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Director of Public Prosecutions (Cth) v Fukusato

 

[2002] QCA 20

Reported at [2003] 1 Qd R 272

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

Cth DPP v Fukusato [2002] QCA 20

PARTIES:

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(applicant/respondent)
v
HARUNOBU FUKUSATO
(respondent/applicant)

FILE NO/S:

Appeal No 6456 of 2001

DC No 380 of 2000

DC No 3523 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 February 2002

DELIVERED AT:

Brisbane

HEARING DATES:

22 October 2001 and 23 October 2001

JUDGES:

McMurdo P, Davies and Thomas JJA

Separate reasons for judgment of each member of the Court; each concurring as to the order made

ORDER:

Application to quash the indictment presented in the District Court against Harunobu Fukusato on 18 August 2000 by Francis James Walsh refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OR INDICTMENT – QUEENSLAND – application to quash an indictment removed from District Court under s 68(5) Supreme Court of Queensland Act 1991 (Qld) as the officer of the Commonwealth Director of Public Prosecutions lacks legislative authority to prosecute it  

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OR INDICTMENT – QUEENSLAND – where indictment charges an offence under the Corporations Law of Queensland and offences under the Criminal Code (Qld) – where indictment presented by an officer of the Commonwealth Director of Public Prosecutions in the name of that officer and the Commonwealth Director  

STATUTES - ACTS OF PARLIAMENT – VALIDITY OF LEGISLATION

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – INCONSISTENCY OF LAWS – PARTICULAR CASES – CRIMINAL MATTERS

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – MISCELLANEOUS POWERS OF THE COMMONWEALTH – MATTERS REFERRED BY STATES – whether the officer had legal authority to present the indictment charging an offence under the Corporations Law of Queensland – whether the Corporations (Commonwealth Powers) Act 2001 (Qld) is invalid because it was not approved by electors in accordance with s 53 Constitution Act 1867 (Qld) – whether s 109 Constitution applies – where the Corporations (Commonwealth Powers) Act 2001 (Qld) does not affect the power of the Queensland Parliament to make laws for the peace, welfare and good government of the state – where the referral of power to the Commonwealth is valid – where the prosecution of the offence is valid – Graham v Patterson (1950) 81 CLR 1 followed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PERSONS ENTITLED TO CONDUCT PROSECUTION – whether the officer of the Commonwealth Director had authority to present the indictment under s 560(2) Criminal Code (Qld) following the enactment of the Director of Public Prosecutions Act 1984 (Qld) – where nothing in the Director of Public Prosecutions Act 1984 (Qld) affects the operation of s 560(2) Criminal Code (Qld) 

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – POWER OF INCIDENTAL LEGISLATION

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – MISCELLANEOUS POWERS OF THE COMMONWEALTH – MATTERS REFERRED BY STATES – whether ss 6(1)(m) and 17 Director of Public Prosecutions Act 1983 (Cth) are valid – whether they are supported by a head of power under the Constitution, namely s 51(xxxvii) the executive power and s 51(xxxix) the incidental power  

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURES – INFORMATION INDICTMENT OR PRESENTMENT – OTHER MATTERS – s 17(1) Director of Public Prosecutions Act 1983 (Cth) gave authority to the Commonwealth officer to present an indictment charging both Commonwealth and State offences – where application to quash indictment is refused 

Acts Interpretation Act 1901 (Cth), s 15A

Australia Act 1986 (Cth), s 6

Criminal Code (Qld), s 1, s 13,  s 120, s 131, s 132, s 430, s 440, s 442M, s 488, s 489, ss 541- 543, ss 560-563, s 567, s 619(6), s 638, s 669A, s 686(1)

Constitution 1901 (Cth), s 51(xx), s 51(xxxvii), s 51(xxxviii) s 51(xxxix), s 52(xxxvii), s 52(xxxviii), s 52(xxxix). ss 61-70,  s 71, s 75, s 76,  s 107, s 109

Constitution Act 1867 (Qld), s 2, s 53(1)

Corporations Act 1989 (Cth), s 82

Corporations Act 2001 (Cth), s 1370, s 1383, s 1401

Corporations (Commonwealth Powers) Act 2001 (Qld), s 5(1), s 6, s 7

Corporations Law, s 232(2), s 1311

Corporations (Queensland) Act 1990, s 7

Director of Public Prosecutions Act 1983 (Cth), s 3(2), s 6, s 6(1)(m), ss 7-10, s 17(1)

Director of Public Prosecutions Act 1984 (Qld), s 10, s 11(3), s 23, s 24, s 102(2)

Judiciary Act 1903 (Cth), s 40

Supreme Court of Queensland Act 1991, s 68(5) 

Australian Boot Trade Employés Federation v Whybrow & Co (1910) 11 CLR 311, considered

Barton v R (1980) 147 CLR 75, considered

Barton v The Commonwealth (1974) 131 CLR 477, considered

Bond v R (2000) 201 CLR 213, distinguished

Byrnes v R  (1999) 199 CLR 1, considered

Davis v The Commonwealth (1988) 166 CLR 79, considered

D’Emden v Pedder (1904) 1 CLR 91, considered

Gould v Brown (1998) 193 CLR 346, considered

Graham v Paterson (1950) 81 CLR 1, followed

Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51, considered

Pidoto v Victoria (1943) 68 CLR 87, considered

R v Brisbane TV Limited; ex parte Criminal Justice Commission (No 2) [1998] 2 QdR 483, considered

R v Duncan;  ex parte Australian Iron & Steel Pty Ltd (1983) 158 CLR 535, considered

R v Holden [2001] VSCA 63, No 14 of 1999, 16 May 2001, distinguished

R v Hughes  (2000) 202 CLR 535, considered

R v Judge C F McLoughlin [1988] 1 QdR 464, considered

R v Kolaroff  (1997) 95 ACrimR 447, considered

R v Phillips (1970) 125 CLR 93, considered

R v The Public Vehicles Licensing Appeal Tribunal (Tas) ex parte Australian National Airways Pty Ltd (1965) 113 CLR 207, considered

Re Nolan; Ex parte Young (1991) 172 CLR 460, considered

Re Wakim; ex parte McNally (1999) 198 CLR 511, distinguished

Western Australia v The Commonwealth (1995) 183 CLR 373, considered

COUNSEL:

W Sofronoff QC, with A W Moynihan and D C Shepherd, for the applicant

D J S Jackson QC, with S J Keim, for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Commonwealth Director of Public Prosecutions for the respondent

  1. McMURDO P:  This application to quash an indictment presented in the District Court at Brisbane turns on whether the Commonwealth Director of Public Prosecutions ("Commonwealth DPP") and his officer, Mr Walsh, were entitled to prosecute offences against the Queensland Criminal Code and the Corporations Law of Queensland.

Agreed statement of facts

  1. The parties have filed an agreed statement of facts which provides the background to this application. It is convenient to set it out in full.

"1.An investigation was carried out by a Commonwealth agency, namely, the Australian Securities and Investments Commission ('ASIC'). As a result of that investigation, on 9 March 1999, the applicant was arrested and charged by a Commonwealth officer with five offences against the Queensland Criminal Code.

  1. He was subsequently summonsed in relation to a further eighteen Queensland Criminal Code charges on the complaint of one Glynn, a Commonwealth officer employed by ASIC.  Committal proceedings were conducted by the Commonwealth Director by one of his employed counsel, Mr Walsh.  On 19 May 2000, the applicant was committed for trial to the District Court of Queensland on all twenty-three of those charges.
  1. On 18 August 2000, an indictment was presented by the Commonwealth charging the applicant with those twenty-three offences and one further ex officio charge under the Corporations Law of Queensland (Count 2 of the indictment).  The indictment was signed by a member of the staff of the Queensland office of the Commonwealth Director of Public Prosecutions who, with the consent of the Attorney-General (Commonwealth), held a commission to prosecute from the Governor in Council (Queensland).
  1. After the committal proceedings but before the presentation of the indictment, the Commonwealth Director referred the matter to the Queensland Deputy Director of Public Prosecutions who agreed that the Commonwealth could continue with the prosecution.1  The decision to prosecute (and to present the indictment) was made by the Commonwealth officers.
  1. The referral by the Commonwealth Director and the agreement of the Queensland Deputy Director of Public Prosecutions were made pursuant to an agreement between the Commonwealth and State Directors under which certain officers in each office hold commissions to sign and present indictments.2  There is no other relevant agreement between the State and the Commonwealth.
  1. On 1 December 2000, an application was made in the District Court on behalf of the applicant to quash the indictment.  The application was adjourned to permit an application to be made for the removal into the High Court of the application to quash pursuant to s.40 of the Judiciary Act.
  1. On 15 December 2000, an application was made to have that part of the cause removed to the High Court.
  1. On 27 June 2001, the High Court declined to remove the matter.
  1. On 17 July 2001, application was filed in the Queensland Court of Appeal to remove the proceedings, namely an application to quash the indictment, into the Court.
  1. On 5 September 2001, the Court of Appeal ordered that the matter be removed into that Court.
  1. Counts 3-15 on the indictment3 against the applicant allege that, between May 1991 and September 1991, in the course of certain negotiations,4 the applicant created false documents contrary to s.488 of the Criminal Code (Qld) by either:

(a)describing himself as or signing correspondence or documents as a director of a relevant company when he was not so appointed and/or

(b)making statements or claims that he was not duly authorised to make in correspondence or other documents;

and further that the applicant uttered some of those false documents contrary to s.489 of the Criminal Code (Qld.) by causing them to be sent to a third party, usually, the Commonwealth Bank.

  1. Count 2 of the indictment alleges a breach of s.232(2) of the Corporations Law of Queensland and the conduct referred to in paragraphs 11 is also the conduct relied upon to prove that offence.
  1. Counts 36, 39, 43, 45, 49, 51, 54, 57 and 62 of the indictment allege that the applicant assisted, aided or enabled the creation of false documents contrary to s.488 of the Criminal Code (Qld.) between 25 September 1995 and 7 March 1997.  The prosecution alleges that the applicant's co-accused, Kawada, created false documents and sent them to Japan.  It is alleged that the documents were an attempt to conceal the true state of affairs of the Australian companies, Jillbridge Pty Ltd and Comestock Corporation (Australia) Pty Ltd ('Comestock').5  Those companies were trading corporations formed within the limits of the Commonwealth.  These documents are alleged to have been an attempt to conceal the true state of affairs of the two Australian companies.  It is alleged that the documents consisted of, among other things, invoices which purported to show that certain commercial properties in Cairns and the Gold Coast6 were still owned by Comestock and earning income.  It is alleged that the applicant is criminally liable in this regard by s.13 of the Criminal Code (Qld.) in that he omitted to advise Mr Eikichi Yazawa (a director and principal shareholder in both Jillbridge and Comestock and resident of Japan)7 that Comestock had been wound up.
  1. The prosecution of the offences alleged in the indictment is being resourced by monies of the Commonwealth which have been the subject of an appropriation to the DPP (Commonwealth).8

1 See correspondence at pp 190-199 of application book.

2  See correspondence at pp 200-206 of application book.

3  The indictment is at 127-149 of the application book.

4  See p 3 of the application book.  This paragraph of the agreed facts are taken from paras 13-15 of the affidavit at pp 33-34.  The negotiations are referred to earlier in para 10.

5  See paragraph 5 of the affidavit at p 33 of the application book for the identity of the companies.

6  See para 6 of the affidavit at p 33 of the application book for the description of the properties.

7  See para 5 of the affidavit at p 33 of the application book.

8  See last paragraph of letter at p 189."

  1. To these facts it should be added that the cover sheet on the indictment records the name and address of the Commonwealth Director with reference to his officer, Mr Walsh, and the indictment was brought in both their names and signed by Mr Walsh, for and on behalf of the Commonwealth Director. There is nothing in the indictment to suggest that Mr Walsh prosecuted any of the charges other than on behalf of the Crown in the right of the Commonwealth.

The issues

  1. Count 2 is an offence against s 232(2) Corporations Law of Queensland. Queensland, through the Corporations (Queensland) Act 1990[1]adopted the Corporations Law set out in s 82 Corporations Act 1989 (Cth) as amended;[2]this was known as the Corporations Law of Queensland.  Other States did likewise,[3]effectively creating a national scheme governing companies and securities.  That scheme has since been replaced[4]and the Queensland Parliament, under the Corporations (Commonwealth Powers) Act 2001 (Qld) ("the referring Act") has referred to the Commonwealth Parliament the power to legislate in terms of the Corporations Bill 2001,[5]now the Corporations Act 2001 (Cth).[6]Transitional provisions in the Corporations Act 2001 (Cth)[7]create equivalent rights and liabilities to those that existed before the commencement of the Corporations Act 2001 (Cth) under the repealed Corporations Law (Cth), including the liability created under s 232(2) Corporations Law.[8]The applicant does not contest the efficacy of these transitional provisions.  The respondent claims an entitlement to prosecute this offence as an offence against Commonwealth law referred by the Queensland Parliament under s 51(xxxvii) Constitution invoking the exercise of federal jurisdiction in the District Court of Queensland.
  1. The remaining counts against the applicant are brought under the Criminal Code and the respondent claims an entitlement to prosecute these offences because of the agreement between the Commonwealth and State Directors; that the Director and his officer, Mr Walsh, each held commissions to prosecute on indictment under s 560(2) Criminal Code; ss 6(1)(m) and 17 Director of Public Prosecutions Act 1983 (Cth) ("the Commonwealth Act") and because of the incidental power under s 51(xxxix) Constitution. 
  1. The applicant contends that the granting of a commission to prosecute under s 560(2) Criminal Code by the Governor in Council of Queensland to the Commonwealth Director or his officer, Mr Walsh, does not give the Commonwealth Director or Mr Walsh authority to prosecute the offences under the Criminal Code; since the passing of the Director of Public Prosecutions Act 1984 (Qld) ("the Queensland Act") this is solely a matter for the Queensland Director or her officers appointed under the Queensland Act.
  1. The applicant's second contention is that there is no power under the Constitution which permits the Commonwealth to legislate to authorise the Commonwealth Director or his officer to prosecute the offences under the Criminal Code and, the applicant contends, ss 6(1)(m) and 17 Commonwealth Act, upon which the respondent relies as the source of the authority to prosecute, are invalid.
  1. Third, the applicant contends that the effect of the agreement between the Commonwealth and Queensland Directors, the commissions to prosecute granted to the Commonwealth Director and Mr Walsh under s 560(2) Criminal Code, and the provisions of the Queensland and Commonwealth Acts is to require the Commonwealth Director to institute and carry on all Queensland prosecutions; such a scheme is unconstitutional and offends both the Constitution Act 1867 (Qld) and the Constitution.
  1. Finally, the applicant contends that the referring Act, upon which the respondent relies to support its prosecution of count 2, offends ss 2 and 53 Constitution Act 1867 (Qld), is inconsistent with s 107 Constitution and is invalid because of s 109 Constitution; the Commonwealth has no power to prosecute the offences brought under the Corporations Law of Queensland.
  1. The first three issues are interwoven and can conveniently be considered together.

