Schubert v Minister for Immigration and Ethnic Affairs

One of the orders was made on 27 January 1987 by His ! Worship Mr Simpson S.M. on the complaint of Ronald Leslie

Whittick, an officer of the Australian Federal Police that:-

"Between the Ist September 1985 and the 18th day of October 1985 at Perth and other places within and outside the State of Western Australia (he) did conspire with ANTOINETTE PERSON and divers other persons to prevent or defeat the execution or enforcement of a law of the Commonwealth to wit the Migration Act 1958 contrary to s.86(1)(b) of the Crimes Act 1914."

Worship Mr Boys S.M. on Whittick's complaint that:-

"Between the lst February 1986 and the 30th day of June 1986 at Perth and other places within and outside the State of Western Australia (he) did conspire with REBECCA JANE BARRY and divers other persons to prevent ox defeat the execution or enforcement of a law of the Commonwealth to wit the Migration Act 1958 contrary to S.86(1)(b) of the Crimes Act 1914."

The prosecution case on the first charge was that in September 1985 Kunakool agreed with Antoinette Person, a New Zealand citizen resident in Australia, that she would go to Thailand, there go through a form of marriage with a Thai citizen,

Anurat Dhammawong, and sponsor his migration to Australia.

A similar agreement with another woman Rebecca Barry, underlies the second. The Thai citizen in this case was one

Kunakool has made application under the Administrative

Decisions (Judicial Review) Act 1977 to review both of the

Before passing to the grounds for his applications, it is convenient to outline the evidence taken at the committal hearings. This resume summarises only the prosecution case. The applicant, as is often the case at this early stage in the

Antoinette Person, the applicant's alleged co-conspirator, was called as the principal witness for the

She is a citizen of New Zealand and a divorcee. She works as a cook although on some immigration forms she described herself as a clinical psychologist. She first met the applicant

Towards the end of July or early in August 1985 Kunakool told her that he was planning to establish a business to bring Thai businessmen to Perth to gamble at the casino. He wanted a particular Thai man who worked in a travel agency in Thailand to

He asked Mrs Person if she knew any woman who would like a free holiday in Bangkok and would be prepared to marry the Thai

Thailand herself and marry the prospective business associate.

She agreed to do so but on the basis that she would neither consummate the marriage nor live with her husband as man and wife. There was discussion with Kunakool about getting a

He travelled to Thailand ahead of Mrs Person. On 20 September 1985 she flew to Bangkok using a ticket provided by Kunakool's wife. He met her at the airport and

introduced her proposed husband, Anurat Dhammawong.

She stayed with Kunakool's brother-in-law in Bangkok.

During the next tew days she went around to many offices

On 24 September she went through a form of marriage with

The ceremony did not make a very powerful impression on

"At the time I did not know which day I married Dhammawong, it was very confusing because most things

were being conducted in Thai; since then I now know I Marx1ed on 24 September 1985."

After their marriage, but prior to her return to Perth

on 28 September, Mrs Person went with Dhammawong to the Australian

Embassy. She thinks there were two such visits. Various forms

had to be filled out to secure the issue of a visa for Dhammawong .

Prior to attending the Embassy she agreed with Kunakool

and Dhammawong that she and Dhammawong would say that they had met

each other on her previous visit to Thailand. i E + I ' , , :€ f '

Kunakool suggested that she should say his sister had

introduced her and Dhammawong at his mother's home.

He also suggested that they should say that she and Dhammawong had met again at Koh Sumui and that there she had

agreed that she would return with a view to marrying him.

Mes Pexson was inlerviewed by an embassy official and

handed over a certificate of her marriage to Dhammawong.

Ovex her signature on that form were three undertakings, none of which she had any intention of honouring at the time that

"1. I agree to provide information and advice to assist my xelatives in settling in Australia.

2. I agree to ensure that adequate accommodation is available for my relatives on arrival in Australia ox if necessary to provide accommodation for up to 12 months from arrival in Australia.

3. To provide such financial assistance as is required to meet their reasonable living needs for up to 12 months from axrival in Australia if necessary." The personal information given in the form and another

foxm headed "Application for Entry for Settlement" was otherwise

When interviewed at the Embassy, Mrs Person told the interviewing officer that she and Dhammawong had met earlier that year in Thailand and following on from that meeting and exchange

She said that they had met and fallen in love and that

she had returned to Thailand specifically to get married. She

said they had spent a lot of time together on her earlier and

"I told the person who interviewed me this because I had told Gerry that I would get Anurat to Australia and that was the only way to do it. I did it that way because it was the way Gerry had told me to do."

Dhammawong went with Mrs Person to the Embassy but was not with hex when she was interviewed. He was interviewed

On 28 September she flew back to Perth. The last time

she saw Dhammawong in Thailand was at Bangkok Airport.

