NETTLE AND GORDON JJ. We regret that we are of a different view from the majority. For the reasons that follow, we do not accept that s 268.121(2) of the Criminal Code (Cth) ("the Code") excludes the right of a private person to seek the consent of the Attorney-General of the Commonwealth under s 268.121(1) of the Code to commence proceedings for an offence against Div 268 of the Code, or, if the Attorney-General grants consent, the right of that person under s 13 of the Crimes Act 1914 (Cth) to commence those proceedings.
Facts and relevant statutory provisions
The facts of the matter sufficiently appear from the judgment of the majority, whose summary we gratefully adopt. Before proceeding further, however, it is convenient to restate the substance of the relevant statutory provisions.
Section 13 of the Crimes Act provides as follows:
"Institution of proceedings in respect of offences
Unless the contrary intention appears in the Act or regulation creating the offence, any person may:
(a) institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or
(b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction."
Section 68(1) of the Judiciary Act 1903 (Cth) provides in effect that, except as otherwise provided, State or Territory laws with respect to the procedure for summary conviction, examination and commitment for trial on indictment, trial and conviction on indictment, and the hearing and determination of appeals therefrom must be applied, so far as applicable, to those persons charged with offences against any Commonwealth law in respect of whom the courts of that State or Territory have jurisdiction under s 68(2).
Section 69 of the Judiciary Act provides in effect and so far as is relevant that indictable offences against any Commonwealth law shall be prosecuted by indictment in the name of the Attorney-General or any other person appointed in that behalf by the Governor-General, but that the power of the Director of Public Prosecutions, and of a Special Prosecutor, to prosecute by indictment in his or her own name is unaffected.
Sections 268.120, 268.121 and 268.122 of the Code provide as follows:
"268.120 Saving of other laws
This Division is not intended to exclude or limit any other law of the Commonwealth or any law of a State or Territory.
268.121 Bringing proceedings under this Division
(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General's written consent.
(2) An offence against this Division may only be prosecuted in the name of the Attorney-General.
(3) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.
268.122 Attorney-General's decisions in relation to consents to be final
(1) Subject to any jurisdiction of the High Court under the Constitution, a decision by the Attorney-General to give, or to refuse to give, a consent under section 268.121:
(a) is final; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari.
(2) The reference in subsection (1) to a decision includes a reference to the following:
(a) a decision to vary, suspend, cancel or revoke a consent that has been given;
(b) a decision to impose a condition or restriction in connection with the giving of, or a refusal to give, a consent or to remove a condition or restriction so imposed;
(c) a decision to do anything preparatory to the making of a decision to give, or to refuse to give, a consent or preparatory to the making of a decision referred to in paragraph (a) or (b), including a decision for the taking of evidence or the holding of an inquiry or investigation;
(d) a decision doing or refusing to do anything else in connection with a decision to give, or to refuse to give, a consent or a decision referred to in paragraph (a), (b) or (c);
(e) a failure or refusal to make a decision whether or not to give a consent or a decision referred to in a [sic] paragraph (a), (b), (c) or (d).
(3) Any jurisdiction of the High Court referred to in subsection (1) is exclusive of the jurisdiction of any other court."
The presumption under s 13 of the Crimes Act
Section 13 of the Crimes Act replaced the long-established common law right of a private person to institute criminal proceedings with a statutory presumptive right adapted to the modern procedures for commitment for trial and summary determination.
Under the "common law" as received in Australia, whether and how a private person might initiate criminal proceedings depended primarily on the nature of the offence, including its characterisation as a felony or misdemeanour, and, where it was triable summarily, on the public interest in the wrong. But as Fullagar J observed in Brebner v Bruce, the cases classifying offences for this purpose were "perhaps not very satisfactory". Against that background, s 13 of the Crimes Act both generalised the common law right and adapted it to modern criminal procedure. Under it, general probabilities of intention based on the nature and terms of the legislation in question cannot displace the prima facie position that any person may initiate criminal proceedings; exclusion of the right of private prosecution must now appear in express terms or at least as a matter of necessary implication. As Fullagar J explained:
"s 13 is really directing us to look, without reference to cases decided in its absence, at each particular statute to see whether a 'contrary intention' appears from express words or from necessary implication".
The text of s 268.121 of the Code
Section 268.121 of the Code does not expressly state that a private person may not commence a proceeding for an offence against Div 268 of the Code. Nor does it imply as much.
