Palling v Corfield

[1970] HCA 53

High Court of Australia|1970-07-01|Before: Gibbs JJ

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

1970-07-01

Before

Gibbs JJ

Source

Original judgment source is linked above.

Judgment (60 paragraphs)

[1]

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ. Palling v Corfield [1970] HCA 53

[2]

The applicant seeks by motion an order under s. 40 of the Judiciary Act 1903-1969 Cth removing into this Court an information laid against him by the respondent, who is a Commonwealth Police Officer, on 29th April last that, being a person who had been required by a notice served upon him under Pt III of the National Service Act 1951-1968 Cth to attend for examination, he failed to comply with the requirements of the notice contrary to the provisions of s. 49 (1) of the said Act.

[3]

To the charge the appellant pleaded not guilty before a stipendiary magistrate. Evidence was given on behalf of the informant but none on behalf of the applicant. The magistrate found the offence proved. The officer of the Department of the Attorney-General employed in the office of the Commonwealth Crown Solicitor who appeared for the informant thereupon requested the magistrate to ask the appellant whether he was willing to enter into a recognizance to the satisfaction of the Court that he would comply with the requirements of any notice to attend for examination subsequently served upon him under Pt III of the said Act and would upon attending for examination submit himself to examination in accordance with that Part. This request of the officer was made pursuant to the provisions of s. 49 (2) of the said Act. It was then submitted on behalf of the applicant that s. 49 (2) was constitutionally invalid in that it purported to confer judicial power on "the prosecution" contrary to the Constitution of the Commonwealth. The magistrate made no decision on this submission nor did he impose any penalty for the commission of the offence he found proved. He adjourned the further hearing of the information to enable the appellant to make this motion to the Court.

[17]

I now turn to the question of the validity of s. 49 (2). I have already indicated the nature of the provision and need not repeat its terms. It seems to me that the argument supporting the applicant's submission as to its invalidity was founded on a basic misconception as to the exercise of judicial power in relation to the imposition of penalties or sentences for the commission of offences created by statute. It is beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences which it creates. It may make the penalty absolute in the sense that there is but one penalty which the court is empowered to impose and, in my opinion, it may lay an unqualified duty on the court to impose that penalty. The exercise of the judicial function is the act of imposing the penalty consequent upon conviction of the offence which is essentially a judicial act. If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded: nor, in my opinion, is there any judicial power or discretion not to carry out the terms of the statute. Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed; and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime. But whether or not such a discretion shall be given to the court in relation to a statutory offence is for the decision of the Parliament. It cannot be denied that there are circumstances which may warrant the imposition on the court of a duty to impose specific punishment. If Parliament chooses to deny the court such a discretion, and to impose such a duty, as I have mentioned the court must obey the statute in this respect assuming its validity in other respects. It is not, in my opinion, a breach of the Constitution not to confide any discretion to the court as to the penalty to be imposed.

[22]

It is true that a prosecution under the Black Marketing Act exposes the accused to a greater penalty than a prosecution under the National Security Act. The determination to prosecute or not to prosecute is made by the Attorney-General after a report from a Minister and advice from a committee. But, in all cases of public prosecutions, there must first be a decision by some public authority whether to prosecute or not to prosecute. The risk of infliction of a penalty depends upon the decision of a non-judicial authority or person as to whether any prosecution at all should be instituted. But such a decision is in no respect an exercise of judicial power. Further, many offences may be prosecuted either summarily or upon indictment; and, in the latter case, possible penalties are more severe. If they are prosecuted upon indictment, the accused has the right to a trial by jury. This is not the case if they are prosecuted summarily. It is for the Attorney-General or other law officer of the Crown to determine whether or not an indictment should be presented. But a decision to present an indictment is not a judicial decision, although it exposes the accused to penalties greater than would be the case if it were determined not to prosecute upon indictment. It is not a judicial decision because it makes no adjudication upon rights or duties or liabilities, or, indeed, upon anything. It imposes no penalties, though it does expose a person to the possibility of a particular penalty. If, before making a decision to present an indictment, the Attorney-General received advice from his officers in the ordinary course of administration, that fact plainly would not involve exercise of judicial power on his part. Section 4 (4) only requires him to receive a report from a Minister and advice from a committee before determining whether to prosecute under the Act or not. In my opinion, these provisions do not constitute any invasion of the judicial functions of the courts referred to in s. 71 of the Constitution.

