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[2002] HCA 37
appellant. Appeal allowed with costs. The respondent's title was amended to Australian Securities and Investments Commission. Orders 1 to 6 of the Full Court were set aside, and the appeal to that Court was...
The Commission had prosecuted Macleod and obtained a conviction on one count. After a Supreme Court Commissioner set the conviction aside, the Commission appealed to the Full Court and succeeded. The High Court held that the Commission's statutory power to begin and carry on a prosecution did not include a power to bring this later appeal. A Western Australian provision that gave a party standing to appeal could not fill the gap through s 79 of the Judiciary Act because Commonwealth law defined the Commission's powers and did not authorise this appeal. The High Court therefore set aside the Full Court's decision and dismissed the Commission's appeal.
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2,177 words · generated 05/10/2026
The appeal concerned the authority of the Australian Securities Commission (ASC), later renamed the Australian Securities and Investments Commission (ASIC), to appeal a decision that had set aside a criminal conviction. The High Court treated the charges as offences against Western Australian law, even though the relevant Corporations Law was drawn from Commonwealth legislation and applied in Western Australia under the State scheme. The complaint was laid on 19 January 1998, and alleged two offences relating to statements in a document dated 16 December 1993 [1], [11]-[12].
28 cited instruments linked from this judgment.
One count concerned a statement that six carats of diamonds had been recovered at a particular rate without accounting for the overburden that had to be removed. The other alleged a representation predicting an annual profit of US$1,374,000,000 without reasonable grounds. The magistrate convicted Macleod on the second count and acquitted him on the first [11]-[13].
Macleod appealed to a single judge of the Supreme Court under the Justices Act 1902 (WA). The Commissioner allowed that appeal on 31 May 1999, set aside the magistrate's decision and dismissed both counts [14]-[16]. The ASC then sought leave to appeal to the Full Court. Section 206A(2) of the Justices Act provided that an application for leave could be made by “a party to an appeal” or the Attorney General. Since the ASC had been a party to Macleod's appeal, it fell within the words of that State provision [17]-[18].
The Full Court granted leave, allowed the ASC's appeal and restored the conviction on the second count. Macleod challenged the competence of that appeal in the High Court. The central question was not whether the Full Court had appellate jurisdiction in the abstract. It was whether the ASC, as a Commonwealth statutory body, had legal authority to invoke that jurisdiction [18]-[24].
The High Court allowed Macleod's appeal. It set aside the Full Court's orders and substituted an order dismissing the ASC's appeal to that Court [46]. The result followed from the limits of the ASC's statutory powers, not from a determination of whether Macleod had committed the offence.
The High Court separated two related questions. First, did Commonwealth law authorise the ASC to bring the appeal? Second, if not, could State law supply the authority through s 79 of the Judiciary Act 1903 (Cth)?
Section 49(2) of the ASC Act 1989 (Cth) applied where the Commission's investigation or examination indicated that a person might have committed an offence and ought to be prosecuted. It said that the Commission could cause “a prosecution of the person for the offence to be begun and carried on” [32]. The Court treated the distinction between carrying on a prosecution and appealing after its conclusion as decisive. The magistrate's orders concluded the prosecution. The later appeal was not a further step in conducting it [43].
The joint reasons acknowledged that a prosecution power would include steps necessary or incidental to exercising that power. But the Full Court appeal was not such a step. It occurred after conviction and after the Commissioner had set the conviction aside. The Court therefore held that s 49(2) did not authorise the ASC to institute or conduct that appeal [43]-[44].
The State-law route did not change the result. Section 79 of the Judiciary Act makes applicable State laws binding in federal jurisdiction, except where the Constitution or Commonwealth laws otherwise provide [10]. The High Court reasoned that where Commonwealth law defines a statutory body's powers, a State law cannot add a wider power if Commonwealth law has otherwise provided. The ASC Act gave the Commission a power to prosecute, but did not give it a power to appeal. That omission meant that s 79 did not pick up the State provision to supply the missing authority [21]-[24], [44].
The presence of the ASC as a party attracted federal jurisdiction under s 75(iii) of the Constitution. But jurisdiction and authority were distinct. Federal jurisdiction enabled the relevant court to hear a matter involving the Commonwealth as a party; it did not itself enlarge the ASC's statutory powers [6]-[9], [20]-[24].
The Court also rejected the argument that the appeal was merely an effort to restore an existing conviction and therefore should count as continuing the prosecution. The joint reasons said that the appeal was not to begin or carry on the prosecution [43]. Kirby J added that appeals are creatures of statute and that a power expressed as authority to prosecute would not ordinarily include authority to appeal [75]-[77]. He also explained that renewed court proceedings could expose an individual to further anxiety, expense and jeopardy even if the state's aim was to restore a conviction rather than secure a new one [71]-[74].
Kirby J addressed the broader argument that the Corporations Law scheme was cooperative federal legislation. He accepted that cooperative federalism may assist in resolving genuine ambiguity. But it could not displace the statutory words or cure a demonstrated defect in authority. In his view, courts must give effect to the cooperation that was actually enacted, not assume that an omitted power was intended [81]-[86].
The decision applied the reasoning in Byrnes v The Queen and Bond v The Queen. In those cases, the High Court had held that statutory powers relating to prosecution did not, without sufficient authority, empower the Commonwealth Director of Public Prosecutions to bring appeals in State-law prosecutions. The Court described those cases as relevant to whether a statutory power to prosecute included appellate authority [25]-[35]. Macleod extended the same approach to the ASC's separate statutory powers.
The Court noted that the Commonwealth Parliament had amended the Director of Public Prosecutions Act 1983 (Cth) in 2000. The amendments expressly provided for the Director and staff to institute and carry on certain State-authorised appeals arising out of prosecutions [28]-[30]. Those amendments concerned the DPP, not the ASC, and did not confer powers on the ASC [31]. Kirby J also noted that the amendments came into force after the Full Court decided Macleod's case [62]-[65].
The reasons describe legislative responses in 2001 to deficiencies in the previous Corporations Law scheme, but say that no party relied on them as relevant to the appeal [2], [5]. The High Court therefore decided the case under the provisions in force for the events before it, particularly s 49(2) of the ASC Act and ss 79 of the Judiciary Act and 206A(2) of the Justices Act.
The judgment does not purport to set out the later legislative position in detail or determine the effect of subsequent enactments on comparable appeals. Its reasoning is tied to the statutory wording before the Court. The key interpretive point is that a general authority to prosecute should not be treated as an appellate power where the legislation does not clearly provide for that power [43]-[44], [75]-[77].
At [43], the joint reasons state: “For the ASC to institute the appeal to the Full Court against the decision of the Commission setting aside Mr Macleod's conviction on count 2 was not to begin or carry on the prosecution.” In plain English, the Commission's prosecution had ended when the magistrate made the orders. The later appeal was a separate legal step, not a continuation of the original prosecution.
At [44], the Court explains that “federal law did not empower the ASC to institute and conduct the appeal to the Full Court”, and that s 79 did not pick up State law to confer that capacity. In plain English, the State provision described who could seek leave to appeal, but it could not give the federal Commission a power that its Commonwealth legislation had not granted.
Kirby J states at [58] that where a State-derived power would adversely affect an individual's rights and liberties, the empowering provisions must be clear. The point is not that every administrative power must be expressed in a particular formula. It is that courts will not infer a significant power affecting criminal proceedings from general words where the legislature has not made the intended authority clear.
Kirby J's statement at [84], “The starting point for the task of construction is always the statutory language itself,” is a concise account of his approach to cooperative legislation. The national purpose of the scheme could inform interpretation, but it could not change the meaning of the enacted provisions.
At [86], Kirby J says that “Inter-governmental cooperation does not overcome a demonstrated defect in constitutional or legislative power.” In practical terms, coordination between governments is not itself a source of statutory authority. The required power still has to be supported by the legislation and the Constitution.
The decision is particularly relevant where a Commonwealth statutory body seeks to appeal in a proceeding under State law, and the asserted authority depends on a State procedural provision combined with s 79 of the Judiciary Act. The first question is whether the Commonwealth legislation governing that body authorises the specific appellate step. Macleod shows that a State rule allowing a “party” to seek leave does not necessarily establish that a Commonwealth body has the statutory capacity to act as that party for an appeal [17]-[24], [44].
It is also relevant where an agency relies on broad language authorising it to begin, conduct or carry on a prosecution. The judgment distinguishes prosecution activity from a later appeal after the prosecution has concluded. The exact statutory language and the point in the proceedings at which the appeal is brought matter [32]-[34], [43].
The case does not determine every situation involving prosecution appeals. It concerned the ASC's enabling legislation, a prosecution under the Western Australian Corporations Law scheme, and a State provision conferring standing on a party to the earlier appeal. The Court did not decide whether the State provisions governing the ASC's appearance before the Commissioner were picked up by s 79 [45]. It also did not decide the interveners' broader constitutional arguments [45], [55], [87].
