Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52 (9 December 1970)

HIGH COURT OF AUSTRALIA

PALLING v. CORFIELD [1970] HCA 53; (1970) 123 CLR 52

Constitutional Law (Cth)

High Court of Australia
Barwick C.J.(1), McTiernan(2), Menzies(3), Windeyer(4), Owen(5), Walsh(6) and
Gibbs(7) JJ.

CATCHWORDS

Constitutional Law (Cth) - Judicial power of the Commonwealth - Offence - National Service - Failure to attend for medical examination - Conviction - Court required to ask convicted person to enter into a recognizance if requested by prosecution - Mandatory order for imprisonment on refusal to comply - Whether judicial power conferred on prosecution - Whether unconstitutional interference by legislature with functions of court - Whether delegation of legislative power to prosecution - The Constitution (63 & 64 Vict. c. 12) Ch. 111 - National Service Act 1951-1968 (Cth), s. 49 - Judiciary Act 1903-1969 (Cth), s. 40.

HEARING

Melbourne, 1970, October 12, 13;
Sydney, 1970, December 9. 9:12:1970
MOTION.

DECISION

December 9.
The following written judgments were delivered : -
BARWICK C.J. The applicant seeks by motion an order under s. 40 of the against him by the respondent, who is a Commonwealth Police Officer, on 29th April last that, being a person who had been required by a notice served upon him under Pt III of the National Service Act 1951-1968 (Cth) to attend for examination, he failed to comply with the requirements of the notice contrary to the provisions of s. 49 (1) of the said Act. (at p54)

2. To the charge the appellant pleaded not guilty before a stipendiary magistrate. Evidence was given on behalf of the informant but none on behalf of the applicant. The magistrate found the offence proved. The officer of the Department of the Attorney-General employed in the office of the Commonwealth Crown Solicitor who appeared for the informant thereupon requested the magistrate to ask the appellant whether he was willing to enter into a recognizance to the satisfaction of the Court that he would comply with the requirements of any notice to attend for examination subsequently served upon him under Pt III of the said Act and would upon attending for examination submit himself to examination in accordance with that Part. This request of the officer was made pursuant to the provisions of s. 49 (2) of the said Act. It was then submitted on behalf of the applicant that s. 49 (2) was constitutionally invalid in that it purported to confer judicial power on "the prosecution" contrary to the Constitution of the Commonwealth. The magistrate made no decision on this submission nor did he impose any penalty for the commission of the offence he found proved. He adjourned the further hearing of the information to enable the appellant to make this motion to the Court. (at p55)

3. Section 49 of the said Act as amended by the National Service Act 1968 (Cth) provides as follows :

"49. (1) A person who has been required by a notice served
on him under Part III to attend for examination but does not
comply with the requirements of the notice is guilty of an
offence punishable, upon conviction, in accordance with the
next succeeding sub-section.
(2) Where a person is convicted of an offence against the
last preceding sub-section, the person is liable to a fine of not
less than Forty dollars or more than Two hundred dollars and,
whether or not a fine is imposed on the person, if the
prosecution so requests -
(a) the court shall ask the person whether he is willing to
enter forthwith into a recognizance, to the satisfaction of
the court, that he will comply with the requirements of
any notice to attend for examination that is subsequently
served on him under Part III and will, upon attending
for examination, submit himself to examination in
accordance with that Part ; and
(b) if the person does not forthwith enter into such a
recognizance to the satisfaction of the court, the court
shall, whether or not a fine is imposed on the person,
sentence him to imprisonment in respect of the offence
for a period of seven days.
(3) A person who has entered into a recognizance under the
last preceding sub-section but does not comply with a condition
specified in the recognizance is guilty of an offence and,
upon conviction, shall be sentenced to imprisonment for a
period of seven days.
(4) If a person who is undergoing imprisonment in pursuance
of a sentence imposed under this section submits to such
examination as the Secretary considers necessary for the
purpose of determining the physical or mental fitness or
capacity of the person for service under this Act, the person
shall be forthwith released from prison." (at p55)

4. Counsel for the applicant has submitted that the "decision" whether or not to make the request for which this section provides is an exercise of judicial power because the inevitable result of making the request is the imposition of an additional penalty to the pecuniary penalty otherwise exigible for the offence created by subsection (1). The "prosecution" was thus enabled, so it was said, to determine, and the magistrate disentitled to determine, the punishment to be imposed. In this connexion, counsel called attention to what he termed the irresponsible character of the person to whom that decision was committed, and for this purpose included within the description of "the prosecution" as used in s. 49 (2) "the person who may happen to appear for the informant at the time the occasion for making the request arises". (at p56)