The scheme relied upon as authority for the Commonwealth to prosecute the offences under the Criminal Code (Qld)

  1. The authority to prosecute offences in Queensland is governed by the Criminal Code (Qld) and the Queensland Act.  Mr Sofronoff QC, who appears with Mr Moynihan and Mr Shepherd for the applicant, contends that since the passing of the Queensland Act the effect of ss 10, 23 and 24 Queensland Act is that only the Director of Public Prosecutions or an officer appointed under s 23 Queensland Act have the responsibility to institute and conduct criminal proceedings in the right of the Queensland Crown. 
  1. Section 560 Criminal Code provides that:

"(1)When a person charged with an indictable offence has been committed for trial and it is intended to put the person on trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.

(2)The indictment is to be signed and presented to the court by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council."

"Crown Law Officer" is defined as the Attorney-General or Director of Public Prosecutions.[9]

  1. The apposite sections of the Queensland Act relevantly provide:

"10(1)The director –

(a)shall prepare, institute and conduct on behalf of and in the name of Her Majesty –

(i)criminal proceedings;

(ii)proceedings in the Court of Appeal;

(iii)proceedings in the High Court of Australia that arise out of criminal proceedings;

(2)In the discharge of his or her functions the director shall be responsible to the Minister but nothing in this section shall derogate from or limit the authority of the director in respect of the preparation, institution and conduct of proceedings.

(3)In proceedings with which the director is concerned the director may appear in person or by counsel or solicitor, whether from within the director's own office or in private practice.

…"

"Division 3 – Crown prosecutors and other officers assisting director

Appointment of officers

23. (1) The following officers may be appointed to assist the director in the discharge of the director's functions –

(a)so many barristers and solicitors of the Supreme Court as necessary to be crown prosecutors;

(b)so many other officers as necessary.

(2) An officer appointed for a purpose referred to in subsection (1) is to be appointed under the Public Service Act 1996.

Part 3 – Miscellaneous

Appointees to offices authorised to present indictments

24.A person appointed to the office of director, deputy director or crown prosecutor shall be taken to be, by virtue of that appointment and for so long as the person holds that office, an officer appointed by the Governor in Council to present indictments in any court of criminal jurisdiction."

  1. The Attorney-General has a traditional responsibility in the discharge of the Sovereign's duty to prosecute crime.[10]This duty must be exercised independently and in the public interest.[11]This duty is further adverted to in the Criminal Code in the sections dealing with the presentation of ex officio indictments,[12]the endorsement of an indictment that the Crown will not proceed further upon it,[13]the proof of averments "that the prosecution is instituted by the direction of or with the consent of … the Attorney-General,"[14]that some offences are not to be instituted without the consent of the Attorney-General,[15]the Attorney-General's right of appeal and to refer a point of law to the Court of Appeal[16]and the entitlement of a Crown Law officer (which by definition includes the Attorney-General) to reply in all cases whether evidence is adduced by an accused person or not.[17]
  1. The Minister in the Second Reading Speech prior to the passing of the Queensland Act said that:

"The Director of Prosecutions will have primary responsibility for overseeing all criminal prosecutions and will ensure after careful review of depositions, that all criminal prosecutions that should be brought are in fact effectively so brought."[18] (my emphasis)

  1. The Minister did not suggest the Queensland Director or his or her officers would have sole responsibility. The Criminal Code's definition of "Crown Law Officer" was amended after the passing of the Queensland Act to omit "Solicitor-General" and substitute "Director of Prosecutions"; the reference to "the Attorney-General" was unaltered.  This supports the conclusion that the duty of the Attorney-General was not removed by the passing of the Queensland Act.
  1. Section 10(2) Queensland Act provides statutory authority for the Director's unfettered discretion to prosecute, which, like the Attorney-General's, must be exercised fairly and in the public interest.[19]But this does not circumscribe the Attorney-General's responsibilities.  The Queensland Act establishes a framework for prosecuting Queensland offences in a growing, busy democracy but there is nothing in it or in the Minister's comments which suggest that it is intended to derogate from the Attorney-General's responsibilities in the prosecution of crime.
  1. Nor does the Queensland Act, in providing for employed officers to assist the Director in her extensive and onerous duties, derogate from the authority of those appointed under s 560(2) Criminal Code to sign and present indictments to the court.[20]In practice, those barristers and solicitors who hold such a commission and who are not appointed under s 23 Queensland Act could ordinarily be expected to exercise their discretion to prosecute[21]only after being adequately briefed by the Office of the Queensland Director. Such prosecutions are on behalf of the Crown in the right of Queensland.
  1. Conversely, nor does the holding of a commission under s 560(2) Criminal Code derogate from the responsibilities of the Queensland Attorney-General or the Queensland Director as to the prosecution of offences against the Crown in right of the State of Queensland: R v Judge C F McLoughlin.[22]
  1. Both the Commonwealth Director and his officer, Mr Walsh, who presented the indictment in this case, held commissions to sign and present indictments under s 560(2) Criminal Code on behalf of the Crown in the right of Queensland.  Mr Sofronoff no longer contends that the holding of such a commission limits the holder to the administrative function of signing and presenting indictments and concedes that the commission also empowers a prosecutorial discretion on behalf of the Queensland Crown.
  1. Unlike the usual situation when indictments are presented and prosecuted by counsel with a commission under s 560(2) Criminal Code, and who are not appointed under s 23 Queensland Act, the Commonwealth Director and Mr Walsh were not briefed by the Office of the Queensland Director as they had full conduct of the prosecution which was funded by the Commonwealth; they presented the indictment and brought the charges on behalf of the Commonwealth.
  1. The clear effect of s 10 Queensland Act is to give the Queensland Director the power to commence prosecutions on behalf of and in the name of the Queensland Crown. The Queensland Act makes no provision to delegate the Queensland Director's power to commence a prosecution of offences against Queensland law: cf R v Kolaroff.[23]Nor does the Queensland Act give specific power for the Commonwealth Director or his officers to be appointed as Queensland Crown prosecutors: cf s 32(3) Public Prosecutions Act 1994 (Vic) and R v Holden.[24]Were they statutorily appointed Queensland prosecutors, they would prosecute Queensland offences on behalf of the Queensland Crown.
  1. Mr D J S Jackson QC and Mr Keim for the respondent accept that the granting of a commission to prosecute by the Queensland Governor-in-Council on its own is insufficient authority to allow the Commonwealth Director of Public Prosecutions or his officer to prosecute Queensland offences on behalf of the Commonwealth: see Bond v R,[25]Byrnes v R[26]and R v Hughes.[27]Mr Jackson submits that such authority is provided by ss 6(1)(m) and 17 Commonwealth Act and by the administrative arrangement entered into by the Commonwealth and Queensland Directors. 
  1. The Commonwealth Act relevantly provides that:

"6. (1) The functions of the Director are:

(a)to institute prosecutions on indictment for indictable offences against the laws of the Commonwealth;

(m)where the Director, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State[28] – to institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences;"

  1. Section 7(1) Commonwealth Act requires the Director to consult with the Attorney-General as to matters concerning the performance of the Director's functions or the exercise of the Director's powers.
  1. Section 8 Commonwealth Act subjects the Director to the directions or guidelines of the Commonwealth Attorney-General.
  1. Section 17 Commonwealth Act provides:

"Where a member of the staff of the Office, with the consent of the Attorney-General, holds an appointment to prosecute offences against the law of a State, the member may institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences."

  1. Subject to the Constitution, in the exercise of the incidental power under s 51(xxxix) Constitution, parliament may permit officers of the Commonwealth holding appointments by or under statute to perform additional functions and accept additional appointments: R v Hughes[29]and Byrnes v R.[30]Cooperative schemes between the Commonwealth and the States are well recognised[31]and can provide sensible, practical and convenient examples of working federalism.  No doubt that was what was sought to be achieved by the Commonwealth and State Directors here.  But the authority of the Commonwealth Crown to institute and prosecute the Queensland offences through the agreement between the Commonwealth and Queensland Directors, the holding of the commissions to prosecute under s 560(2) Criminal Code and ss 6(1)(m) and 17 Commonwealth Act must turn on whether there is power under the Constitution to support the authority of ss 6(1)(m) and 17 to prosecute these offences against the Criminal Code (Qld): R v Hughes[32]and R v Kolaroff.[33] 

Is there power under the Constitution to support the Commonwealth Director's or his officer Mr Walsh's prosecution of the offences under the Criminal Code (Qld)?

  1. It is common ground that the entities about which the forgery and utterings were committed, namely Jillbridge Pty Ltd and Comestock Corporation (Australia) Pty Ltd, were trading corporations formed within the limits of the Commonwealth (s 51(xx) Constitution). There may be other details surrounding the offences which relate to matters about which the Constitution gives power to the Commonwealth. But the respondent does not contend that the facts surrounding the offences in themselves provide the Commonwealth with any head of power under the Constitution which justify the commencement and prosecution by the Commonwealth of the offences under the Criminal Code.  The respondent relies solely on the incidental power, s 51(xxxix) Constitution, either incidental to s 51 (xxxvii) Constitution[34]or to Ch II Constitution[35]to support ss 6(1)(m) and 17 Commonwealth Act.
  1. The sections of the Constitution relevantly provide:

"51.  Legislative powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxxvii)Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;

(xxxix)Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof or in the Government of the Commonwealth or in the Federal Judicature or in any department or officer of the Commonwealth.

Chapter II – The Executive Government

61.  Executive power

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth."

  1. For the purposes of considering this contention, it is convenient to accept that the Corporations (Commonwealth Powers) Act 2001 (Qld) is valid and that its transitional provisions have the effect of making offences against s 232(2) Corporations Law offences against the Commonwealth.
  1. The executive government of the Commonwealth encompasses not only the Queen, the Governor-General and Her Majesty's Ministers, but also members of the public service, including the Commonwealth Director and others associated with the day to day administration of the affairs of the Commonwealth. The executive power is capable of extending to agreements entered into by the Commonwealth Director but it is limited by the federal nature of the Constitution which recognises the different responsibilities of the Commonwealth and the States.[36]The Commonwealth executive power involves the implementation, enforcement or administration of laws dealing with subject matters within the legislative power of the Commonwealth.  In Barton v The Commonwealth[37]Mason J (as he then was) noted:

"By s 61 the executive power of the Commonwealth was vested in the Crown.  It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth.  It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution.  It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law."

  1. Section 51(xxxix) Constitution gives the Commonwealth Parliament legislative power on matters incidental to the subject matter of expressly enumerated legislative powers and necessary for the achievement of their purpose.[38]Although expressly conferred by s 51(xxxix) Constitution, such power is implied into every enumerated grant of legislative power to the Commonwealth under the Constitution: D'Emden v Pedder.[39]The incidental power also applies to the executive power.[40] 
  1. In Australian Boot Trade Employés' Federation v Whybrow & Co[41]Isaacs J in a discussion of the incidental power concluded: "in the absence of express statement to the contrary, you may complement, but you may not supplement, a granted power." 
  1. Legislation which seeks its validity in the incidental power must be reasonably proportionate or reasonably appropriate and adapted to the pursuit of a purpose or object within that power: Davis v The Commonwealth.[42]In that case the majority recognised that the legislative powers of the parliament of the Commonwealth extend beyond the specific powers conferred upon it by the Constitution to include powers deduced from the establishment and nature of the Commonwealth as a polity.[43]

But Wilson and Dawson JJ were concerned about the impact of the use of the incidental power on the federal distribution of powers.[44]Toohey J expressed general agreement on this matter with Wilson and Dawson JJ[45]observing that any implied power arising solely from the creation of the Commonwealth as a body politic does not extend beyond the protection of the existence of the government.[46]

Brennan J (as he then was) took a wide view of the scope of the executive power considering that it need not be restricted within the heads of legislative power.[47]He added that s 51(xxxix) Constitution gives a necessarily confined scope of power to create offences as to a matter incidental to the execution of executive power:

"But it is one thing to create offences in order to protect the efficacy of execution of executive power; it is another to create offences to supplement what the Executive Government has done or proposes to do.  Where the Executive Government engages in activity in order to advance the nation – an essentially facultative function – the execution of executive power is not the occasion for a wide impairment of individual freedom:  cf the Tasmanian Dam Case per Wilson J.  In my opinion, the legislative power with respect to matters incidental to the execution of the executive power does not extend to the creation of offences except insofar as is necessary to protect the efficacy of the execution by the Executive Government of its powers and capacities."[48]

  1. Any incidental power to legislate for the prosecution of offences is therefore generally considered to be incidental to a specific power, here s 51(xxxvii) Constitution, or to protect the efficacy of the Commonwealth executive government. The incidental power is not a wide ranging power to the Commonwealth to regulate the affairs of the nation irrespective of the specific grants of power under the Constitution.
  1. The learned authors of Lumb & Moens' Constitution of the Commonwealth of Australia[49]in their discussion of the incidental power note that:

"The bulk of judicial opinion therefore favours the proposition that the incidental power has its main operation in relation to the executive and judicial powers and that, so far as the exercise of legislative power is concerned, it affirms in a clear manner what would otherwise be a matter of implication."