Section 268.121(1) provides that proceedings for such an offence must not be commenced without the Attorney-General's written consent. That implies that a private person may bring proceedings if the person first obtains the consent of the Attorney-General. Section 268.121(2) provides that an offence against Div 268 may only be prosecuted in the name of the Attorney-General. That is consistent with the right of a private person to bring proceedings with the consent of the Attorney-General.
The Solicitor-General of the Commonwealth contended that s 268.121(2) should be read as if it stated that proceedings for such an offence may only be brought by the Attorney-General or by one of the Attorney-General's delegates. That contention should be rejected. So to construe s 268.121(2) would fly in the face of its text. If the drafters of s 268.121(2) had intended to convey the meaning that proceedings can only be brought by the Attorney-General or by a delegate of the Attorney-General, they would surely have specified, in terms, that proceedings can only be brought by the Attorney-General or by a delegate of the Attorney-General. Instead, they chose a form of words which, in its natural and ordinary meaning, contemplates action "[c]iting the authority of" or "on behalf of" another. As will be explained, that form of words also imports a long‑established, and substantially consistent, meaning in English and Australian law.
The historical background
English laws
According to the strict logic of the common law, all "pleas of the Crown" were prosecuted "pro rege", or in the "name or right" of the King or Queen, "as the common vindex of public injuries or crimes". As Wilmot LCJ proclaimed on behalf of all the Judges present in the House of Lords in Wilkes v The King:
"By our constitution, the King is entrusted with the prosecution of all crimes which disturb the peace and order of society. He sustains the person of the whole community, for the resenting and punishing of all offences which affect the community; and for that reason, all proceedings 'ad vindictam et poenam' are called in the law, the pleas or suits of the Crown; and in capital crimes, these suits of the Crown must be founded upon the accusation of a grand jury; but in all inferior crimes, an information by the King, or the Crown, directed by the King's Bench, is equivalent to the accusation of a grand jury, and the proceedings upon it are as legally founded; this is solemnly settled and admitted. As indictments and informations, granted by the King's Bench, are the King's suits, and under his controul; informations, filed by his Attorney General, are most emphatically his suits, because they are the immediate emanations of his will and pleasure. They are no more the suits of the Attorney General than indictments are the suits of the grand jury."
Although brought in the name of the Crown, however, the conduct of a prosecution pro rege was, in the typical case, left to the victim of the crime or his or her agent. As Sir Patrick Devlin remarked, "the great majority of prosecutions are in theory private", but "even the prosecution that is initiated and conducted by a private individual is brought in the name of the Crown".
Thus, generally speaking, a bill of indictment for felony or misdemeanour was "preferred ... in the name of the king, but at the suit of any private prosecutor". Thereafter, the grand jury, or jury of presentment - which ordinarily "comprised 23 persons summonsed by the sheriff to consider whether there were grounds for suspicion that the person presented had committed an offence" - acting by majority, would return the bill endorsed as a "true bill", "upon which the accused was put on his trial", or with the word ignoramus ("we do not know"), "upon which no further proceedings were taken".
Alternatively, in respect of misdemeanours, a private person was generally entitled to procure an information directly "for the punishment of public crimes" albeit that that right was perennially subject to statutory regulation. In the aftermath of the Revolution of 1688, s 2 of 4 & 5 Will & Mar c 18 was passed to check abuses by requiring prosecutors to obtain the leave of the court before an information was exhibited. Then, from the late 18th century, Parliament began to provide against the same mischief by requiring that informations to enforce penalties under particular Acts be prosecuted "in the Name of his Majesty's Attorney General". Provisions to that effect in laws on "Corresponding Societies" have since been described as having "introduced a requirement for the consent of the Attorney-General to any penal actions for sedition, or its encouragement".
Such requirement for consent, however, in no sense excluded the right of private prosecution. In that respect, the decision of the powerfully constituted Divisional Court in R v Kennedy, a Metropolitan Magistrate, concerning ss 34 and 38 of the Roman Catholic Relief Act 1829 (UK), is instructive. The former provision created the extraordinary offence of being a Jesuit which, upon conviction, rendered the offender liable to be banned from the Kingdom for the term of his natural life. The latter provided that "all Penalties ... shall and may be recovered as a Debt due to His Majesty, by Information to be filed in the Name of His Majesty's Attorney General". At first instance, the Magistrate held that, having regard to the very peculiar nature of the offence, s 38 should be taken to mean that proceedings could only be instituted by the Attorney-General acting as such. On appeal, the Divisional Court held unanimously that the Magistrate was wrong. Lord Alverston CJ stated that:
"Its provisions are, of course, unique, and we have no practice under it, which can be said to be any contemporaneous exposition or interpretation of it ... For myself I wish to say that I by no means suggest that it is any legal bar to proceedings in the case that they are taken by a private individual. If the magistrate had proceeded upon the view that the Crown, and the Crown only, could take proceedings, I think he would have been wrong".
