Commonwealth, for the purpose of the case, that there were no charts answering the description contained in Art. 3, but on the hearing before the Full Court this concession was withdrawn, and an attempt was made to rely on certain Admiralty charts that were then produced. However for the reasons that I am about to give I do not need to decide whether those charts are sufficient for the purposes of Art. 3.
The Geneva Convention does not necessarily state the rules of international law as to the baselines by reference to which the territorial limits of Australia are defined. In any case it is impossible to suppose that it was intended by the Geneva Convention that the existence of a territorial sea should be dependent upon the existence of officially recognized large-scale charts showing the low-water line. The existence of a territorial sea was recognized long before the Geneva Convention was signed - see the discussion in New South Wales v. The Commonwealth [10] . The general practice was to measure the territorial sea from the low-water mark: Oppenheim's International Law, 8th ed. (1955) (Lauterpacht), p. 488; O'Connell: International Law, 2nd ed., (1970) vol. 1, p. 476. Article 3 of the Geneva Convention must be regarded as doing no more than provide a means by which the low-water line may be evidenced. If there are charts of the kind mentioned they provide evidence (perhaps conclusive) of the position of the low-water line. If there are no such charts, the territorial sea continues to be measured from where the low-water line is in fact. No doubt if it is intended to use the method of straight baselines rather than follow the sinuosities of the coast (see Art. 4) charts will be necessary. The argument that there can be no declared fishing zone in waters where the low-water line along the coast has not been marked on large-scale charts officially recognized was correctly and convincingly rejected in Chen Yin Ten v. Little [11] .
The combined effect of the definitions of Australian waters and proclaimed waters in s. 4 of the Fisheries Act and of the proclamation in force under s. 7 of that Act is that the declared fishing zone has as its inner limit a line drawn 3 nautical miles from the low-water line along the coast, or, if there are large-scale charts officially recognized, from the low-water line as marked on those charts. If the Minister has caused charts to be prepared and issued under s. 9 of the Seas and Submerged Lands Act such charts will be "officially recognized"; whether charts not so prepared were "officially recognized" would be a matter for evidence. In the present case, the evidence given before the magistrate, if accepted, was quite sufficient to establish that the boat was within the declared fishing zone.
The final argument advanced, that the evidence was illegally obtained, is impossible to accept. There is no constitutional reason why an officer of the naval forces should not assist in the enforcement of a law of the Commonwealth such as the Fisheries Act. In any case, if the evidence had been illegally obtained that would not have made it inadmissible, although the magistrate would then have had a discretion to reject it.
For these reasons I considered that the submissions of the applicant should be overruled and that the matter should be remitted to the magistrate.
Unless s. 80 means that every offence against any law of the Commonwealth must be prosecuted on indictment and consequently that the trial of every offence must be by jury, then the offence for which the defendant is prosecuted, being a fisheries offence and one for which the maximum term of imprisonment is six months, is clearly one which can be prosecuted summarily. We are satisfied that s. 80 does not have such a meaning as we have described and it has not been contended that it does. The fact that a consequence of conviction may be forfeiture of fishing boat and gear does not affect the nature of the offence or the penalty therefor. It is no more than a consequence, however severe it may be.
In these circumstances the objection to the jurisdiction of the magistrate to try the offence summarily fails. We do not find it necessary to say anything further on the meaning and effect of s. 80, because anything which is said on its meaning and effect beyond what is strictly necessary for a decision on the particular facts is necessarily obiter dicta.
On the other points which have been argued we are in agreement with what has been said by the Chief Justice and do not wish to add anything. We agree with the order which he proposes.
I agree with the reasons given by the Chief Justice for rejecting the applicant's submissions and it is for those reasons that I participated in remitting the matter to the magistrate for further hearing.
This matter was removed from the court of summary jurisdiction at Thursday Island in the Northern Territory into this Court under s. 40 of the Judiciary Act 1903 Cth, as amended, because the applicant (the defendant in that court) raised questions of the application of s. 80 of the Constitution and of the provisions of the Fisheries Act 1952 Cth, as amended, relating to declared fishing zones. In this Court, the applicant raised a further question on the admissibility of certain evidence claimed to be illegally obtained. At the conclusion of the argument, the Court rejected the applicant's submissions and remitted the matter to the magistrate for further hearing.