5. It is quite clear that the Parliament cannot authorize the exercise of any part of the judicial power of the Commonwealth by any person or body which is not a court of law. There can be no doubt that "the prosecution" whatever its denotation could not be authorized to exercise judicial power. The question in this case is whether s. 49 (2) purports to do so. (at p56)

6. Before proceeding further I should mention that during the argument of this motion it was accepted by the parties, and in my opinion quite rightly, that if the Court were not persuaded that the applicant's submission as to the validity of s. 49 (2) should be accepted, the motion to remove the information into this Court should be refused. This appeared to the Court the preferable course in the circumstances. Accordingly the Court heard full argument upon the applicant's submission as to the invalidity of the subsection. (at p56)

7. Some matters of construction of s. 49 (2) were debated. Having considered the terms of the subsection, I have reached the conclusion for which, I think, the parties both contended, that s. 49 (2) applies to a person who has answered the magistrate's inquiry as to a recognizance in the negative as well as to a person who has answered it in the affirmative. The provision as a whole, in my opinion, simply affords a person who is convicted of an offence under sub-s. (1) an opportunity to avoid the further penalty of imprisonment by agreeing to enter into the necessary recognizance. He is given a chance to reconsider his attitude to his obligation to attend for examination. I agree with the applicant's submission that once the magistrate is requested to ask the convicted person the question which the subsection prescribes, the magistrate must ask it and failing an affirmative answer, must impose a sentence of imprisonment for a period of seven days. No discretion of any kind as to the imposition of punishment by imprisonment is left to the magistrate once the request is made by the prosecution. The provision in the section as a whole may therefore be regarded as imposing a duty on the magistrate to impose a sentence of imprisonment upon the convicted person in addition to a fine, unless that person enters into the specified recognizance if the prosecutor requests the magistrate to act under the provisions of sub-s. (2). (at p57)

8. One other matter, a question of interpretation, was discussed, namely, the ambit of the expression "to the satisfaction of the court" in relation to the required recognizance. It is of the essence of a recognizance that the person entering into it should be bound to the Crown in a sum of money. The terms of the condition of the recognizance are fixed by sub-s. (2) (a). There are then only two matters in relation to the recognizance of which it might be said the magistrate has to be satisfied : one is the amount for which the person entering into the recognizance will be bound and the other is the question whether or not sureties should be required. (at p57)

9. Ordinarily the breach of a recognizance leads only to the forfeiture of the stipulated sum which may be recovered through the processes of estreat. But in the case of the said Act, breach of the rcognizance is itself an offence, see s. 49 (3). Further, the recognizance is not exactly in a like case to a recognizance of bail. The purpose of that recognizance is to secure the attendance of a defendant at the hearing of the complaint or information laid against him. The sureties may be required in order to secure their assistance to ensure that the defendant in fact appears according to the condition of the recognizance. But the said Act does not leave it to the recognizance alone to secure the convicted person's attendance for examination in compliance with a further notice served upon him. The Act by s. 49 (3) makes it an offence for him not to do so. Further, the question to be asked of the convicted person is whether he is willing to enter into the recognizance, not whether he is willing to procure sureties to the recognizance. I therefore conclude that the only question in relation to the recognizance as to which the magistrate has to be satisfied is the amount in which the person is to be so bound. The power of the magistrate does not, in my opinion, enable him to require sureties for the convicted persons' performance of the condition of the recognizance. Whilst no doubt there may be circumstances, though I should think that such an occasion will be rare, in which a very substantial sum may be properly be fixed by the magistrate as the amount to be forfeited for breach of the recognizance, I would think that in general, bearing in mind the presence of sub-s. (3) and the purpose of the recognizance in the scheme of the section, a modest sum as the amount of the recognizance would be sufficient. (at p58)