  1. It is uncontentious, for example, that the Commonwealth Director and Mr Walsh were entitled to prosecute count 2 on behalf of the Commonwealth within the incidental power to s 51(xxxvii), accepting for the moment the validity of the referring Act.
  1. The respondent places reliance on the comments of Gibbs CJ in R v Duncan; ex parte Australian Iron & Steel Pty Ltd[50]in discussing the joint Commonwealth/State scheme which established a coal industry tribunal under the Coal Industry Act 1946 (Cth) and the Coal Industry Act 1946 (NSW):

"… no reason is provided by constitutional enactment or constitutional principle why the Commonwealth and a State or States should not simultaneously confer powers on one person and empower that person to exercise any or all of those powers alone or in conjunction.  In one instance the Constitution has expressly recognized the possibility of co-operation of that kind when it enables the Parliament to invest a court of a State with federal jurisdiction: Constitution, ss 71, 77(iii).  It would be an absurd result, for example, if the Commonwealth and a State were unable, by complementary legislation, to empower an officer of police to enforce both the laws of the Commonwealth and the laws of the State, or to give power to a fisheries inspector to act in Australian waters both within and beyond territorial limits, or to authorize a public servant to collect State taxes as well as Commonwealth taxes.  There is nothing in the decisions of this Court to provide authority for such a restrictive view of constitutional power.  The position of an administrative body such as the Tribunal is no different; legislation of the Commonwealth Parliament otherwise within power, is not invalid because it establishes, jointly with a State, one body which derives its powers from the State as well as from the Commonwealth."

Mason J (as he then was) noted in the same case:[51]

"The scope of the executive power is to be ascertained … from the distribution of the legislative powers effected by the Constitution and the character and status of the Commonwealth as a national government.  Of necessity the scope of the power is appropriate to that of a central executive government in a federation in which there is a distribution of legislative powers between the Parliaments of the constituent elements in the federation.  It is beyond question that it extends to entry into governmental agreements between Commonwealth and State on matters of joint interest, including matters which require for their implementation joint legislative action, so long at any rate as the end to be achieved and the means by which it is to be achieved are consistent with and do not contravene the Constitution.  A federal constitution which divides legislative powers between the central legislature and the constituent legislatures necessarily contemplates that there will be joint co-operative legislative action to deal with matters that lie beyond the powers of any single legislature."

Brennan J (as he then was)[52]explored the need for authorising federal legislation in such cooperative schemes:

"If the [Commonwealth Act] had merely constituted or authorized the constitution of a tribunal and had vested federal powers of conciliation and arbitration in it without reference to State powers, an attempt by a State Act to vest similar State powers in the same tribunal would fail – not because of a constitutional incapacity in a Commonwealth tribunal to have and to exercise State power, but because the Commonwealth Act would be construed as requiring the tribunal to have and to exercise only such powers as the Commonwealth Parliament had chosen to vest in it."[53]

  1. But in Duncan the issue for determination was the validity of a scheme of Commonwealth/State cooperative legislation, not, as it is here, whether the Constitution effectively prohibited the Commonwealth from initiating and conducting the prosecution of State offences; Gibbs CJ's comments must be read in that context: In Re Wakim; Ex parte McNally.[54]The separate comments of Mason and Brennan JJ in Duncan support the view that executive and judicial arrangements for valid cooperative Commonwealth/State schemes can be based on appropriate joint legislative action, provided this is consistent with the Constitution.
  1. The respondent also relies on R v Hughes[55]in support of its contention.  Hughes concerned the power of the Commonwealth to prosecute under an earlier cooperative Commonwealth/Western Australian scheme relating to corporations.  Section 7 Corporations (Western Australia) Act 1990 (WA) ("Western Australian Act") applied s 82 Corporations Act 1989 (Cth) as amended, as the law of Western Australia.  The Western Australian Act[56] applied Commonwealth laws to the Corporations Law of Western Australia and gave a Commonwealth officer with authority to prosecute offences under the Corporations Law in the Australian Capital Territory the same functions or powers in relation to an offence against the correspondingly applicable provision in Western Australia.[57]Hughes was charged with offences under the Corporations Law of Western Australia.  Regulation 3(1)(d) Corporations (Commonwealth Authorities and Officers) Regulations 1990 (Cth) provided that the Commonwealth Director of Public Prosecutions was an officer of the Commonwealth with the functions and powers conferred on him or her by or under corresponding law.  That Western Australian/Commonwealth scheme differed from the present Queensland/Commonwealth scheme relating to corporations[58]in that the Western Australian Act delegated authority to prosecute to the Commonwealth with the result that the delegated power could not be performed or exercised by an officer or authority of Western Australia.[59]

The court[60]accepted that in the exercise of the incidental power, the parliament may permit officers of the Commonwealth holding appointments by or under statute to perform functions and accept appointments in addition to their Commonwealth appointments; a State law cannot unilaterally invest functions under that law in officers of the Commonwealth;[61]a State law which purports to grant a wider power or authority than the acceptance of which was prescribed by Commonwealth law would to that extent be inconsistent with the Commonwealth law and invalid under s 109 of the Constitution;[62]and federal laws imposing on Commonwealth officers duties to perform functions or exercise powers created and conferred by State law must be supported by a head of power.[63]

After referring to the comments of Mason J (as he then was) in Duncan[64]and the comments of Wilson and Dawson JJ and Brennan J (as he then was) in Davis,[65]the court noted that: "the scope of the executive power and of s 51(xxxix) in aid of it, remains open to some debate".[66]The court found it unnecessary to adjudicate that debate because the offences with which Hughes was charged related to the trade and commerce power and to matters territorially outside Australia but touching and concerning Australia and thus attracted Commonwealth legislative power.[67]Hughes therefore provides no answer to the question for determination here. 

  1. Nor does Bond v R, in which the High Court did not question the authority of the Commonwealth Director's officer to institute and prosecute State offences.  Bond differs from this case, first because the Western Australian legislative scheme referred to in Hughes delegated all Western Australian authority to prosecute State offences to the Commonwealth[68]and second, the sole point for the court's[69]consideration was the Commonwealth's power to appeal against sentence under the legislative scheme, not whether the person who instituted and conducted the prosecution before the primary court was properly authorised.[70] 
  1. In R v Holden[71]the Victorian Court of Appeal relied on the customs power of the Commonwealth[72]or its incidental scope to give constitutional validity to s 17 Commonwealth Act and to uphold the prosecution by a Commonwealth officer of  the Victorian offence of drug trafficking. Section 32(3) Public Prosecutors Act 1994 (Vic) provided for the Commonwealth Director or his or her officers to be appointed as Victorian Crown Prosecutors.  Holden had been arrested by Australian Federal Police in the course of an investigation relating to the importation of drugs. The indictment made clear that the prosecution, although brought and conducted by Commonwealth officers, was on behalf of the Victorian Crown, not the Commonwealth Crown.  The court held that the prosecution of Holden on State offences was incidental to the prosecution of others for Commonwealth offences under the Customs power.[73]The court did not give detailed consideration to the incidental power in its reasoning.  The indictment charging the Victorian offence, although presented by an officer of the Commonwealth Director, was presented by him only in his capacity as a State Crown prosecutor. 
  1. Each case will always turn on its own legislative and factual matrix and Holden is of no particular assistance.
  1. Count 2 (the sole Commonwealth charge) on the indictment for this Court's consideration was alleged to have occurred between 24 May and 11 September 1991. The conduct constituting counts 3-15 allegedly occurred within that time frame and is the conduct relied upon to establish count 2.[74]This makes it difficult to see in practical terms the community or Commonwealth/State benefit in charging both Queensland and Commonwealth offences for the same conduct. The remaining counts involving the applicant[75]allegedly occurred at various times between 25 September 1995 to 7 March 1997 and arise out of the same investigation by the Commonwealth agency, ASIC, and have some connection to the Commonwealth offence but refer to different conduct at least four years later.  It is, however, not here contended that, absent the issues for determination in this case, the charges were not joinable under s 567 Criminal Code.
  1. In the present case, unlike in Holden, Hughes or Bond, the Queensland Parliament did not specifically legislate to allow Commonwealth officers to prosecute Queensland offences.  Nor did it refer matters involving the offences against the Criminal Code to the Commonwealth parliament.[76]The convenience of one prosecution for joinable Commonwealth/State offences appears to be the primary justification for the agreement between the Commonwealth and Queensland Directors to allow an officer of either Director to sign and present indictments involving Queensland and Commonwealth offences.[77]The inference from the correspondence[78]supporting that agreement is that the Commonwealth Director or his officers would not prosecute State offences without the concurrence of the Queensland Director. Difficulties could arise if the Commonwealth Director insisted in prosecuting a Queensland offence or offences without the concurrence of the Queensland Director. The Queensland Director could executively request the revocation of a Commonwealth officer's commission to prosecute, although there is no evidence as to how long this might take; nor could there be any certainty that Governor-in-Council of Queensland would accede to that request. The Queensland Director could halt the prosecution of an indictment presented without her consent by endorsing it with words to the effect that the Crown will not proceed further upon it. But the effect of ss 6(1)(m) and 17 Commonwealth Act and the holding of commissions to prosecute in the name of the Queensland Crown under s 560(2) Criminal Code by the Commonwealth Director and his officer Mr Walsh involves a potentially substantial transfer of responsibility from the State of Queensland to Commonwealth officers.
  1. I am prepared to accept, for the purposes of considering this issue, first that the Queensland Parliament has successfully referred matters relating to corporations to the Commonwealth.[79]I also accept that the effect of the agreement between the Directors, the granting of the commissions to prosecute to the Commonwealth Director and Mr Walsh under s 560(2) Criminal Code and ss 6(1)(m) and 17 Commonwealth Act was merely to authorise the prosecution of Queensland offences by the Commonwealth Director or his qualifying officers with the concurrence of the Queensland Director where the Queensland offences were closely connected to an offence against Commonwealth law or a Commonwealth investigation.  But even so, to hold that this arrangement authorises the Commonwealth Crown to prosecute Queensland offences (which is the effect of the indictment in its present form) would be not to merely complement the power referred to the Commonwealth under the referring Act[80]or the executive power of the Commonwealth[81]necessary for the achievement of the purposes of that power, but would be a substantial supplementation of that power and an attempt to circumvent the limitations of federal power imposed by the Constitution.  Its effect would here be to give the Commonwealth power to prosecute offences which do not arise out of a Commonwealth head of power under the Constitution.  The incidental power, whether incidental to a referral of a matter under s 51(xxxvii) Constitution or to the executive power of the Commonwealth, does not provide authority to the Commonwealth to legislate in terms of ss 6(1)(m) and 17 Commonwealth Act to authorise qualifying Commonwealth officers to prosecute on behalf of the Commonwealth Crown offences created by Queensland legislation which are outside the Commonwealth heads of power set out in the Constitution.  The incidental power does not support the prosecution on behalf of the Commonwealth Crown of Queensland offences under ss 6(1)(m) and 17 Commonwealth Act. 
  1. The incidental power, the agreement between the Commonwealth and State Directors and ss 6(1)(m) and 17 Commonwealth Act do however support the prosecution, in appropriate cases, of Queensland offences by the Commonwealth Director or his officers who hold commissions to prosecute under s 560(2) Criminal Code and who have the consent of the Commonwealth Attorney-General, providing such prosecutions are brought on behalf of the Queensland Crown.  On the agreed facts that outcome was appropriate here; the Queensland charges were reasonably closely connected to the Commonwealth charge and arose out of the Commonwealth (ASIC) investigation.  This conclusion complements rather than supplements the power referred by Queensland to the Commonwealth under the referring Act.  This is the type of cooperative Commonwealth/State arrangement contemplated in Duncan and the Constitution.  The Commonwealth officers could, however, only lawfully prosecute Queensland matters in terms of the agreement between the Commonwealth and Queensland Directors.  The difficulty for the respondent is that the indictment as framed is plainly brought in respect of all charges on behalf of the Commonwealth Crown.  Mr Walsh had no authority to present such an indictment; whilst count 2 was properly brought by the Commonwealth Crown, the remaining counts could only be prosecuted by Mr Walsh on behalf of the Queensland Crown.  This fundamental distinction must be made clear on the face of the indictment; an accused person is entitled to know whether he or she is prosecuted by the Commonwealth or the State Crown.  I would ordinarily order that the indictment in its present form should be quashed.
  1. Although not in the agreed facts, it was stated by Mr Jackson and conceded by Mr Sofronoff during argument[82]that it was not in issue that the Commonwealth Director and his officer Mr Walsh prosecuted under the s 560(2) Criminal Code commission on behalf of the Crown in the right of the State of Queensland and that the applicant was not taking any technical pleading point.  In those circumstances, I cannot allow the application to quash the indictment on a point that was abandoned.  But in my view the indictment should be amended to make clear which charges are prosecuted by the Commonwealth Crown and which by the Queensland Crown.  But for the concession made during argument, I would order the indictment be quashed.
  1. Consistent with s 15A Acts Interpretation Act 1901 (Cth) it is desirable in the circumstances of this case to read down ss 6(1)(m) and 17 Commonwealth Act to apply to the prosecution of Queensland offences on behalf of the Commonwealth only where the prosecution of those offences is supported by a head of power under the Constitution: Hughes;[83]Re Nolan; Ex parte Young[84]and R v Brisbane TV Limited; ex parte Criminal Justice Commission (No 2).[85]This does not render those provisions meaningless.  For example, a State may refer matters to the Commonwealth under s 51(xxxvii) Constitution without repealing State laws; until the Commonwealth enacts legislation, s 109 Constitution has no application and the State laws apply.  Sections 6(1)(m) and 17 Commonwealth Act also have the potential to validly allow qualifying Commonwealth officers to prosecute offences under State laws on behalf of the Commonwealth. Sections 6(1)(m) and 17 Commonwealth Act in combination with the incidental power under the Constitution and the agreement between the Commonwealth and Queensland Directors, may also, in appropriate cases, facilitate the prosecution of Queensland offences by the Commonwealth Director or his officers holding a Queensland commission to prosecute and with the consent of the Commonwealth Attorney-General.  The prosecution of the Queensland offences must however be on behalf of the Queensland Crown, not the Commonwealth.

Does the combined effect of the Commonwealth and Queensland Acts offend the Constitution Act 1867 (Qld)?

