Mr Hardy has limited his appeal essentially to the contention that the Crown case, at least as it was established, was not a case which fell within the terms of the relevant legislation. He contended that what he did did not, and was not intended to, defeat the execution of the Migration Act.

The term "execution" is in my opinion not a word of narrow meaning. As used in the Crimes Act 1914 s 86(1)(b), it comprehends the way in which the legislation is, according to its terms, being carried out or intended to be carried out. Ordinarily, an Act will - at least it may - contemplate that it will or may be carried into effect in one or more of a number of ways. The present case was concerned with the grant of entry permits under the Migration Act. It contemplated that such permits would be applied for and, in an appropriate case, would be granted. But applications could be made in a number of ways and permits could be granted following a number of different procedures. Thus, application might be directed directly to the Minister and to him/her alone and the grant of an entry permit might be restricted to the Minister. In the present case, what was chosen as the procedure to carry into effect this part of the Act was the making of applications for entry permits, the examination of them by departmental officers, and the grant or refusal of them accordingly. The term "execution" was intended to comprehend that procedure. In this regard, it was the purpose of s 86(1)(b) of the Crimes Act 1914 to proscribe conspiracies to prevent the Migration Act being carried out in that chosen way. The Migration Act made provision for the way in which application should be made and should be dealt with. A conspiracy to prevent the Act being executed, in the sense of being carried into effect, in the manner chosen would in my opinion be a conspiracy within s 86(1)(b).

The terms "prevent" and "defeat" do not mean, and are not limited to, a conspiracy whereby it will be impossible, in any way which is within the legislation, to carry the Act into execution. These term are wide enough to include a conspiracy to do things which will prevent the procedure adopted to carry the Act into execution doing what legitimately it was structured to do.

What occured in the present case was of this kind. The conspiracy involved not merely the procuring of the kinds of "sham" marriages to which Barr J has referred but also the presenting of applications to the relevant officers which contained information so false that, if it was accepted, it would be likely to produce the result that an entry permit would be granted when, had the true facts been known, it would not have been granted.

It was not the Crown case that, had the true facts been known, there was no possibility that the permit would have been granted; it was possible though quite unlikely that, had it been known that the marriages were what they were, the permits would have been granted. That in my opinion is sufficient to support the Crown case.

It is not necessary to detail the evidence which from time to time was, within the contemplation of the conspiracy, placed before the relevant officers or to emphasise the effect of it. It is clear that the conspiracy involved or contemplated a whole course of deception with some particularity. It went beyond the mere falsification of the forms of application and the giving of misleading answers to the questions directed to determining whether the marriage relied upon was a sham marriage, intended to have no real effect, or one in which the parties truly proposed to live together as married persons.

It is to be noted that, at the trial, the trial judge pointed out to the jury clearly that the essence of the conspiracy did not depend upon the fact that the marriages were, in the sense in which the term has here been used, "sham".

In these circumstances, notwithstanding the submissions of Mr Churches, I am of opinion that the appeal fails.

BARR J: The appellant, Leslie Thomas Hardy, was tried jointly with one Jesse Troutman on a charge that he conspired with Mr Troutman and others to defeat the execution of a law of the Commonwealth, namely the Migration Act 1958. He was convicted and sentenced to imprisonment for twenty-two months commencing 4 April 1996, to be released after he had served eighteen months and upon his entering into a recognisance to be of good behaviour for the remainder of the term of the sentence. The appellant appeals against his conviction and seeks leave to appeal against the sentence.

The facts on which the Crown relied were as follows. The appellant carried on business as a migration consultant and dealt with clients who were citizens or residents of foreign countries and who desired to obtain resident status in Australia. Some of those clients were already present in Australia, having entered under visas which had or were due shortly to expire. In order to gain resident status such persons had first to obtain entry permits under the Migration Act. S 6A of the Act set forth conditions on which such entry permits might be granted. One such condition was that the person desiring an entry permit was the spouse of an Australian citizen - see s 6A(1)(b). Officers of the Department of Immigration received applications in writing from persons desiring resident status and relied, inter alia, on the truth of statements made therein. One of the considerations made by those officers was whether, when the applicant relied on the fact that he or she was the spouse of an Australian citizen, the marriage was a genuine one. By that is meant not only that the marriage was lawfully entered into but also that the parties intended to be bound by the obligations that the marriage had placed upon them. Forms of application for resident status had to be completed and signed by applicants. The forms contained the following warning:

The Migration Act provides for penalties for false and misleading statements and for deceiving the Minister or an officer of the Department.