10. I now turn to the question of the validity of s. 49 (2). I have already indicated the nature of the provision and need not repeat its terms. It seems to me that the argument supporting the applicant's submission as to its invalidity was founded on a basic misconception as to the exercise of judicial power in relation to the imposition of penalties or sentences for the commission of offences created by statute. It is beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences which it creates. It may make the penalty absolute in the sense that there is but one penalty which the court is empowered to impose and, in my opinion, it may lay an unqualified duty on the court to impose that penalty. The exercise of the judicial function is the act of imposing the penalty consequent upon conviction of the offence which is essentially a judicial act. If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded : nor, in my opinion, is there any judicial power or discretion not to carry out the terms of the statute. Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed ; and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime. But whether or not such a discretion shall be given to the court in relation to a statutory offence is for the decision of the Parliament. It cannot be denied that there are circumstances which may warrant the imposition on the court of a duty to impose specific punishment. If Parliament chooses to deny the court such a discretion, and to impose such a duty, as I have mentioned the court must obey the statute in this respect assuming its validity in other respects. It is not, in my opinion, a breach of the Constitution not to confide any discretion to the court as to the penalty to be imposed. (at p58)

11. Also it is within the competence of the Parliament to determine and provide in the statute a contingency on the occurrence of which the court shall come under a duty to impose a particular penalty or punishment. The event or the happening on which a duty arises or for that matter a discretion becomes available to a court in relation to the imposition of penalties or punishments may be objective and necessary to have occurred in fact or it may be the formation of an opinion by the court or, in my opinion, by some specified or identifiable person not being a court. The circumstance that on this happening or contingency, the court is given or is denied as the case may be any discretion as to the penalty or punishment to be exacted or imposed will not mean, in my opinion, that judicial power has been invalidly invaded or that judicial power is attempted to be made exercisable by some person other than a court within the Constitution. The fact that the happening of the event or the formation of the opinion is in reality determinative of the penalty or imprisonment to be ordered does not make the bringing about of the event or the formation or communication of the relevant opinion by some person or body other than a court an exercise of judicial power. There may be limits to the choice of the Parliament in respect of such contingencies but the nature of the contingency in this case does not require any examination or discussion as to the existence and, if they exist, the nature of such limits. (at p59)

12. Further, the Parliament may leave it to the executive to choose one of two alternative procedures for the prosecution of an offence, the penalty or punishment being determined either absolutely or within prescribed limits by the process of prosecution. Instances were given during the course of the argument where a choice has been left by Parliament with some person or body other than a court as to the procedure to be followed in a criminal prosecution with resultant difference in the permissible penalty or punishment. The obvious case is that of an offence triable summarily or upon indictment with differing penalties according to the manner of prosecution (see ss. 12 and 16 of the Crimes Act 1914-1960 (Cth)) by the Commonwealth. (at p59)

In Fraser Henleins Pty. Ltd. v. Cody(1945) [1945] HCA 49; 70 CLR 100 the Court had before it a statute which provided that an offence which could be prosecuted summarily or upon indictment with differing penalties in either case should not be prosecuted without the written consent of the Attorney-General after a ministerial report and advice from a committee appointed by the Attorney-General. It was submitted amongst other arguments that the requirement that the Attorney-General before instituting a prosecution should consult a Minister and a committee involved the exercise of judicial power and brought invalidity to the statute. Latham C.J. said this as to this submission (1945) 70 CLR, at pp 119-120:

"I find it difficult to understand how it can be said that the
requirement that the Attorney-General, before instituting a
prosecution, shall consult with a Minister and a committee
involves any exercise of judicial power by the Attorney-General,
the Minister, or the committee. In the first place,
the committee only gives advice which may or may not be
accepted. The advice does not affect the legal position of
any person as to either rights, duties or liabilities. In the
next place, even if the committee advises prosecution and
the advice is adopted and a prosecution is instituted in
accordance with the advice, it is still the case that the action
of the committee does not impose any liability of any kind
upon the person who is prosecuted. The whole matter of the
guilt of the accused is determined by a court. The nature and
quality of the penalty which may be inflicted depends upon a
statute. It has never been suggested that the sphere of judicial
power is invaded when Parliament provides for a maximum
or minimum penalty for offences which are duly proved in
courts of law.
It is true that a prosecution under the Black Marketing Act
exposes the accused to a greater penalty than a prosecution
under the National Security Act. The determination to
prosecute or not to prosecute is made by the Attorney-General
after a report from a Minister and advice from a committee.
But, in all cases of public prosecutions, there must first be a
decision by some public authority whether to prosecute or
not to prosecute. The risk of infliction of a penalty depends
upon the decision of a non-judicial authority or person as to
whether any prosecution at all should be instituted. But
such a decision is in no respect an exercise of judicial power.
Further, many offences may be prosecuted either summarily
or upon indictment ; and, in the latter case, possible penalties
are more severe. If they are prosecuted upon indictment, the
accused has the right to a trial by jury. This is not the case if
they are prosecuted summarily. It is for the Attorney-General
or other law officer of the Crown to determine whether or not
an indictment should be presented. But a decision to present
an indictment is not a judicial decision, although it exposes the
accused to penalties greater than would be the case if it were
determined not to prosecute upon indictment. It is not a
judicial decision because it makes no adjudication upon
rights or duties or liabilities, or, indeed, upon anything. It
imposes no penalties, though it does expose a person to the
possibility of a particular penalty. If, before making a decision
to present an indictment, the Attorney-General received
advice from his officers in the ordinary course of administration,
that fact plainly would not involve exercise of judicial
power on his part. Section 4 (4) only requires him to receive
a report from a Minister and advice from a committee before
determining whether to prosecute under the Act or not. In
my opinion, these provisions do not constitute any invasion
of the judicial functions of the courts referred to in s. 71 of
the Constitution.
This matter has received consideration in the cases of Ex
parte Gerard & Co. Pty. Ltd.
(1944) 44 SR (NSW) 370 ; 61 WN 232 and Ex parte Coorey
(1944) 45 SR (NSW) 287 ; 62 WN 167, in
each of which cases Jordan C.J. has expressed the opinion
that s. 4 (4) does constitute an infringement of s. 71 of the
Constitution. In the latter case the question was exhaustively
examined by Davidson J. and Nicholas C.J. in Eq., who did
not agree with the opinion of the Chief Justice. I concur as to
this matter in the opinions of Davidson J. and Nicholas C.J.
in Eq. in Coorey's Case." (at p61)

14. I find myself in respectful agreement with this passage from the Chief Justice's judgment and I can find no difference in principle between the statutory provisions there in question and those in the present case. The circumstance that it was the Attorney-General who in that case made the decision to prosecute and to do so by one method rather than another was not a fact which was treated as material to the question of validity. However, in this case the "prosecution" must mean the Crown acting through the Attorney-General who is responsible to the Parliament in respect of the prosecution of offences. It is not material that his officers or counsel representing him may have the conduct of the proceedings. The contingency upon which a term of imprisonment must be awarded in this case includes the request of "the prosecution". That those in charge of the prosecution are thus afforded an opportunity to bring about the occurrence of that contingency does not mean, in my opinion, that in deciding to make use of that opportunity they are exercising judicial power or that the provision as a whole which provides that opportunity and leaves no discretion with the magistrate is invalid as an unconstitutional invasion of judicial power. (at p61)

15. In my opinion, the motion should be dismissed. (at p61)

MCTIERNAN J. The applicant was convicted of an offence against s. 49 (1) of the National Service Act 1951-1968 (Cth) in proceedings brought by an officer of the Commonwealth in a court of summary jurisdiction of the State of Victoria. No order has been made under s. 49 (2), which contains the provisions of the Act dealing with punishment for the offence. The applicant seeks from the High Court an order under s. 40 (1) of the Judiciary Act removing the part of the proceedings pending in the court of summary jurisdiction into this Court. An order under s. 40 (1) cannot be obtained unless "for sufficient cause shown" for making it. The application is made on the footing that the part of the cause sought to be removed involves the interpretation of the Constitution. The cause does so at least nominally. It appears that the applicant called in question the constitutional validity of s. 49 (2). The question for determination in this application is whether there is any reason to doubt that the subsection is a valid law. (at p62)