She expected to see him in Australia because he had

become a friend and was a friend of Kunakool and his family.

Since her return to Australia Mrs Person has seen Dhammawong 3 times. They have not consummated their marriage nor

The prosecution also called as a witness Linda Laurel Trigg, the Second Secretary (Immigration) at the Australian Embassy in Bangkok, whose duties include the consideration and processing of applications by persons wishing to migrate to

She explained that under the "Family Migration Programme", it 1s necessary that there be a sponsorship form lodged by a xvesident of Australia and an application lodged by the

Where the sponsor is married to the prospective migrant, supporting documentation in the foxem of proof of the identity of

If satisfied that the applicant gualifies for a visa for entry into Australia as a resident, the Embassy arranges for

health and character clearance from local authorities.

Depending on the clearances being obtained, a visa will

When considering an application on the part of an Australian resident the embassy staff assess the genuineness of

Unless satisfied that the marriage were genuine, Miss

Txigg would recommend that the application be refused.

In her approach to such applications Miss Trigg would

rely upon a book called the "Migrant Entry Handbook" which is issued by the Department of Immigration and Ethnic Affairs and

sets out policies and requirements in relation to the migrant

In the assessment of the spouse relationship, reliance

is placed on the applicant's statements in conjunction with proof of the fact of marriage. The interviewer would also elicit the

cixccumstances in which the couple met, the duration of their

relationship and perhaps an indication of the applicant's feeling

When satisfied that the application is in order-Miss Trigg 1ssues to a spouse/applicant a visa for permanent residence in Australia. On arrival in Australia the prospective migrant with a visa for permanent residence 1s generally issued with an entry permit at the point of entry. It is of some importance to note that the issue of a visa is a statutory function conferred by s.1lA of the Migration Act 1958 upon authorised officers. The issue of entry permits is also a statutory function under s.6 of

Miss Trigg remembered interviewing both Dhammawong and

She was very impressed with what Mus Person told her about the relationship with Dhammawong. She remembered her as

Rebecca Barry, the alleged co-conspirator on the second count, is a 24 year old flight attendant now living in Melbourne but originally from Perth. She gave evidence for the prosecution and told His Worship Mr Boys, that she met Kunakool in 1985

Early in 1986 and following an approach from Person, she

Kunakool told her that he had a friend in Thailand,

Chanintorn Siri, who wanted to come to Australia to live.

He asked if she would be prepared to go to Bangkok and

marry Siri so that he could live in Australia. Kunakool told her that there would be no further

involvement with Siri after the Bangkok trip and there would be

little difficulty in getting a divorce a year or so later.

Kunakool told hex that he would pay for her airfares and pay her $800.00. She would be met at the airport and would stay

Miss Barry agreed to co-operate and took 7 days off from work commencing 6 April 1986. She flew direct from Perth to Bangkok. Kunakool who had gone ahead, met her at the airport with

Siri and they went to his parents' house where she stayed.

Kunakool instructed Miss Barry to spend as much time as possible with Siri exchanging information about family backgrounds

This, she was told, would ensuxe that when they were asked questions at the Australian Embassy they would have

Kunakool also told Miss Barry that they would have to convince officials at the Embassy that she and Siri had known each

She and Siri were married on 8 April 1986 at a Registry Office in Bangkok. Miss Barry said that she did not realise that she was getting married at the time of the ceremony as it was carried out in the Thai language by Thai officials. She and Siri had already collected sponsorship and settlement application forms from the Australian Embassy and these were completed and lodged on

Miss Barry received money from Kunakool as she needed it during hex week in Bangkok. The total she received amounted to

The Saturday after she arrived in Bangkok she flew back

to Perth and has had no contact with Sixi since then.

She does not consider herself married to him and has

urstructed a solicitor to endeavour to have the marriage annulled.

In completing hex sponsorship form which was lodged at the Australian Embassy in Bangkok, Miss Barry signed the same

three undertakings as Mes Person had signed on her form.

In his Application for Entry for Settlement, Siri claimed to have a job arranged in Australia in a restaurant. He named his prospective employer as Peter Morris of an address in East St. Kilda in Victoria. This was a name and address given to Siri by Miss Barry. Morris is a friend of hers but he was not in

It does not appear from the evidence that Miss Barry was

When Siri was interviewed there on 23 May 1986 she had already returned to Australia. Evidence of the interview with him

was given by Andrew Thomas Macguire who, like Miss Trigg mentioned

in relation to the earlier complaint, occupied the position of

He gave evidence of the general procedures adopted by the Embassy in processing applications for visas to visit or live in Australia. It was in much the same terms as that given by Miss

Macguire stressed the importance of the sponsorship undertakings and said, that had they not been signed by Miss Barry, Sixvi's application for migration would not have been approved. It can no doubt be inferred from this, that a permanent