  1. The applicant contends that the effect of the agreement between the Commonwealth and Queensland Directors, the granting of the commissions to prosecute to the Commonwealth Director and Mr Walsh under s 560(2) Criminal Code and the Commonwealth and Queensland Acts is to require the Commonwealth Director to institute and carry on all Queensland prosecutions and that such a scheme is unconstitutional, offending both the Constitution Act 1867 (Qld) and the relationship of Commonwealth/State powers established under the Constitution.
  1. Comments by the court in Hughes[86]give some support to the applicant's contention that s 6 Commonwealth Act is more than mere consent or permission by the Commonwealth for the exercise by its officers of additional functions and powers derived from State law.[87]The functions of the Commonwealth Director as set out in s 6 Commonwealth Act are in mandatory terms.[88]Although s 17 is not in mandatory terms, the indictment was brought in the names of both the Commonwealth Director and Mr Walsh, and was signed by Mr Walsh "for and on behalf of the Commonwealth Director"; s 17 should be read together with s 6(1)(m). Even if the terms of s 6(1) Commonwealth Act are mandatory so that s 6(1)(m)  purports to require the Commonwealth Director, with the consent of the Commonwealth Attorney-General, to prosecute Queensland offences rather than being merely an approval or consent to the exercise of Queensland functions and powers by the Commonwealth Director and his qualifying officers, this does not create a constitutional difficulty as long as ss 6(1)(m) and 17 Commonwealth Act are read down to apply only when supported by a head of power under the Constitution.[89] 
  1. I would also point out that this is not a situation where s 109 Constitution requires that a Commonwealth law prevail over a State law. Any constitutional difficulty does not lie with the Queensland Act which does not delegate power to prosecute to the Commonwealth; the agreement between the Directors and the granting of the commission under s 560(2) Criminal Code are decisions of the Queensland executive government.  Any difficulty lies with the Commonwealth Act and for the reasons I have given earlier,[90]ss 6(1)(m)  and 17 Commonwealth Act should be read down to apply only to the prosecution of State offences by the Commonwealth Crown where this is supported by a head of power under the Constitution or, in appropriate cases (through the incidental power under the Constitution and a Commonwealth/State cooperative scheme), the prosecution of State offences on behalf of the State.

The Corporations (Commonwealth Powers) Act 2001 (Qld)

  1. The applicant's sole contention as to the referring Act is that it purports to annihilate Queensland's power to legislate, is inconsistent with s 107 Constitution and is invalid because of this inconsistency;[91]the referring Act expressly or impliedly purports to combine with the Corporations Act 2001 (Cth) to render inoperative any Queensland statute on this matter passed in accordance with s 2 Constitution Act 1867 (Qld);[92]the referring Act should have been approved by the electors under s 53 Constitution Act 1867 (Qld),[93]reinforced by s 6 Australia Act 1986 (Cth).[94]
  1. Section 107 Constitution provides:

"Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State as the case may be."

  1. Some assistance can be gained by considering the interrelationship between ss 51(xxxvii) and (xxxviii), 106[95]and 107 Constitution.  The High Court has identified that occasions may arise where s 106 Constitution conflicts with s 51(xxxviii) Constitution;[96]where this occurs s 51(xxxviii) Constitution should prevail; the protection of State Constitutions offered by s 106 is subject to the power in s 51(xxxviii).[97] 
  1. Windeyer J in R v Phillips[98]helpfully explained the effect of s 107 Constitution:

"Section 107 preserves the legislative competence of State Parliaments in respect of any topic that is not exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State.  This is simply an expression of an element that is implicit in any federal system in which defined powers are granted to the central authority and the undefined residue remains with the constituent provinces.  Section 107 confirms that as the underlying principle of Australian federalism.[99]

  1. In Western Australia v The Commonwealth[100]Mason CJ, Brennan J (as he then was), Deane, Toohey, Gaudron and McHugh JJ stated it is beyond the power of the Parliament of the Commonwealth to withdraw from any State Parliament a legislative power that is conferred on or confirmed to that Parliament by s 107 Constitution.[101]
  1. The applicant relies upon the following comments of Brennan CJ[102]in Kable v Director of Public Prosecutions (NSW):[103]

"As s 107 continues the powers of the States, no power can be annihilated by State legislative action.  If Parliament, as the repository of a power, were legislatively to deny itself that power, the denial would be inconsistent with s 107 and would be invalid."

  1. The issue then is whether the referring Act purports to annihilate Queensland legislative power. It is significant that references under the referring Act are, subject to earlier termination, to terminate after five years[104]or at a later time fixed by proclamation;[105]the Governor may, at any time after six months, by proclamation terminate the reference.[106]
  1. Section 51(xxxvii) must be taken to have some meaning and to have the capacity to grant power to the Commonwealth; if there is any conflict between s 107 and s 51(xxxvii), the latter will prevail. But in any case, as Latham CJ explained in Graham v Paterson:[107]

"Section 51(xxxvii) does not provide that any power of the Parliament of a colony which becomes a State should become exclusively vested in the Commonwealth Parliament or be withdrawn from the Parliament of the State.  It is s 52, and not s 51, which gives exclusive powers to the Commonwealth Parliament.  Therefore the powers of the State Parliament are not diminished when an Act is passed to refer a matter under s 51(xxxvii).

When a State Parliament acts under s 51(xxxvii) by referring a matter to the Commonwealth Parliament it produces the result of adding to the paragraphs of s 51 a further paragraph specifying the matter referred.  Thus if the matter referred is price fixing and that matter is referred by all the State Parliaments s 51 may, in relation to that matter, be read as follows:-

'The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to … (xxxvii).  Matters referred to the Parliament of the Commonwealth … namely price fixing, being a matter referred hereunder by the Parliaments of all the States.'

Thus the reference of matters under s 51(xxxvii) does not deprive the State Parliament of any power.  It results in the creation of an additional power in the Commonwealth Parliament.  If the Commonwealth Parliament exercises such a power, s 109 of the Constitution may become applicable with the result that if a law of the State with respect to a matter referred was inconsistent with a law of the Commonwealth, the Commonwealth law would prevail and the State law to the extent of the inconsistency would be invalid.  But unless the Commonwealth Parliament exercises the power to legislate with respect to the matter referred, no effect whatever is produced in relation to the operation of State laws."[108]

  1. In R v The Public Vehicles Licensing Appeal Tribunal (Tas) Ex parte Australian National Airways Pty Ltd[109]Dixon CJ, Kitto, Taylor, Menzies, Windeyer and Owen JJ upheld legislation referring power over air navigation to the Commonwealth Parliament under s 51(xxxvii) Constitution for an indefinite period with withdrawal at the will of the State Governor-in-Council:

"There is no reason to suppose that the words 'matters referred' cannot cover matters referred for a time which is specified or which may depend on a future event even if that event involves the will of the State Governor-in-Council and consists in the fixing of a date by proclamation."[110]

  1. This case is even clearer. The reference was for five years revokable at six months' notice by proclamation of the Queensland Governor, declared to be subordinate legislation; the reference was not an annihilation of power by State legislative action and did not offend s 2 Constitution Act 1867 (Qld) or s 107 Constitution because the effect of the reference was not to diminish the power of the Queensland government to make laws for the peace, welfare and good government of Queensland; s 53 Constitution Act 1867 (Qld) and s 6 Australia Act 1986 (Cth) have no application.  The referral was not a restriction on Queensland's legislative powers.[111]  
  1. The Commonwealth Director was entitled to fund the prosecution of count 2 on the indictment and he and his officer, Mr Walsh, were authorised to institute and carry on the prosecution of that count under the Commonwealth Act because the referring Act brought the matters referred within the legislative power of the Commonwealth under s 51(xxxvii) Constitution.

Summary

  1. 1. The Corporations (Commonwealth Powers) Act 2001 (Qld) does not offend ss 2 and 53 Constitution Act 1867 (Qld) and is not inconsistent with s 107 Constitution.  The Commonwealth Director of Public Prosecutions and his officer, Mr Walsh, were entitled to institute and carry on the prosecution of count 2 on the indictment brought under s 232(2) Corporations Law of Queensland which was within the power granted to the Commonwealth under s 51(xxxvii) Constitution.
  2. 2. The incidental power, under the Constitution, the agreement between the Commonwealth and State Directors and ss 6(1)(m) and 17 Commonwealth Act did not authorise the Commonwealth Director of Public Prosecutions and his officer Mr Walsh to prosecute on behalf of the Commonwealth the counts on the indictment against the applicant brought under the Criminal Code (Qld) because of the absence of Commonwealth legislative power under the Constitution.
  3. 3. The incidental power under the Constitution, the agreement between the Commonwealth and State Directors and ss 6(1)(m) and 17 Commonwealth Act would support the prosecution of the counts on the indictment brought under the Criminal Code (Qld) by the Commonwealth Director or his officer, Mr Walsh, who hold commissions to prosecute under s 560(2) Criminal Code and who have the consent of the Commonwealth Attorney-General, providing such prosecutions are brought on behalf of the Queensland Crown.  As the indictment in its present form was brought in respect of all charges on behalf of the Commonwealth Crown, I would ordinarily order that it be quashed.
  1. 4. But in the light of the concession made during the hearing of this appeal, that Mr Walsh was prosecuting the Queensland offences on behalf of the Queensland Crown and that the applicant was not taking any technical pleading point, I am not prepared to order that the indictment be quashed when it could be satisfactorily remedied by amendment to clarify which charges are brought by the Commonwealth Crown and which by the State Crown.
  1. 5. For these reasons, I agree with Davies and Thomas JJA that the application should be refused.

DAVIES JA:

1.  The proceedings

  1. This is an application to quash an indictment presented in the District Court against the applicant on 18 August 2000 by Francis James Walsh on the basis that he lacks legislative authority to prosecute it. The application was removed into this Court on 5 September 2001 on the basis of agreed facts stated in an amended statement of facts filed in this Court. That statement refers to other facts put before the Court by affidavit.
  1. The indictment charges the applicant with 23 offences against the Criminal Code and one against the Corporations Law of Queensland.  Mr Walsh was at all times a member of the staff of the Queensland Office of the Commonwealth Director of Public Prosecutions.  On 11 November 1998 the Commonwealth Attorney-General had consented to Mr Walsh holding an appointment to prosecute offences against the laws of Queensland;  and on 4 February 1999 Mr Walsh was appointed by the Governor-in-Council, Queensland, to sign in his own name and present indictments in respect of indictable offences and to prosecute the same.
  1. On 9 March 1999 the applicant was arrested and charged by a Commonwealth officer with five offences against the Criminal Code.  He was then summonsed in relation to a further 18 offences against the Code on the complaint of one Glynn, a Commonwealth officer employed by the Australian Securities and Investments Commission.  He was committed for trial in the District Court on all 23 of those charges on 19 May 2000.  The committal proceedings were conducted by the Commonwealth Director by Mr Walsh.
  1. After the applicant had been committed for trial but before presentation of the indictment, the Commonwealth Director of Public Prosecutions referred the matter to the Queensland Deputy Director of Public Prosecutions who requested the Commonwealth to continue with the prosecution.[112]The indictment as presented charged the 23 State offences on which the applicant was committed and a further ex officio charge under the Corporations Law of Queensland.  Its prosecution will be financed by monies of the Commonwealth which have been the subject of an appropriation to the Commonwealth Director of Public Prosecutions.
  1. Counts 3 to 15 on the indictment allege that, between May 1991 and September 1991, in the course of certain negotiations, the applicant created false documents contrary to s 488 of the Criminal Code by either:
  1. describing himself or signing correspondence or documents as a director of a relevant company when he was not so appointed and/or
  1. making statements or claims that he was not duly authorized to make in correspondence or other documents;

and further that the applicant uttered some of those false documents contrary to s 489 of the Criminal Code by causing them to be sent to a third party, usually, but not in every case, the Commonwealth Bank.  Counts 36, 39, 43, 45, 49, 51, 54, 57 and 62 of the indictment allege that the applicant assisted, aided or enabled the creation of false documents contrary to s 488 of the Criminal Code between 25 September 1995 and 7 March 1997.

  1. Count 2 alleges a breach of s 232(2) of the Corporations Law of Queensland which, on 15 July 2001, became an offence against the Corporations Act 2001 (Cth).  The conduct relied on by the prosecution to prove this offence is the same as that on which it relies to prove counts 3 to 15.

2.  The principal questions

  1. The principal questions for determination by this Court are:
  1. Does Mr Walsh have the legal authority to present an indictment charging Mr Fukusato with an offence under the Corporations Law of Queensland?
  1. Does he have the legal authority to present an indictment charging Mr Fukusato with offences against the Criminal Code of Queensland, the evidence relied on for which is the same as that relied on for the offence against the Corporations Law of Queensland?
  1. If yes to 2 may he join in that indictment other offences against the Criminal Code of Queensland which, if the indictment were presented by the Queensland Attorney-General or the Queensland Director of Public Prosecutions, could be joined in an indictment with the offences alleged in 2.
  1. In order to see how these questions arise it is necessary to say something about the circumstances in which Mr Walsh came to present this indictment.

3.  The agreement and its context

  1. The agreed statement of facts states that there was an agreement between the Commonwealth Director of Public Prosecutions and the Queensland Director of Public Prosecutions under which certain officers of each office would hold commissions to sign and present indictments.  The statement of facts refers for this purpose to correspondence passing between the Commonwealth and Queensland Directors between 29 May 1987 and 29 August 1991 from which it appears that such an agreement had been made and implemented by 8 June 1990.  The correspondence includes a draft agreement which is attached to the letter from the Commonwealth Director to the Queensland Director dated 29 May 1987 but it is unclear from the statement of facts whether that represents precisely what was later agreed.  Nevertheless the substance of the agreement may be inferred from the statement of facts, this correspondence and what subsequently occurred.[113]Its purpose was to enable a prosecution of a Commonwealth offence and a prosecution of a State offence to proceed by way of one indictment, presented by a person with authority to do so, where, but for any constitutional difficulties, they might have been presented in one indictment.  To that end the Commonwealth and Queensland Directors agreed that Commonwealth officers should have authority from the State and State officers should have authority from the Commonwealth to present such indictments.  And it was agreed that, in each case in which Commonwealth and State offences would be jointly charged in one indictment, a decision would be made jointly as to who should present and prosecute that indictment.
  1. Having conducted the committal proceedings, Mr Walsh, on 20 June 2000, wrote to the Queensland Director inviting his views as to which office should present and prosecute an indictment charging Mr Fukusato with all 24 offences.  On 28 June the Queensland Deputy Director wrote to Mr Walsh expressing the strong view that the prosecution of all charges should continue to be conducted by the Commonwealth Director.  In consequence, as appears from Mr Walsh's letter to the Queensland Deputy Director of 26 July 2000, the Commonwealth Director agreed to present and prosecute an indictment charging all 24 charges.  This course of correspondence, together with what was previously stated in or may be inferred from earlier correspondence, the consent of the Commonwealth Attorney-General to Mr Walsh holding an appointment to prosecute Queensland offences and his appointment by the Queensland Governor-in-Council to sign, present and prosecute indictments for offences against Queensland law shows, in my opinion, that an agreement in the terms indicated in [78] had been made by, or ratified by the executive governments of the Commonwealth and Queensland.[114]
  1. At the time that the agreement referred to in [78] was made there was already a Queensland legislative provision which permitted the Governor-in-Council to appoint a Commonwealth officer to present indictments under the Criminal Code and a Commonwealth provision which permitted that to occur.
  1. At all times s 560 of the Criminal Code has relevantly provided:

"1.When a person charged with an indictable offence has been committed for trial and it is intended to put the person on trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.