2. In an earnest argument counsel for the applicant put forward the contention that the provision of s. 49 (2), making a request by the prosecuting party a condition precedent to the exercise of the jurisdiction of the court to ask a person convicted of an offence against sub-s. (1) whether he is willing to enter into a recognizance, is an attempt to confer jurisdiction on the prosecuting party in the matter of punishment, a matter belonging to the judicial power of the Commonwealth. If this contention were capable of being supported the order asked for should be granted. The first point is what is the intent of the words "if the prosecution so requests". The term "prosecution" means the prosecuting party. It is clear that it would be ultra vires the Parliament to confer jurisdiction on the prosecuting party in the matter of punishment. In my opinion the words "if the prosecution so requests" express a condition subject to which the jurisdiction contained in the provisions of pars. (a) and (b) is conferred by the Parliament on the court referred to in those paragraphs. The function assigned by the subsection to the prosecuting party is not to ask the person concerned through the court the question formulated in par. (a). The court is not appointed the spokesman of the prosecuting party. In any case where it becomes the duty of the court to ask the person concerned the said question the court discharges the duty which the Parliament created by enacting the provisions of par. (a) and thereby entrusted to the court. The jurisdiction conferred on the court extends to deciding whether the occasion contemplated by the section for the prosecuting party to make its request in the terms stipulated by the provisions of par. (a) has arisen. The jurisdiction extends to determine, the person concerned having told the court that he is willing to enter a recognizance, whether what he is willing to bind himself to do satisfies the provisions of the paragraph. Further the jurisdiction of the court conferred by the section extends to determine whether the condition precedent to imposing sentence set forth in par. (b) is fulfilled. If not, the duty of the court then to impose the sentence prescribed by par. (a) is by no means a mandate of the prosecuting party. The jurisdiction to impose the sentence arises directly from the provisions of par. (b), which of course express the will of the Parliament in respect of the matter. In the result I think no cause is shown to remove the proceedings from the court of summary jurisdiction. The application should in my opinion be refused. (at p63)

MENZIES J. Upon this application made under s. 40 of the Judiciary Act 1903-1969 (Cth) to remove to this Court the further hearing of an information pending in the Magistrate's Court at Carlton, the applicant challenges the validity of s. 49 (2) of the National Service Act 1951-1968 (Cth). (at p63)

2. The applicant was the defendant to an information that, in breach of s. 49 (1) of the Act, the defendant had not complied with a notice to attend for examination. The magistrate found the offence proved. The member of staff of the Commonwealth Crown Solicitor appearing for the informant thereupon requested the magistrate to ask the defendant whether he was willing to enter into a recognizance to comply with the requirements of any notice to attend for examination that might be subsequently served upon him, and, to submit to examination. It was at this point that the solicitor appearing for the defendant submitted that s. 49 (2) was invalid. The magistrate thereupon adjourned the further hearing of the information to allow the present application to be made. (at p63)

3. Before us, counsel for the defendant attacked the validity of s. 49 (2) on three grounds : (1) that the subsection purported to vest part of the judicial power of the Commonwealth in "the prosecution" contrary to s. 71 of the Constitution; (2) that the subsection authorizes unconstitutional interference with courts exercising the judicial power of the Commonwealth in violation of the constitutional separation of the judicial power from the legislative and executive power of the Commonwealth; (3) that the subsection amounts to an unconstitutional delegation to "the prosecution" of the legislative power of the Commonwealth to determine an appropriate penalty for a breach of the law. (at p63)

4. The argument addressed to us on these grounds showed that they were not really separate and distinct, and it seems to me that underlying all of them is a misconception of the role of "the prosecution" in proceedings for a breach of s. 49. (at p63)

5. It must, of course, be conceded that the court can act under s. 49 (2) only "if the prosecution so requests" and that if a request should be made the court must ask, in accordance with s. 49 (2) (a), and must proceed in accordance with s. 49 (2) (b), unless the person convicted enters into the stipulated recognizance. To make such a request is not, however, to exercise judicial or legislative power. It is essentially the exercise of an administrative discretion conferred by law upon whoever it be that, in the particular case, is properly to be described as "the prosecution" whether or not the prosecution is conducted by an official of the Commonwealth or upon the instruments of such an official. (at p64)

6. It is often the case that a court can act only if a party so requests, and must act if a request to do so is made by some person nominaed by the legislature. Indeed, the section under which the defendant makes this application is such a provision. See too s. 10, Australian Industries Preservation Act 1906-1950 (now repealed); s. 40, Judiciary Act 1903-1969. (at p64)

7. To initiate judicial action in such a way is not, however, to exercise judicial power. An enactment that, upon conviction for murder, the court shall sentence a convicted person to death, unless the prosecution should ask for a sentence of imprisonment, which, in that event, the court shall impose for such term as it decides, would vest in the prosecution the power of negativing the imposition of the death penalty and requiring a sentence of imprisonment, but, in exercising that power, the prosecution would not be exercising judicial power; it would be exercising an administrative discretion upon non-judicial grounds. The ground might be to carry out some government policy, of which the prosecutor had been made aware; it might be on account of the age, the sex or the infirmity of the person convicted; it might be because of the circumstances of the killing; it might be without any particular reason at all to justify it. The prosecution would not have to justify any request which it made. An arbitrary request would be just as effective and as unchallengeable as a request based upon the most compelling of reasons. If authority that the exercise of an administrative authority in connexion with proceedings in court is not the exercise of judicial power be required, it is, I think, to be found stated clearly in Fraser Henleins Pty. Ltd. v. Cody(1945) [1945] HCA 49; 70 CLR 100, and particularly in the judgment of Latham C.J. (1945) 70 CLR , at pp 119 and 120 (at p64)

