Bird v Colonial Spark Plugs Pty Ltd [1942] HCA 11; (1942) 66 CLR 43 (5 June 1942)

HIGH COURT OF AUSTRALIA

Bird Informant, Applicant; and Colonial Spark Plugs Proprietary Limited Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

5 June 1942

Rich, Starke and McTiernan JJ.

Fullagar K.C. and Tait, for the applicant.

Ellis, for the respondent.

The following written judgments were delivered:—

June 5

Rich J.

In this matter two informations were laid against the defendant company charging it with a contravention of a provision of the National Security Regulations. The company was convicted and then applied for and obtained orders nisi to review based on two grounds. Of these grounds the first forms the subject of this motion for special leave to appeal. The second ground, which is concerned with the merits, was not pressed or argued. The Court directed notice of the motion to be served on the defendant company, so that if the special leave were granted the appeal might be disposed of without delay. On the return of the rules nisi Lowe J. made the orders absolute, quashed the convictions and set aside the informations. His Honour held that the prosecutions in question were not authorized by sub-sec. 4 of sec. 10 of the National Security Act 1939-1940 and thought it unnecessary to consider the provisions of the Solicitor-General Act 1916, especially sec. 3. It appears from the documents put in evidence that the Attorney-General delegated to the Solicitor-General "the powers of the Attorney-General under sub-sec. 4 of sec. 10 of the National Security Act 1939-1940." It further appears that "in pursuance of sub-sec. 4 of sec. 10 of the National Security Act 1939-1940 and the Solicitor-General Act 1916, and of a delegation given by the Attorney-General of the Commonwealth of Australia in accordance with the provisions of the last-mentioned Act" the Solicitor-General authorized the Deputy Crown Solicitor for the State of Victoria to consent to the summary prosecution of the offences mentioned in the informations in the present case, which were offences against the National Security Act 1939-1940. The answer to the question submitted to us depends upon the construction of certain sections of two Federal Acts. They are sub-sec. 4 of sec. 10 of the National Security Act 1939-1940 and sub-sec. 2 of sec. 2 and sub-sec. 1 of sec. 3 of the Solicitor-General Act 1916. Sub-sec. 4 of sec. 10 of the former Act reads as follows:—"An offence against this Act shall not be prosecuted summarily without the written consent of the Attorney-General, or the Minister or a person thereto authorized in writing by the Attorney-General or the Minister, and an offence against this Act shall not be prosecuted upon indictment except in the name of the Attorney-General." And sub-sec. 2 of sec. 2 and sub-sec. 1 of sec. 3 of the Solicitor-General Act 1916 are expressed as follows:—Sec. 2 (2): "The Solicitor-General shall have such duties and functions as are prescribed by or under any Act, or as are delegated to him by the Attorney-General in pursuance of this Act." Sec. 3 (1): "The Attorney-General may by writing under his hand delegate any of his powers or functions under any Act (except this power of delegation) so that the delegated powers may be exercised by the Solicitor-General as fully and effectually as by the Attorney-General." Under sub-sec. 4 of sec. 10 of the National Security Act 1939-1940 two courses are open to the Attorney-General. He may himself consent or authorize a person to consent in writing. If the matter had rested there the objection taken on behalf of the defendant would have been unanswerable. But I think that the effect of secs. 2 and 3 of the Solicitor-General Act 1916 is to give to the Solicitor-General the powers or functions which the Attorney-General himself has under any Act (the italics are mine). These words are wide enough to include the National Security Act.

In my opinion the only exception to the general delegation of any of the Attorney-General's powers and functions provided in sec. 3 (1) of the Solicitor-General Act 1916 is contained in the words "except this power of delegation." Thus the maxim delegata potestas non potest delegari is observed and no power of redelegation is committed to the Solicitor-General. He alone is the surrogate of the power to authorize a third person to consent but may not redelegate that power.

As the applicant's counsel did not ask for more than an expression of opinion on the legal question argued before us we do not propose to grant special leave or to interfere with the order made by Lowe J. As the matter is one of general importance the costs of this application should be paid by the applicant.

Starke J.

Motion for special leave to appeal on the part of Bird, who had prosecuted Colonial Spark Plugs Pty. Ltd. summarily for an offence against the provisions of the National Security Act 1939-1940.

By sec. 10 (4) of that Act:—"An offence against this Act shall not be prosecuted summarily without the written consent of the Attorney-General ... or a person authorized thereto in writing by the Attorney-General ..."

The Solicitor-General Act 1916, No. 28, provides by sec. 3 (1) that:—"The Attorney-General may by writing under his hand delegate any of his powers or functions under any Act (except this power of delegation) so that the delegated powers may be exercised by the Solicitor-General as fully and effectually as by the Attorney-General."

The Attorney-General did by writing under his hand delegate his powers and functions under sec. 10 of the National Security Act 1939-1940 to the Solicitor-General in words which so far as material were:—Now therefore I, the Attorney-General of the Commonwealth of Australia, do hereby delegate to the Solicitor-General of the Commonwealth the powers of the Attorney-General under sub-sec. 4 of sec. 10 of the National Security Act.

The Solicitor-General then authorized the Deputy Crown Solicitor, in writing, to consent to the prosecution, which, so far as material, was in these words:—I, the Solicitor-General of the Commonwealth of Australia, Hereby Authorize Francis Felix Clausen, Deputy Crown Solicitor for the State of Victoria, to consent to the summary prosecution of the offence against the first-mentioned Act arising by reason of the person specified in the first column of the schedule hereunder having contravened or failed to comply with the regulation specified in the second column of the said schedule opposite the name of that person.