The supplied judgment does not provide decisions of courts after 11 September 2002, so it does not establish how later courts treated Macleod. A source-grounded account cannot infer a later line of authority from this judgment alone.
The judgment does describe two earlier Full Court decisions, Australian Securities and Investments Commission v Hosken and Australian Securities and Investments Commission v Vis. Those courts had reasoned that s 11(4) of the ASC Act, a provision concerning powers necessary, connected with or incidental to the Commission's functions, supported a power to appeal [36]-[37]. In Macleod, the ASC accepted that those courts had not been referred to State provisions excluding Part 2 of the ASC Act, which included s 11(4), when that Act was applied in the relevant States. The High Court said reliance on s 11(4) in those cases was therefore misplaced [37].
The High Court also considered the reasoning in Davern v Messel. It distinguished that case because it concerned the jurisdiction and power of the Federal Court to hear an appeal under its constituting legislation, not the statutory authority of a federal agency to prosecute an appeal [40]-[41]. The judgment thus cautions against treating a court's jurisdiction to hear an appeal as proof that a particular litigant or agency is authorised to bring it.
The Court followed the relevant reasoning of Byrnes and Bond in construing the ASC's powers [25]-[27], [43]-[44]. Beyond those relationships and the earlier state-court decisions described in the reasons, the text supplied does not support a claim about later judicial treatment.
The Court expressly left several matters undecided. First, it did not determine whether the Justices Act provisions that brought the ASC before the Commissioner to oppose Macleod's appeal were themselves picked up by s 79 of the Judiciary Act [45]. That question was unnecessary once the Court concluded that the later appeal to the Full Court was not authorised.
Second, the Court did not decide the constitutional arguments advanced by the intervening Attorneys-General concerning federal legislative powers, including powers referred to in ss 51(i), (xx) and (xxxix) of the Constitution [45]. Kirby J likewise said the second issue was unnecessary once the first issue was resolved [55], [87].
Third, the judgment does not define the full reach of powers described as necessary or incidental to a statutory function. The joint reasons expressed doubt that s 11(4) would assist on these facts, but did not need to decide that question because the provision was excluded from the applicable State scheme [37]-[38].
Finally, the judgment does not establish how later legislation affects comparable appeals, or how later courts have applied its reasoning. Those questions require the relevant later statutory text and authorities. The judgment's holding is that the ASC, under the legislation before the Court, had no authority to bring this particular appeal after the prosecution had concluded.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MALCOLM MACLEOD APPELLANT
AUSTRALIAN SECURITIES AND
INVESTMENTS COMMISSION RESPONDENT
Macleod v Australian Securities and Investments Commission
[2002] HCA 37
11 September 2002
P55/2001
ORDER
The title of the respondent be amended to read "Australian Securities and Investments Commission".
Appeal allowed with costs.
Set aside Orders 1 to 6 of the orders made by the Full Court of the Supreme Court of Western Australia on 13 April 2000 and in their place order that the appeal to that Court be dismissed with costs.
On appeal from the Supreme Court of Western Australia
Representation:
W B Harris for the appellant (of William B Harris)
D J Bugg QC with L R M Fletcher for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Interveners:
H C Burmester QC with G Witynski intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
B M Selway QC, Solicitor-General for the State of South Australia with R M Mitchell and P S Psaltis intervening on behalf of the Attorneys-General for the States of South Australia, Tasmania, Western Australia, Queensland and the Northern Territory (instructed by the Crown Solicitors for the States of South Australia, Tasmania, Western Australia and Queensland and the Solicitor for the Northern Territory)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Macleod v Australian Securities and Investments Commission
Criminal law – Companies – Offence against Corporations (Western Australia) Act 1990 (WA) – Attraction of federal jurisdiction under s 75(iii) of the Constitution by presence of Australian Securities and Investments Commission as party to prosecution – Section 206A(2) of the Justices Act 1902 (WA) conferred standing to apply for leave to appeal (and, if granted, to institute and conduct an appeal) upon "a party" to an earlier appeal – Whether Australian Securities and Investments Commission empowered to appeal to the Full Court against the order of a single judge of the Supreme Court of Western Australia on appeal from summary proceedings – Whether s 79 of the Judiciary Act 1903 (Cth) "picked up" s 206A(2) of the Justices Act – Whether Australian Securities Commission Act 1989 (Cth) "otherwise provided" for the purposes of s 79 of the Judiciary Act.
Constitutional law (Cth) – Federal jurisdiction – Australian Securities and Investments Commission a party – s 75(iii) of the Constitution – Substantive content of matter supplied by State law – Construction of legislation in co‑operative national scheme.
Appeal – Competency of appeal by Australian Securities and Investments Commission to the Full Court against the setting aside of an appeal to a single judge of the Supreme Court of Western Australia from conviction in summary proceedings.
Constitution, s 75(iii).
Judiciary Act 1903 (Cth), s 79.
Australian Securities Commission Act 1989 (Cth), ss 11(4), 49.
Justices Act 1902 (WA), s 206A(2).
Corporations (Western Australia) Act 1990 (WA), ss 7, 58.
GLEESON CJ, GAUDRON, McHUGH, GUMMOW, HAYNE AND CALLINAN JJ. By complaint dated 19 January 1998, proceedings in the Court of Petty Sessions held at Perth were instituted against the appellant, Mr Macleod. They were for two offences contrary to s 999 of the Corporations Law read with s 1311(1)(a) of the Corporations Law. Reference to "the Corporations Law" is to the Law then set out in s 82 of the Corporations Act 1989 (Cth) ("the 1989 Act") and applied as a law of Western Australia by s 7 of the Corporations (Western Australia) Act 1990 (WA) ("the WA Corporations Act"). The offences in question thus were offences against the law of Western Australia.
The 1989 Act was repealed, with effect from 15 July 2001, by the Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth) ("the 2001 Act")1. Section 7 of the WA Corporations Act was amended, with effect from the same date, to allow for the repeal of the 1989 Act, by s 30 of the Corporations (Ancillary Provisions) Act 2001 (WA) ("the WA Ancillary Act"). No party suggests that for the purposes of this appeal anything turns upon that repeal and amendment.
The proceedings were instituted against Mr Macleod by the body then styled the Australian Securities Commission ("the ASC"), established as a body corporate by ss 7 and 8 of the Australian Securities Commission Act 1989 (Cth) ("the ASC Act"). The style of the ASC was changed, with effect from 1 July 1998, to the "Australian Securities and Investments Commission"2, but for convenience it will be referred to hereafter as the ASC. The ASC Act was repealed, with effect from 15 July 2001, by the 2001 Act3 and replaced by the Australian Securities and Investments Commission Act 2001 (Cth). Section 261 of that latter statute continues the ASC as if established by it. Again, no party pointed to these changes as of any significance for the issues arising on this appeal. However, an order should be made amending the title of the respondent in this Court to "Australian Securities and Investments Commission".
Federal jurisdiction
In Byrnes v The Queen4 and Bond v The Queen5, prosecutions for offences under State law apparently were brought on the footing6 that "the Crown" was an appropriate party to prosecute the offences and that the Commonwealth Director of Public Prosecutions ("the Commonwealth DPP") was the relevant officer to represent it in that regard. No point was taken, and it is not to be supposed that it was open to do so, that the involvement of the Commonwealth DPP had attracted federal jurisdiction.
It may be added that the legislation enacted in 2001, to which reference has been made but upon which no reliance is now placed, was part of a detailed legislative response at State and federal level to the deficiencies in the previous Corporations Law scheme, disclosed in decisions of this Court including Byrnes and Bond7.
The nine heads of "matters" which fall within federal jurisdiction are identified in Ch III of the Constitution as to some by the source of the rights and liabilities in question or by the remedy sought8. However, s 75(iii) is attracted by the presence of the Commonwealth as a "party" in a "matter"; the rights or liabilities which supply content to the "matter" in question; and the nature of the remedy sought are to be ascertained aliunde. In the proceeding in the Court of Petty Sessions, the identity of the ASC as the complainant attracted the exercise by that Court of federal jurisdiction; the liability sought to be established in the proceeding, and the substantive content of the "matter" within the head of s 75(iii) was the determination of liability for contravention of certain laws of Western Australia and the imposition of penalties if liability was established. It is accepted that, for the purposes of Ch III of the Constitution, in particular s 75(iii), the ASC is to be regarded as "a party" which is "the Commonwealth". So much was established by Australian Securities and Investments Commission v Edensor Nominees Pty Ltd9.