A person who obtains resident status through false or misleading statements may be liable to deportation."

Applicants relying on marriage were required to complete a statutory declaration, which included the following:

"I (name of applicant) of (residential address) do solemnly declare:-

1. I married (name of applicant's spouse) at (place of marriage) on (date of marriage)

2. My marriage to (name of applicant's spouse) was not contrived for the purpose of obtaining resident status in Australia.

3. I and my spouse (name of applicant's spouse) intend to maintain a lasting marriage relationship."

The appellant and Mr Troutman had an arrangement by which certain of the appellant's clients should go through a form of marriage to Australian citizens and then apply for resident status, relying on the fact of the marriage. The appellant introduced those clients to Mr Troutman, a marriage celebrant, who married them. Some twenty-three persons were so introduced and married and made application for resident status during the period of the conspiracy. Mr Troutman was in each case the marriage celebrant.

(b) there should be no cohabitation as man and wife;

(c) the marriage should be dissolved as soon as the law permitted;

(d) the only purpose of the marriage was to assist the success of an application to be lodged by or on behalf of the non-citizen with the Department of Immigration.

The Crown's case, therefore, was that although each marriage was valid in the sense that it complied with the law of Australia, it was a sham by reason of the matters set forth above. The appellant, knowing this, intended the applications to be lodged with officials of the Department of Immigration. He knew that the false particulars contained in the application forms were likely to be supplied to the relevant officers and that those officers would rely on the truth of what was stated in the applications.

At the time of these events s 31 of the Migration Act was in force. It was in the following terms:

31. (1) A person shall not, in connexion with the entry, or proposed entry, of a non-citizen (including that person himself) into Australia or with an application for an entry permit or a further entry permit permitting a non-citizen (including that person himself) to remain in Australia-

(a) present, or cause to be presented, to the Minister or to an officer a document which is forged or false;

(b) make, or cause to be made, to the Minister or to an officer a statement that, to his knowledge, is false or misleading in a material particular; or

(d) deliver, or cause to be delivered, to the Minister or to an officer, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.

(1A) In sub-section (1), a reference to an officer shall be read as including a reference to a person authorized by the Minister to exercise a power or to discharge a duty or function under this Act.

(2) A person shall not transfer or part with possession of a document with intent that the document be used to assist a person, being a person not entitled to use it, to gain entry to, or to remain in, Australia or where he has reason to suspect that the document may be so used.

The Crown also relied on other provisions in the Migration Act, but it is not necessary to set them out here. The offence charged came under s 86 of the Crimes Act 1914 (Commonwealth), which is in the following terms:

"86. (1.) A person who conspires with another person-

(a) to commit an offence against a law of the Commonwealth;

(b) to prevent or defeat the execution or enforcement of a law of the Commonwealth;

(c) to effect a purpose that is unlawful under a law of the Commonwealth;

(d) to effect a lawful purpose by means that are unlawful under a law of the Commonwealth; or

(e) to defraud the Commonwealth or a public authority under the Commonwealth,

The charge laid against the appellant was misconceived and the evidence as led by the Crown was incapable of sustaining the charge;

His Honour erred in law in summing up to the jury on the basis that there was evidence sufficient to sustain a conviction of the appellant when his Honour should have directed the jury to acquit on the ground that the Crown had not led evidence to sustain the charge.