The trial on indictment of any offence against any law of the Commonwealth shall be by jury The applicant contended that s. 80 is contravened by failure to provide trial by jury of any charge of breach of s. 13AB (1) of the Fisheries Act, which states: A person shall not, in the declared fishing zone, have in his possession or in his charge a foreign boat equipped with nets, traps or other equipment for taking, catching or capturing fish.
Penalty $1,000 or imprisonment for six months or both.
Sections 42 and 43 of the Acts Interpretation Act 1901 Cth, as amended, provide:
(a) are punishable by imprisonment, but not for a period exceeding six months; or
(b) not being punishable by imprisonment, are not declared to be indictable offences,
shall, unless the contrary intention appears, be punishable on summary conviction.
As there is no contrary intention in the Fisheries Act, the effect of these statutory provisions is that an alleged breach of s. 13AB of the Fisheries Act is triable without a jury.
As interpreted by this Court, s. 80 contains no effective guarantee of trial by jury (see R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [12] ; R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [13] and Zarb v. Kennedy [14] . The decisions on the meaning of s. 80 accord with Higgins J.'s paraphrase of it in Archdall's Case [15] : " if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment". Consistently with this interpretation, the prosecutor contended in this case that Parliament could provide the death penalty for any offence and make it triable by a magistrate. Such a reading of s. 80 makes a mockery of it, as Dixon and Evatt JJ. observed in their dissenting judgment in Lowenstein's Case [13] . After stating that the difficulty in s. 80 lay in the words, "trial on indictment", they said that the paraphrase by Higgins J. was [14] :
a queer intention to ascribe to a constitution; for it supposes that the concern of the framers of the provision was not to ensure that no one should be held guilty of a serious offence against the laws of the Commonwealth except by the verdict of a jury, but to prevent a procedural solecism, namely, the use of an indictment in cases where the legislature might think fit to authorize the court itself to pass upon the guilt or innocence of the prisoner. There is high authority for the proposition that "the Constitution is not to be mocked". A cynic might, perhaps, suggest the possibility that s. 80 was drafted in mockery; that its language was carefully chosen so that guarantee it appeared on the surface to give should be in truth illusory. No court could countenance such a suggestion, and, if this explanation is rejected and an intention to produce some real operative effect is conceded by the section, then to say that its application can always be avoided by authorizing the substitution of some other form of charge for an indictment seems but to mock at the provision. After dealing with the essence of a "trial on indictment", they concluded that it consisted of two substantial elements [15] : We think that the first of them would be seen to be that some authority constituted under the law to represent the public interest for the purpose took the responsibility of the step which put the accused on his trial; the grand jury, the coroner's jury or the coroner, the law officer or the court. A second element, we think, would be found in the liability of the offender to a term of imprisonment or to some graver form of punishment. We should not have taken the view that s. 80 was intended to impose no real restriction upon the legislative power to provide what kind of tribunal shall decide the guilt or innocence on a criminal charge. and [16] : We admit the difficulties which the form of s. 80 creates, but to treat such a constitutional provision as producing no susbstantial effect seems rather to defeat than to ascertain its intention. In my opinion, s. 80 contains a guarantee of a fundamental right to trial by jury in criminal cases (at least in serious ones). 1. (1928) 41 C.L.R. 128. 2. (1938) 59 C.L.R. 556. 3. (1968) 121 C.L.R. 283. 4. (1928) 41 C.L.R., at pp. 139-140. 5. (1938) 59 C.L.R. 556. 6. (1938) 59 C.L.R., at pp. 581-582. 7. (1938) 59 C.L.R., at p. 583. 8. (1938) 59 C.L.R., at p. 584.