2.The indictment is to be signed and presented to the court by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council.

… "

At all relevant times "Crown Law Officer" has meant the Attorney-General or the Director of Public Prosecutions, that definition having been amended to substitute the Director of Public Prosecutions for the Solicitor-General upon the coming into force, in 1984, of the Director of Public Prosecutions Act 1984 (Qld).  The appointment of Mr Walsh by the Governor-in-Council on 4 February 1999 was plainly made pursuant to that section.

  1. At all relevant times s 17(1) of the Director of Public Prosecutions Act 1983 (Cth) has provided:

"17(1)Where a member of the staff of the Office, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State, the member may institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences."

The reference to "the Office" is the Office of the Director of Public Prosecutions (Cth).  Section 6(1)(m) has at all relevant times also provided that one of the functions of the Director is, where the Director, with the consent of the Attorney-General, holds an appointment to prosecute offences against the law of a State, to institute and carry on in accordance with the terms of the appointment, prosecutions for such offences.  It is plain that the consent, given by the Commonwealth Attorney-General on 11 November 1998, to Mr Walsh holding an appointment to prosecute offences against the laws of Queensland, was given pursuant to s 17(1).

  1. It is unnecessary to refer further to the terms of the indictment. No point was taken by the applicant about those terms or that Mr Walsh, in signing and presenting it, was not purporting to act in pursuance of the appointment referred to.[115]
  1. It is convenient to consider the principal questions posed earlier in the order in which I have stated them.

4.  The challenge to the prosecution of count 2

  1. The sole basis of this challenge is the allegation that the Corporations (Commonwealth Powers) Act 2001 (Qld) (the referring Act) is invalid.  By that Act the Queensland Parliament referred to the Commonwealth Parliament the matters the subject of the Corporations Bill 2001 which became the Corporations Act 2001 (Cth).[116] It is said that the referring Act is invalid because the Bill for it was of a kind which must first be approved by the electors in accordance with s 53 of the Constitution Act 1867 (Qld) before being presented for assent and that that was not done.
  1. It is common ground that the referring Bill was not approved by the electors in accordance with s 53(1) before being presented for assent. It is also accepted by the respondent that, if the Bill was one which came within s 53(1) then the consequence of this is that the Act is invalid. The sole question then is whether the Bill came within s 53(1).[117]
  1. That section provides:

"(1)A Bill that expressly or impliedly provides for the abolition of or alteration in the office of Governor or that expressly or impliedly in any way affects any of the following sections of this Act namely -

sections 1, 2, 2A, 11A, 11B; 14; and

this section 53

shall not be presented for assent by or in the name of the Queen unless it has first been approved by the electors in accordance with this section and a Bill so assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act."

  1. Section 2 of the Constitution Act 1867 (Qld) provides:

"Within the said Colony of Queensland Her Majesty shall have power by and with the advice and consent of the said Assembly to make laws for the peace welfare and good government of the colony in all cases whatsoever."

  1. It is submitted by the applicant that the referring Act, by referring to the Commonwealth Parliament power to legislate in terms of the Corporations Bill 2001, affected the power of the Queensland Parliament to make laws for the peace, welfare and good government of the State. The difficulty with that submission, as the applicant readily acknowledges, is that that Act alone does not affect that power, or even the practical operation of State laws. However he submits that its effect was, in combination with the Corporations Act 2001 (Cth), to render invalid any Queensland statute passed in accordance with s 2 which conflicted with any provision of the Corporations Act 2001 (Cth);  and that that affected the law making power of the Queensland Parliament.
  1. To that the respondent makes two replies either of which, in my opinion, is sufficient to defeat the applicant's submission. The first is that the question whether the referring Act expressly or impliedly in any way affects the power of the Queensland Parliament to make laws for the peace, welfare and good government of the State must be determined by looking at that Act alone; whether it had that effect on being passed. And, as the applicant acknowledges, it is plain that, alone, the referring Act has no effect on the power of the Queensland Parliament to make laws or even on the operation of laws so made.[118]
  1. And the second is that, even if it were permissible, in order to determine that question, to look also at the Commonwealth Act, it, or they together, do not in any way affect the power of the Queensland Parliament to make laws. The law-making power of the Parliament is thereby unaffected. The true consequence of s 109 of the Constitution, though it uses the term "invalid", is only that, whilst the Commonwealth law remains in force, the State law is, to the extent of any inconsistency therewith, inoperative. As soon as and to the extent that the Commonwealth law is repealed the State law becomes operative again. The invalidity to which s 109 refers is an invalidity in operation not a lack of power. I do not think that a loss of operation of a law can be said, in any way, to affect the power to make the law.
  1. The respondent submitted, in the alternative, that if the referring Act was invalid the prosecution of count 2 could continue as a State prosecution. However, because I think that the argument that the referring Act is invalid must fail, I do not think it necessary to consider this question. The prosecution by the Commonwealth Director of Public Prosecutions of count 2 in the indictment is, in my opinion, a valid one. The application to quash it must therefore fail.

5.  The challenge to the prosecution of counts 3 to 15

  1. This challenge is on two bases. The first is to the authority of Mr Walsh from the State to conduct the prosecution so far as it related to the State offences. And the second is as to the validity of s 17(1). It is rightly conceded by the respondent that, for Mr Walsh to have had legal authority to present the indictment alleging these counts, he must have had a valid appointment from the State and a valid acceptance of such appointment by the Commonwealth.

(a)Mr Walsh's appointment by the State

  1. The respondent is able to rely for this on s 560 of the Criminal Code, the agreement made by the Commonwealth and Queensland Directors by, at the latest, 8 June 1990, the appointment of Mr Walsh by the Queensland Governor-in-Council dated 4 February 1999 and the agreement between Mr Walsh and the Queensland Deputy Director in July 2000 in respect of this prosecution.  The applicant's oral submissions, which depart from his written submissions, appear now to be to the following effect:  since the Director of Public Prosecutions Act 1984 (Qld) all prosecutions are subject to the control of the Queensland Director;[119]in prosecuting this or any other indictment Mr Walsh is, on the contrary, subject only to the directions and control of the Commonwealth Director and Attorney-General;[120]and consequently Mr Walsh is not a person who could have been validly appointed to prosecute this indictment.
  1. The applicant relies, for the first of these propositions, on the second reading speech for the Director of Prosecutions Bill (Qld) of the Minister for Justice and Attorney-General of Queensland in which he said:

"The Director of Prosecutions will have primary responsibility for overseeing all criminal prosecutions and will ensure, after careful review of depositions, that all criminal prosecutions that should be brought are in fact effectively so brought."

I do not think that there is anything in that statement which required that the Director of Public Prosecutions Act 1984 (Qld) be given a construction which would, in any way, affect the operation of s 560.

  1. For this purpose, the applicant also seeks to draw a distinction between a power to sign and present indictments and a power to institute or decide to institute prosecutions, a distinction which, he conceded, could only have been made by and after s 10(1) of the Director of Public Prosecutions Act 1984 (Qld), which states the functions of the Director, came into force.  The applicant submits that, even if s 560(2) permits conferral of the first of those powers on a Commonwealth Director of Public Prosecutions or one of his officers, it can no longer permit conferral of the second because that is precluded by s 10.  However that section does not make that distinction and I cannot accept that that Act impliedly required the imposition of a limitation on the plain meaning of s 560 which was intended, prior to 1984 as the applicant appears to accept, to confer on a person appointed by the Governor-in-Council the same power to prosecute an indictment as it conferred on a Crown Law Officer, that is, to perform the duties of a grand jury.[121]
  1. That is not to say that there might not, at least theoretically in some cases, be a tension and even inconsistency, in the performance of those duties by an employee in the office of the Commonwealth Director so appointed, between his or her obligations under the Director of Public Prosecutions Act 1983 (Cth), and the obligations of that person under the Director of Public Prosecutions Act 1984 (Qld).  But that would not invalidate the appointment of such a person and, in any event for reasons I am about to mention, that does not arise here.
  1. The appointment made in this case should, in my opinion, be construed in the light of and subject to the agreement made by the respective Directors sometime before 8 June 1990 and, consequently, the authority of Mr Walsh to prosecute this indictment is limited by that agreement and the agreement reached by him and the Queensland Deputy Director in July 2000.  The appointment, though in general terms, may be terminated at any time if Mr Walsh goes beyond the limitations imposed on it by those agreements.
  1. I do not think that the indictment was invalid for want of lawful authority by the State to present it.

(b)the validity of s 17(1)

  1. That challenge is substantially on two bases. First it is said that, even if that section can be confined in its relevant operation to State offences which, but for any constitutional impediment, could be joined in an indictment with a Commonwealth offence, it is nevertheless invalid because there is no head of power to which, or to the execution of which, it is incidental. And secondly it is submitted that it cannot be so confined and is for that reason invalid.
  1. If the Commonwealth and Queensland executive governments had entered into an agreement of the kind made by their respective Directors of Public Prosecutions and this had been followed by legislation in the form of s 17(1) of the Director of Public Prosecutions Act 1984 (Cth) and s 560 of the Criminal Code, for the purpose of giving effect to that agreement, I think that, at least subject to a challenge to the apparent width of s 17(1), it is unlikely that there would be any argument, given what subsequently occurred, against Mr Walsh presenting the indictment on counts 3 to 15.  In my opinion that follows from a line of High Court cases culminating in R v Hughes.[122]
  1. Hughes was, itself, a case of this kind.  In June 1990, at a meeting of representatives of the executive governments of the Commonwealth, the States and the Northern Territory at Alice Springs, heads of agreement were formulated for a national scheme for corporate regulation.  This national scheme was then implemented by legislation of the legislatures of all the polities that were parties to the Alice Springs Agreement and the High Court said, in [1] of the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ that, in construing that legislation, regard may be had to the Alice Springs Agreement.  In considering the validity of the Commonwealth legislation implementing that agreement their Honours said:[123]

"It may be that in their present operation these provisions are to be supported as laws with respect to matters incidental to the execution of a power vested by Ch II of the Constitution in the Government of the Commonwealth or in any department or officer of the Commonwealth.  That is the language of s 51(xxxix) of the Constitution.  The Alice Springs Agreement may be an illustration of the propositions stated by Mason J in Duncan:

'The scope of the executive power is to be ascertained, as I indicated in the AAP Case , from the distribution of the legislative powers effected by the Constitution and the character and status of the Commonwealth as a national government.  Of necessity the scope of the power is appropriate to that of a central executive government in a federation in which there is a distribution of legislative powers between the Parliaments of the constituent elements in the federation.  It is beyond question that it extends to entry into governmental agreements between Commonwealth and State on matters of joint interest, including matters which require for their implementation joint legislative action, so long at any rate as the end to be achieved and the means by which it is to be achieved are consistent with and do not contravene the Constitution.' "

  1. It is true that their Honours went on to say, in Hughes, that the scope of the executive power and of s 51(xxxix) in aid of it remains open to some debate which they found it unnecessary to resolve.  However the validity of s 17 in the present case is not dependent, or at least not wholly dependent for its source on the executive power and s 51(xxxix) in aid of it but also on the power to prosecute the offence in count 2 and s 51(xxxix) in aid of it.
  1. There is another important distinguishing factor between that case and this. The Court there construed the Commonwealth provision acquiescing in the conferral of State power as imposing a duty on the Commonwealth Director of Public Prosecutions, thereby requiring support from a head of power. Here, unlike the provision considered in Hughes, there is nothing in the context of s 17 which would require it to be construed as imposing a duty and it is not exclusive.  On the contrary its intention seems, plainly enough, to be permissive and concurrent only.  It is not just that it is permissive in its terms.[124]It is also that it permits the person to whom it refers to institute and carry on only such prosecutions and only on such terms as are authorized by a State appointment, which appointment may be terminated by the State at any time.
  1. It is true that, in this case, there was no agreement between the executive governments of the Commonwealth and Queensland prior to the enactment of s 17(1).  However it does not follow that there was no power to enact that section.  In Hughes, in a passage relied on by the respondent, the joint judgment, when discussing the Commonwealth law, said:[125]

"It may be accepted that, subject to what may be the operation of negative implications arising from the Constitution, for example Ch III, in the exercise of the incidental power the Parliament may permit officers of the Commonwealth holding appointments by or under statute to perform functions and accept appointments in addition to their Commonwealth appointments."

It is unclear to me whether their Honours there were speaking generally or in the context of a prior executive agreement such as the Alice Springs Agreement.

  1. However the validity of Commonwealth legislation, in a case such as this, is not dependant on the existence of a prior executive agreement though, where there is such an agreement, it may, as mentioned earlier, be of assistance in construing the legislation. As Brennan J pointed out in Duncan[126]with respect to the Coal Industry Tribunal:

"It is within the competence of the Commonwealth Parliament to permit such a tribunal to have and to exercise State powers where the vesting and exercise of State is conducive to or consistent with the achievement of the object which the vesting and exercise of federal powers is intended to achieve."

  1. The question here is whether the vesting of State power in Mr Walsh is conducive to or consistent with the achievement of the object which the vesting and exercise of federal powers in him is intended to achieve. And in considering that question it is, in my opinion, important to bear in mind the following general proposition, stated by Deane J in the same case[127]to be derived from the terms of the Australian Constitution and from the nature of the federation which it embodies.