Likewise, Darling J held:
"I think [the Magistrate] did express in one part of his judgment the opinion that proceedings could not under this Act of Parliament be initiated at the instance of a private person, but only by the Attorney‑General acting as such. In that I desire to say I think he was wrong. If he held that opinion, and I think he did, and I think in one place he expressed it, I think he was wrong. To my mind it is clear that the Act is open to enforcement by a private individual".
To the same effect, Channell J said:
"as [s 34] is put in the form of a criminal offence, it appears to me that a private individual is entitled to prosecute for it. ... [I]t is an important constitutional principle that a private individual may set the criminal law in motion - at his own risk in certain cases, of course, but that he may do so. ... [E]xcept where the special terms of the Act of Parliament direct the contrary (of which there are some instances) a private individual may institute criminal prosecutions".
At the same time, the Attorney-General continued to enjoy the privilege of prosecuting grave misdemeanours by an ex officio information in the King's Bench, a process that "eliminated the grand jury, could allow the careful packing of a special jury, and saddled the defendant with heavy costs even if the Crown lost".
Colonial Australian laws
From the outset, the position in Australia was largely the same. As was observed in R v Walton:
"In England the Queen prosecutes; a county may prosecute, or a single individual, but still in every case the Crown really prosecutes; and even the Grand Jury prosecutes for the Crown. After the information is filed, if a private prosecutor comes into Court, he may be permitted to prosecute for the Crown. But when a bill has been found, it is unnecessary for any person to conduct the prosecution ministerially. We are just in the same position here with regard to a prosecution after the bill is found as they are in England."
In the Colony of New South Wales, the functions of the Attorney-General with respect to the prosecution of criminal offences derived from Imperial statutes. Notably, in 1828, the Imperial Parliament enacted the Australian Courts Act 1828 (Imp), of which s 5 provided that:
"until further Provision be made as hereinafter directed for proceeding by Juries, all Crimes, Misdemeanors, and Offences, cognizable in the said Courts respectively, shall be prosecuted by Information, in the Name of His Majesty's Attorney General, or other Officer duly appointed for such Purpose by the Governor of New South Wales and Van Diemen's Land respectively ..."
Section 6 provided relevantly and in substance that any person might also exhibit a criminal information against another person in the name of the Attorney‑General by obtaining the leave of the Supreme Court.
In Beckett v New South Wales, French CJ, Hayne, Crennan, Kiefel and Bell JJ described the purpose of s 5 of the Australian Courts Act, insofar as it conferred power on the Attorney-General to prosecute offences on ex officio "indictment" and to enter a nolle prosequi, as being to arm the Attorney‑General for New South Wales and Crown Prosecutors appointed by him with a power in all respects similar to that enjoyed by the Attorney-General in England. In respect of indictable offences, s 5 also operated as "an interim measure pending the constitution of grand juries", vesting in the Attorney‑General the function of the grand jury to find or ignore a bill. In that respect, as Stephen CJ noticed in R v Macdermott, the enactment of s 5 meant that "until the establishment of a Grand Jury, the powers and functions of that body [were] vested exclusively in one officer, without supervision, limitation, or control".
As events later transpired, no provision was ever made in New South Wales for the establishment of a grand jury - with the result, consistently recognised in early decisions of the Supreme Court of New South Wales, that, in "giving the power to the Attorney-General to prosecute", s 5 of the Australian Courts Act provided in effect that "the Attorney-General, or the person who stands in his place, signs the bill, that is to say, like a Grand Jury he finds billa vera". Approving this line of authority, in Commonwealth Life Assurance Society Ltd v Smith a majority of this Court stated that "[u]nder the law of New South Wales there is no grand jury, and the Attorney-General discharges a duty analogous to or replacing that which, under the common law, was performed by a grand jury".