However, the ASC is not in the same position as the executive branch of the government, charged by the broad terms of s 61 of the Constitution with the execution and maintenance of the Constitution itself and of the laws of the Commonwealth. The ASC is a creature brought into existence by one of those laws and endowed by it with particular functions and powers. Questions thus arise of the competence of the ASC to take particular steps and of the construction of the empowering provisions of the ASC Act.
"the assumption – in our opinion well‑founded – that in giving jurisdiction to State courts in committal proceedings the Parliament is investing those courts with jurisdiction in a matter arising under s 76(ii) of the Constitution, the matter being the claim or charge that the person charged has committed an offence against a particular law of the Commonwealth".
In the present case, the investment of federal jurisdiction is supported by s 77(iii) in combination, not with s 76(ii), but with s 75(iii) of the Constitution. Hence the applicable provision of the Judiciary Act is the general investment made by s 39(2) of that statute. This investment of federal jurisdiction includes appellate jurisdiction within the provisions made for it by the relevant State judicial system11, with an appeal to this Court established by s 73(ii) of the Constitution.
In the Court of Petty Sessions and in the Supreme Court, both before the Commissioner and the Full Court, s 79 of the Judiciary Act operated to "pick up" State law12, that of Western Australia. Section 79 did so without enabling the court exercising federal jurisdiction to give an altered meaning to any State statute13. Moreover, the section rendered binding State law "except as otherwise provided by the Constitution or the laws of the Commonwealth". This is a matter to which it will be necessary to return later in these reasons.
The charges
"that six carats of diamonds were recovered at the rate of zero point four carats to the tonne [without taking] into account the overburden which had to be penetrated and removed in order to recover the diamonds".
The statement complained of in the second count was said to have contained:
"a representation with respect to a future matter namely that it predicted an annual profit for Cambridge Gulf Exploration NL in the sum of $US1,374,000,000.00 and there were no reasonable grounds for making that representation".
The proceedings in Western Australia
Section 20 of the Justices Act 1902 (WA) ("the Justices Act") conferred a general jurisdiction in respect of State summary offences upon two or more "Justices", a term defined in s 4 to include a magistrate acting alone pursuant to s 33. In November 1998, after a summary hearing before a magistrate in the Court of Petty Sessions, Mr Macleod was convicted in respect of the second count, concerning the prediction of the annual profit. He was found not guilty in respect of the first count, concerning the recovery of diamonds.
The decision and orders by the magistrate resolved the controversy between the ASC and Mr Macleod, namely the determination of his liability for contravention of State law upon the two counts in question. That particular exercise of federal jurisdiction was thereby concluded14. However, Pt VIII (ss 183‑219) of the Justices Act provided for appeals. In particular, s 185 provided for an appeal, by leave, to the Supreme Court of Western Australia constituted by a single judge. Section 185(2) stipulated that an application for leave be made by:
"(a) any person who is aggrieved by the decision; or
(b) the Attorney General".
Plainly, Mr Macleod was a "person … aggrieved" by his conviction in respect of the second count.
Section 185(2) provided for the application to be made ex parte unless there was an order that the application be served on any person. Leave was granted to Mr Macleod on 30 November 1998. Section 191 obliged him to give notice of the appeal to the other party to the proceedings in the Court of Petty Sessions, the ASC. The appeal came before a Commissioner sitting as a single judge of the Supreme Court. The ASC appeared, by counsel, as the respondent.
The presence of the ASC as a party again attracted the exercise of federal jurisdiction, on this occasion by the Supreme Court, but in a "matter" in which the right sought to be vindicated was that conferred upon Mr Macleod as an appellant by Pt VIII of the Justices Act. In particular, Mr Macleod sought to have removed his conviction on count 2 of the complaint and the controversy was whether the Court of Petty Sessions had erred in convicting him. On 31 May 1999, the Commissioner, pursuant to s 199 of the Justices Act, ordered that the appeal be allowed, the judgment of the Court of Petty Sessions be set aside and in place thereof it be ordered that counts 1 and 2 of the complaint be dismissed with Mr Macleod to have his costs of those proceedings. The Commissioner also ordered that the ASC pay Mr Macleod's costs of the appeal to the Supreme Court.
Section 206A of the Justices Act provided that an appeal lay to the Full Court, by leave, from a decision under s 199. Section 206A(2) stated:
"An application for leave to appeal may be made by –
(a) a party to an appeal; or
(b) the Attorney General."
The appeal to this Court
In this Court, Mr Macleod seeks orders setting aside the orders made by the Full Court and the reinstatement of the orders made by the Commissioner. He does so on the footing that the appeal by the ASC to the Full Court was incompetent because the powers of the ASC did not extend to the taking by it of that action.
The presence of the ASC as a party had engaged the Commissioner, as it had the Court of Petty Sessions, in the exercise of federal jurisdiction. Likewise, by appealing, with leave, to the Full Court, the ASC engaged the Full Court in the exercise of federal jurisdiction in a "matter" in which the Commonwealth was a party within the meaning of s 75(iii) of the Constitution. However, at each level, the "matter" had a distinct substantive content supplied by State law. At the Full Court level, the liability which the ASC sought to establish was that of Mr Macleod to suffer the setting aside of the orders in his favour by the Commissioner and the reimposition of the penalty imposed at first instance in respect of the conviction on count 2.
What was the source of the competence of the ASC to take advantage of the standing conferred by s 206A(2) of the Justices Act? On one view, s 206A(2) fixed upon a party to the proceeding heard by the Commissioner and rendered that party competent to institute the Full Court appeal, without any further inquiry being open as to the capacity of that party to act in this way. That construction of the sub‑section may for present purposes be assumed. But that assumption then calls into play s 79 of the Judiciary Act. Was s 206A(2) for this purpose picked up by s 79 as a surrogate federal law?
That could only be so if it were not "otherwise provided" by the laws of the Commonwealth or the Constitution. What is involved in that latter phrase in s 79 was considered in Northern Territory v GPAO16. The relevant law of the Commonwealth which may have made other provision within the meaning of s 79 was the ASC Act. This provided for the creation, functions and powers of the ASC. If the Justices Act would have added to or derogated from those powers and functions created and conferred by the law of the Commonwealth, then it would not have been "picked up" by s 79 because the Commonwealth law would otherwise have provided.
The ASC submits, in effect, that its competence with respect to the Full Court appeal by it was provided both by the State law to which reference has been made, s 206A(2) of the Justices Act, and by the ASC Act itself. Neither conclusion will follow if federal law, the ASC Act, denied that competence. However, the ASC submits that, on its proper construction, the ASC Act authorised rather than denied what was done by the ASC; that also would mean that no law of the Commonwealth "otherwise provided" and that s 79 of the Judiciary Act did operate to "pick up" s 206A(2) of the Justices Act.
Byrnes and Bond
One of the submissions by Mr Macleod which was rejected in the Full Court was that it followed from the decisions in Byrnes and Bond that the ASC lacked the necessary authority in federal statute law to institute and prosecute the appeal to the Full Court. In rejecting that submission, the Full Court distinguished the legislation involved in the earlier decisions of this Court and also relied upon the reasoning by the Tasmanian Full Court in Australian Securities and Investments Commission v Hosken17. In argument in this Court, reference was made to the subsequent decision of the South Australian Full Court in Australian Securities and Investments Commission v Vis18 which, on this point, followed the reasoning in Hosken.
In both Byrnes and Bond, the appellants had been convicted for offences against State corporations legislation. Appeals against sentence were successfully instituted by the Commonwealth DPP who controlled the Office established by s 5 of the Director of Public Prosecutions Act 1983 (Cth) ("the Commonwealth DPP Act"). In Byrnes, this Court held that the relevant law of South Australia, namely the transitional provisions in the Corporations (South Australia) Act 1990 (SA) ("the SA Corporations Act"), which sought to bring within the scope of the national scheme then in force prosecutions for offences against the South Australian elements of the former co‑operative scheme, failed to confer the necessary authority on the Commonwealth DPP to appeal against sentence.
In Bond, this Court held that the necessary authorisation for the Commonwealth DPP in respect of an appeal against sentence upon conviction for offences under the Western Australian legislative participation in the national scheme, could not be found in federal law, in particular in the Commonwealth DPP Act. Section 17 of that statute provided that a member of the staff of the Office of the Commonwealth DPP, holding an appointment to prosecute offences against the laws of a State, might "institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences". It was held that s 17 did not authorise the institution of appeals against sentences imposed, in the instant case, for offences against the WA Corporations Act. Moreover, State legislation which, on its face, authorised the Commonwealth DPP to institute appeals against sentence was to that extent invalidated by the operation of s 109 of the Constitution19. That operation of s 109 may be compared, for the purposes of the present case, with the provision in s 79 of the Judiciary Act respecting laws of the Commonwealth by which it is "otherwise provided" to State laws said to be "picked up" by s 79.
