Re Australian Securities Commission v John Burns; Geoffrey Bernard White; John Spinks; Alan John Wells; Travers William Duncan; Frank Stratton Mcalary and Geoffrey Charles Clarke [1993] FCA 119 (26 March 1993)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN SECURITIES COMMISSION
And: JOHN BURNS; GEOFFREY BERNARD WHITE; JOHN SPINKS; ALAN JOHN WELLS; TRAVERS
WILLIAM DUNCAN; FRANK STRATTON McALARY and GEOFFREY CHARLES CLARKE
No. ACT G75 of 1992
FED No. 159
Number of pages - 13
Administrative Law
(1993) 113 ALR 468
(1993) 41 FCR 407
(1993) 30 ALD 923 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Judicial review - Application to review decision of Magistrate declining to commit respondents for trial on indictable offences - One respondent charged with offence against Securities Industry Act 1980 (Cth) - Objection to competency of application - Whether offence charged an offence against the laws of the Commonwealth within the meaning of sub-s.68(2) of the Judiciary Act 1903 (Cth) - Effect of subs.22(3) of the Acts Interpretation Act 1901 (Cth)

Administrative Decisions (Judicial Review) Act 1977, s.5

Judiciary Act 1903 (Cth), subs.68(2)

Acts Interpretation Act 1901 (Cth), subs.22(3)

Magistrates Courts Act (ACT), s.91

HEARING

CANBERRA, 16 February 1993
26:3:1993

Counsel for the applicant: Mr R. Castan QC and Mr B.E. Walters

Solicitor for the applicant: Director of Public Prosecutions (Cth)

Counsel for the second to
sixth respondents: Mr R.W. White

Solicitors for the second to

sixth respondents: Mallesons Stephen Jaques

Counsel for the seventh respondent: Mr M.I. Bozic

Solicitors for the seventh respondent: Sly and Weigall

ORDER

THE COURT ORDERS THAT:

1. The objection to competency notice of which was filed on
behalf of the seventh respondent on 10 December 1992 be
dismissed.
2. The seventh respondent pay the applicant's costs of the
objection to competency.
3. The motion of the second, third, fourth, fifth and sixth
respondents notice of which is dated 15 February 1993 be
dismissed.
4. The second, third, fourth, fifth and sixth respondents pay
the applicant's costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

NEAVES J. The Australian Securities Commission ("the applicant") has applied to the Court pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of what are described in the application as decisions made on 30 October 1992 by the first respondent, Mr John Burns, a person appointed under s.7 of the Magistrates Court Act 1930 (ACT) to hold an office of Magistrate. Mr Burns was exercising the jurisdiction of the Magistrates Court of the Australian Capital Territory in committal proceedings against Geoffrey Bernard White ("the second respondent"), John Spinks ("the third respondent"), Alan John Wells ("the fourth respondent"), Travers William Duncan ("the fifth respondent"), Frank Stratton McAlary ("the sixth respondent") and Geoffrey Charles Clarke ("the seventh respondent") each of whom was charged with an indictable offence. The second, third, fourth, fifth and sixth respondents were each charged with an offence against s.108 of the Companies Act 1981 (Cth) of authorising or causing the issue, on or about 12 August 1987, of a prospectus for an issue of ordinary shares in White Constructions Limited in which there were untrue statements and non-disclosures. The seventh respondent was charged with an offence against s.125 of the Securities Industry Act 1980 (Cth) of making a statement or disseminating information, to wit an Investigating Accountant's Report dated 11 August 1987 concerning White Constructions Limited, that was false or misleading in a material particular and was likely to induce the purchase of securities by other persons -

(a) not caring at the time whether the statement was true or
false; or
(b) when he knew or ought reasonably to have known that the
statement was false or misleading in a material particular.

The offences were alleged to have been committed in the Australian Capital Territory.

2. By virtue of s.26 of the Magistrates Court Act an information may be laid before a Magistrate in any case where a person has committed or is suspected of having committed, in the Territory, an indictable offence. Section 91 has effect when all the evidence offered upon the part of the prosecution against a person charged with an indictable offence has been taken. The section provides that if the Court is not of opinion, having regard to all the evidence before it, that the evidence is capable of satisfying a jury beyond reasonable doubt that the accused person has committed an indictable offence, it is forthwith to order the accused person, if in custody, to be discharged from custody in respect of that offence.