Although the Attorney-General for New South Wales thus came to occupy the dual "functions of a grand jury and of a public prosecutor", each function remained distinct. The statutory imperative that offences "be prosecuted by Information in the Name of His Majesty's Attorney General" in no sense required that, if the Attorney-General found a bill and filed an information in his former capacity, he should thereafter maintain the conduct of the prosecution in his latter capacity. True it was that, having found a bill and filed an information, the Attorney-General was entitled to maintain the conduct of a prosecution to the exclusion of any private prosecutor, and the Supreme Court "had no power to interfere with this exercise of such duty". But as was stated in R v Shanahan:
"the filing of the information was a distinct act from its after prosecution by counsel for the Crown. The Attorney-General, or other representative of the Crown, having placed the information upon the files of the Court his statutory functions ceased, and he might, if he thought fit, hand over the further prosecution of it to the parties concerned."
Where that occurred, the prosecution was continued by the private person in the name of the Attorney-General.
Moreover, where the Attorney-General declined to exercise his power under s 5, the private person could apply to the Supreme Court for leave to file a criminal information "in the name of" the Attorney-General under s 6. And although "the exercise of that jurisdiction" was "always held to be purely discretionary", its existence provides a further early demonstration of the fact that anyone duly authorised to proceed in the Attorney-General's name could do just that.
Commonwealth laws
Section 69 of the Judiciary Act has been described as providing the "same general system" for the institution of prosecutions for Commonwealth offences as s 5 of the Australian Courts Act. As Taylor J held in Bainbridge‑Hawker v The Minister of State for Trade and Customs, it "contemplates the use of the personal name of the Attorney-General or of such other person who may have been so appointed".
The relationship between s 69 of the Judiciary Act and s 13 of the Crimes Act was described by Isaacs J in R v Judd in the following terms:
"As to summary procedure, that was provided for by sec 13 of the Crimes Act 1914, which allowed any person to institute proceedings; and as to indictment, that was found in sec 69 of the Judiciary Act, which provided that indictments should be in the name of the Attorney-General or of some person commissioned by the Governor-General."
The matter in issue in Judd concerned the effect of s 6(3A) of the War Precautions Act 1914 (Cth). It provided that:
"An offence against this Act shall not be prosecuted summarily without the written consent of the Attorney-General or the Minister for Defence, or a person authorized in writing by the Attorney-General or the Minister for Defence, and an offence against this Act shall not be prosecuted upon indictment except in the name of the Attorney-General."
Isaacs J held that the purpose of s 6(3A) was to provide "a safeguard to the individual", by ensuring that:
"no prosecution should be instituted either summarily or by indictment, except by executive authority. To carry that out, they provided that summary procedure should be with the written consent of a Minister of State, either the Attorney-General or the Minister for Defence, specially named, or some person under the written authority of one of those Ministers of State; and that in the case of an indictment it should be in the name of the Attorney-General, cutting out for the purpose of the Act the provision in sec 69 of the Judiciary Act as to a person who was commissioned by the Governor-General. That left the whole thing really in the hands of the Executive Government."
Likewise, Gavan Duffy J observed that:
"Sec 6(3A) ... gives no new power to the Attorney General, but in certain cases forbids prosecution by indictment in the name of any person other than the Attorney General."
It is arguable that the combination of s 268.121(1) and (2) of the Code is similar in effect to s 6(3A) of the War Precautions Act. By its reference to an offence being prosecuted only in the name of the Attorney-General, s 268.121(2) may be seen to maintain what Dixon J described as the "great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment" - the former being "a proceeding between subject and subject" and the latter being concerned with the "highest crimes by which the State may be affected and the gravest liabilities to which a subject may be exposed", which must be brought in the Attorney-General's name as a "plea[] of the Crown ... solemnly determined according to a procedure considered appropriate [thereto]".
If so, in the case of summary proceedings (relevantly, for an indictable offence triable summarily) or proceedings for the commitment of an accused for trial on indictment, s 268.121(1), like the first part of s 6(3A) of the War Precautions Act, would require that the informant first seek and obtain the Attorney-General's consent to the commencement of the proceeding and, in the case of indictable offences, s 268.121(2), like the latter part of s 6(3A) of the War Precautions Act, would forbid prosecution by indictment in the name of anyone other than the Attorney-General. Neither sub-section would exclude the right of private prosecution.