It is convenient to deal with these grounds together. The first submission made on behalf of the appellant was that at the time of the alleged conspiracy there were no relevant provisions of the Migration Act or Regulations which any agreement between the appellant and others would defeat. It was conceded that each relevant marriage was entered into only for the purposes of the intended application, that the parties to it intended to have it dissolved as soon as convenient after the application had been dealt with, that officers relied on the truth of the statements made about the marriage and so were misled or likely to be misled into believing that it was genuine in the sense that I have mentioned and that the misrepresentations so made attracted penal consequences under s 31 of the Migration Act. Even so, it was submitted, although by s 6(3) of the Migration Act the entry permit itself might be in a form approved by the Minister, both the Act and the Regulations were silent about the form of any application. Although the Regulations were amended later on to provide for the Minister to approve the form in which applications might be made, that would not save the conviction here. Neither at the time did the Act or Regulations lay down any standard of "genuineness" of marriages in the sense in which I have used that term. So any requirement of genuineness and any required declaration about genuineness in an application form was only a requirement of the Minister or his department. So the misrepresentations in the present case could only have had the effect of defeating departmental policy and not a law of the Commonwealth as required by s 86(1)(b) of the Crimes Act.

Reliance was placed on R v Cahill [1978] 2 NSWLR 453, an appeal to the Court of Appeal, New South Wales, from a conviction under s 86(1)(b) by which the appellants were found to have conspired to prevent the enforcement of a law of the Commonwealth, namely the Migration Act. That appeal involved marriages entered into solely for the purposes of applications for permanent resident status and to influence the Minister not to deport the applicants. The Court of Appeal held that such a compact did not amount to a conspiracy to prevent the enforcement of a law of the Commonwealth. However, the Crown relied on the marriages alone. All the appellants were said to have done was either marry or agree to marry with the stated intention. As Street CJ pointed out at 458, there were no associated active deceptions or misrepresentations. It seems to me that the essence of the present appeal lies in the misrepresentations put forward to the officers of the department, so I see the present appeal as quite different from Cahill, which is of no assistance.

There are, however, cases directly in point. R v Corak, Court of Criminal Appeal, New South Wales, 24 November 1967, unreported, concerned charges under s 86(1)(b) of conspiring to prevent the enforcement of the Migration Act. There was a scheme by which a number of foreign nationals present in Australia under temporary permits and liable to be deported contracted "marriages of convenience" with Australian women for the purposes of applications for resident status. Two of the marriages were strictly unlawful, being bigamous, but I think that nothing turns on that fact for present purposes because the substance of the conspiracy was not the marriages themselves but telling lies about them in order to mislead officers administering the provisions of the Migration Act. The Court held that there was a conspiracy to prevent the enforcement of the Act. Nothing turns, I think, on the difference between preventing the enforcement of the Act, as in Corak, and defeating its execution, as in the present appeal. The former formulation of s 86(1)(b) was appropriate in Corak, since the appellants were attempting to prevent officers deporting them. In his judgment at page 5 McClemens J, with whom the other members of the Court agreed, said, referring to s 6 of the Migration Act and to certain other sections, particularly those dealing with deportation of prohibited non-citizens -

"All those sections are directed to one thing, namely the enforcement of the Act. It may be that s.18 (which deals with deportation) is the ultimate sanction, the act of forcible deportation but short of that there are other sanctions which are part of the enforcement provisions of the Act and it was to prevent these enforcement provisions from coming into existence, in other words to prevent the enforcement of the Act, that this plan on the evidence was entered into."

In Kunakool v Boys (1987) 14 FCR 489, a decision of French J in the Federal Court of Australia, the facts were indistinguishable from the facts of this appeal. The appellant submitted that if there was an agreement to do anything it was to defeat the execution or enforcement of migration policy, which was a different thing from the Migration Act. French J held that a conspiracy falsely so to represent factual information constituted the offence of conspiring to defeat the execution or enforcement of the Migration Act. As his Honour said (at 502), the officers administering the provisions of the Migration Act have a statutory discretion (for example, to deport or not to deport, to grant or not to grant an entry permit), which is frustrated, that is, defeated, if it is misdirected by false factual material supplied to the decision maker. His Honour continued at 508 -

"In exercising that discretion, the official discharges a statutory duty.

Where the exercise of that duty is misdirected by the provision of false information then the execution of the statute is defeated."

R v Sekhon (1992) 63 A Crim R 349, a decision of the Victorian Court of Criminal Appeal concerned an arrangement relying on similar marriages of convenience and the provision of false information about them so as to affect the exercise of discretion by officers of the Department of Immigration. As in Kunakool v Boys the principal ground of appeal was that the arrangement was designed to frustrate the exercise of a discretion or the implementation of Government policy but fell short of defeating the execution or enforcement of a law of the Commonwealth. The Members of the Court adopted the analysis of R v Corak and Kunakool v Boys and held that a conspiracy to misrepresent the nature of the marriages, made as it was with the intention of affecting the exercise of the discretion of officials, was a conspiracy to defeat a law of the Commonwealth.