3. The learned Magistrate, after hearing the evidence offered on behalf of the prosecution, concluded that each of the second, third, fourth, fifth and sixth respondents had no case to answer in relation to the offence with which he was charged. He reached a similar conclusion in relation to the seventh respondent and dismissed the information laid against him.

4. The seventh respondent has objected to the jurisdiction of the Court to hear the substantive application in so far as it concerns the decision of the Magistrate in respect of the offence with which he was charged. The grounds of that objection are as follows:

"1. The Magistrates Court Act 1930 (ACT) is an 'ACT enactment'
within the meaning of section 3A of the Administrative
Decisions (Judicial Review) Act 1977 (Cth); and
2. The decision of the First Respondent is a decision made
under section 91 of the Magistrates Court Act 1930 (ACT) and
is not a decision to which the Administrative Decisions
(Judicial Review) Act 1977 (Cth) applies; and
3. The decision of the First Respondent is not a decision under
the Judiciary Act 1903 (Cth) because the Seventh Respondent
was not charged with an offence against a law of the
Commonwealth."

5. The second, third, fourth, fifth and sixth respondents have applied to the Court by motion on notice for an order under subs.10(2)(b) of the Judicial Review Act dismissing the substantive application in so far as it concerns the decisions of the Magistrate in respect of the offences with which those respondents were charged. The motion is said to be conditional upon the Court upholding the seventh respondent's objection to competency. It is, therefore, appropriate to consider that objection before turning to a consideration of the motion.

6. The jurisdiction of the Court to entertain the substantive application in so far as it concerns the decision of the Magistrate in respect of the offence with which the seventh respondent was charged depends upon an affirmative answer being given to the question whether the decision made by the Magistrate in respect of that offence is properly described, in terms of subs.5(1) of the Judicial Review Act, as a decision "to which this Act applies". The expression "decision to which this Act applies" is relevantly defined in subs.3(1) to mean a decision of an administrative character made under an enactment. The latter expression includes an Act passed by the Parliament of the Commonwealth (other than certain Acts to which it is unnecessary to refer), but does not include an "ACT enactment" (Judicial Review Act, subs.3(1) and s.3A). The expression "ACT enactment" is defined in subs.3(1) to mean an enactment as defined by s.3 of the Australian Capital Territory (Self-Government) Act 1988 (Cth). The Magistrates Courts Act 1930 (ACT) has, since 1 July 1990, been an ACT enactment as so defined (see Australian Capital Territory (Self-Government) Act 1988 (Cth), s.34 and Schedule 3 and A.C.T. Self-Government (Consequential Provisions) Act 1988 (Cth), subss.12(2) and (5)).

7. The basis upon which the substantive proceeding has been instituted in this Court is that, consistently with the decision of a Full Court of this Court in Lamb v. Moss [1983] FCA 254; (1983) 49 ALR 533, each of the decisions made by the Magistrate in respect of the offences with which the second to seventh respondents were charged is properly described as a decision of an administrative character made under s.68 of the Judiciary Act 1903 (Cth). That section, so far as presently material, provides:

"(1) The laws of a State or Territory respecting the arrest
and custody of offenders or persons charged with offences, and the
procedure for -
(a) their summary conviction; and
(b) their examination and commitment for trial on
indictment; and
(c) their trial and conviction on indictment; and
(d) the hearing and determination of appeals arising out
of any such trial or conviction or out of any
proceedings connected therewith,
and for holding accused persons to bail, shall, subject to this
section, apply and be applied so far as they are applicable to
persons who are charged with offences against the laws of the
Commonwealth in respect of whom jurisdiction is conferred on the
several courts of that State or Territory by this section.
(2) The several Courts of a State or Territory exercising
jurisdiction with respect to -
(a) the summary conviction; or
(b) the examination and commitment for trial on
indictment; or
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of
the State or Territory, and with respect to the hearing and
determination of appeals arising out of any such trial or
conviction or out of any proceedings connected therewith, shall,
subject to this section and to section 80 of the Constitution,
have the like jurisdiction with respect to persons who are charged
with offences against the laws of the Commonwealth.
(3) Provided that such jurisdiction shall not be
judicially exercised with respect to the summary conviction or
examination and commitment for trial of any person except by a
Stipendiary or Police or Special Magistrate, or some Magistrate of
the State or Territory who is specially authorized by the
Governor-General to exercise such jurisdiction."