It is also arguable, however, that the omission of the words "by indictment" from s 268.121(2) should be taken to signify that s 268.121(2) extends to summary proceedings which are alternative or preliminary to a prosecution upon indictment. But if so, there would still be no exclusion of the right of private prosecution. For there would be no reason to suppose that s 268.121(2) (any more than s 6(3A) of the War Precautions Act or s 5 of the Australian Courts Act) excludes the ability of a private person to seek the consent of the Attorney-General to commence proceedings for summary conviction or commitment or the ability of the Attorney-General to permit a private person to conduct a prosecution, whether summarily or on indictment, in the name of the Attorney-General. Of course, whether or not the Attorney-General would choose to do so is another matter, but it is evident that s 268.121(2) was intended to leave that option open to him or her.
The point is emphasised by the observations of Griffith CJ in Christie v Permewan, Wright & Co Ltd, being one of the earliest decisions in this Court considering the effect of Commonwealth legislation specifying that a proceeding could be instituted only in the name of a designated officer:
"It is to be observed that sec 245 [of the Customs Act 1901 (Cth)] only requires prosecutions to be instituted in the name of the Collector. It does not require any particular person to lay the information personally any more than it requires the Minister to go into Court to institute the prosecution. There is nothing in the Customs Act to say that the power conferred on the Collector cannot be exercised by some other person for and on behalf of the Collector."
Such legislation stands in contrast to provisions which impose "an absolute restriction upon the right to prosecute". As the Australian Law Reform Commission noted in its 1985 Report into Standing in Public Interest Litigation:
"365. Consent Provisions in Australia. A search by the Commission has identified a number of instances of Commonwealth Acts and regulations and Ordinances of the Australian Capital Territory requiring official consent to prosecution. These are listed in Appendix B. In most cases the provision requiring consent refers to several, if not all, offences under the relevant Act, regulations or Ordinance, so that the number of offences covered by consent provisions is more extensive than is indicated by this figure. In most cases the official empowered to consent to prosecution is the Attorney-General, although in some cases it is the Treasurer, another Minister or a senior public servant, such as the Secretary to the relevant department. Often the consent may be provided by an officer so authorised by the designated official. In other cases legislation places an absolute restriction upon the right to prosecute, permitting prosecution only in the name of the designated official, whether it be the Attorney‑General, the Director of Public Prosecutions, the Minister or a senior public servant, such as the Commissioner of Taxation. This absolute restriction most often appears in legislation relating to taxation. Appendix B provides a list of the relevant Acts. Under the Director of Public Prosecutions Act 1983 (Cth) persons having the power to consent to prosecutions for particular offences may authorise the Director to consent to prosecutions for those offences without surrendering their own power to give such consent. Certain of the Acts containing consent provisions are amended by the Director of Public Prosecutions (Consequential Amendments) Act 1983 (Cth) so as explicitly to empower the Director, usually in addition to the Attorney-General, to consent to prosecutions."
The contextual indications
Those conclusions are fortified by the fact that, at the time of drafting s 268.121, the drafters would almost certainly have had in front of them the forms of legislation earlier enacted in New Zealand, the United Kingdom and Canada to give effect to those countries' respective obligations under the Rome Statute of the International Criminal Court (1998). Tellingly, the New Zealand legislation barred proceedings commenced "without the consent of the Attorney‑General", and, yet more tellingly, the United Kingdom legislation barred proceedings instituted otherwise than "by or with the consent of the Attorney General". As might be expected, the latter form of provision has since been interpreted in England to mean that proceedings cannot be commenced without the consent of the Attorney-General. Canada's legislation was alone in providing in terms that such proceedings could be "conducted only by the Attorney General" or counsel on his or her behalf. And since the drafters did not adopt the Canadian form of words, but rather combined the United Kingdom and New Zealand pattern with a provision, long familiar in this country, for the institution of proceedings in the name of the Attorney-General, the logical conclusion is that they eschewed the Canadian approach in favour of the more orthodox United Kingdom and New Zealand course of retaining the private right of prosecution and subjecting it to a requirement first to obtain the Attorney‑General's consent.