It seems clear that according to the authority of R v Corak, Kunakool v Boys and R v Sekhon the conspiracy in the present appeal was correctly categorised as being one to defeat the execution of the Migration Act. Nothing said in R v Cahill, where the point was expressly left open - as to which see the judgment of Mahoney JA at 466 - suggests that that is not a correct view. In my opinion there is no substance in the submission that there was no relevant law of the Commonwealth because the Act and Regulations as they stood at the time did not refer to the genuineness of marriage as a relevant consideration and did not expressly authorise or permit the use by departmental officers of the forms and declarations which applicants were required to complete. R v Corak, Kunakool v Boys and R v Sekhon were all decided in the context of a version of the Act and Regulations similar to that which applied to the present appeal. As those cases made clear, the discretion which it was desired to influence was one discharged under a statutory duty, and when the exercise of that duty was misdirected by the provision of false information then the execution of the statute was defeated.

Then it was submitted that this reasoning must give way to the principle stated by the High Court of Australia in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1. The appellant relied on a passage in the judgment of Gibbs ACJ at 30 in which his Honour said that "the penal provisions of s 86(1) should not be extended to include matters which in their ordinary and natural meaning they are not apt to embrace." But that case was concerned, relevantly, only with the question whether a financial agreement between the Commonwealth and the States of Australia, later ratified by a Commonwealth statute, was a law of the Commonwealth for the purposes of a charge under s 86(1)(c). I do not think that the answer to that question has any bearing on the question raised in this appeal. Nothing in Sankey v Whitlam suggests to me that the courts in the cases that I have mentioned were wrong in coming to the view that in exercising their discretion the officers of the Department of Immigration did any less than exercise statutory authority.

It was next submitted that s 86(1)(b) has no part to play where the only effect of the conspiracy is to influence the discretion of an official without actually removing it. It was put that "defeats" means "defeats the operation of the legislation in a general and palpable sense", such as where pursuant to a conspiracy property of a corporation is destroyed, so that relevant legislation is prevented from having any effect upon it. Here, it was said, there was no defeating because, notwithstanding that officials were misled, they still had discretion and could have exercised it for or against the applicants. That submission was made in the face of R v Corak, Kunakool v Boys and R v Sekhon. R v Cahill does not support it, and neither does any authority cited by the appellant. I think that the submission is without substance.

Finally it was submitted that it was wrong to charge the appellant with a conspiracy when a substantive offence was available, namely making to an officer a statement that was, to the knowledge of the maker, false or misleading in a material particular, or perhaps any other available offence under s 31, Migration Act. Reference was made to the judgments of the Members of the High Court of Australia in The Queen v Hoar [1981] HCA 60; (1981) 148 CLR 1. It may be taken to be a principle applicable to the present appeal that it is undesirable to charge an accused person with conspiring to commit an offence when there is evidence capable of proving the commission of the substantive offence. But there are several reasons why that principle should have no effect in the present appeal. First, the conspiracy charged was not a mere conspiracy to commit a substantive offence which could have been charged under s 31. Secondly, there appears to be a substantial difference between the offence created by s 86(1)(b) and any offence created by s 31. The former is an indictable offence attracting a maximum penalty of a heavy prison sentence. The latter is a summary offence carrying a fine or, at most, six months' imprisonment. Finally, the framing of s 86 itself shows that the Parliament intends that persons will be charged for conspiring to defeat laws of the Commonwealth even though overt acts carried out as part of the conspiracy may themselves constitute lesser offences. I think that this submission fails as well.

For these reasons the appeal should be dismissed. The appellant sought leave to appeal against the sentence imposed, but no written or oral submissions were put forward in support of the application. In my opinion the conspiracy of which the applicant was convicted involved systematic and serious deception of Government officials over a substantial period of time and for personal gain. In my opinion the overall sentence of 22 months was well within the discretion of the learned sentencing judge. I would refuse leave to appeal against sentence.