8. It is not disputed that the Magistrates Court of the Australian Capital Territory is, within the meaning of subs.68(2) of the Judiciary Act, a court of the Territory exercising jurisdiction with respect to the examination and commitment for trial on indictment of offenders or persons charged with offences against the laws of the Territory. It follows that the decision made by the Magistrate in respect of the offence with which the seventh respondent was charged was a decision made under subs.68(2) of the Judiciary Act and, therefore, a decision to which the Judicial Review Act applies provided the seventh respondent is properly to be regarded as falling within the class of persons identified in subs.68(2), namely "persons who are charged with offences against the laws of the Commonwealth".

9. Counsel for the seventh respondent submitted that the circumstance that the seventh respondent was charged with an offence against s.125 of the Securities Industry Act was not sufficient to bring him within that class. The contention was that, notwithstanding that the Securities Industry Act is a law enacted by the Parliament of the Commonwealth, it is not properly characterised as being within the expression "the laws of the Commonwealth" in subs.68(2) of the Judiciary Act. This result was said to follow from the provisions of subs.22(3) of the Acts Interpretation Act 1901 (Cth), a provision inserted in that Act by the Statute Law (Miscellaneous Provisions) Act (No.2) 1985 (Cth), s.3 and Schedule 1.

10. Subsection 22(3) of the Acts Interpretation Act, which came into operation on 16 December 1985, provides:

"(3) In any Act, unless the contrary intention appears, a
reference to the law of the Commonwealth or to a law of the
Commonwealth does not include, and shall be deemed never to have
included, a reference to a law in force in a Territory in so far
as the law is so in force by virtue of an Act providing for the
acceptance, administration or government of that Territory."

11. In support of the contention that the Securities Industry Act is not within the expression "the laws of the Commonwealth" in subs.68(2) of the Judiciary Act, counsel for the seventh respondent contrasted the presence in the Companies Act of what appears as subs.3(1A) with the absence from the Securities Industry Act of any similar provision. From this comparison he sought to draw the conclusion that the expression "the laws of the Commonwealth" in subs.68(2) of the Judiciary Act is apt to include the Companies Act but not the Securities Industry Act.

12. The contrast to which counsel referred is striking. It extends beyond the terms of subs.3(1A) of the Companies Act. That Act is described in its long title as -

"An Act to make provision for the government of the Australian
Capital Territory in relation to the formation of companies, the
regulation of companies formed in that Territory, the registration
in that Territory of certain other bodies and certain other
matters".

Subsections 3(1) and 3(1A) provide:

"(1) The objects of this Act are to make provision for the
government of the Australian Capital Territory in relation to the
formation of companies, the regulation of companies formed in that
Territory, the registration of certain other bodies and certain
other matters, and this Act has effect, and shall be construed,
accordingly.
(1A) Notwithstanding sub-section (1) of this section, this
Act shall not be taken for the purposes of sub-section 22(3) of
the Acts Interpretation Act 1901 to be an Act providing for the
administration or government of the Australian Capital Territory."

Subsection 3(1A) was inserted in the Companies Act by the Statute Law (Miscellaneous Provisions) Act (No.2) 1985 (Cth), s.3 and Schedule 1, and came into operation at the same time as subs.22(3) of the Acts Interpretation Act.

13. On the other hand, the Securities Industry Act is described in its long title simply as -

"An Act relating to the securities industry in the Australian
Capital Territory".

Subsection 3(1) of that Act provides:

"(1) The object of this Act is to regulate the securities
industry in the Australian Capital Territory and this Act has
effect, and shall be construed accordingly."

As already mentioned there is no provision in that Act corresponding to subs.3(1A) of the Companies Act. Nor is there any such provision in the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth) which is, by virtue of subs.3(2) of the Securities Industry Act, to apply to the latter Act.

14. Reference should, perhaps, be made to the Corporations Legislation Amendment Act 1990 (Cth), an Act amending the Corporations Act 1989 (Cth). Part 2 of the amending Act is expressed (see s.4) to change the Corporations Act 1989 (Cth) "from an Act relying on the corporations and other powers, and intended to apply of its own force throughout Australia, into a law for the government of the Australian Capital Territory in relation to corporations, securities, the futures industry and some other matters". Section 6 of the amending Act inserts in the Principal Act a new s.3 reading as follows:

"(1) The object of this Act (other than Part 8) is to make a
law for the government of the Australian Capital Territory in
relation to corporations, securities, the futures industry and
some other matters.
(2) This Act has effect, and is to be interpreted,
accordingly.
(3) Despite subsection (1) of this section and subsection
8(1) of this Act, neither this Act nor the Corporations Law of the
Australian Capital Territory is, for the purposes of subsection
22(3) of the Acts Interpretation Act 1901, an Act providing for
the administration or government of the Australian Capital
Territory."