In the event, Siri's application was approved and he

The applicant seeks to review the decisions upon the

2. That there was no evidence or other material to justify the making of the decision.

Particulars of the grounds of review of the decision of

Mr Simpson S.M. were filed on 23 March 1987 and were as follows:-

"The First Respondent was wrong in law and in fact in holding that the evidence then before him was sufficient to put the Applicant upon his trial for an offence of consplring to prevent or defeat the execution or enforcement of a law of the Commonwealth, to wit, the Migration Act 1958, contrary to s.86(1)(b) of the Crimes Act 1914, for the following reasons:-

(a) the marriage between the witness ANTOINETTE PERSON and ANURAT DHAMMAWONG which took place in Bangkok, Thailand on the 24th day of September 1985 ("the marriage") was legally valid and effective;

(b) the object or purpose of the marriage was irrelevant;

(c) whether the said ANTOINETTE PERSON ("PERSON") and the said ANURAT DHAMMAWONG ("DHAMMAWONG") wilfully misled an officer or officers of the Australian Embassy in Bangkok was irrelevant;

(d) 1 (which is not admitted) the Applicant agreed with PERSON and DHAMMAWONG that:-

(i) PERSON and DHAMMAWONG would enter into the Marriage; and

(ii) PERSON and DHAMMAWONG would wilfully mislead an officer or officers of the Australian Embassy in Bangkok in relation to details regarding their relationship and the marriage,

then such an agreement did not affect and could not have affected the execution or enforcement of the Migration Act;

{e) if (which is dented) the agreement referred to in paragraph (d) hereof (the existence of which is not admitted) had or could have had an effect upon the execution or enforcement of the Migration Act, then the said agreement did not have and could not have

had the effect of preventing or defeating the execution or enforcement of the said Act."

The particulars of the grounds for review of the decision of Mr Boys S.M. were expressed in identical terms except that the names of Rebecca Barry and Chanintorn Siri were substituted for the names Antoinette Person and Anurat Dhammawong

In the end however, the applicant's case as expressed by his counsel in xvelation to each of the committals reduces to the

"...The core of the applicant's submission is that if there was an agreement to do anything there was an agreement to prevent or defeat the execution or enforcement of migration policy, which is a different thing from the Migration Act. In other words, it is an element of the offence alleged that there be an assault upon the execution or enforcement provisions of the

Migration Act and there was no such assault in this case."

Related to this submission was the proposition that an agreement affecting the exercise of a statutory discretion was not

No copy of the reasons for the decision of Mr Simpson S.M. were available. They were evidently delivered orally and

This fact lends emphasis to the duty owed by counsel to client to take as complete a note of oral reasons for decision as is possible. In that way error, if error there is, may be more

In the case of the decision of Mr Boys S.M. a transcript

of the learned magistxrate's reasons was put in evidence.

After dealing with the test to be applied in the decision whether to commit a defendant for trial, His Worship went on to consider whether the evidence was sufficient for that

He referred to the decision of the New South Wales Court

of Criminal Appeal in R v Corak (unrep. 24/11/67) and the decision

of the New South Wales Court of Appeal in R v Cahill (1978) 2

NSWLR 453 which are discussed later in these reasons.

He was satisfied that the facts in the case before him bore a marked similarity to those in Corak and that there was therefore sufficient evidence to commit the applicant for trial

"The Migration Act is the statutory instrument by the application of which citizens of other countries gain admission to Australia, and status. Those who seek to avail themselves of the legislation, and to that end conspire to deceive for the purposes of advantage as here, aim at defeating the execution or enforcement of the law. The intention of the conspirators was summed up, I think, by Barrie (sic) quite succinctly when she said, in effect, that, "We couldn''t tell the truth because that would defeat the purpose"."

The relevant statutory provisions are to be found in the

Section 6 of the Migration Act regulates the entry of non-citizens into Australia by imposing a requirement that each

such person be the holder of an entry permit. Officers of the

Department of Immigration and Ethnic Affairs are empowered to

issue such permits which may be permanent or temporary:-

"6(1) A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non-citizen.

(2) An officer may, in accordance with this section and at the request ox with the consent of a non-citizen, grant to the non-citizen an entry permit.

(3) An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both.

(5) An entry permit may be granted to a non-citizen . either upon his arrival in Austxalia ox, subject to RS section 6A, after he has entered Australia (whether

Or not that entry took place before, or takes place after, the commencement of this Part)."

The evidence taken from Miss Trigg indicates' the administrative practice whereby an entry permit will generally be issued upon entry to Australia to the bearer of a permanent

sufficient condition for the issue of an entry permit.