"If a member of the staff of the Office[21 is authorised by or under a law of a State to institute and carry on appeals arising out of prosecutions of offences against the laws of the State, being prosecutions by the Director as mentioned in paragraph 6(1)(m) or by members of the staff of the Office as mentioned in subsection (1) of this section, the first-mentioned staff member may institute and carry on such appeals in accordance with requirements of or under that law."
"where the Director, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State – to institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences".
"if the Director is authorised by or under a law of a State to institute and carry on appeals arising out of prosecutions of offences against the laws of the State, being prosecutions by the Director as mentioned in paragraph (m) or by members of the staff of the Office as mentioned in subsection 17(1) – to institute and carry on such appeals in accordance with requirements of or under that law".
No corresponding amendments appear to have been made to the provisions in the ASC Act providing for the beginning and carrying on of prosecutions by the ASC. It is those provisions upon which the present appeal turns.
Part 3 (ss 12B‑93AA) of the ASC Act was headed "Investigations and information-gathering" and Div 5 (ss 49‑50) was headed "Proceedings after an investigation". Sub‑sections (1) and (2) of s 49 stated:
"(1) This section applies where:
(a) as a result of an investigation; or
(b) from a record of an examination;
conducted under this Part or a corresponding law, it appears to the Commission that a person:
(c) may have committed an offence against a national scheme law, or a relevant previous law, of this jurisdiction, or Division 2 of Part 2[22; and
(d) ought to be prosecuted for the offence.
(2) The Commission may cause a prosecution of the person for the offence to be begun and carried on."
It will be apparent that the phrase in s 49(2) "a prosecution … to be begun and carried on" had a close affinity with the phrase in s 17 of the Commonwealth DPP Act "institute and carry on … prosecutions" with which the decision in Bond was concerned. Further, Byrnes, to a significant degree, turned upon the expression "the institution and carrying on of a prosecution", the terms of the power conferred by par (c) of s 91(5) of the SA Corporations Act23.
In Byrnes, the Court held that, in the absence of the manifestation of a specific intention, no power or function in relation to appeals against sentence was to be found in the terms of s 9124. In that connection, the Court stressed that the terms of the section did not refer to "appeals" and noted the earlier decision in Davern v Messel25, to which further reference will be made.
The Court in Byrnes also referred to the point emphasised by Barwick CJ in Peel v The Queen26 that neither an appeal against acquittal nor an appeal against sentence is an appeal arising out of any proceedings connected with the trial and that an appeal against sentence is not an appeal arising out of any proceedings connected with the conviction. His Honour had been construing the phrase "appeals arising out of any such trial or conviction" in s 68(2) of the Judiciary Act.
In distinguishing the outcome in Byrnes and Bond, the Tasmanian Full Court in Hosken27 relied upon s 11(4) of the ASC Act as providing a relevant distinction for a conclusion supporting the existence of a power in the ASC to appeal to the Full Court against the setting aside of an appeal to a single judge from convictions in summary proceedings. Section 11(4) was found in Pt 2 of the ASC Act. It stated:
"The [ASC] has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions."
"In the present case, the legislation is relevantly different. The power to perform incidental functions, found in s 11(4) of the [ASC] Act, was not available in Byrnes or in Bond."
However, it is agreed by the ASC in the present appeal that, in both Hosken and Vis, the Courts in question had not had drawn to their attention an important point found in s 58(2) of the Corporations (Tasmania) Act 1990 (Tas) and the SA Corporations Act, as in s 58 of the WA Corporations Act29. In each case, it was provided that, in the application of the ASC Act to the State in question, Pt 2 (which included s 11(4)) was excluded. It follows that reliance upon that sub‑section in the reasoning in both cases was misplaced.
Davern v Messel
"Nor, in the present case, are there textual reasons which would lead one to conclude that a power to appeal is not conferred. All that is left is the exceptional nature of prosecution appeals. But, as Mason and Brennan JJ said in Davern31, 'courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings'. In this respect the case is finely balanced. In the absence of any textual indications that a right of appeal is not conferred, and bearing in mind the approach generally taken to rights of appeal in summary matters, I conclude that [the ASC] does have the power to appeal that it has exercised in the present case."
It thus becomes necessary to determine what was decided in Davern v Messel. In Byrnes32, that decision was referred to as indicating that in certain matters an appeal by the Crown may be taken to the Full Court of the Federal Court. This Court in Davern v Messel was considering not a statutory provision conferring authority upon a prosecutor but a provision conferring jurisdiction on a federal court pursuant to s 77(i) of the Constitution. Section 24(1) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") conferred jurisdiction upon that Court to hear and determine "appeals" from "judgments" of certain courts including, as the section then stood, the Supreme Court of the Northern Territory33. The Court (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ; Murphy and Deane JJ dissenting) held that s 24(1) conferred upon the Federal Court power to hear and determine an appeal by the Crown from a judgment of the Supreme Court, quashing a conviction by a magistrate, on an appeal to the Supreme Court by the accused.
The decision in Davern v Messel thus turned upon the meaning to be given not to any expression resembling those at issue in Byrnes, Bond or this appeal, but to the words "appeals" from "judgments" in s 24(1) of the Federal Court Act. As Mason and Brennan JJ pointed out in Davern v Messel34, appeals from a decision of a court are entirely creatures of statute (or, in this country, s 73 of the Constitution).
Double jeopardy
Conclusion
However, whatever view one takes of the application of notions of "double jeopardy" to a person in the position of Mr Macleod, that cannot direct the meaning of s 49(2) of the ASC Act if it otherwise be clear upon its face. For the ASC to institute the appeal to the Full Court against the decision of the Commission setting aside Mr Macleod's conviction on count 2 was not to begin or carry on the prosecution. No doubt the power to conduct those activities included authority to take steps incidental and necessary to the exercise of the power37. However, the prosecution concluded with the making of the orders by the magistrate. The subsequent institution and conduct by the ASC of the Full Court appeal was within the terms of s 206A(2) of the Justices Act. The ASC had been a party to the appeal by Mr Macleod to the Commissioner. However, the appeal by the ASC was not a further step in the conduct of the prosecution; that had culminated in the conviction on the second count and the finding of not guilty in respect of the first count.
A law of the Commonwealth, such as s 49(2) of the ASC Act, is to be construed as requiring the officers or body in question to have and to exercise only such powers as the Parliament of the Commonwealth thereby has chosen to vest in them38. Where the law of a State purports to grant some wider power or authority to such an officer or body, then the law of the Commonwealth will be one by which it is "otherwise provided" for the purposes of s 79 of the Judiciary Act. The result is that federal law did not empower the ASC to institute and conduct the appeal to the Full Court, nor did s 79 "pick up" any provision of State law otherwise expressed in terms sufficiently broad to endow the ASC with the capacity to take those steps.
It is unnecessary to determine whether the provisions of the Justices Act which had the consequence of bringing the ASC before the Commissioner to oppose Mr Macleod's appeal against his conviction were not "picked up" by s 79 of the Judiciary Act. Nor is it necessary to consider other submissions by the intervening Attorneys-General respecting the legislative power of the Commonwealth under pars (i), (xx) and (xxxix) of s 51 of the Constitution and other questions, to which some reference was made in R v Hughes39.
The title of the respondent to the appeal in this Court should be amended to read "Australian Securities and Investments Commission". The appeal should be allowed with costs. Orders 1 to 6 of the orders made by the Full Court should be set aside. In place thereof it should be ordered that the appeal to that Court be dismissed with costs.
The course of the proceedings and issues
The proceedings: There is no doubt that the Australian Securities and Investments Commission (formerly the Australian Securities Commission)42, the respondent to this appeal, thought that it had the power to bring the appeal in question. The appellant (Mr Malcolm Macleod) originally accepted that assumption. He raised no objection to the respondent's right to do so when the respondent sought leave to appeal to the Full Court of the Supreme Court of Western Australia ("the Full Court")43. Nor did he challenge the competency of the appeal during argument when the appeal was first heard by the Full Court44.
However, after the Full Court had reserved its decision, this Court decided Bond45. On its own initiative, the Full Court, noting that decision, invited submissions about the competency of the respondent's appeal. It was only at that stage that the appellant advanced a submission that the appeal was incompetent46.
The Full Court rejected that submission. It concluded that Bond, and the earlier decision in Byrnes47, were distinguishable. Having upheld the competency of the process that invoked its jurisdiction and powers, the Full Court proceeded to uphold the appeal. It set aside the orders made by Commissioner Martin QC, sitting as a single judge of the Supreme Court of Western Australia48. His orders had allowed the appellant's appeal to the Supreme Court, set aside the original judgment of the Court of Petty Sessions and, in its place, ordered that the two counts of the original complaint against the appellant be dismissed. The appellant was also awarded the costs of the initial proceedings and of the appeal to the Supreme Court.
