Bropho v Western Australia
[1990] HCA 24(Judgment by: Brennan J)
Bropho
vWestern Australia
Judges:
Mason CJ
Brennan JDeane J
Dawson J
Toohey J
Gaudron J
McHugh J
Legislative References:
Aboriginal Heritage Act 1972 (W.A.) - The Act
Western Australian Development Corporation Act 1983 (W.A.) - The Act
(W.A.) Museum Act 1969 - The Act
Petroleum Act 1967 - The Act
Acts Interpretation Act 1931 (Tas ) - s 6(6)
The Acts Interpretation Act of 1954 (Q.) - s 13
Acts Interpretation Act 1924 (N.Z.) - s 5(k)
Interpretation Act, RSBC 1979 (British Columbia) - cl 206, s 14
Interpretation Act 1981 (Prince Edward Island) - cl 18
Acts Interpretation Act 1901 (Cth) - s 15AB
Interpretation Act 1984 (W.A.) - s 19
Judiciary Act 1903 (Cth) - s 64
Re-establishment and Employment Act 1945 (Cth) - s 18
Case References:
A v Hayden - [1984] HCA 67; (1984) 156 CLR 532
Olmstead v United States - [1928] USSC 133; [1928] USSC 133; (1928) 277 US 438
Alberta Government Telephones v Canadian Radio-television and Telecommunications - (1989) 61 DLR (4th) 193
Attorney-General v De Keyser's Royal Hotel - [1920] UKHL 1; (1920) AC 508
Benson v Northern Ireland Road Transport Board - (1942) AC 520
Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd - [1979] HCA 15; 145 CLR 107
Brisbane City Council v Group Projects Pty Ltd - [1979] HCA 54; (1979) 145 CLR 143
British Broadcasting Corporation v Johns - (1965) Ch 32
Cain v Doyle - (1946) 72 CLR 409
Canadian Broadcasting Corporation v Attorney-General for Ontario - (1959) SCR 188
China Ocean Shipping Co v South Australia - [1979] HCA 57; (1979) 145 CLR 172
Clough v Leahy - [1904] HCA 38; (1904) 2 CLR 139
Hoare v The Queen - [1989] HCA 33; (1989) 167 CLR 348
Kingston v Keprose Pty Ltd - (1987) 11 NSWLR 404
Lord Advocate v Dumbarton District Council - (1989) 3 WLR 1346
Madras Electric Supply Corporation Ltd v Boarland - (1955) AC 667
Magrath v Goldsbrough, Mort and Co Ltd - [1932] HCA 10; (1932) 47 CLR 121
Maxwell v Murphy - [1957] HCA 7; (1957) 96 CLR 261
Minister for Works (WA) v Gulson - [1944] HCA 27; (1944) 69 CLR 338
Moore v Smith - (1859) 5 Jur NS 892
Potter v Minahan - [1908] HCA 63; (1908) 7 CLR 277
Premchand Nathu and Co Ltd v Land Officer - (1963) AC 177
Province of Bombay v Municipal Corporation of Bombay - (1947) AC 58
R v Sutton - [1908] HCA 26; (1908) 5 CLR 789
Roberts v Ahern - [1904] HCA 17; (1904) 1 CLR 406
State of West Bengal v Corporation of Calcutta - (1967) AIR (SC) 997
Sydney Harbour Trust Commissioners v Ryan - [1911] HCA 64; (1911) 13 CLR 358
The Attorney-General v Donaldson - (1842) 10 M and W 117
The Commonwealth v Rhind - [1966] HCA 83; (1966) 119 CLR 584
Judgment date: 20 June 1990
Judgment by:
Brennan J
I should begin by stating what I understand by the question whether the Crown is bound by the provisions of s.17 of the Aboriginal Heritage Act 1972-1987 (W.A.) ("the Act"). Only a natural person can be a principal offender of an offence created by s.17 which, relevantly, prohibits a person from excavating, destroying, damaging, concealing or in any way altering any Aboriginal site. More precisely, to adopt the language of s.7(a) of The Criminal Code of Western Australia, only a natural person can be a "person who actually does the act or makes the omission which constitutes the offence". Clearly s.17 of the Act and s.7(a) of the Code do not purport to impose criminal liability on the Crown as a principal offender: the provisions, whether singly or in combination, simply do not apply to the Crown. In this respect, s.17 is to be distinguished from s.18 of the Re-establishment and Employment Act 1945 (Cth) which was considered in Cain v. Doyle (1946) 72 CLR 409. Under that statute, only an employer could be the principal offender and the question was whether the Crown, as the employer of a protected person, could be a principal offender of the offence of terminating the employment of a protected person. The view was taken that the defendant in that case, a servant of the Crown, could not be convicted as an aider or abettor unless the Crown were guilty of an offence. It was held that the principle that the Crown is not liable to be sued criminally for a wrong had not been displaced by the general words of the statute creating the offence and that there is "the strongest presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature": per Dixon J. at p 424. In this case, if it were possible for the Crown to be a party to an offence under s.17, it could only be as a secondary party made liable under s.7(b), (c) or (d) of The Criminal Code for an offence actually committed by its servant or agent. But pars (b), (c) and (d) of s.7, which are part of a provision codifying the law relating to parties to criminal offences, are not expressed, and cannot be taken to intend, to impose on the Crown criminal liability for an offence actually committed by a servant or agent. Moreover, it is beyond the power of the Crown to authorize a servant or agent to commit an offence and any attempt to confer authority to do so in fact is void in law. As Griffith C.J. said in Clough v. Leahy [1904] HCA 38; (1904) 2 CLR 139, at pp 155-156:
"If an act is unlawful - forbidden by law - a person whodoes it can claim no protection by saying that he actedunder the authority of the Crown."