[27]

In an earnest argument counsel for the applicant put forward the contention that the provision of s. 49 (2), making a request by the prosecuting party a condition precedent to the exercise of the jurisdiction of the court to ask a person convicted of an offence against sub-s. (1) whether he is willing to enter into a recognizance, is an attempt to confer jurisdiction on the prosecuting party in the matter of punishment, a matter belonging to the judicial power of the Commonwealth. If this contention were capable of being supported the order asked for should be granted. The first point is what is the intent of the words "if the prosecution so requests". The term "prosecution" means the prosecuting party. It is clear that it would be ultra vires the Parliament to confer jurisdiction on the prosecuting party in the matter of punishment. In my opinion the words "if the prosecution so requests" express a condition subject to which the jurisdiction contained in the provisions of pars. (a) and (b) is conferred by the Parliament on the court referred to in those paragraphs. The function assigned by the subsection to the prosecuting party is not to ask the person concerned through the court the question formulated in par. (a). The court is not appointed the spokesman of the prosecuting party. In any case where it becomes the duty of the court to ask the person concerned the said question the court discharges the duty which the Parliament created by enacting the provisions of par. (a) and thereby entrusted to the court. The jurisdiction conferred on the court extends to deciding whether the occasion contemplated by the section for the prosecuting party to make its request in the terms stipulated by the provisions of par. (a) has arisen. The jurisdiction extends to determine, the person concerned having told the court that he is willing to enter a recognizance, whether what he is willing to bind himself to do satisfies the provisions of the paragraph. Further the jurisdiction of the court conferred by the section extends to determine whether the condition precedent to imposing sentence set forth in par. (b) is fulfilled. If not, the duty of the court then to impose the sentence prescribed by par. (a) is by no means a mandate of the prosecuting party. The jurisdiction to impose the sentence arises directly from the provisions of par. (b), which of course express the will of the Parliament in respect of the matter. In the result I think no cause is shown to remove the proceedings from the court of summary jurisdiction. The application should in my opinion be refused.

[56]

If the prosecutor were given power to impose punishment for the offence, no doubt that would be a purported grant to the prosecutor of judicial power. But this is not the effect of the provision. The effect of it is that Parliament has decreed what penalty is to be imposed upon the convicted person, if certain conditions are fulfilled. The circumstance that the fulfilment or non-fulfilment of a condition depends upon the volition of the prosecutor does not mean that to him is entrusted the power of sentencing the convicted person for the offence. Parliament has chosen to make part of the consequence of conviction of an offence under s. 49 (1) dependent upon an administrative act or decision of a person who is in control of the prosecution. In my opinion there is no constitutional reason why the Parliament may not, if it chooses to do so, make such an enactment. In Ex parte Coorey [1] the Supreme Court of New South Wales considered arguments that a provision in the Black Marketing Act 1942 Cth, by which power was given to the Attorney-General to decide after advice from a committee that prosecutions be instituted under that Act in respect of acts which were also offences against the National Security Regulations, was invalid because it involved the exercise of judicial power otherwise than by a court. These arguments did not prevail. They were accepted by Jordan C.J. but the majority of the court upheld the validity of the provision. Subsequently, in Fraser Henleins Pty. Ltd. v. Cody [2] , this Court held that the view of the majority was correct. In my opinion there was better scope in that case than there is in the present case for the argument against validity. The Black Marketing Act did not (in general) create new offences but dealt with matters which were offences independently of that Act and, in the view of Jordan C.J. [3] , it left the existing penalties generally operative, but purported to authorize the Attorney-General in particular cases chosen by him to dictate to a court that in the event of conviction at least a minimum penalty should be imposed, although no such minimum was generally operative. In the present case s. 49 creates the offence and provides the penalties for it. This argument should be rejected.