Indeed the Act expressly declares that the issue of a

"11(1) A document or notation to which this section applies issued to a person on behalf of the Commonwealth shall not be deemed to be an entry

pexmit and does not entitle that person to enter Australia or to be granted an entry permit.

(2) A document ox notation to which this section applies is - 7

(a) a visa ox return endorsement granted under this Act; or

(b) a visa ox similar notation, or a form of { provisional authority to enter Australia, . issued, before the commencement of this section, on behalf of the Commonwealth."

The power to issue visas 1s conferred upon authorised

"LILA(1) An authorised officer may, in accordance with this section -

(a) gxant to a person, upon request by that person, a visa with respect to travel to Australia by that pexson and any person whose name is included in the visa -

(ii) on occasions aggregating not more than a specified number of occasions; or

(b) shall come into force on the day on which it 1s gxanted;

(c) shall be expressed to continue in force until the expiration of a date specified in it, or of a period specified or otherwise described in it; and

to continue in force, cease to be in force upon cancellation under section 11B."

Section 11C makes 1t an offence for the master, owner, agent or charterer of a vessel (including aircraft) to bring to Austxalia a person who is not a citizen and who is not in possession of a visa or return endoxsement applicable to his travel to Australia on that occasion or who is not otherwise

The direct statutory effect of the visa is to authorise

the carriage to Australia of the non-citizen to whom it applies.

The evidence indicates that the visa plays now, as it did before the introduction of ss.11A to 11C into the Act, an administrative role of some significance in that an entry permit

w1ll generally not be granted to a non-citizen who arrives in

Australia without a visa - see generally Schubert v Minister for

Immigration and Ethnic Affairs (unxep. 29/5/87 French J.) .

Thus the securing of a visa from the Australian Embassy in Thailand was a vital step towards the acquisition of a

The deception or misleading of any person authorised to ' exercise powers under the Act constitutes an offence by virtue of Lu:

"65. A person shall not obstruct, hinder, deceive or - mislead the Minister ox an officer in the exercise of his powers or the performance of his duties under ox for the purposes of this Act or the xegulations."

In the present case the applicant was charged under , s.86(1)(b) of the Crimes Act 1914. The section provides in the !

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

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

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

(c) to effect a lawful purpose by means that are unlawful under a law of the Commonwealth, -

Magistxate, who is first respondent to the application, derives

~-his-- authority to conduct the committal proceeding from oo

• _xkieatSub=s.68(2)(b) and (3) of the Judiciary Act 1903:-

"st "68(2) The several Courts of a State or Territory exercising jurisdiction with respect to -

~~ -- -- - - wet awe ee eer ee me ee te et ete na ee - _ - TO Fe TEP OD Ns OE Se ER a itn as Ol oes om

(b) the examination and commitment for trial on indictment; or

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial ox conviction ox out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who axe charged with offences against the laws of the Commonwealth.

(3) Provided that such jurisdiction shall not be judicially exercised with respect to the summary conviction ox examination and commitment for trial of any person except by a Stipendiary ox Police or Special Magistrate, or some Magistrate of the State or Territory who is specially authorised by the Governor-General to exercise such jurisdiction."

The decision to commit ox not 1s made in accordance with the requirements of the Justices Act 1902 which in ss. 106 and 107

"106. When, on a preliminary hearing, all the evidence offered upon the part of the prosecution against a person charged with an indictable offence, as such, has been heard, if the justices then present are of opinion that it is not sufficient to put the defendant upon his trial for any indictable offence, the justices shall forthwith order the defendant, if he is in custody, to be discharged as to the complaint then under inquiry.

107. If there is no preliminary hearing and the defendant has pleaded not guilty or if, ona preliminary hearing in the opinion of the justices, the evidence is sufficient to put the defendant upon his trial for an indictable offence, then they shall order him to be committed to take his trial for the offence before some court of competent juxisdiction, and in the meantime shall, by their warrant, commit him to gaol, to be there safely kept until the sittings of the court before which he is to be tried, or until he is delivered by due course of law ox admitted to bail as hereinafter mentioned."

So the decision to commit in this case was made pursuant to the Judiciary Act. It 1s an administrative decision made under

a law of the Commonwealth and therefore reviewable under the

Administrative Decisions (Judicial Review) Act 1977 - Lamb v Moss

It 1S only in exceptional circumstances that the Court will exercise its discretion to review decisions made in committal

That was a case which involved interlocutory decisions made in the couxse of a committal hearing. It is apparent that the restraint principle is at its strongest with respect to that

class of decision - see also Cheng Kui v Quin (1986) 67 ALR 231 at

233, 236 and 243; Fermia v Hand (1984) 53 ALR 731 at 733; Young v

Quin (1984) 56 ALR 168 at 171-172; Seymour v Attorney-General (Cth) (1984) 57 ALR 68 at 74.