If s 268.121(2) were to be read as restricting prosecution to that by the Attorney-General in the manner of the Canadian provisions, it is difficult to see why s 268.121(2) excludes private prosecutions but does not also prevent prosecutions by the Commonwealth Director of Public Prosecutions, the police and any Special Prosecutor - there are no stated exceptions for these entities in s 268.121(2). That the Director of Public Prosecutions might, under s 9(1) of the Director of Public Prosecutions Act 1983 (Cth), bring proceedings "in any other manner" than in his or her own official name does not address the issue: the Director of Public Prosecutions is not the Attorney-General. Indeed, the police, at least, are expected to play some role under s 268.121, as contemplated by s 268.121(3), which permits actions such as arrest and charge before the Attorney-General's consent has been given. For these reasons, as well, the better construction is that s 268.121(2) does not exclude prosecutions by persons other than the Attorney-General.
That conclusion is in turn reinforced by the fact that, had s 268.121(2) been intended to have the effect that proceedings can only be brought by the Attorney-General, there would be little point in expressly providing in s 268.121(1) that proceedings cannot be commenced without the consent of the Attorney-General; and, although there might be several reasons for providing in s 268.122 that a decision of the Attorney-General to grant or withhold consent is not reviewable, the most likely explanation of it is surely that it was intended to prevent a private person who wishes to take proceedings for an offence against Div 268 disputing a decision by the Attorney-General not to consent.
The Solicitor-General contended that the probable explanation of the inclusion of s 268.121(1) is that, under s 17(2) of the Law Officers Act 1964 (Cth), the Attorney-General may either generally or otherwise by writing under his or her hand delegate all or any of his or her powers and functions, and thus that it is possible that the Attorney-General may delegate his or her powers to prosecute persons for offences against Div 268. It was submitted that, in view of the nature of the offences proscribed by Div 268, it may be inferred that Parliament considered it desirable that the Attorney-General maintain individual control over such proceedings, and hence that the likely purpose of s 268.121(1) is to ensure that delegates seek individual consent before the institution of each such proceeding.
That contention is unconvincing. If that were the point of the consent requirement, it is only to be expected that s 268.121(1) would be directed specifically to delegates or would be drafted in terms which require the Attorney‑General to make a delegation of power to prosecute Div 268 offences subject to a requirement that the delegate obtain consent before the institution of proceedings. It is unlikely that s 268.121(1) would be drafted, as it is, in a form which has been interpreted repeatedly over centuries as one directed to private persons seeking to institute criminal proceedings with the consent of a designated Law Officer.
The Solicitor-General also referred to s 12 of the War Crimes Act 1945 (Cth), which provides that:
"Who may prosecute
An offence against this Act may only be prosecuted in the name of the Attorney-General or the Director of Public Prosecutions."
The Solicitor-General contended that it is apparent from the similarity between the form of s 268.121(2) of the Code and the form of s 12 of the War Crimes Act, coupled with the meaning which the Explanatory Memorandum to the War Crimes Amendment Bill 1987 (Cth) ascribed to s 12 of the War Crimes Act, that s 268.121(2) of the Code was intended to have the same meaning as the Explanatory Memorandum to the War Crimes Amendment Bill ascribed to s 12 of the War Crimes Act.
That contention should also be rejected. On any view, s 12 of the War Crimes Act achieves the specific purpose identified in its heading - to regulate "[w]ho may prosecute" - because some lawful authority must be necessary to proceed in the name of the Attorney-General. Beyond that, however, the heading does no more than point to the question identified above as to what "prosecute" means in this context. What is far more telling is that s 12 of the War Crimes Act is in a form which, as has been explained, has long existed and long been understood to do no more than forbid particular proceedings in the name of any person other than the Attorney-General.
It is true, as the Solicitor-General contended, that the Explanatory Memorandum to the War Crimes Amendment Bill stated that the effect of s 12 of the War Crimes Act is that proceedings for an offence against that Act may be brought only by the Attorney-General or the Director of Public Prosecutions. But that can hardly be regarded as a sufficient indication of its meaning. For the reasons given, s 12 of the War Crimes Act is not ambiguous or obscure. Nor could it be said that its natural and ordinary meaning, supported by centuries of experience, leads to any manifestly absurd or unreasonable result. Hence, s 15AB of the Acts Interpretation Act 1901 (Cth) supplies no basis for considering this extrinsic material, much less attaching dispositive weight to it. And, although this Court has acknowledged a role for context in the first instance, it has also steadfastly maintained that the meaning of the statutory text cannot be displaced by legislative history and extrinsic materials, much less one without the other. The function of the Court is to give effect to the will of the Parliament as expressed in the law, not to bend it to accord to what an officer of the executive may have conjectured to be its meaning.