See A. v. Hayden [1984] HCA 67; (1984) 156 CLR 532, at pp 580-582. Keeping in mind that there is no criminal liability imposed on the Crown by s.17, and no power in the Crown to dispense its servants or agents from criminal liability, the meaning of the proposition that s.17 does not bind the Crown can be perceived. In the present context, the proposition does not mean that servants or agents of the Crown acting within the scope of the authority given by the Crown are exempt from the prohibitions contained in s.17; those prohibitions do not extend to conduct in which servants or agents of the Crown engage when acting within the scope of that authority. The proposition, if it applies, does not exempt persons from criminal liability: it excludes conduct from the scope of a prohibition which is expressed in general terms.
2. In the present context, the presumption is not calculated to avoid the imposition on the Crown of any liability or duty which the statute seeks to impose on the public generally; it is calculated to remove activities of the servants and agents of the Crown - that is, of the Executive Government - from the operation of a criminal law of general application.
3. To adopt in such a context a stringent formulation of the presumption (such as that found in Brisbane City Council v. Group Projects Pty. Ltd. [1979] HCA 54; (1979) 145 CLR 143, at pp 167, 169, and in Province of Bombay v. Municipal Corporation of Bombay (1947) AC 58, at pp 61,63) would be to confer on the activities of the Executive Government an extremely wide exemption from the operation of the general criminal law. It can be conceded that Parliament must have intended that the Executive Government should be exempt from some provisions of the general criminal law, but Parliament can hardly have intended to exempt all activity engaged in on the Government's authority from the general criminal law unless the stringent conditions referred to in the Brisbane City Council and Bombay cases are satisfied. Historically, the courts distinguished between some areas of Crown activity which have and some which have not been immune from affection by statutory provisions of general application: see Sydney Harbour Trust Commissioners v. Ryan [1911] HCA 64; [1911] HCA 64; (1911) 13 CLR 358, per Griffith C.J. at p 365. True it is, as Professor Friedmann pointed out ("Public Welfare Offences", (1950) 13 Modern Law Review 24, at pp 31,32), that the language in which the distinction was expressed in earlier times is not satisfactory for contemporary application, but I would respectfully agree with the majority that it is appropriate to determine the scope of the exemption of Crown activity by reference to all the circumstances which might legitimately reveal the actual or imputed intention of the legislature or assist in imputing to the legislature an intention which it might reasonably have formed had the legislature adverted to the question. Thus the presumption cannot be put any higher than this: that the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances. As the Court must determine whether the legislature intended (or would have intended had the question been addressed) that the statute should affect the activities of the Executive Government, the circumstances which properly relate to that question must be considered. Those circumstances include the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute, and the nature of the activities of the Executive Government which would be affected if the Crown is bound.
4. This was the approach taken by this Court in Roberts v. Ahern [1904] HCA 17; (1904) 1 CLR 406 where a defendant, charged with the offence that he had carted away nightsoil from a post office "without a licence from and without having given such security as is required by the local authority", successfully raised the plea that he was acting as a servant of a contractor with the Crown. The Court pointed to the numerous institutions under the control of the Executive Government and the unlikelihood "that the legislature should have intended to subject the Executive Government to the uncontrolled discretion of a local authority with regard to the sanitary arrangements of such institutions": p 418.
5. In the present case, the legislature can hardly be taken to have intended to exempt the management of Crown lands throughout the State from the regime of protection prescribed by s.17. To read down s.17 to exclude Crown lands would eviscerate the Act, for 93% of the State is Crown land and 50% of the State is vacant Crown land. Apart from the management of Crown lands, there is no activity of the Executive Government which might be affected by the operation of s.17 of such a kind as to warrant the conclusion that Parliament intended that the provisions of s.17 should not apply to it.
6. I would add a brief mention as to the effect of the reasons for judgment in this case upon the interpretation of statutes earlier enacted. In my respectful opinion, it would be a legal fiction to impute to the legislatures of this country or to their parliamentary counsel an intention fluctuating with the changing formulations of the presumption by the courts of this country and of England. The question whether the Crown is bound by a statute arises ordinarily in reference to statutes enacted without conscious animadversion to the strength of the presumption and, if it be right to look at all the relevant circumstances to determine what the intention of the legislature was or to determine what intention ought fairly to be imputed to the legislature when it enacts a statute in the future, equally it must be right to look at all the relevant circumstances when interpreting a statute enacted in the past.
7. I would allow the appeal and I agree with the order proposed.