"The first is that co-operation between the Parliaments of the Commonwealth and the States is in no way antithetic to the provisions of the Constitution:  to the contrary, it is a positive objective of the Constitution.  …

The existence of a constitutional objective of Commonwealth/State co-operation may, on occasion, be obscured by the fact that cases in this Court in relation to the constitutional scope of legislative powers are commonly concerned with the resolution of competing legislative claims of the Commonwealth and of one or more of the States.  It is, however, unnecessary to do more than refer to the provisions of s 51(xxxiii), (xxxiv), (xxxvii) and (xxxviii) and of Ch V of the Constitution to demonstrate the existence of such a constitutional objective."

  1. In the same case Gibbs CJ, with whose reasons Murphy J agreed generally and Wilson and Dawson JJ agreed substantially, said:[128]

"Further, no reason is provided by constitutional enactment or constitutional principle why the Commonwealth and a State or States should not simultaneously confer powers on one person and empower that person to exercise any or all of those powers alone or in conjunction.  In one instance the Constitution has expressly recognized the possibility of co-operation of that kind when it enables the Parliament to invest a court of a State with federal jurisdiction:  Constitution, ss 71, 77(iii).  It would be an absurd result, for example, if the Commonwealth and a State were unable, by complementary legislation, to empower an officer of police to enforce both the laws of the Commonwealth and the laws of the State, or to give power to a fisheries inspector to act in Australian waters both within and beyond territorial limits, or to authorize a public servant to collect State taxes as well as Commonwealth taxes.  There is nothing in the decisions of this Court to provide authority for such a restrictive view of constitutional power."

The same, it seems to me, can be said of each of the Commonwealth and a State or States, by complementary legislation, empowering one person to present an indictment which includes both Commonwealth and State offences, at least where those offences were of a kind which, but for constitutional problems, could be joined in one indictment.[129]

  1. It is true that s 17(1) is capable of being read widely enough to permit acceptance by a Commonwealth officer of an appointment by a State to prosecute State offences which could go beyond the appointment made pursuant to the agreements here. Although any such appointment must be limited by the terms which the State imposes it could, in theory, operate to permit the prosecution by a Commonwealth officer of State offences unconnected with Commonwealth offences, or even State offences generally. It is difficult to see how such a permission could be within Commonwealth power.
  1. However it is almost inconceivable that States would appoint a Commonwealth officer or that the Commonwealth Attorney-General would consent to such an appointment if its purpose was to enable him or her to prosecute State offences unconnected with Commonwealth offences or State offences generally. By 1983 the creation of Commonwealth offences arising out of the same facts as State offences must already have resulted in duplication of resources and, in some cases, inconsistent verdicts. In that context the most likely purpose of s 17(1), and s 6(1)(m), was to avoid these difficulties by enabling, by agreement between the Commonwealth and a State or States, the joint indictment of Commonwealth and State offences where, but for the constitutional impediment thereto, that would have been appropriate.  As already mentioned, that is the way in which it operated in this case.  Consequently I think that that is the actual operation of the provision[130]the validity of which is in question here.
  1. If it were necessary to do so in order to reach this construction of s 17(1), I would apply s 15A of the Acts Interpretation Act 1901 (Cth).  That section provides:

"Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power."

  1. In Pidoto v Victoria[131]Latham CJ discussed the operation of this provision in two distinct situations:  the first where a law contains separable words and expressions;  the second where it contains general words and expressions.  As to the latter, which is the case here, his Honour said:

"In other cases, where there are not separate words, but where there are general words or expressions which apply both to cases within power and to cases beyond power, then if an intention of Parliament that there should be a partial operation of the law based upon some particular standard criterion or test can be discovered from the terms of the law itself or from the nature of the subject matter with which the law deals, it can be read down so as to give valid operation of a partial character."

  1. In Hughes, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, in their joint judgment, citing the joint judgment of Brennan and Toohey JJ in Re Nolan;  Ex parte Young[132]in which their Honours cite with approval the above passage from Pidoto, said:

"However, s 15A of the Interpretation Act may be applied to read down a provision expressed in general terms, including a power to prosecute so as to apply only where the particular prosecution is supported by a head of power."[133]

  1. Applying that statement here, s 15A may be applied to read down s 17(1) so as to apply only where this prosecution is supported by a head or heads of power. In my opinion this prosecution, having been brought pursuant to the agreement referred to earlier between the respective Directors of Public Prosecutions and the appointment made and consented to pursuant to that agreement, is supported by the power with respect to the referred matter (s 51(xxxvii)), the executive power and the incidental power (s 51(xxxix))in aid of each.
  1. The applicant sought to draw an analogy between this case and the facts in Re Wakim[134]and referred to the Chief Justice's reasons in that case.[135]There is, however, in my opinion, an important difference between that case and this which renders the analogy false.  The Federal Court is established pursuant to s 71 of the Constitution and its jurisdiction is limited by reference to the matters of the kind specified in s 75 and s 76.[136]Consequently no parliament could confer on it any additional jurisdiction.  Here, by contrast, there is no constitutional prohibition upon a Commonwealth officer presenting indictments for State offences and s 17(1) contemplates that he will.[137]Re Wakim casts no doubt on cases like Duncan in which the Commonwealth, with power to legislate on a matter and a State or States with legislative power with respect to other matters may together confer a function on one person, who may be a Commonwealth officer, to implement matters of both kinds.
  1. Accordingly I would conclude that s 17(1) is, in its operation in this case, valid.
  1. Having reached that conclusion it is perhaps unnecessary to discuss the decision of the Victorian Court of Appeal in R v Holden[138]upon which the respondent relied and which the appellant contended, on this aspect of the matter, was wrongly decided.  However as it was central to the arguments on each side I shall say something about it.
  1. That was an appeal against a conviction for trafficking in heroin contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic).  One of the grounds of appeal was that the Commonwealth Director of Public Prosecutions, who apparently conducted the prosecution, did not have the power to prosecute the appellant in respect of a State criminal offence.  The case against Holden, which was accepted by the jury by its verdict of guilty, was that he had onsold heroin which he had obtained from a man called Carmody who had imported it unlawfully into Australia.  The explanation for the fact that the prosecution was brought by the Commonwealth Director appears to be that Holden and Carmody were initially jointly indicted.  Separate indictments were later presented against each and Carmody pleaded guilty.
  1. One of the arguments advanced on Holden's behalf was that s 17, referred to earlier, was invalid because there was no sufficient nexus between the relevant State offence and any head of Commonwealth power. Chernov JA, with whose reasons in this respect the other members of the court agreed, held that there was a sufficient nexus to give constitutional validity to s 17 for the purposes of that case.[139]There were two reasons for this.  The first was that the Commonwealth Customs power would have entitled the Commonwealth Parliament to legislate in respect of this offence, it being one of trafficking in a prohibited import.[140]That alone was sufficient to validate s 17 so far as it applied to the offence in that case.
  1. However his Honour went on to give, as a second reason for the validity of s 17 in that case, that the prosecution of the applicant for breach of the State law was ancillary or incidental to the prosecution of Carmody for the Commonwealth offences. It had apparently been acknowledged by Carmody's counsel in his written outline that Holden's alleged offending conduct was ancillary to that of Carmody. But it is plain that all he meant by this was that they were inter-related and that Holden's conduct followed from that of Carmody. I would, with great respect, doubt whether the prosecution of Holden for trafficking was incidental to the prosecution of Carmody under a separate indictment for the Commonwealth offences. However that does not, of course, in any way cast doubt on the correctness of the court's conclusion which was sustainable on the first basis. Nor does it, in my opinion, assist the applicant here because, as I have already mentioned, s 17(1) must be read as applying, in this case, to the presentation of an indictment against Mr Fukusato for both Commonwealth and State offences.
  1. It follows, in my opinion, from the conclusions which I have already reached, that Mr Walsh had legal authority to present the indictment against Mr Fukusato charging him with counts 3 to 15 and the challenge to it in respect of those counts must therefore fail.

6.  The challenge to counts 36, 39, 43, 45, 49, 51, 54, 57 and 62

  1. The principles upon which I rely do not depend on the fact that counts 3 to 15 rely, for their successful prosecution, on the same evidence as count 2. Rather it is because, but for any constitutional impediment, count 2 and counts 3 to 15 could have been charged on one indictment. The same is true of these counts. Accordingly, in my opinion, the challenge to the indictment so far as it relates to these counts must also fail.

Order

Application to quash the indictment presented in the District Court against Harunobu Fukusato on 18 August 2000 by Francis James Walsh refused.

  1. THOMAS JA:  This is an application to quash an indictment in a matter pending in the District Court at Brisbane.  The application was removed here under s 68(5) of the Supreme Court of Queensland Act 1991, primarily because of the nature and importance of constitutional issues that are raised.  An earlier application was made to remove the matter into the High Court, but that court declined to receive it at that stage, apparently preferring that prior consideration be given to the matter by the Supreme Court of Queensland.
  1. The prosecutor who signed and presented the indictment (Mr Walsh) was at material times a member of the staff of the Queensland office of the Commonwealth DPP. That fact underlies the constitutional challenge.
  1. The constitutional issues here raised are not pure questions of law to be decided in a vacuum. The initial task for this court is to identify the issues and the facts upon which they are to be decided.

Issues

  1. I agree with Davies JA’s formulation of the principal questions as follows:
  1. Does Mr Walsh have the legal authority to present an indictment charging Mr Fukusato with an offence under the Corporations Law of Queensland[141]?
  1. Does he have the legal authority to present an indictment charging Mr Fukusato with offences against the Criminal Code of Queensland, the evidence relied on for which is the same as that relied on for the offence against the Corporations Law of Queensland?
  1. If yes to 2 may he join in that indictment other offences against the Criminal Code of Queensland which, if the indictment were presented by the Queensland Attorney-General or the Queensland Director of Public Prosecutions, could be joined in an indictment with the offences alleged in 2?

I may say that with only one reservation I agree with the reasons which Davies JA has written.  As the views of the President are in some respects divergent I shall add some further remarks.

Facts

  1. As already foreshadowed, I think it is of fundamental importance that the facts on which the case is to be decided be set out.
  1. The material presented to this court included an “agreed statement of facts”. That statement is not a complete or exclusive statement of the facts upon which the case is to be decided. It refers to correspondence and other sources of evidence that are contained in the application book. These have been referred to in reaching relevant conclusions and inferences, particularly in relation to the agreements that have been made between the various prosecuting authorities in Australia. I have also drawn the inference that such agreements have been accepted and acted upon by the respective governments within whose jurisdictions the prosecuting authorities perform their respective functions.
  1. The evidence reveals that on 11 November 1998 the Attorney-General (Cth) granted consent for Mr Walsh “to hold an appointment to prosecute offences against the laws of Queensland”. The giving of such a consent was contemplated by and given under s 17(1) of the Director of Public Prosecutions Act 1983 (Cth) (the “DPP Act (Cth)”).  A few months later, on 15 February 1999, it is to be inferred that pursuant to the arrangements that existed between the various directors, the Governor-in-Council (Queensland) approved that Mr Walsh be “appointed, in the absence of the Attorney-General for the State of Queensland, to sign in your own name and present indictments in respect of indictable offences and to prosecute the same for Her Majesty the Queen at any sittings of the Supreme, circuit and District Courts appointed to be held at any place within the State of Queensland”.  The power of the Governor-in-Council (Queensland) to make such an appointment is based on s 560 of the Queensland Criminal Code (the “Code”).
  1. The present indictment followed an investigation carried out by a Commonwealth agency (ASIC). As a consequence of the investigation, on 9 March 1999 the applicant Fukusato was arrested and charged by a Commonwealth officer with five offences against the Code. He was subsequently summonsed in relation to a further 18 charges under the Code, on the complaint of one Glynn, a Commonwealth officer employed by ASIC. The offences were forgery, uttering, and aiding and abetting in forgery. Committal proceedings were then conducted on behalf of the complainant by Mr Walsh. On 19 May 2000, the applicant was committed for trial to the District Court of Queensland on all 23 of those charges.
  1. On 18 August 2000 an indictment was presented by the Commonwealth under the hand of Mr Walsh, charging the applicant with the above 23 offences and with one further ex officio charge under the Corporations Law of Queensland.  The last-mentioned count was Count 2 of the indictment.  The indictment was presented by Mr Walsh in his capacity as a Commonwealth officer.
  1. After the committal proceedings but before the presentation of the indictment the Commonwealth Director referred the matter to the Queensland Deputy Director of Public Prosecutions who expressed a “strong view” that the Commonwealth should continue with the prosecution. The decision to prosecute (and to present the indictment) was then made by the Commonwealth officers.
  1. The referral by the Commonwealth Director and the agreement of the Queensland Deputy Director of Public Prosecutions to the continuation of proceedings by the Commonwealth DPP were made in accordance with an agreement or protocol earlier agreed between the Commonwealth and State Directors under which approved Commonwealth officers could obtain commissions to sign and present indictments in state matters, and approved state officers could obtain commissions to sign and present indictments in Commonwealth matters.
  1. It is to be inferred that guidelines were agreed between the respective Directors. One of the points of agreement was that the power of prosecution thereby obtained would not be exercised without the prior agreement of the other organisation, and that matters where a “joint indictment” was contemplated would need to be agreed on a case by case basis. I construe “joint indictment” as one that contained both Commonwealth and State offences.
  1. The full terms of the agreement between the Commonwealth DPP and the State Directors have not been supplied and it is by no means clear whether there is any authoritative record of such an agreement. It is clear however that an agreement containing the above points of agreement has been made and acted upon. A further point of agreement was that in cases where ASIC and Commonwealth police investigate specified criminal code offences the Commonwealth DPP would conduct the prosecution to completion of the committal hearing, and thereafter the matter would be referred to the relevant State Director for decision as to whether the State or Commonwealth DPP would undertake the further prosecution of the matter. Such arrangements seem to have originated in 1987 and to have been reviewed from time to time in the light of experience. There is no other relevant agreement between the State and the Commonwealth.
  1. Counts 3-15 on the indictment against the applicant allege that, between May 1991 and September 1991 in the course of certain negotiations, the applicant created false documents contrary to s 488 of the Code by either:
  1. Describing himself as or signing correspondence or documents as a director of a relevant company when he was not so appointed and/or
  1. Making statements or claims that he was not duly authorised to make in correspondence or other documents;

Some of those counts further alleged that the applicant uttered certain of those false documents contrary to s 489 of the Code by causing them to be sent to a third party, usually the Commonwealth Bank.