In consequence of the Full Court's order, the order of the Commissioner was, in its turn, set aside. The conviction of the appellant on the second count was "restored"49. The costs order of the magistrate was reinstated. The appellant was ordered to pay the respondent's costs of both appeals to the Supreme Court.
The Commission lacked authority to appeal
The appeal involves a simple and narrow question. That question ought not to be expanded to raise unnecessary issues52.
The respondent is a statutory authority created by the Federal Parliament. Ordinarily, its functions and powers must therefore be found in valid federal legislation, whether the Act of the Parliament creating it or other federal legislation that refers to it explicitly, or by necessary implication. The respondent is not a federal court. It is not therefore affected by the implied limitation that this Court has found upon the powers of State Parliaments to confer authority and functions on federal courts53. It is possible for a State law to provide certain functions and powers which, by force of the provisions of federal law (usually the Judiciary Act) are applied to a federal executive authority, such as the respondent. However, such derivative State functions and powers could not be inconsistent with functions and powers conferred on the respondent by federal law54. In other words, a grant of functions and powers derived from State law must be compatible with the respondent's grant of functions and powers by federal law55. Otherwise, the explicit provisions of the federal law will exclude the possibility that the powers provided by State law are "picked up" and made "surrogate" federal law. The federal law would then be held to have "otherwise provided"56 or, for like reasons, not to be engaged57.
When a question arises as to whether a function or power originating in a State law has been conferred on a body such as the respondent, compatibly with federal law, and where such function or power would, if exercised, have the consequence of affecting adversely the rights and liberties of individuals, the empowering provisions of such laws must be clear. This is so because of the interpretive principle of long standing that courts will not impute to parliaments, federal or State, a diminution or restriction of the rights and liberties of the individual, unless that purpose is made clear by the terms of the legislation in question58.
These principles are elementary. They explain the decisions of this Court in the earlier cases in this series. They must be applied by this Court to the present appeal.
The suggested differences from Byrnes and Bond
It follows that consistency with the decisions in Byrnes and Bond appears to require a similar conclusion in these proceedings, namely that the federal legislative authority to cause a prosecution to be begun and carried on, does not extend to clothe the respondent with the power to institute its appeal to the Full Court. However, at different stages three arguments have been propounded to sustain the respondent's power to appeal in this case:
That it was authorised by a particular provision of the respondent's constituting statute empowering it to do whatever was "necessary for or in connection with, or reasonably incidental to, the performance of its functions"69;
That the principle of strict construction which had produced the outcome in Byrnes and Bond had no application in the circumstances of the respondent's appeal; and
That the principle of strict construction was inappropriate to the elucidation of the meaning of interlocking federal and State legislation designed to give effect to a national scheme ("template"70) law and that, when this consideration was given due weight, it cured the deficiency in favour of the respondent's construction.
The incidental functions provision did not apply
The distinction of appeals to restore convictions is unavailing
Argument (2) cannot be dismissed so easily. Two Australian appellate courts have upheld the authority of the respondent, in circumstances akin to the present case, to institute an appeal under its general powers of carrying on a prosecution where the appeal in question was not the exceptional act of a public authority endeavouring to overcome an acquittal but instead (as here) simply an attempt to restore a conviction which the respondent asserts has been correctly entered at trial but incorrectly set aside in a first level appeal brought by the convicted person75.
In such a case, the respondent argued, the strong presumption that dictated a narrow reading of the legislation, so as to require express authority for a prosecutor's own appeal, was inapplicable. The legislation could therefore be read according to its ordinary meaning. So read, it would sustain, as within the federal law empowering the "carrying on" of the prosecution, an attempt by the respondent (through a process of appeal) to do no more than restore the conviction secured at first instance in the "prosecution", where that conviction had been erroneously disturbed. The respondent submitted that, in such a case, considerations of "double jeopardy" that lay behind the strict construction principle, had no application. There was no need therefore to insist that the power to appeal (and to seek leave to appeal) must be expressly stated76. It could be derived from a reading of the federal law so as to achieve its purpose of empowering the respondent to "carry on" a prosecution.
With respect, as a matter of statutory construction, this suggested distinction cannot be sustained. First, it is not supported by an analysis of what this Court held in Davern v Messel77, as appears to have been the view of the courts below. That decision was concerned with the jurisdiction and power of the Federal Court of Australia to hear and determine "appeals" under its constituting Act78. It was not concerned with the authority and power of a federal statutory agency to prosecute an appeal. The latter must be found in valid and applicable federal legislation. Where it may impinge adversely on the rights of individuals, the power must be clearly granted. The point that distinguishes Davern from the present case was urged in the courts that considered this point79. Incorrectly, the distinction was rejected. The issue presented for decision in was therefore different from that addressed to the Court in this appeal. The applicable authority in this case was to be found in and , not .
"… to embarrassment, expense and ordeal and [compelled] to live in a continuing state of anxiety and insecurity, as well as [subjected to] the possibility that even though innocent he may be found guilty".
It is in this broader sense that the phrase "double jeopardy" has commonly been used by courts in Australia84 and overseas85. The expression has not been confined to protection of the individual from the risk of double punishment for the one offence. It also extends to vexation by public authorities using the powers of the state in ways that may adversely affect the rights of the individual86.
Following the decision of Commissioner Martin, the appellant walked from the Supreme Court freed from the conviction87 and relieved of punishment88 for the offences for which the respondent had prosecuted him89. Moreover, he had secured orders in his favour obliging the respondent to pay his costs. To suggest, in such circumstances, that he was not subjected to a species of "double jeopardy" by the further appeal to the Full Court brought by the respondent, although it put him once more in peril, requires a somewhat ethereal view of what "jeopardy" means in this context. Certainly, the appellant would have been entitled to consider himself as subjected to a repeated attempt by a public authority to secure his conviction of a criminal offence. The suggested point of distinction between obtaining that conviction again and merely restoring a conviction that had been set aside would probably have struck the appellant as precious and somewhat scholastic.
But is the distinction legally correct and compatible with the reasoning in Byrnes and Bond? I think not. In Byrnes, I suggested that the requirement of clear legislative authority to appeal was derived in that case, in part, from the character of appeal, as a legal process – one invariably created by statute90. I further suggested that the law's insistence on clear authority to bring a prosecution appeal in a criminal case "can be traced to the bias of our law in favour of the liberty of the individual and against exposure of the individual to repeated jeopardy in criminal proceedings"91. I might have added that, in any case, there were obvious difficulties, as a matter of language, in stretching a statutory authority to perform enforcement powers, including "prosecution" of offences, into an "appeal" as in some way amounting to the carrying on of such "prosecution". Because of the history of appeals, particularly in respect of criminal proceedings, the word "prosecution" used in a legal sense, would not normally extend to include the bringing of an appeal. "Prosecution" is typically no more than a proceeding in a criminal court brought by a formal process (indictment, presentment, complaint or information) for the purpose of putting an alleged offender on trial for an offence.
The construction of cooperative national legislation
What I have said is sufficient to dispose of the appeal to this Court. However, there remains a third argument. It can be dealt with briefly for it arises from published criticisms of the decision in Bond rather than any suggestion of the parties that this Court should reconsider that decision. For their part, the parties were content for this Court to apply Byrnes and Bond to the different factual circumstance of the appellant's case.
In a commentary95, it has been stated that the reasoning in the joint reasons in Bond (in which I participated) was incompatible with my earlier affirmation of the implication, inherent in the federal character of the Constitution, that the component parts of the Australian federation are ordinarily to be taken to operate with a high measure of cooperation, as implied by the "federal idea"96. It was suggested that this Court's reasoning in Bond had failed to carry forward this constitutional notion of cooperative sharing in the context of inter-governmental cooperation and coordinated national laws97. It was argued that I must have overlooked my earlier commitment to "uphold and facilitate such cooperation as one of the objectives for which the Constitution was made"98 as well as my statement that such cooperation was one of the "purposes of good government which the Constitution was designed to promote and secure"99. The approach of the Court in Bond (and by inference Byrnes) was said to be incompatible with the proper construction of cooperative federal-State legislation endorsed in the foregoing observations and indeed in the approach of the Court as a whole to statutory interpretation more generally, as evidenced in recent decisions, such as Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd100.
These observations do not cause me to doubt the correctness of Byrnes or Bond or their application to the interlocking federal and State laws in this case.
The principle of legal cooperation within a federation such as Australia may be accepted as an ordinary presupposition of the Constitution. It may sometimes afford a useful tool of statutory construction to help the resolution of constitutional or statutory ambiguities. The word "federal" itself comes from the Latin meaning treaty or agreement. Further, the concept of federalism is constantly evolving and changing. I remain of the opinions expressed in the cited passages.