In construing a constitution, as distinct from a minor instrument, the sound rule is to remember that it is an instrument of government, intended to be read broadly and in accordance with the fundamental principles of the society in which it is to operate. "Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction" (Jefferson, Writings vol. 4, p. 506 (Washington ed. 1859)). The judicature provisions of our Constitution should be read in the light of the deep attachment of the people for whom the Constitution was made to trial by jury for criminal offences. When the Constitution is so read, it is difficult to justify the trivialization of s. 80. The jury system is the main social defence against governmental or other oppression, the main instrument for preserving the liberties of the people. The trend to extend the number of offences triable without jury (sometimes punishable by imprisonment for lengthy periods such as two years) and to provide very heavy maximum terms for the same offences if the defendant insists upon trial by jury shows that, unless some serious meaning is given to s. 80, the evils against which trials by jury protect the public will be unchecked. Those not affected tend to assume that they will never be affected by the erosion of civil liberties. History shows otherwise.
In the seventeenth Century, the jury emerged as a safeguard in England against arbitrary power. Blackstone (4 Comm., pp. 349-350) stated that the jury was part of a:
"strong and two-fold barrier between the liberties of the people and the prerogative of the crown" because "the truth of every accusation, whether preferred in the hope of indictment, information or appeal should be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion. So that the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate; not only from all open attacks, (which none will be so hardy as to make,) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern". This institution was carried to the American colonies by the colonists as part of their birthright.
"The institution of the jury places the real direction of society in the hands of the governed, and not in the hands of the government He who punishes the criminal is the real master of society all the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its direction have destroyed or enfeebled the institution of the jury".
(De Tocqueville, Democracy in America, pp. 282-283).
It was guaranteed in the constitutions of the original thirteen States, then in the Constitution of the United States, firstly in Art. III, s. 2, as: The trial of All Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. and later in Amendment VI as: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses in his favour, and to have the Assistance of Counsel for his defence. The United States Supreme Court has explained the fundamental nature of the right in Duncan v. Louisiana [17] : The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt over-zealous prosecutor and against the compliant, biased, or eccentric judge. The jury trial provisions reflect a fundamental decision about the exercise of official power - a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. 1. (1968) 391 U.S. 145, at pp. 155-156 [20 Law Ed. 2d 491, at pp. 499-500]
Although the expression in the United States Constitution is "all crimes" and "in all criminal prosecutions", the expounders of that Constitution excluded petty offences from the guarantee. The line between petty and serious offences has been defined either by the maximum punishment available, or by the nature of the offence (see District of Columbia v. Clawans [18] ; Schick v. United States [19] ; Callan v. Wilson [20] ; District of Columbia v. Colts [21] . Where the penalty exceeds six months' imprisonment, this has been treated as serious (see Baldwin v. New York [22] ) and the defendant is entitled to trial by jury. In Baldwin v. New York, Black J. (with whom Douglas J. concurred) would have required a jury trial in all criminal proceedings in which the sanction imposed bears the indicia of criminal punishment; he pointed out that [23] :
My view does not require a conclusion that every act which may lead to "miniscule" sanctions by the Government is a "crime" which can only be punished after a jury trial. There may be instances in which certain conduct is punished by fines or other sanctions in circumstances that would not make that conduct criminal. Not all official sanctions are imposed in criminal proceedings. The United States Constitution (Amendment VII) also requires trial by jury in civil trials at common law. There is no guarantee of trial by jury in civil cases in the Australian Constitution. 1. (1937) 300 U.S. 617 [81 Law. Ed. 843]. 2. (1904) 195 U.S. 65 [49 Law. Ed. 99]. 3. (1888) 127 U.S. 540 [32 Law. Ed. 223]. 4. (1930) 282 U.S. 63 [75 Law. Ed. 177]. 5. (1970) 399 U.S. 66 [26 Law. Ed. 2d 437]. 6. (1970) 399 U.S., at pp. 76 [26 Law. Ed. 2d, at p. 444].