The principle nevertheless applies both to review of the conduct of incomplete proceedings and to review of the ultimate

decision - Wong v Evans (1985) 59 ALR 392 at 399; Fooxd v Whiddett

In particular the court will decline to review the committal decision where such review would involve an intricate

consideration of the sufficiency of the evidence - Souter v Webb

(1984) 54 ALR 683 at 689; Foord v Whiddett (supra) at 280.

interlocutory ruling, where review requires construction of a

statutory phrase and no dispute or doubtful fact is to be *:,

There may, in such a case, be a genexal public interest

in resolving the question of construction which could arise in

other proceedings ~ Shepherd v Griffiths (1985) 60 ALR 176 at 183.

Questions of a preliminary nature going to jurisdiction

will also attract a greater readiness to intervene - Clyne v Scott

(1983) 52 ALR 405 at 409; Seymour v Attorney-General (Cth) supra at 74.

Where committal proceedings have been completed and the :

decision to commit is challenged on grounds which go essentially

to the construction of a statute, raise an important question of

law, and do not involve any intricate consideration of the evidence, then there will in the language of the Full Court in Lamb v Moss (supra), be "additional considerations" which favour

The present case does in my opinion, raise a question of construction of some importance, namely the scope of the class of

agreement that 1s caught by s.86(1)(b) of the Crimes Act 1914.

It 1S an area in which there is little authority and as will appear, the question which falls for consideration has not, so far as I am aware, been decided previously. Nox does its determination involve any intricate analysis of the evidence given

The applicant submits that what the evidence shows is, at most, an agreement to prevent or defeat the enforcement or

execution, not of laws but of policies with respect to migration.

The fact of marriage to an Australian citizen does not, it was submitted, confer any right upon the non-citizen to the issue of a visa or an entry permit. And that, so far as it goes,

Counsel noted that on the evidence, the application for a visa of a non-citizen seeking entry to Australia by reason of marriage to an Australian citizen would be determined by reference

to the Migrant Entry Handbook, a policy manual. 1Tt t

policy was not, he said, to prevent or defeat the execution or

Associated with these submissions was the proposition that the exercise of a statutory discretion does not constitute the "execution" or "enforcement" of the statute within the meaning

given to those words in s.86(1)(b) of the Crimes Act.

It 1s to the question of construction that I will now

Read according to the ordinary meaning of its words, paragraph (b) protects the "execution" and "enforcement" of laws

The word "execution" can be taken to bear the primary meaning given to it in the Shorter Oxford English Dictionary, namely:-

"The action of carrying out or carrying into effect."

Applied to a law, this term will include the conduct of

It is well established that if the occasion for the exercise of a statutory discretion arises, a failure to exercise 1t will constitute a failure on the part of its repository to

discharge a statutory duty ~- Watex Conservation and Irrigation

Commission (NSW) v Browning (1947) 74 CLR 492, 505; R v Anderson;

Ex Parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; Murphyores

Inc. Pty Ltd v Commonwealth (1976) 136 CLR 1 at 17-18; Rv

Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1976) 144

CLR 45, 49; De Smith Judicial Review of Administrative Actions 4th

It follows that when the discretion 1s exercised the official exercising 1t discharges a statutory duty. In doing that he carries out the law in a sense which is within the primary

In particular an offical exercising the discretion under

s.llA of the Migration Act 1958 to issue or refuse to issue a visa

The word "enforcement" xvefers to the action of compelling fulfilment of the law (Shorter Oxford English Dictionary), a definition which includes compelling compliance

discretion to gxant or withhold the grant of a statutory

privilege. I note however, that it was thought to be appropriate

in the somewhat analogous case of R v Corak (supra).

That case was concerned with an agreement to arrange sham marriages to enable Chinese men, who were otherwise obliged

to leave Australia at the expiry of the1r temporary entry permits,

Absent the grant of permanent permits they would have been compelled to leave Australia. In that context 1t can be understood why the charge was framed in terms of a conspiracy

Isaces J. in that case was of the view that the words "execution" and "enforcement" as used in s.86(1)(b) are not

mutually exclusive but may and do overlap in their scope and

"execution" is the laxgexr of the two and = incorporates

But that having been said, I do not consider that the :

present case is one involving an agreement to engage in conduct

Having detexrmined that what is in aissue is the "execution" of the law, it is necessary to consider whether the conspiracy alleged was directed to "prevent" or "defeat" that

It was open on the evidence that the agreements said to constitute the conspiracies in which the applicant participated contemplated that his alleged co-conspirator in each case would be involved in making false statements of some kind to relevant officials in Bangkok in support of an application for the grant of a visa and ultimately an entry permit necessary before the yespective spouses could enter Australia. Indeed Mr Boys SM found

On that basis the relevant construction question is whether the making of a false statement to an official charged with the exercise of a statutory discretion on matters affecting the exercise of that discretion can amount to "preventing" or

"preventing" and "defeating" as used in s.86(1)(b).