"A court should not disregard clear words and interpret a legislative provision so as to extend the scope of criminal liability even if it thinks that, by inadvertence, the legislature has failed to deal with a matter."
Similarly, this Court may not fill legislative omissions because it regards the omission to provide an essential authority for a prosecutor to appeal as an unintended gap in complex legislation106. Or because it considers the point on which the appellant succeeds to be devoid of substantive merit107.
In the competition between the principle of interpretation that approaches constructively the derivation of the meaning of interlocking legislation which constitutes a cooperative national legislative scheme and the principle of construction that protects individual liberties and rights, especially in penal laws, the outcome will in each case depend on an analysis of the legislation in question. The starting point for the task of construction is always the statutory language itself. In the present case, as in Bond, in the absence of an explicit power in the respondent to appeal, that involves eliciting the meaning of "carrying on" a prosecution in the context. No general provision of the Judiciary Act can fill this clear gap in the respondent's authority or power to appeal.
One can have as much inclination towards upholding cooperative legislation and national scheme laws as one likes but, in the end, it is impossible to transmute the power and authority to prosecute or to "carry on" a prosecution into a power and authority to appeal against an order that has relieved an accused of the burden of conviction, punishment and costs. To do so is to defy the nature of "appeal" in our law, the particular history of appeals in criminal cases108, the settled character of a "prosecution" as a legal idea109, the rule of statutory construction defensive of individual liberties and rights and the language and structure of the law in question conferring authority and powers on the respondent.
The decisions in Byrnes and Bond disclosed, it is true, an unintended failure of the interlocking legislation enacted to implement a cooperative national law of much importance. So probably does this decision. But in concluding as it did in Byrnes and Bond, and in applying the same principle to the present case, this Court is not needlessly frustrating cooperation within the federation. It is simply giving effect, as its constitutional duty requires, to the extent of the cooperation that is lawfully enacted by the component parts of the federation. The notion that any deficit or flaw of a national law can be ignored or papered over in the name of federal cooperation is one that I would reject. Inter-governmental cooperation does not overcome a demonstrated defect in constitutional or legislative power.
Orders
Sched 1, Pt 1, Item 2. ↩
Upon the commencement of Sched 1 to the Financial Sector Reform (Amendments and Transitional Provisions) Act 1998 (Cth). ↩
Sched 1, Pt 1, Item 1. ↩
(1999) 199 CLR 1. ↩
(2000) 201 CLR 213. ↩
See the submissions by the Solicitor-General for the State of South Australia in Byrnes v The Queen (1999) 199 CLR 1 at 19. ↩
Saunders, "A New Direction for Intergovernmental Arrangements", (2001) 12 Public Law Review 274. ↩
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 624 [86]. ↩
(2001) 204 CLR 559 at 581 [40], 608 [126]. ↩
(1985) 158 CLR 596 at 617. ↩
Ah Yick v Lehmert (1905) 2 CLR 593; R v Whitfeld. Ex parte Quon Tat (1913) 15 CLR 689. ↩
Section 79 provides: "The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."
Macleod
Australian Securities and Investments Commission [2002] HCA 37; 211 CLR 287; 191 ALR 543; 76 ALJR 1445
(1999) 199 CLR 1
(2000) 201 CLR 213
(2000) 200 CLR 591
(2001) 204 CLR 559
(1985) 158 CLR 596
(1905) 2 CLR 593
(1913) 15 CLR 689
Appeal allowed with costs. The respondent's title was amended to Australian Securities and Investments Commission. Orders 1 to 6 of the Full Court were set aside, and the appeal to that Court was dismissed with costs.
In the present case, it is important to bear in mind, as already mentioned, that Mr Macleod was charged with offences against State law. He was not charged with offences against "the laws of the Commonwealth", the expression upon which turns the investment of State courts with jurisdiction by s 68(2) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). That provision derived from s 76(ii) of the Constitution and the body of case law construing it has no application here. In R v Murphy10, the Court, when dealing with committal proceedings, observed that underlying s 68(2) was:
It thus becomes necessary first to construe the relevant provisions of the ASC Act. Did they "otherwise provide" or, to the contrary, did they, as the ASC submits, confer direct federal legislative authority for the ASC to act as it did?
The Commonwealth DPP Act was amended by the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth)20 with the evident object of overcoming the deficiency disclosed in Bond. Section 17 of the Commonwealth DPP Act was amended by adding sub‑s (2) as follows:
KIRBY J. This appeal is the latest chapter in a series of cases40 that have concerned the power of federal authorities to appeal in matters involving challenges to a conviction for offences against the Corporations Law41.
By special leave, the appellant now challenges the judgment of the Full Court. The only ground of appeal relates to the competency of the respondent's purported appeal to the Full Court giving rise to that judgment. The appellant seeks the "reinstatement" of the "judgment of Commissioner Martin".
Two issues: The appellant's arguments about the competency of the respondent's appeal to the Full Court are framed in the alternative:
First, the appellant submits that the respondent had no authority or power under federal statute law to bring its purported appeal to the Full Court. In so far as it was suggested that State statute law conferred any such authority or power on the respondent (a federal agency), as with the aid of the Judiciary Act 1903 (Cth) (the "Judiciary Act"), such attempt was ineffective because the powers of the respondent to proceed against the appellant were conferred comprehensively and exclusively, by its own (federal) statute50. Secondly, the appellant submitted that, if it were held that the propounded federal law on its true construction purported to confer on the respondent, or authorise, a power derived ultimately from State law to initiate the appeal to the Full Court, any such authority was invalid as going beyond the legislative powers of the Federal Parliament.
The second issue was not initially raised in the appellant's submissions. The respondent, however, for precaution, because of what had been said on the special leave application, gave notice of the second issue pursuant to the Judiciary Act, s 78B. That notice attracted the intervention of the Attorney-General of the Commonwealth. He relied on several sources of constitutional power to sustain the propounded legislation and also on the Corporations (Administrative Actions) Act 2001 (WA). A number of State Attorneys-General intervened to advance different submissions on the constitutional issue. However, that issue is not reached if, as a matter of construction, the respondent lacked authority to bring its appeal to the Full Court. Conforming to the practice of this Court in such matters, it is appropriate first to address the arguments concerning the applicable legislation and its meaning51.
The scheme of the interlocking federal and State legislation upon which the respondent relied to sustain its power to appeal to the Full Court is explained in the joint reasons59. I will not repeat the applicable provisions. I am prepared to accept that the State legislation, to which the respondent referred as the initial source of its power to appeal to the Full Court, or to apply for leave to appeal to the Full Court as a "party" to the earlier "appeal" heard by Commissioner Martin60 was expressed in general terms. They were terms otherwise susceptible to being "picked up" and applied on the initiative of the respondent. However, any such authority under State law had to be complemented by a provision under federal law that was compatible with the respondent's proceeding to exercise such State-derived authority. In other words, the State Parliament could not confer on the respondent authority that went beyond, or was incompatible with, the functions and powers conferred on the respondent by federal law. If it did so, there would be no lawful basis in the respondent's own charter permitting it to appeal or seek leave to appeal. The mere fact that it was permitted to do so under a State law that it invoked and asked to be "picked up" would not alone confer that essential ingredient. The State attempt, alone, would be futile.
The foregoing propositions follow from the simple constitutional requirement that a creation of federal legislation cannot act in ways unauthorised by, or inconsistent with, any explicit federal law governing its own functions and powers. No general provisions, such as those in the Judiciary Act could repair such a deficiency of power.
The decisions of this Court in Byrnes and Bond were concerned with the power of the Commonwealth Director of Public Prosecutions ("the DPP"), under a federal Act creating his office and defining his functions and powers, to institute and carry on an appeal in respect of a prosecution which the DPP had earlier initiated. The legislative defect identified in those decisions was eventually repaired. The Federal Parliament enacted the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth)61. That Act inserted among the statutory powers of the DPP an express power, where "authorised by or under a law of a State", to "institute and carry on appeals arising out of prosecutions of offences against the laws of the State"62. At the same time the general powers of the DPP were enlarged to include the institution, and carrying on, of appeals arising out of prosecutions for offences against the laws of a State63.
Those amendments have no application to the present proceedings. They did not come into effect until after the respondent's appeal to the Full Court was decided64. More fundamentally, the enhancement of the DPP's powers does not enlarge the powers of the respondent. In this case, it was the respondent Commission, and not the DPP in the name of the Crown, that brought the prosecution against the appellant. The respondent purportedly did so pursuant to its own powers, conferred upon it under the legislation that created it65. Relevantly, that legislation empowered the respondent, if it appeared to it that a person "may have committed an offence against a national scheme law" who "ought to be prosecuted for the offence"66, to "cause a prosecution of the person for the offence to be begun and carried on"67. There is no reference in the respondent's enabling legislation to instituting and carrying on an appeal. Like the legislation relating to the DPP that was considered in Byrnes and Bond, the enabling federal law is silent on the power and authority of the federal instrumentality concerned to institute and conduct an appeal.