In s. 80, the word, "offence", is used generally, and is capable of embracing civil as well as criminal offences. The concept of civil offences is well entrenched in the law (see Bradlaugh v. Clarke [24] ; Attorney-General v. Bradlaugh [25] ; Brown v. Allweather Mechanical Grouting Co. Ltd. [26] ; R. v. Justices of the Appeals Committee of the County of London Quarter Sessions [27] ). Civil offences are common in statutes dealing with industrial relations, health and safety, customs, income tax and other revenue, and trade practices (see Dwyer v. Craig-Williams Pty. Ltd. [28] ; Newstead Wharves & Stevedoring Co. Pty. Ltd. v. Chamberlain; Ex parte Chamberlain [29] ; Gaal v. Wilson [30] and Reg. v. Malas [31] ). The legislation creates " public misdemeanour, imposing a penalty as a punishment" (Lord Fitzgerald, Bradlaugh v. Clarke [32] ). Statutory description of proceedings as prosecutions which if successful result in convictions is a familiar feature of civil offences (see Income Tax Assessment Act 1936, Pt VII, Penal Provisions and Prosecutions; Customs Act 1901, Pt XIV, Customs Prosecutions). The Constitution does not guarantee trial by jury in proceedings by the Crown or others for civil offences, or in other civil proceedings.
To give s. 80 a sensible meaning consistent with the rationale for inclusion of such a guarantee, the words, "trial on indictment of any offence", may be taken to serve the same purpose as the words "crimes" or "criminal prosecutions" in the United States Constitution. They limit the scope of s. 80 to criminal offences; they serve the same purpose as the judicial decisions in the United States provisions, that is, to exclude petty offences from the scope of the guarantee. This approach does not give any effect to the classification of offences as indictable, summary, or indictable offences triable summarily, but the existence of such a classification does not warrant treating s. 80 as if it contains no real safeguard.
On this interpretation, every offence which carries any term of imprisonment may come within the scope of s. 80 and entitle the accused to trial by jury. This is consistent with what was said by Dixon and Evatt JJ. in Lowenstein's Case in the passage cited. The applicant did not raise any such contention and, on the contrary, conceded that the fact that the offence carries six months' imprisonment did not of itself mean that a jury trial was required. He contended that, as Parliament had previously regarded a substantially similar offence as indictable and carrying one year's imprisonment or a fine or both unless (with the defendant's consent) it was tried summarily (when it carried six months only or a lesser fine or both), the offence fell into the category of serious offences and Parliament could not now treat it as not indictable and so deprive a defendant of trial by jury. He relied on s. 13AA of the Fisheries Act which was inserted by No. 116 of 1967 and repealed and replaced in 1973 by s. 13B (1) (c). In my opinion, this argument is unsound. The previous provision by Parliament cannot determine whether the offence in s. 13AB is serious (although it may be evidentiary).
The applicant conceded that if Parliament had originally provided for summary trial of this offence with six months' imprisonment, it would be within power. He did not contend that ss. 42 and 43 of the Acts Interpretation Act were invalid. Once the applicant's argument based on the earlier legislation is rejected, his concessions leave him no basis for claiming that the case involves a breach of s. 80 of the Constitution. They amounted to an abandonment of the claim. In view of this concession, and in the absence of any thorough argument on the meaning and application of s. 80, I do not propose to decide whether the fact that the offence charged carries a punishment of six months' imprisonment is enough to raise the right to trial by jury. For this reason I joined in overruling his submissions.
Whether the guarantee extends to all criminal offences or whether some criminal offences regarded as petty are outside the scope of s. 80, there remains, in my opinion, a basic right entrenched in the Constitution to trial by jury, at least in serious criminal cases.
Also, in my opinion, s. 80 applies to trials in the Territories as well as in the States. I find nothing in the Constitution to restrict its scope to trials conducted within the States or to trials of offences committed within the States. The fact that s. 125 of the Constitution provides that the seat of government is to be in a Territory renders such a restriction extremely improbable, despite what was said in R. v. Bernasconi [33] and Spratt v. Hermes [34] .
On the question of the declared fishing zone, there is no substance in the applicant's contentions.
Another point raised by the applicant (although not raised on the application to remove) was that the naval vessel commander who arrested the applicant's boat was acting illegally and that his evidence was therefore inadmissible or should have been excluded as having been illegally obtained. The contention was that his action was an abuse of the defence power in that the naval defence forces could not be employed on such a task. Literally no argument was advanced to support this contention and for that reason I would reject it. There may be serious questions as to how far the defence forces may properly be involved in civil affairs but this is not the occasion to consider such questions.
I agree with the reasons for judgment prepared by the Chief Justice and have nothing to add.
Li Chia Hsing
Rankin
High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs, Murphy and Aickin JJ. Li Chia Hsing v Rankin [1978] HCA 56