  1. Count 2 of the indictment alleges a breach of s 232(2) of the Corporations Law of Queensland.  The agreed statement of facts asserts that the conduct referred to in the preceding paragraph is also the conduct relied upon to prove that offence.  I take this to mean that the evidence relied on by the prosecution to prove the s 232(2) offence is the same as that on which it relies to prove those additional counts on the indictment.
  1. Counts 36, 39, 43, 45, 49, 51, 54, 57 and 62 of the indictment allege that the applicant assisted, aided or enabled the creation of false documents contrary to s 488 of the Code between 25 September 1995 and 7 March 1997.  The prosecution alleges that the applicant’s co-accused, Kawada, created false documents and sent them to Japan.  It is alleged that the documents were an attempt to conceal the true state of affairs of the Australian companies, Jillbridge Pty Ltd and Comestock Corporation (Australia) Pty Ltd (“Comestock”).  Those companies were trading corporations formed within the limits of the Commonwealth.  It is alleged that the documents consisted of, among other things, invoices which purported to show that certain commercial properties in Cairns and the Gold Coast were still owned by Comestock and earning income.  It is alleged that the applicant is criminally liable in this regard by s 13 of the Code in that he omitted to advise Mr Eikichi Yazawa (a director and a principal shareholder in both Jillbridge and Comestock and resident of Japan) that Comestock had been wound up.
  1. The prosecution of the offences alleged in the indictment is being resourced by monies of the Commonwealth which have been the subject of an appropriation to the DPP (Commonwealth).

Mr Walsh’s authority to prosecute a State offence

  1. The starting point of the necessary authority for Mr Walsh to prosecute such an offence is s 560(2) of the Queensland Code. That section authorises the Governor-in-Council to appoint “a Crown law officer or some other person” to sign and present indictments. On its face the discretion to appoint is unfettered, and the persons who may be so appointed might be thought to include Commonwealth officers. But a State cannot by its law unilaterally vest functions in officers of the Commonwealth whose offices and powers depend on Commonwealth law.[142]Prima facie s 560 would have to be read down so as to exclude Commonwealth officers.  But s 560 is capable of operating within a wider combination of Commonwealth and State powers cooperatively exercised so as to permit such an officer to be appointed.  Certainly ss 6(1) and 17 of the DPP Act (Cth) seem designed to facilitate such a course.  However before answering the wider question whether the necessary powers exist and have been exercised in combination so that a Commonwealth officer may properly be appointed, I shall deal with some preliminary submissions designed to show that Mr Walsh’s appointment to prosecute in Queensland is invalid.
  1. Section 6(1)(m) of the DPP Act (Cth) makes it a function of the Commonwealth DPP, when he or she holds an appointment from a State to prosecute offences against its laws, and where specified consent to do so has been given by the Commonwealth Attorney-General, to prosecute “in accordance with the terms of the [State] appointment”. Section 17 mirrors s 6(1)(m) in respect of members of the Commonwealth DPP’s staff. It provides:

17(1)Where a member of the staff of the Office, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State, the member may institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences.”[143]

  1. Counsel for the respondent concedes that if s 17 were construed as imposing an obligation or duty upon the Commonwealth DPP unilaterally to prosecute State offences it would be beyond the constitutional power of the Commonwealth Parliament. However the power given by these sections is conditional upon the obtaining of an appointment from the State and is limited to prosecuting in accordance with the terms of that appointment. It is legislation which provides permission to perform such functions only when such conditions are satisfied. It is immaterial that there was no known relevant arrangement between the States and the Commonwealth in force to enable such activities to occur in 1983 when the Act came into force. The section contemplates that in the event that a Commonwealth DPP officer obtains a valid appointment to prosecute offences against the laws of the State,[144]the Commonwealth Attorney-General might (not must) give consent to such officer to perform such a function.  Section 17 would seem to have anticipated that arrangements such as those described above might follow, and the facts concerning Mr Walsh’s appointment comfortably fit within such provisions.
  1. I reject the applicant’s submission that the combined effect of the agreement and of the Commonwealth and State legislation is to require the Commonwealth Director to institute and carry on Queensland prosecutions. The agreement is one where a prosecution will ensue only on a case by case basis where it is agreed that the Commonwealth director should do so. That is not a requirement to carry on such prosecutions.
  1. So far as the appointment of Mr Walsh of the Governor-in-Council (Queensland) is concerned, it seems perfectly valid, and I can find no basis for holding it to be otherwise. Historically, under the Queensland system, only the Attorney-General or a Crown prosecutor (“a person appointed in that behalf by the Governor-in-Council”)[145]in the Attorney’s place could present an indictment.  By contrast, once an indictment was validly presented, the Crown could brief any counsel to conduct the trial for the Crown.  Section 560(2) can be traced, at least, to s 5 of the Australian Courts Act 1828 (Imp).[146]That system replaced the former system under which a person was put on trial by indictment by a grand jury and tried by a petit jury.  Whilst the old system was still able to be adopted,[147]and whilst the Australian Courts Act underpinned the system of prosecution in New South Wales, and in turn  Queensland for a considerable time,[148]since the enactment of the Queensland Criminal Code prosecution is by the Crown in the name of the Attorney-General or other officer duly appointed, that is to say by Crown Prosecutors.  There remains a possibility of presentation of an information by a private prosecutor,[149]but that is strictly regulated.  Such prosecutions may not take place unless the leave of the Supreme Court is required;[150]and the Attorney-General may in any event intervene and enter a nolle prosequi.[151]
  1. The function of a Crown Prosecutor in presenting an indictment is to fulfil the role of the grand jury. This entails the responsibility for drawing of the indictment, and for the decision to commence the prosecution. There remains of course the Attorney’s overriding discretion to amend or discontinue by means of a nolle prosequi.[152]
  1. I can find nothing in the DPP Act (Qld) that limits the power of the Governor-in-Council to make appointments under s 560 of the Code to persons employed by the Queensland DPP or which grants to the Queensland DPP a monopoly over the presentation of indictments.  There is no basis for holding Mr Walsh’s appointment invalid on this basis.  It is fallacious to look at the Queensland appointment in isolation from other matters such as the Commonwealth legislation, along with the ensuing arrangements made by the respective DPPs and the acceptance by both executive governments of such arrangements.  It is equally fallacious to attempt to determine the matter by reference to the Commonwealth legislation in isolation.
  1. Finally I refer to the President’s concern over the form of the indictment, notably over its failure to indicate that the counts other than count 2 are presented on behalf of the Queensland Crown. This is not a matter that concerns us, as counsel expressly disclaimed such a point. The motion to quash was based upon absence of constitutional power, not upon form. The prescribed form in Queensland[153]seems to contemplate such a prosecution, with particular counts being instituted by the direction of or with the consent of a particular Attorney-General or a particular government, in which case it contemplates that such a detail will be included in the indictment.  That however is not a matter for this court upon the present application.  Apart from the fundamental constitutional point here raised, there is no good reason why a prosecutor might not represent both the Crown in right of the Commonwealth and the Crown in right of the State in the same prosecution in respect of charges properly joined.

The answer to question 1

  1. The Commonwealth has the legislative power, and has exercised it, to prohibit various forms of corporate activity.[154]It also has executive power to enforce such prohibitions.  Count 2 on the indictment is in respect of an offence that the Commonwealth has lawfully prohibited.  The Commonwealth has executive power to enforce its own valid laws.  The establishment of the Commonwealth Director of Public Prosecutions under the DPP Act (Cth) with power to prosecute such matters was a conventional and lawful exercise of such power.[155]That Act provides a legislative structure for appropriate executive action to enforce Commonwealth law that prescribes certain types of conduct and declares them to be offences.  Plainly Mr Walsh has the lawful authority to present an indictment in respect of a designated Commonwealth offence.  There is no reason why he cannot present it in a Queensland Court, so long as he satisfies Queensland’s laws respecting the presentation of such an indictment.
  1. The discussion under the previous heading (paras [140] to [147] above) shows that Mr Walsh has satisfied Queensland’s laws respecting the presentation of the indictment. That discussion deals with various points raised in the applicant’s written argument. I note however in oral argument the only challenge maintained to Mr Walsh’s prosecution of count 2 was that the Corporations (Commonwealth Powers) Act 2001 (Qld), which refers power to the Commonwealth to permit it to enact the Corporations Act 2001 (Cth) is invalid because it infringes s 53(1) of the Constitution Act 1867 (Qld).  On this question I agree entirely with the reasons expressed in paras [85] to [92] of Davies JA’s reasons for concluding that the referring Act was a valid one.
  1. It follows that the answer to question 1 is “yes”.

Questions 2 and 3:  Source of power

  1. The essential task here is to find a source of power under which the Commonwealth may permit one of its officers, with the agreement of the State concerned, to present an indictment in a State court containing a Federal offence and also State offences that are capable of being established by the same evidence.
  1. The applicable State law in respect of the subject prosecution includes s 567 of the Code. This readily permits joinder of charges against the same person if those charges are founded on the same facts or form part of a series of offences of the same or of a similar character.
  1. What then is the source of the Commonwealth’s power to proceed on the present indictment? In my view it arises from a combination of different strands of executive power. The Commonwealth’s executive power is recognised and conferred by s 61 of the Constitution. The Constitution also gives the Commonwealth power over “matters incidental to the execution of any power vested by this Constitution … in the Government of the Commonwealth”.[156]The incidental power exists in respect of executive power[157]as well as in respect of legislative power.  It is a valid function of the Commonwealth DPP under the DPP Act (Cth) to institute and carry on prosecutions on indictment for indictable offences against the laws of the Commonwealth.  The applicant’s argument is that a Commonwealth prosecutor may do this and no more, that he may not take advantage of procedural provisions (such as s 567 of the Code) in a State court in which he may lawfully bring the prosecution, and that the DPP may not enter into valid arrangements with the appropriate State authority to enable a single prosecution to take advantage of the procedural options available in the conduct of prosecutions.  This in my view represents too rigid an approach and it ignores the incidental power. 
  1. The legislation in question (the DPP Act (Cth)) seems reasonably adapted to the prosecution of offences within the power of the Commonwealth to prescribe. The Corporations Law offence is merely one of many such laws.  There is nothing disproportionate in the DPP Act (Cth) to the proper execution of the power to prosecute such an offence (or in the agreement made by the respective directors which takes advantage of such legislation).[158]If a Commonwealth officer has the authority of the State to prosecute the applicant for such an offence in a State court pursuant to an arrangement under which the State authorities have consented to his also prosecuting an offence under State law that can be brought on the same indictment, and the State offences are able to be proved by the same evidence as that which would prove the Commonwealth offence,  I would hold the presentation of such an indictment by a Commonwealth officer to be a valid exercise of the incidental executive power.  The Federal executive power to prosecute Commonwealth offences authorises a prosecution in a State court “and what is incidental to it”.[159]
  1. In reaching this conclusion I draw some comfort from statements made respectively in R v Duncan; Ex parte Australian Iron and Steel Pty Ltd[160]and in R v Hughes, recognising however that the contexts in which they were made are somewhat different.  I think that they tend to support the view that the agreement in question, and a prosecution pursuant thereto are unsurprising and truly incidental to the power to prosecute Commonwealth offences.

“It would be an absurd result, for example, if the Commonwealth and a State were unable, by complementary legislation, to empower an officer of police to enforce both the laws of the Commonwealth and the laws of the State, or to give power to a fisheries inspector to act in Australian waters both within and beyond territorial limits, or to authorize a public servant to collect State taxes as well as Commonwealth taxes.  There is nothing in the decisions of this Court to provide authority for such a restrictive view of constitutional power”.[161]

And:

“It may be accepted that, subject to what may be the operation of negative implications arising from the Constitution, for example Ch III, in the exercise of the incidental power the Parliament may permit officers of the Commonwealth holding appointments by or under statute to perform functions and accept appointments in addition to their Commonwealth appointments”.[162]

  1. It should also be noted that while the Constitution contains a proscription in Chapter III upon the exercise of Commonwealth judicial power which affects the extent to which cooperative arrangements in that area may be justified under the incidental power,[163]there is no such proscription on Commonwealth executive power.  The problems that attend the cross-vesting of jurisdiction in courts do not attend the present matter.
  1. In the present circumstances the Commonwealth has not created additional offences beyond its power; rather it has sought to take advantage of an arrangement freely accepted by both it and the State, the purpose of which would seem to include unnecessary wasting of resources and the avoiding of arid prosecutions and inconsistent verdicts.
  1. I have difficulty in identifying the legislation and agreement in the present matter (ss 6(m) and 17 of the DPP Act (Cth), and s 561 of the Code) as a uniform and complete legislative scheme,[164]or as a matter referred to the Parliament of the Commonwealth by the Parliament of the State.[165]The relevant cooperation in the present matter made use of those sections, but it was largely the product of executive action.  In this respect I depart to some extent from Davies JA’s view of the matter, and do not rest my judgment on the view that the referral power (s 51(xxxvii)) (along with the incidental power of (s 51(xxxix) in aid) is sufficient to support both the legislation and the actions taken pursuant to the agreement.  My preferred view is that ss 6(m) and 17 of the DPP Act (Cth) are valid pursuant to the executive power (and power incidental thereto) which justifies the Commonwealth in prosecuting offences which the Commonwealth has lawfully prohibited.  As noted in Hughes, the DPP Act may in a sense be supported by as many heads of power as from time to time have been exercised by the Parliament to create offences against Commonwealth laws.[166]It is also noted in Hughes that s 51 (xxxix) empowers the Commonwealth Parliament to legislate in aid of an exercise of the executive power.[167]The DPP Act (Cth) is a good example of this.  The making of the agreement and the taking of steps pursuant to it (with the inclusion of Queensland offences that may properly be joined in the same indictment under Queensland law) are also in my view justified as a lawful incidental exercise of the executive power to bring such prosecutions.

Conclusion

  1. In my opinion Mr Walsh had lawful authority to present the present indictment. The application to quash it should be refused.

Footnotes

[1] Section 7.

[2] Corporations Legislation Amendment Act 1990 (Cth).