The documentation filed in the Full Court, both in the application for leave and subsequently in the respondent's purported appeal, make it plain that the party seeking to invoke the appellate jurisdiction of the Full Court was the respondent itself, not the DPP. True, the DPP signed each process, by one of his officers, as "solicitor for the appellant". But the DPP did not purport to take over the role of a party. In any case, at the relevant time the DPP, like the respondent, also had no express power or authority to appeal in such a case68.
The respondent then latched onto what it said was the essential difference between the power to bring the appeal in the present case and that propounded in Byrnes and Bond. Most especially, it submitted that what was involved in this case was not a species of "double jeopardy". Properly analysed, the case was one of single jeopardy which had erroneously miscarried and should now be corrected within the general power of the respondent to conduct and "carry on" its "prosecution" to its lawful conclusion.
It is true that the present is not a case of "double jeopardy", strictly so called. By its appeal to the Full Court the respondent was not subjecting the appellant to repeated prosecutions to convict him for an offence where earlier attempts had failed. It was endeavouring, by the use of the procedure of appeal, to ensure that its single prosecution was brought to a successful conclusion. The same can be said of prosecution appeals against acquittal (where this is available) and against sentence. That is why use of the description "double jeopardy" in such cases is somewhat loose and metaphorical.
Nevertheless, from the point of view of the individual who has been relieved of a criminal conviction and punishment by a decision of a court, the further prosecution of court proceedings clearly represents a species of double jeopardy. In such a case, the individual is once again subjected83:
It follows that considerations of legal history, presumptions defensive of individual rights and the construction of the statutory language according to its ordinary meaning combine to sustain the decisions in Byrnes and Bond. Those decisions did not depend upon a consideration so narrow as the course of proceedings that led to the appeal in question. Nor did they contemplate a differential construction of identical statutory language depending on who brought the appeal. They rested on broader considerations of legal principle.
The foregoing considerations are applicable to the present case. Indeed, since the earlier decisions, the principle which they upheld has been reflected in legislation enacted by the Federal Parliament. An express power to appeal has now been provided to the DPP93. But the respondent did not enjoy similar authority and powers under its Act when it purported to appeal to the Full Court in the appellant's case. The reliance on the general language of the respondent's enabling statute is therefore to no avail. Seeking to appeal from the orders of Commissioner Martin was not the carrying on of "a prosecution"94. The attempt to propound the contrary runs into the principle that appeals in criminal matters, like prosecutions, although they are within the jurisdiction of a superior court when lawfully brought, must be clearly authorised by law. Because there was no clear authority for the respondent to appeal to the Full Court, its appeal was incompetent. The Full Court erred in failing to so hold.
However, those opinions represent only one constitutional premise in the syllogism presented by any task of construing particular legislation in Australia. A court may be inclined, as I am, towards upholding as valid and effective the cooperative legislative enactments of all constituent parts of the federation. Ultimately, however, the court will reach a boundary fixed either by the limits of the propounded constitutional power or by the terms in which the applicable legislation has been expressed. In the trilogy of cases which preceded this one, and in this appeal, this Court has not been dealing, as such, with a socio-political issue of cooperative federalism. It is deciding an appeal, as provided by the Constitution, involving a challenge by a person subject to criminal punishment, to the lawfulness of the conduct of a federal statutory authority in endeavouring to secure the restoration of that punishment. In such a case, the observations of McHugh J in Krakouer v The Queen105 come to mind:
Austral Pacific Group Ltd (in liquidation) v Airservices Australia (2000) 203 CLR 136 at 143 [13], 154 [52]. ↩
cf Flaherty v Girgis (1987) 162 CLR 574 at 596‑598. ↩
Australian Securities Commission v McLeod [sic] (2000) 22 WAR 255. ↩
(1999) 196 CLR 553 at 587‑589 [78]-[86], 605‑609 [134]-[145], 649 [249]-[250], 650 [254]. ↩
(1999) 9 Tas R 25. ↩
(2000) 77 SASR 490. ↩
Bond v The Queen (2000) 201 CLR 213 at 219‑220 [15], 224 [31]; cf as to s 64 of the Judiciary Act and s 109 of the Constitution, Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55. ↩
Sched 5. The amendments came into force on 30 May 2000. ↩
Defined in s 3 of the Commonwealth DPP Act as the Office of the DPP. ↩
Division 2 of Pt 2 was concerned with unconscionable conduct and consumer protection in relation to financial services and was not engaged in the present case. ↩
Section 91 conferred functions upon the Commonwealth DPP in relation to offences against laws in the former co‑operative scheme and was included in Div 2 of Pt 13 headed "Co‑operative Scheme Laws": see Byrnes v The Queen (1999) 199 CLR 1 at 16‑18 [20]-[23]. ↩
(1999) 199 CLR 1 at 26 [52]. ↩
(1984) 155 CLR 21. ↩
(1971) 125 CLR 447 at 454. ↩
(1999) 9 Tas R 25 at 27, 31, 34‑35, 40. ↩
(2000) 77 SASR 490 at 507. ↩
At the relevant times for this appeal, s 58 of the WA Corporations Act applied the ASC Act "as a law of Western Australia", but not the specified "excluded provisions". Section 58 was amended by s 30 of the WA Ancillary Act so as to refer to the ASC Act as it was in force immediately before its repeal by the 2001 Act. ↩
(2000) 77 SASR 490 at 507. ↩
(1984) 155 CLR 21 at 52. ↩
(1999) 199 CLR 1 at 31 [67]. ↩
Jurisdiction with respect to Northern Territory appeals was removed by Sched 1 to the Statute Law (Miscellaneous Provisions) Act (No 1) 1985 (Cth). ↩
(1984) 155 CLR 21 at 47. ↩
(1998) 194 CLR 610 at 621‑623 [34]-[40], 625‑629 [52]-[68], 630‑632 [73]-[76], 636‑638 [89]-[93]. ↩
(1984) 155 CLR 21 at 65‑68. See also Pearce v The Queen (1998) 194 CLR 610 at 636‑637 [89]-[91]. ↩
cf DJL v Central Authority (2000) 201 CLR 226 at 240‑241 [25]-[26]. ↩
Bond v The Queen (2000) 201 CLR 213 at 219‑220 [15]. ↩
(2000) 202 CLR 535 at 554‑558 [37]-[46], 580‑584 [110]-[122]. ↩
The earlier cases were Byrnes v The Queen (1999) 199 CLR 1 ("Byrnes"); Bond v The Queen (2000) 201 CLR 213 ("Bond") and R v Hughes (2000) 202 CLR 535 ("Hughes"). Another relevant appeal is Gee v The Queen, which was heard by the Court and judgment reserved on 14 August 2002. ↩
The Corporations Law relevant to this appeal is the Corporations Act 1989 (Cth), s 82 as applied as a law of the State of Western Australia, by the Corporations (Western Australia) Act 1990 (WA), s 7. See Macleod v ASC (1999) 32 ACSR 172 at 173 [1]. ↩
By s 7(2) of the Australian Securities and Investments Commission Act 1989 (Cth), formerly the Australian Securities Commission Act 1989 (Cth) ("the ASC Act"), with effect from 1 July 1998, the Australian Securities Commission became the Australian Securities and Investments Commission. See reasons of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ ("the joint reasons") at [3]. ↩
ASC v McLeod [sic] (2000) 22 WAR 255 at 272 [79]. ↩
ASC v McLeod (2000) 22 WAR 255 at 272 [79]. ↩
(2000) 201 CLR 213. ↩
ASC v McLeod (2000) 22 WAR 255 at 272 [80]. ↩
(1999) 199 CLR 1. ↩
Macleod v ASC (1999) 32 ACSR 172. ↩
This was the only count on which the respondent had been convicted in the Court of Petty Sessions. ↩