To "prevent" a course of conduct by someone 1s to "Stop,

keep or hinder" that person from doing the thing in question.

Where the proposed conduct is the execution of a law by the exercise of a discretion 1t will be prevented if the

That sense of the word "prevent" does not conform with the 1dea of submitting false information to a decision maker as a basis for the exercise of a statutory discretion. The discretion

Again the word "prevent" rather than "defeat" was used in R v Corak (supra) but that usage must be seen against the background of an agreement to prevent the otherwise obligatory departure or removal of Chinese men from this country at the

In the meanings applicable for present purposes the word "defeat" has the connotation of "unmake, undo or destroy"; "to

Without resorting to a consideration of the legal effect of fraud upon the exercise of a statutory discretion, it is, I think, sufficient in this case to rely upon the concept of

The exercise of the discretion is frustrated if it is misdirected by false factual material supplied to the decision

maker. The decision rests upon a false foundation. It may well

be also, that having been obtained by fraud, the decision is null

This usage of the term "defeat" is consistent with the way that conspiracies to give false testimony in judicial proceedings have been characterised as conspiracies to defeat the ends or the course of justice - Rv St. Jean and Death (1903) 20 WN (NSW) 211; Rv Griffiths [1904] St.R.Qd. 143; R v Sharpe (1938) 1 All ER 48.

In the latter case, the indictment alleged conspiracy to defeat the ends of justice. However the judgment of the Court of Criminal Appeal delivered by Du Parcq J. seems to have treated the

words "obstruct" and "prevent" as synonyms for "defeat".

Nothing turned on any distinction between the texms, the question at issue being whether the offence could exist where there were no judicial proceedings pending at the time the

"defeat" in an analogous context, albeit at common law, is R v

The three prisoners were convicted of conspiring to defeat the provisions of the Military Service Act 1918, they

having agreed to give one Bennett the sham appearance of heart

disease by the administration to him of the thyroid glands of sheep. The object of the exercise was to deceive a military tx1ibunal before whom he would appear so that it would form the

The question of the full extent of the common law offence and whether it is confined by a requirement for some

However, aS a matter of statutory construction based on the ordinary meaning of the words in s.86(1)(b), the scope of the offence thus defined is broad enough to encompass a conspiracy to affect the exercise of a statutory discretion by the provision

There are only three judicial decisions in Australia of which I am aware, dealing with offences charged under this

The first is R v Corak to which some reference has already been made. As noted the appellant in that case had conspired with other persons to arrange a series of marriages

between Chinese men temporarily in Australia on entry permits and

Australian women, some of whom were already married.

The scheme had regard to the policy of the Department

of Immigration (as 1t was then known) to favour the grant of

permanent residency to non-Europeans who had married Australian

The appellant was charged with conspiring to prevent the

enforcement of a law, to wit, the Migration Act 1958.

The appeal was brought upon the ground that the trial judge should have directed an acquittal on the basis that the evidence did not establish that the conspiracy relied upon amounted to an unlawful agreement to prevent the enforcement of

At page 2 of the Reasons for Judgment McClemens J., with f whom the other two members of the couxt, Moffatt and Isaccs JJ

"This being a charge of conspiracy, the gist of the charge is the agreement: agreement either to do an unlawful act or a lawful act by unlawful means. This particular case, of couxse would fall into the first category."

The definition originates with Lord Denman in R v Jones

(1832) 110 ER 485 and, aithough later repudiated by him as an

exhaustive definition in R v Peck (1839) 112 ER 1372 and Rv King

Its invocation in R v Corak suggests that the statutory

offence was regarded as an expression of the common law.

'tthe trial judge in his direction to the jury had made express reference to evidence that, 1n support of applications for naturalisation by the husbands so they could remain in Australia, some of the parties had told "a pack of lies" at the behest of the accused. This conduct he referred to as part of the overt acts

In relation to the arrangement by the accused of such of the marriages as were lawful and not bigamous, his Honour said that was not the matter of the charge, it was the question of

The contemplation by the conspiracy of dishonest acts seems to have been regaxded by the trial judge as an essential

In his own analysis his Honour said at page 5 of the

"IT£ one turns now from that to a brief analysis of the Migration Act; a reference to ss.6, 7, 10 and 18 - it is not necessary to go beyond those sections - will show that there is a power in the Minister to deport persons whose entry permits have ceased to be in force, no Matter from what cause, and there are provisions there dealing with the length of time that an entry permit will be current and for its cancellation. All those sections are directed to one thing, namely the enforcement of the Act. It may be that s.18 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."