[3] See, for example, Corporations (Western Australia) Act 1990 (WA); R v Hughes (2000) 202 CLR 535.

[4] The Corporations Act 1989 (Cth) was repealed by the Corporations (Repeals, Consequentials and Transitionals) Act 2001, Sch 1.

[5] And also the Australian Securities and Investments Commission Bill 2001.

[6] See (2001) 75 ALJ 672.

[7] See Ch 10 and especially ss 1370, 1383 and 1401.

[8] See the general penalty provisions Corporations Law, s 1311.

[9] Criminal Code, s 1.

[10] Barton v The Queen (1980) 147 CLR 75, 94-96, 103, 107, 109.

[11] The Hon L J King AC, QC, "The Attorney-General, Politics and the Judiciary", (2000) 74 ALJ 444, 447-450.

[12] Criminal Code, s 561.

[13] Criminal Code, s 563.

[14] Criminal Code, s 638. 

[15] Criminal Code, ss 120, 131, 132, 430, 440, 442M, 541-543.

[16] Criminal Code, s 669A.

[17] Criminal Code, s 619(6).

[18] Hansard, 27 November 1984, 3010.

[19] R R Kidston, "The Office of Crown Prosecutor" (More Particularly in New South Wales) (1958) 32 ALJ 148, 151-153.

[20] Queensland Act, s 11(3), specifically preserves the duties of a Crown prosecutor with a commission under s 560(2) Criminal Code.

[21] See fn 19.

[22] [1988] 1 QdR 464, 467-468.

[23] (1997) 95 ACrimR 447.

[24] [2001] VSCA 63, No 14 of 1999, 16 May 2001.

[25] (2000) 201 CLR 213, 219-220, [15].

[26] (1999-2000) 199 CLR 1, 14.

[27] (2000) 202 CLR 535, 553, [31].

[28] Commonwealth Act, s 3(2), provides that: "A reference in this Act to an appointment to prosecute offences against the laws of a State includes a reference to a commission or authority to prosecute such offences."

[29] (2000) 202 CLR 535, 553, [31] and 557-558, [46].

[30] (1999) 199 CLR 1, 14

[31] See for example, R v Duncan; ex parte Australian Iron & Steel Pty Ltd (1983) 158 CLR 535, 552-553, 560; Re Cram; ex parte NSW Colliery Proprietors Association Ltd (1987) 163 CLR 117; Commonwealth Powers (Air Transport) Act 1950 (Qld), 1952 (Tas); Commonwealth Powers (Family Law – Children) Act 1986 (NSW), 1986 (Vic), 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA), 1987 (Tas); Commonwealth Powers Industrial Relations Act 1996 (Vic); Commonwealth Powers (State Banking) Act 1992 (NSW).

[32] (2000) 202 CLR 535, 553, [31], 557-558, [46].

[33] (1997) 95 ACrimR 447.

[34] Matters referred to the Parliament of the Commonwealth by the Parliament of a State.

[35] The executive government – ss 61-70 Constitution.

[36] See Constitution, ss 69, 70.

[37] (1974) 131 CLR 477, 498.

[38] Burton v Honan (1952) 86 CLR 169, 177.

[39] (1904) 1 CLR 91, 109-110.

[40] Davis v The Commonwealth (1988) 66 CLR 79.

[41] (1910) 11 CLR 311.

[42] (1988) 166 CLR 79, 95-100.

[43] Ibid at 93.

[44] Ibid at 101.

[45] Ibid at 117.

[46] Ibid at 119.

[47] At 110-111.

[48] Ibid at 112-113.

[49] Lumb & Moens' The Constitution of the Commonwealth of Australia, annotated 6th ed, Butterworths, Australia, 2001, 181.

[50] (1983) 158 CLR 535, 552-3.

[51] Ibid at 560.

[52] At 579.

[53] cf Byrnes v R (1999) 199 CLR 1, 15.  The court found that the Corporations (South Australia) Act 1990 (SA) had the effect of conferring upon the Commonwealth DPP power to prosecute offences against a cooperative scheme law such as the State Companies Code.  The court concluded that the conferring of power upon the Commonwealth Director under s 6(2) Commonwealth Act did not extend the court's jurisdiction and the Court of Criminal Appeal had no inherent jurisdiction to entertain an appeal in such a matter conducted by the Commonwealth Director or his officers.

[54] (1999) 198 CLR 511, 544-546, Gleeson CJ.

[55] (2000) 202 CLR 535.

[56] Section 29.

[57] Section 31.

[58] Relevant to count 2.

[59] Hughes, [21] and [33].

[60] Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

[61] See also Bond v R (2000) 201 CLR 213, 219, [15].

[62] Hughes, 553, [31] and see also Bond v R (2000) 201 CLR 213, 219-220, [15] and Re Residential Tenancies Tribunal (NSW); ex parte Defence Housing Authority (1997) 190 CLR 410, 426-427, 447, 452-453, 472-473, 506-507.

[63] Hughes, 553, [32], 553-554, [34], 554, [46]..  See also Byrnes v R (1999) 199 CLR 1, 15.

[64] At 560, set out in [39] of these Reasons.

[65] At 113, set out in [35] of these Reasons.

[66] R v Hughes (2000) 202 CLR 535, 555.

[67] Under s 51(i) and (xxix) Constitution: see R v Hughes (2000) 202 CLR 535, 556 [42].

[68] See para [41] of these Reasons.

[69] Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

[70] 220, [17], 221, [18], 225, [33].

[71] [2001] VSCA 63, No 14 of 1999, 16 May 2001.

[72] Constitution, s 86.

[73] Ibid, [30], [31].

[74] See Agreed Statement of Facts, para 12.

[75] Counts 36, 39, 43, 45, 49, 51, 54, 57 and 62.

[76] Constitution, s 51(xxxvii).

[77] See fn 2 to Agreed Statement of Facts.

[78] Ibid.

[79] Constitution, s 51(xxxvii).

[80] Ibid.

[81] Ch II, Constitution.

[82] Transcript p 31.

[83] R v Hughes (2000) 202 CLR 535, 556-557, [43].

[84] (1991) 172 CLR 460, 485-486 which considered the comments of Latham CJ in Pidoto v State of Victoria (1943) 68 CLR 87, 109.

[85] [1998] 2 QdR 483, Fitzgerald P 486-487, McPherson JA 492-494.

[86] (2000) 202 CLR 535.

[87] Ibid at 553, [33].

[88] cf s 17 where the member of staff "may institute and carry on".

[89] These Reasons [47].

[90] Ibid.

[91] s 109 Constitution.

[92] "Within the said Colony of Queensland Her Majesty shall have power by and with the advice and consent of the said Assembly to make laws for the peace, welfare and good government of the colony in all cases whatsoever."

[93] This is a manner and form provision requiring a referendum if any Bill expressly or impliedly affects sections in the Constitution Act 1867 including ss 2 and 53.

[94] "… a law made after the commencement of this Act by the Parliament of a State respecting the Constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament. …"

[95] "The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. 

[96]"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:

(xxxviii)The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia;"

[97] Port MacDonnell Professional Fishermen's Association v State of South Australia (1989) 168 CLR 340, 381; Sue v Hill (1999) 199 CLR 462 where Gleeson CJ, Gummow and Hayne JJ affirm the principle.

[98] (1970) 125 CLR 93.

[99] At 116.

[100] (1995) 183 CLR 373.

[101] Ibid at 464, 487-488.

[102] Although the comment was made in a dissenting judgment the issue was not addressed by the other members of the court.

[103] (1996) 189 CLR 51, 66. See also Dawson J's observations at 76.

[104] Corporations (Commonwealth Powers) Act 2001 (Qld), s 5(1).

[105] Ibid, s 6.

[106] Ibid, s 7.

[107] (1950) 81 CLR 1.

[108] See also McTiernan J at 22, Williams J at 24-25, Webb J at 25 and Fullagar J at 26.

[109] (1964) 113 CLR 207.

[110] At 226.

[111] See also Gould v Brown (1998) 193 CLR 346, 485-487; Byrnes v R (1999) 199 CLR 1; R v Hughes (2000) 202 CLR 535, Kirby J at 574-575 [94].

[112]See [79].

[113]See the following paragraph.

[114]Cf Brogden v Metropolitan Railway Co (1877) 2 App Cas 666.

[115]The indictment was expressed to be presented by the Commonwealth Director of Public Prosecutions and Mr Walsh and was signed by Mr Walsh "For and on behalf of the Commonwealth Director of Public Prosecutions".  However the matter was argued on the basis that, at least in respect of those counts other than count 2, it was presented by Mr Walsh and that, if necessary, it could be amended accordingly.

[116]This Act contains s 1401, which creates a substituted Commonwealth liability for what used to be a breach of s 232 of the Corporations Law and s 1383 which creates a new Federal proceeding for a proceeding which had been on foot under the Corporations Law for prosecution of that offence.

[117]The applicant conceding, in effect, that, if the referring Act is valid, the Corporations Act 2001 (Cth) is valid as a law with respect to a matter referred to the Commonwealth Parliament by a State Parliament:  s 51(xxxvii).

[118]Graham v Paterson (1950) 81 CLR 1 at 19 - 20, 22, 24.  See also The Queen v Minister for Justice and Attorney-General of Queensland;  ex parte Skyring, OSC No 8 of 1986, Supreme Court of Queensland, 17 February 1986, unreported.

[119]See, in particular, s 10.

[120]Director of Public Prosecutions Act 1983 (Cth) s 6, s 7, s 8, s 9, s 10, s 17.

[121]See Sir Samuel Griffith, A Digest of the statutory criminal law in force in Queensland on the first day of January, 1896, Article 523.  It is unnecessary to consider here whether the Director could furnish guidelines to such a person pursuant to s 11(1).  But it is inconceivable that she could do so to the Attorney-General who, as well as the Director and a person appointed by the Governor-in-Council, may sign and present indictments pursuant to s 560.

[122](2000) 202 CLR 535..  The others are referred to in fn 83 to the joint judgment in that case.

[123]At 554 - 555 [38].

[124]As the applicant points out, the analogous provision, s 6(1)(m), is, in this respect, in identical terms to s 6(1)(a).

[125]At 553 [31].

[126]The Queen v Duncan;  Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 579 - 580.  See also at 560;  and Hughes at 566 - 568 [68], [69], [70], [71], [72] per Kirby J.

[127]At 589.

[128]At 552 - 553.  See also Hughes at 566 - 567 [69].

[129]In the case of counts 3 to 15 there is, of course, an even closer connection between those counts and count 2 because, as we have been told, the same conduct is relied on to prove both.

[130]Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 187 per Latham CJ;  Hughes at 582 - 583 [117] per Kirby J.

[131](1943) 68 CLR 87 at 110 - 111.

[132](1991) 172 CLR 460 at 485 - 486.

[133]At 557 [43].

[134]Re Wakim;  Ex parte McNally (1999) 198 CLR 511.

[135]At 545 - 546 [21] - [24].

[136]See s 77(i).  As the Chief Justice earlier pointed out (at 543 [13] and 543 - 544 [16]), underlying this limitation, first established in In re Judiciary and Navigation Acts (1921) 29 CLR 257, is the separation of powers, a concept which has no application here.

[137]Cf Byrnes v The Queen (1999) 199 CLR 1.

[138][2001] VSCA 63.

[139]See at [31].

[140]Hughes at 555 - 556 [40], 556 [42].

[141] The charge against the applicant under the Corporations Law of Queensland is a proceeding for the prosecution of a federal offence.  Sections 1383 and 1401 of the Corporations Act 2001 (Cth) now render an offence under s 232 of the former Corporations Law a Commonwealth offence, and authorise proceedings under Commonwealth law in respect of pending Corporations Law prosecutions.  Those circumstances exist in the present matter.

[142] Bond v The Queen (2000) 201 CLR 213, 219-220, [15].

[143] The reference is of course to the Commonwealth Attorney-General.  The words “appointment to prosecute offences” includes a commission or authority to prosecute such offences; DPP Act (Cth) s 3(2).

[144] For the purposes of the DPP Act (Cth) “State” includes the Northern Territory.

[145] S 560(2).

[146] 9 George IV Ch 83.

[147] Australian Courts Act 1828 (Imp) s 10.

[148] See Barton v The Queen (1980) 147 CLR 75.

[149] Code, s 686. 

[150] Code, s 686(1).

[151] Gouldham v Sharrett [1966] WAR 129.

[152] RR Kidston, “The  Office of Crown Prosecutor (More Particularly in New South Wales)” (1958) 32 Australian Law Journal 148;  R v Quinn (1952) 53 SR (NSW) 21.

[153] Form 2, schedule 2 Criminal Practice Rules 1999.

[154] Cf Corporations Act 2001 (Cth); R  v Hughes (2000) 202 CLR 535.

[155] R v Hughes .

[156] Constitution s 51(xxxix).

[157] Davis v The Commonwealth (1988) 166 CLR 79.

[158] Ibid, 100.

[159] Cf the language of Mason CJ, Deane J and Gaudron J in Davis at 98.

[160] (1983) 158 CLR 535, 553.

[161] Duncan at 553 per Gibbs CJ with whose reasons Murphy, Wilson and Dawson JJ were in substantial agreement.

[162] Hughes, joint judgment at 553 [31].

[163] Re Wakim; Ex parte McNally (1999) 198 CLR 511.

[164] See Duncan .

[165] Constitution s 51 (xxxvii).

[166] Hughes at 555 [40].

[167] Ibid at 555 [39].

Close

Editorial Notes

  • Published Case Name:

    Cth DPP v Fukusato

  • Shortened Case Name:

    Director of Public Prosecutions (Cth) v Fukusato

  • Reported Citation:

    [2003] 1 Qd R 272

  • MNC:

    [2002] QCA 20

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Davies JA, Thomas JA

  • Date:

    08 Feb 2002

Litigation History

Event Citation or File Date Notes
QCA Interlocutory Judgment [2001] QCA 365 05 Sep 2001 Application to quash indictment removed from the District Court into the Court of Appeal: Davies JA, Williams JA, Wilson J
Appeal Determined (QCA) [2002] QCA 20 [2003] 1 Qd R 272 08 Feb 2002 Application to quash indictment refused: McMurdo P, Davies JA, Thomas JA
Special Leave Refused [2002] HCATrans 327 26 Jun 2002 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)