The respondent's name was set forth in the schedule and the contravention alleged was of the National Security (Supplementary) Regulations, reg. 19 (3A).

A suggestion that the provisions of the Solicitor-General Act are inapplicable to the provisions of sec. 10 of the National Security Act because that Act makes a special and exclusive provision, is untenable. The Solicitor-General Act is clear and explicit that the Attorney-General may delegate his powers and functions "under any Act"; there is nothing in the National Security Act to cut down this provision. And the argument that the Solicitor-General cannot, by writing, authorize a person to give the consent required by sec. 10 of the National Security Act cannot, I think, be sustained. It is part of the power or function of the Attorney-General under sec. 10 to authorize such a person to give the consent and the Solicitor-General Act is again explicit that the Attorney-General's powers and functions may be exercised as fully and effectually as by the Attorney-General. In my opinion, the words excepting from the operation of sec. 3 of the Solicitor-General Act 1916 "this power of delegation" refer to the act of delegation—to the appointment of the delegate or substitute for the Attorney-General, and not to the various acts or things which the delegate may do in pursuance of his appointment.

But having expressed our views as to the proper construction of the statutes in question here for the guidance of judicial and other authorities in other cases, special leave to appeal, should, nevertheless, be refused in this trumpery prosecution, and the mover ordered to pay to the respondent its costs of the motion.

McTiernan J.

These were summary prosecutions for alleged contraventions of a provision of the National Security (Supplementary) Regulations and hence for offences against the National Security Act 1939-1940: See sec. 10 (1) of this Act. The prosecutions succeeded in the Court of Petty Sessions, but the convictions were set aside by the Supreme Court of Victoria (Lowe J.), who held that the prosecutions of the offences took place without the consent required by sec. 10 (4) of the National Security Act 1939-1940. Upon this application for special leave to appeal the only question argued was whether the convictions should have been set aside on that ground. The offences were not prosecuted with the written consent of the Attorney-General or the Minister, but with the written consent of the Deputy Crown Solicitor. The question is whether he was "a person thereto authorized in writing by the Attorney-General" for the purposes of sec. 10 (4). The Solicitor-General, not the Attorney-General, authorized the Deputy Crown Solicitor in writing to consent to the summary prosecution of the defendant for the particular contraventions of the National Security (Supplementary) Regulations charged in the informations. The Solicitor-General's authority to the Deputy Crown Solicitor purported to be given in pursuance of sec. 10 (4) of the National Security Act 1939-1940, the Solicitor-General Act 1916 and a delegation given by the Attorney-General in accordance with the provisions of this Act. The Solicitor-General Act constitutes the office of Solicitor-General and provides that he shall have such duties and functions as are prescribed by or under any Act or as are delegated to him by the Attorney-General in pursuance of the Act. The power of delegation is given by sec. 3(1). It applies to any of the Attorney-General's powers or functions under any Act except the power of delegation given by the sub-section. The sub-section provides that the effect of the delegation is that the delegated powers may be exercised by the Solicitor-General as fully and effectually as by the Attorney-General. The Attorney-General, purporting to act under the Solicitor-General Act 1916, delegated to the Solicitor-General the Attorney-General's powers under sub-sec. 4 of sec. 10 of the National Security Act 1939-1940. The delegation is limited to the powers—not being expressed to extend to the functions—of the Attorney-General under that sub-section. The question arises whether sec. 3 (1) of the Solicitor-General Act applies to the Attorney-General's powers under sec. 10 (4) of the National Security Act 1939-1940. Sec. 3 (1) is expressed to apply to any powers or functions of the Attorney-General under any Act. The only exception is "this power of delegation." In the National Security Act there is nothing which excludes the application of sec. 3 (1) of the Solicitor-General Act to the powers of the Attorney-General under sec. 10 (4). The former sub-section applies to the powers of the Attorney-General under the latter sub-section. The Attorney-General's powers under sec. 10 (4) are:—(1) To consent in writing to the summary prosecution of an offence against the National Security Act; and (2) To authorize a person in writing to give such consent. As regards the first of these powers, the Solicitor-General, acting under the delegation, might have given his written consent to these prosecutions, and this would have satisfied the requirement of sec. 10 (4) as fully and effectually as if the Attorney-General had given it. Presumably for reasons of administration, the Solicitor-General did not give such consent. Acting under the delegation from the Attorney-General he purported to exercise the Attorney-General's power under sec. 10 (4) to authorize a person to give the consent. The Solicitor-General's authorization of the Deputy Crown Solicitor to consent also satisfied the requirement of sec. 10 (4) as fully and effectually as if the Attorney-General had authorized him.

The delegation to the Solicitor-General was lawfully made under sec. 3 (1) and the authorization which he gave to the Deputy Crown Solicitor was justified by the delegation. The Solicitor-General did not purport to delegate to the Deputy Crown Solicitor any power to authorize another person to consent to the prosecutions. What the Solicitor-General did was to authorize the Deputy Crown Solicitor himself to consent.

In my opinion the convictions should not have been upset on the ground that there was a failure to comply with sec. 10 (4) of the National Security Act 1939-1940. Although the disposal of this application involves the decision of the point argued, the case is not one in which special leave to appeal should be granted. In my opinion it should be refused with costs.

Special leave refused. Applicant to pay costs of the motions.

Solicitor for the applicant, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

Solicitors for the respondent, Moule, Hamilton & Derham.