15. Such researches as I have been able to make have disclosed that the Corporations Legislation Amendment Act is the only other statute that contains a provision to similar effect as subs.3(1A) of the Companies Act.

16. It may be said of subs.22(3) of the Acts Interpretation Act that it does not relevantly speak in relation to subs.68(2) of the Judiciary Act because subs.22(3) requires that an Act to which it refers contain the words "the law of the Commonwealth" or the words "a law of the Commonwealth" whereas subs.68(2) contains neither of those expressions but the expression "the laws of the Commonwealth". But, even if that is taking too narrow a view of subs.22(3), that subsection does not, in my opinion, have the effect for which the seventh respondent contended.

17. If subs.22(3) of the Acts Interpretation Act has an operation in relation to subs.68(2) of the Judiciary Act, the reference in the latter subsection to "the laws of the Commonwealth" will not include a reference to a law in force in the Australian Capital Territory in so far as that law is so in force by virtue of an Act providing for the acceptance, administration or government of that Territory. The question for determination is whether the Securities Industry Act and, in particular, s.125 thereof, is such a law.

18. In my opinion, subs.22(3) of the Acts Interpretation Act, on its proper construction, does not exclude from the expressions "the law of the Commonwealth" and "a law of the Commonwealth" where appearing in an Act a reference to an Act which may properly be characterised, in whole or in part, as a law for the acceptance, administration or government of the Territory in question. What is excluded is a reference to a law in force in that Territory in so far as that law is so in force by virtue of that Act. The reference in subs.22(3) to "a law in force in a Territory" is not apt, in my view, to bring within the terms of the subsection the Act, or that part of the Act, that provides for the acceptance, administration or government of that Territory. It follows that what sub.22(3) operates to exclude is a reference to subordinate legislation promulgated under or pursuant to an Act, or that part of an Act, that provides for the acceptance, administration or government of that Territory.

19. That that is the true construction of the subsection is confirmed by reference to the Explanatory Memorandum relating to the Bill that became the Statute Law (Miscellaneous Provisions) Act (No.2) 1985 (Cth). In relation to the provision amending s.22 of the Acts Interpretation Act, the Explanatory Memorandum stated:

"The amendment to section 22 adds a new sub-section 22(3). It
provides that a reference to Commonwealth law does not include a
reference to a law in force in a Territory by virtue of a
Commonwealth Act providing for the acceptance, administration or
government of that Territory e.g. a Territory Ordinance. The
purpose of the new sub-section is to clarify the legal position,
both past and future. It accords with the basis upon which
Commonwealth legislation has been drafted and administered."

In relation to the amendment of the Companies Act 1981 (Cth), the Explanatory Memorandum stated:

"The proposed amendment will, for the purposes of a reference in
another Act to the law of the Commonwealth or a law of the
Commonwealth, ensure that the regulations, rules and instruments
applying as law in force in the Australian Capital Territory by
virtue of the Act will continue to be regarded as law of the
Commonwealth. It will overcome the unintended results which might
otherwise arise if the Act were to be taken, for the purposes of
proposed new sub-section 22(3) of the Acts Interpretation Act
1901, to be an Act for the administration or government of the
Australian Capital Territory."

20. It follows that, even if the Securities Industry Act is properly to be characterised as an Act providing for the acceptance, administration or government of the Australian Capital Territory, as to which I need express no opinion, that Act is not, by virtue of the operation of subs.22(3) of the Acts Interpretation Act, excluded from the expression "the laws of the Commonwealth" in subs.68(2) of the Judiciary Act.

21. For the above reasons, the objection of the seventh respondent to the jurisdiction of this Court to hear and determine the substantive application in so far as it concerns the decision of the Magistrate in respect of the offence with which he was charged is dismissed. The seventh respondent must pay the applicant's costs of the objection.

22. In the light of the conclusion to which I have come upon the seventh respondent's objection to competency, it is unnecessary to consider the motion on behalf of the second, third, fourth, fifth and sixth respondents. That motion is, therefore, dismissed. Those respondents must pay the applicant's costs of the motion.