ASC Act, Pt 3, Div 5. ↩
Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 186; Hughes (2000) 202 CLR 535 at 565 [66]. ↩
cf Hughes (2000) 202 CLR 535 at 582 [115]. ↩
Re Wakim; Ex parte McNally (1999) 198 CLR 511 ("Re Wakim"); Hughes (2000) 202 CLR 535 at 570-571 [78]-[81]; Saunders, "In the Shadow of Re Wakim", (1999) 17 Company and Securities Law Journal 507 at 516. ↩
cf Hetherington, "Resolving the Company Law Crisis after the High Court's Decision in The Queen v Hughes", (2000) 28 Australian Business Law Review 364 at 370; Riley, "Re Wakim; Ex Parte McNally: Towards an Integrated and Efficient Judicial System", (2000) 18 Company and Securities Law Journal 455 at 470. ↩
Hughes (2000) 202 CLR 535 at 569-570 [77]; cf Rose, "The Hughes Case: The Reasoning, Uncertainties and Solutions", (2000) 29 Western Australian Law Review 180 at 184. ↩
Judiciary Act, s 79. ↩
Judiciary Act, ss 79 and 80 as not "applicable" or s 80 "inconsistent with … the laws of the Commonwealth": cf ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 591 [68], 609 [129], 630-632 [194]-[199]. ↩
The Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-396; Malvaso v The Queen (1989) 168 CLR 227 at 232-233; cf Ackroyd v Whitehouse (1985) 2 NSWLR 239 at 246; Booker v SRA of NSW [No 2] (1993) 31 NSWLR 402 at 410. ↩
The joint reasons at [1]-[3], [12]-[18]. ↩
Justices Act 1902 (WA), s 206A. See the joint reasons at [18]. ↩
In particular Sch 5. See the joint reasons at [28]-[30]. ↩
Director of Public Prosecutions Act 1983 (Cth), s 17(2). ↩
Director of Public Prosecutions Act 1983 (Cth), s 6(1)(ma). ↩
The amendments came into force on 30 May 2000. The Full Court delivered its decision and pronounced its orders in the subject appeal on 13 April 2000. ↩
ASC Act, s 49. See the joint reasons at [32]. ↩
ASC Act, s 49(1). ↩
ASC Act, s 49(2). ↩
See Bond (2000) 201 CLR 213. ↩
ASC Act, s 11(4). ↩
Saunders, "Administrative Law and Relations Between Governments: Australia and Europe Compared", (2000) 28 Federal Law Review 263 at 273. ↩
See the joint reasons at [37]. ↩
Australian Securities and Investment Commission v Hosken (1999) 9 Tas R 25 ("Hosken") at 27 [3], 31 [12], 39-40 [29]; Australian Securities and Investments Commission v Vis (2000) 77 SASR 490 ("Vis") at 507 [75]; cf Taylor, "From Wakim to Hughes: The current status of corporations and securities regulation and enforcement", (2000) 38 (9) Law Society Journal 50 at 53. ↩
See the joint reasons at [37]-[38]. ↩
ASC Act, s 49(2). ↩
Hosken (1999) 9 Tas R 25; Vis (2000) 77 SASR 490. ↩
Hosken (1999) 9 Tas R 25 at 28 [5], 33 [17], 39-40 [29]; Vis (2000) 77 SASR 490 at 508 [79]. ↩
(1984) 155 CLR 21 ("Davern"). ↩
Federal Court of Australia Act 1976 (Cth), s 24. See Hosken (1999) 9 Tas R 25 at 38 [26]. ↩
Hosken (1999) 9 Tas R 25 at 31 [11], describing the submission of counsel for the unsuccessful respondent (accused). See also ASC v McLeod (2000) 22 WAR 255 at 274-275 [89]-[93]; Vis (2000) 77 SASR 490 at 507-508 [75]-[77]. ↩
(1999) 199 CLR 1. ↩
(2000) 201 CLR 213. ↩
(1984) 155 CLR 21. ↩
Green v United States 355 US 184 at 187-188 (1957); Pearce v The Queen (1998) 194 CLR 610 at 636 [90]. ↩
Pearce v The Queen (1998) 194 CLR 610 at 636 [90]; Cooke v Purcell (1988) 14 NSWLR 51 at 56-57; R v Tait (1979) 24 ALR 473 at 476-477; 46 FLR 386 at 388-389 per Brennan, Deane and Gallop JJ. ↩
Cullen v The King [1949] SCR 658 at 668. ↩
R v Hughes (2000) 202 CLR 535 at 557-558 [46]; see also Hetherington, "Resolving the Company Law Crisis after the High Court's Decision in The Queen v Hughes", (2000) 28 Australian Business Law Review 364 at 370. ↩
The magistrate had convicted the appellant on the second count of the complaint but dismissed the first count. See Macleod v ASC (1999) 32 ACSR 172 at 174 [4]. ↩
The magistrate, after convicting the appellant on the second count, imposed a fine of $2,500 in relation to that offence. In respect of the dismissed count one, he awarded the appellant costs fixed in the sum of $5,000. In respect of count two, he ordered costs of $5,000 to be payable to the respondent. See Macleod v ASC (1999) 32 ACSR 172 at 177 [21]. ↩
Under s 999 of the Corporations Law read with s 1311(1)(a) of the Corporations Law. ↩
Byrnes (1999) 199 CLR 1 at 35 [84]. As it is pointed out in the joint reasons, in Australia appeal is provided by the Constitution which is also a statute, although of a particular kind. See the joint reasons at [41]. ↩
Byrnes (1999) 199 CLR 1 at 35 [85]. ↩
See the legislation set out in Byrnes (1999) 199 CLR 1 at 16-17 [20]-[22]. ↩
Director of Public Prosecutions Act 1983 (Cth), s 17(2). See above, these reasons at [62]. The Director of Public Prosecutions Act 1991 (WA) at the relevant time also drew a clear distinction in ss 11 and 12 on the one hand and s 13 on the other, between the functions of the State Director "to bring and conduct prosecutions …" (s 12(a)) and "to bring and conduct, or to conduct as respondent, any appeal or further appeal relating to a prosecution" (s 13(a)). ↩
Within s 49(2) of the ASC Act. ↩
McConvill and Smith, "Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective", (2001) 29 Federal Law Review 75. See also De Costa, "The Corporations Law and Cooperative Federalism after The Queen v Hughes", (2000) 22 Sydney Law Review 451 at 452. ↩
Gould v Brown (1998) 193 CLR 346 at 477 [276.2]; cf R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 580. ↩
Re Wakim (1999) 198 CLR 511 at 604 [198]. ↩
McConvill and Smith, "Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective", (2001) 29 Federal Law Review 75 at 88 (fn 59) citing Gould v Brown (1998) 193 CLR 346 at 478 [276.2]. ↩
McConvill and Smith, "Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective", (2001) 29 Federal Law Review 75 at 90 citing Kirby, "Constitutional Interpretation and Original Intent – A Form of Ancestor Worship", (2000) 24 Melbourne University Law Review 1 at 14. ↩
(2000) 200 CLR 591 at 603 [20], 612-613 [50], 629 [100], 653-654 [163]-[164], 670 [214]. See McConvill and Smith, "Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective", (2001) 29 Federal Law Review 75 at 80. ↩
cf ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 613 [140]-[141]. ↩
cf Kirk, "Constitutional Interpretation and a Theory of Evolutionary Originalism", (1999) 27 Federal Law Review 323 at 360. ↩
Claus, "Federalism and the Judges: How the Americans made us what we are", (2000) 74 Australian Law Journal 107 cited in McConvill and Smith, "Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective", (2001) 29 Federal Law Review 75 at 87-88. ↩
Longo, "Co-operative Federalism in Australia and the European Union: Cross-Pollinating the Green Ideal", (1997) 25 Federal Law Review 127 at 163-165. ↩
(1998) 194 CLR 202 at 223 [62]. ↩
Byrnes (1999) 199 CLR 1 at 33 [78]. ↩
Byrnes (1999) 199 CLR 1 at 33-34 [78]. ↩
cf Seaegg v The King (1932) 48 CLR 251 at 257 and Williams v The King [No 2] (1934) 50 CLR 551 at 566-567. ↩
Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 128-129; Byrnes (1999) 199 CLR 1 at 26 [50]. ↩
Re Wakim (1999) 198 CLR 511 at 576-577 [113]; cf at 545 [22]; Hughes (2000) 202 CLR 535 at 557-558 [45]-[46], 565-570 [65]-[80]. ↩
Saunders, "In the Shadow of Re Wakim", (1999) 17 Company and Securities Law Journal 507 at 514; Lyon, "R v Hughes: Shuffling the Deck Chairs on the Titanic?", (2001) 6 Deakin Law Review 184 at 196. ↩
See above, these reasons at [55]. ↩
(2000) 203 CLR 136
(1987) 162 CLR 574
(2000) 22 WAR 255
(1999) 196 CLR 553
(1999) 9 Tas R 25
(2000) 77 SASR 490
(1988) 165 CLR 55
(1984) 155 CLR 21
(1971) 125 CLR 447
(1998) 194 CLR 610
(2000) 201 CLR 226
(2000) 202 CLR 535
(1948) 76 CLR 1
(1999) 198 CLR 511
(1958) 98 CLR 383
(1989) 168 CLR 227
(1985) 2 NSWLR 239
(1993) 31 NSWLR 402
(1988) 14 NSWLR 51
(1979) 24 ALR 473
(1998) 193 CLR 346
(1983) 158 CLR 535
(1998) 194 CLR 202
(1932) 48 CLR 251
(1934) 50 CLR 551
(1986) 161 CLR 119