Furthermore, even if s 12 of the War Crimes Act had the meaning for which the Solicitor-General contended, s 268.121 is very different in form and context from s 12 of the War Crimes Act: in particular, s 268.121(1) expressly provides that a proceeding is not to be commenced without the consent of the Attorney-General, and s 268.122 expressly provides, in a most elaborate form, that a decision of the Attorney-General to consent or not to consent is not reviewable. The inclusion of those features in ss 268.121 and 268.122 compared to their absence from the War Crimes Act supports the conclusion that s 268.121(2) is intended to have its natural and ordinary meaning: relevantly that, if the Attorney-General consents to a private person commencing a proceeding for an offence against Div 268 of the Code, the proceeding may thereafter be commenced only in the name of the Attorney-General.
The Solicitor-General argued that the special nature of the offences created by the War Crimes Act and by Div 268 of the Code is a powerful indication that Parliament intended that such offences be prosecuted only by the Attorney-General or, in the case of offences under the War Crimes Act, by the Attorney-General or the Director of Public Prosecutions and, therefore, that s 12 of the War Crimes Act and s 268.121(2) of the Code should be construed as having that effect.
That contention is not persuasive either. It may, at the outset, be doubted whether the nature of the offences in Div 268 is any reason for reading s 268.121(2) as not permitting private prosecutions. The purpose of Div 268 is "to create certain offences that are of international concern and certain related offences". In the international law context, these offences, which include crimes against humanity and genocide, are sometimes called crimes of universal jurisdiction. Parliament could readily have viewed the importance of ensuring prosecution of these crimes - because they are of such general concern - as supporting, rather than detracting from, the desirability of private prosecution.
While it may be accepted that the offences created by the War Crimes Act and Div 268 of the Code are special, even apart from s 13 of the Crimes Act it is unlikely that the special nature of the offences would be regarded as a sufficient indication of intention to exclude the right of private prosecution. It will be recalled that the Divisional Court in Kennedy was unanimous in holding that the special nature of the offence there in issue was not sufficient to exclude the right of private prosecution.
Moreover, and more importantly, whatever may have been the position prior to the enactment of s 13 of the Crimes Act, as has been observed, the consequence of the enactment of s 13 is that general probabilities of intention based on the nature of the legislation in question are not sufficient to displace the presumption created by s 13 that any person may institute criminal proceedings. To exclude the right of private prosecution afforded by s 13 requires express terms of exclusion or exclusion as a matter of necessary implication. And here the nature of the offences in issue does not so imply. Given the manner in which they have been dealt with in the United Kingdom and New Zealand, and that s 268.121 appears as substantially based on a combination of those provisions with a form of words having an established meaning retentive of the right of private prosecution, there is very good reason to conclude that the nature of the offences was not considered sufficient to take away the right of private prosecution.
The special nature of the offences created by Div 268 of the Code is relevant, however, in another and more significant respect. Because those offences are the result of Australia giving domestic effect to international crimes recognised by the Rome Statute, Parliament had reason to consider it important that, where proceedings are taken by a private person, the Director of Public Prosecutions or a Special Prosecutor, the defendant should "know from the summons" (or at least any later indictment) "that the proceedings were both authorized and taken in the name of the Attorney-General", as the first Law Officer of Australia.
In the absence of contrary indication, a requirement that proceedings not be commenced "without the consent of" the Attorney-General, or only "with the sanction of" or "on the fiat of" the Attorney-General, would not necessarily imply that proceedings to which the Attorney-General has given consent, sanction or fiat must then be commenced in the name of the Attorney-General. Hence, but for s 268.121(2), proceedings to which the Attorney-General had consented under s 268.121(1) might be commenced in the name of a private prosecutor under a State or Territory law applied by s 68 of the Judiciary Act, and then prosecuted by indictment in the name of the Director of Public Prosecutions or a Special Prosecutor under s 69 of the Judiciary Act. Against that background, it appears most likely that the purpose of s 268.121(2) is to ensure that, where the Attorney-General has consented to proceedings under s 268.121(1), the fact that the proceedings are authorised by and taken in the name of the Attorney-General will be apparent from the face of the instrument under which the defendant is prosecuted.
Conclusion
For these reasons, we should have been disposed to hear the plaintiff's argument as to whether the Attorney-General's refusal to grant consent was reviewable on the grounds alleged. But of course we say nothing as to the merits of that argument.