It is, in my respectful opinion, clear that the decision in Corak tuxned upon the fact that the agreement in question contemplated dishonesty by way of misrepresentation to the relevant official to secure the favourable exercise of a

In that case, three Australian women agreed to marry thxee Chinese men to enhance the men's prospects of avoiding

There was no active misrepresentation on the part of

Each of the men and women were convicted of conspiracy '

to prevent the enforcement of a law of the Commonwealth, namely

The case went to the New South Wales Court of Appeal on a case stated. The case stated raised the question whether the trial judge was correct to direct the jury that they could find that the agreement in question contemplated conduct so offensive

to public morality that it could be said to be unlawful.

The court held that the case should not have been allowed to go to the jury. The verdicts of guilty were set aside

Street CJ, before even addressing the stated case, held that it was and always had to be permissible to bring about circumstances which will create a climate favourable to the person concerned in respect of a statutory discretion which might be exercised for ox against his interests. The revenue field was one

For these reasons his Honour regarded the conviction as

He distinguished R v Corak on the basis that in that case misleading statements had been made to immigxation officials. However his Honour reserved the point whether active misrepresentation in the context of the facts before him could

As to the question raised in the case stated, his Honour took the view that the purpose and motives for which people enter into a marriage axe too variable to render it possible for the

Reynolds JA regaxded the trial judge's direction as erroneous because it posed a question to the jury which was

His Honoux went to the words of s.86(1)(b) which had the effect he said of providing that the preventing or defeating of the execution or enforcement of a law of the Commonwealth is an unlawful purpose. He saw it as akin to the common law conspiracy

The relevant question was whether the evidence could suppoxt a finding that an accused agreed to effect the unlawful

Purpose of preventing the enforcement of the law of the

"The question here is whether it can properly be said that persons being free to marry, by agreeing to marry (and if it be relevant agreeing that others should do likewise) for the purpose only of providing additional facts for presentation to the Minister when he came to exercise his discretion as to making a deportation order, were thereby preventing the enforcement of a law of the Commonwealth. To my mind, the answer must be in the negative. What they agreed to do did not prevent or even impede the Minister from exercising his powers under the Act."

Mahoney J& at 373, like Street CJ, did not regard the bringing into existence of a state of affairs apt to increase the prospect of a favourable exercise of a statutory discretion as

preventing the execution or enforcement of the statute.

Even assuming that the agreement to marry for the purpose of attracting a favourable exercise of the statutory discretion were offensive to public morality, the entry into such a Marriage did not thereby become a "preventing" of the execution

On the question of deception however his Honour said at

"Had it been established that the conspiracy involved the deception of the Minister or the relevant officer in this way, arguably there would have been a conspiracy to prevent the enforcement of the Act ox, more likely, its "execution". Arguably, where a Minister or an officer is under the Act to make a decision involving the exercise of a discretion, a conspiracy to deceive him as to the truth concerning a relevant matter will be a conspiracy to prevent him carrying out the duty which the Act imposes upon him and will therefore involve preventing him executing the Act: cf R v Corak (Court of Appeal, 24 November 1967, not reported). On this I express no concluded view. It is a case which was not left to the jury and I do not think that it is open to support the conviction upon that basis."

The decision is, in my opinion, authority for the proposition that an agreement to do that which is lawful for the purpose of attracting the favourable exercise of a statutory discretion will not constitute a conspiracy to prevent or defeat

Further, the fact that the marriages might have been entered into in a way offensive to public moxality does not render the purpose of the agreement unlawful, nor "preventing" in the

In Forsyth v Rodda (unxep. 1/4/87 Jackson J.), the Court

set aside a decision to commit the applicant for conspiracy to defraud the Commonwealth and for conspiracy to prevent or defeat the execution or enforcement of the Income Tax Assessment Act 1936. The applicant, a senior counsel at the Melbourne bar had given advice on a tax avoidance scheme involving the donation of

It 1s not necessary to further review the facts, save to note that the committing magistrate was said to have proceeded upon the assumption that the offence could have been commited even if the scheme in fact operated to make deductions to the Gallery

In relation to the case under s.86(1)(b) Jackson J. took an approach similar to that enunciated in the Cahill (supra)

"The Commonwealth's rights under the Income Tax Assessment Act axe measured by the terms of that Act and 1£ the1r effect is to permit a taxpayer to adopt a particular course having taxation consequences defined by the Act, the adoption of such a course cannot amount to defeating or preventing the execution or enforcement of the Act. That that is so is well illustrated by Reg v Cahill (1978) 2 NSWLR 453......"

The approach there disclosed is, with respect, logically

consistent with the proper construction of s.86(1)(b).

magistrate's reasoning was not based upon any view that the scheme

was a sham or that any misrepresentation was involved.

The Corak case supports the view that a conspiracy to affect the exercise of a statutory discretion by the provision of false factual information to the decision maker, can contravene

The other two cases leave the question open, expressly at

In relation to that question, it is helpful to consider

the provisions of s.86(1)(b) against their common law background.

• Although spoken of as a common law crime, conspiracy was

"out of 13th century statutes dealing with malicious

Prosecution. It was later generalised by the Star Chamber which,

in the words of Lord Reid in Shaw v DPP (1962) AC 220 at 272

citing the 17th Edition of Kenny's Outlines of Criminal Law:-

«eekrecognised its possibilities as an engine of government and moulded it into a substantive offence of

wide scope whose attractions were such that its principles were gradually adopted by the common Law courts."

It has been said on many occasions that the offence is committed 1f£ two ok more persons agree to commit any unlawful act

This formulation, known as the "Denman antithesis" is attributed to Lord Denman in R v Jones (1832) 4 B & Ad 345, 110 ER 485. It does not appear however, that he intended to lay down a definition of criminal conspiracy - R v Peck (1839) 9 Ad and E 686, 112 ER 1327 and R v King (1844) 7 QB 782, 115 ER 683. Indeed

in R v Peck he said in answer to counsel's citation of his

formulation:- "I do not think the antithesis very correct." In spite of that fact, the looseness of the formula, its evident suxrplusage and stringent academic criticism, it has

It has found statutory expression in sub-sections 543(6}

and (7) of the Criminal Code of Queensland, sub-sections 560(6)

and (7) of the Criminal Code of Western Australia and in the

Crimes Act (1914) (Cth) in sub-sections 86(1)(c) and {(d).

Sir Samuel Griffiths' letter of 1897 accompanying the draft Criminal Code of Queensland referred to Part VII, which

contains these provisions, in the following terms:-

"This Part contains principally statements of unwritten law. I believe they are accurate statements of the existing law of Queensland; with the exception of the definition of an unlawful conspiracy to prevent or obstruct the free exercise of a lawful trade or calling, in which the existing law 1s qualified by the limitation (un accordance with the English Law of 1875) of the object of the conspiracy to acts which would be themselves offences if committed by an individual."

In the draft Code, conspiracy to "prevent or defeat the execution or enfoxcement of any law" was treated in a separate section, although the 1899 Report of the Royal Commission into the proposed Criminal Code for Queensland brought it into the same

section as the othex conspiracies that now form part of s.543.

The marginal comment against the original section in the

The equivalent provisions in the Crimes Act 1914 are

So one finds in these statutes conspiracies expressed in texms of the Denman formulation and standing in pari materia with other classes of conspiracy which at common law were apparently

There is much force in Professor Howard's observation in the 4th Edition of his text on Criminal Law at 273 where he says

"It 1s submitted that subsections (1) to (5) should not at the present day be construed in any wider sense than the general unlawfulness rule stated in subsections (6)

It 1s evident from the marginal comment to the draft Queensland Code, that conspiracy to prevent or defeat the

execution or enforcement of a law was, in 1897, thought to be an

Criminal Conspiracies and Agreements by R.S. Wright, published in

1873, contains no express reference to a conspiracy so described.

It does recognise a class of events named in the text as

Its origin was traced back by Wright to the case of Starling (1663), 1 Sid 174, 82 ER 1039, in which brewers were convicted of a conspiracy to depouperate farmers of the excise and

so make them incapable of rendering revenue to the King.

Quoting Lord Holt in Daniell (1704) 6 Md 99, Wright observed that the offence was "directly of a publick nature and

levelled at the Government, and the gist of the offence was its

It may be that there axe other categories of agreement which might involve some non-fraudulent interference with the

discharge of statutory duty and yet fall within the paragraph.

It is sufficient for present purposes to say that the scope of s.86(1)(b) may not be limited to that of its common law

The applicant submitted that the agreement in each case affected only the application of an official policy and not the

The policy to be considered and applied is plainly conceived as a guide ultimately to the exercise of a statutory discretion to give or withhold visas fox permanent residence in

Whether or not the official in question has read the provisions of the Migration Act is neither here nox there, in determining whether the decision making process involves the

The determination whether or not to issue a visa is the

exercise of the discretion conferred under s.1llA of the Act.

In exercising that discretion, the official discharges a

Where the exercise of that duty is misdixvected by the provision of false information then the execution of the statute

There was, in my opinion, sufficient evidence to sustain a finding that the applicant's agreement with each of the women involved contemplated that it would be necessary to misrepresent to the relevant officials the nature and origins of the relationship with her Thai husband and her present intention with

On this analysis, it is not necessary to consider the

In the circumstances the application will be dismissed

and the applicant will be required to pay the respondents' costs.

I certify that the preceding forty eight (48) pages are a true copy

instructed by the Director of Public Prosecutions Date of Hearing: 3 April 1987

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