8. Moreover, the making of a request in accordance with s.49 (2) does not interfere with the exercise of judicial power by the court. It is Parliament that has stipulated what the court must do upon the prosecution making the request referred to in s. 49 (2) (a) and it cannot be denied that Parliament can, to some extent, validly control the exercise of judicial power. Thus, for instance, it is an exercise of judicial power to impose a sentence of death upon a person convicted of murder, but it is Parliament that requires that that sentence should be imposed, and it does so without any unlawful interference with the exercise of judicial power. Unless the Constitution otherwise provides, a court exercising federal jurisdiction must always act within the framework of the laws made by the Parliament. The doctrine of the separation of powers does not prevent Parliament from making laws relating to the exercise of judicial power by properly constituted courts. (at p65)

9. What I have already written also disposes of the argument that "the prosecution", in making a request under s. 49 (2), is itself exercising legislative power. In making such a request it makes no law ; it is exercising an administrative discretion vested in it by law. (at p65)

10. For the foregoing reasons I consider that the challenge to the validity of s. 49 (2) fails and that the application to remove to this Court the further hearing of the information should be refused. (at p65)

WINDEYER J. In my opinion this application should be refused. I am satisfied that the challenged provision, s. 49, of the National Service Act 1951-1968 (Cth) is a valid law of the Commonwealth Parliament. I need not repeat the reasons for that conclusion that are given in the judgments of other members of the Court. (at p65)

OWEN J. The applicant before this Court was convicted by a stipendiary magistrate of an offence against s. 49 (1) of the National Service Act 1951-1968 (Cth) in that he had not complied with a notice served on him under Pt III of the Act to attend for medical examination to determine his fitness for service under the Act. (at p65)

2. Section 49 (1) and (2) provide that :

"49. (1) A person who has been required by a notice
served on him under Part III to attend for examination but
does not comply with the requirements of the notice is guilty
of an offence punishable, upon conviction, in accordance
with the next succeeding sub-section.
(2) Where a person is convicted of an offence against the
last preceding sub-section, the person is liable to a fine of not
less than Forty dollars or more than Two hundred dollars
and, whether or not a fine is imposed on the person, if the
prosecution so requests -
(a) the court shall ask the person whether he is willing to
enter forthwith into a recognizance, to the satisfaction
of the court, that he will comply with the requirements
of any notice to attend for examination that is
subsequently served on him under Part III and will, upon
attending for examination, submit himself to examination
in accordance with that Part ; and
(b) if the person does not forthwith enter into such a
recognizance to the satisfaction of the court, the court
shall, whether or not a fine is imposed on the person,
sentence him to imprisonment in respect of the offence
for a period of seven days."

The learned magistrate having found the offence proved, the prosecutor made the request to which sub-s. (2) refers. The solicitor appearing for the applicant thereupon submitted that that subsection of the Act was invalid, as being beyond the legislative powers of the Commonwealth Parliament. The further hearing of the information was then adjourned so that the applicant might move for an order under s. 40 of the Judiciary Act to remove the cause into this Court. Upon the motion we heard full argument as to the validity of s. 49, both parties accepting the position that if the submissions made on behalf of the applicant were rejected, no sufficient cause was shown for the making of an order for the removal of the case into this Court. (at p66)

3. Three submissions were made on behalf of the applicant in support of his contention that s. 49 (2) was not within the competence of the Commonwealth Parliament. Each of them depended upon the fact that under the subsection the court is bound, if the prosecution so requests, to ask the person who has been convicted whether he is willing to enter into a recognizance to the satisfaction of the court and, should that person not forthwith enter into such a recognizance, is further bound to sentence him to imprisonment for seven days for the offence created by sub-s. (1). (at p66)

4. The first submission was that sub-s. (2) purported to confer judicial power upon the prosecution because, so it was said, the request of the prosecution, if it decides to make such a request, would compel the court to follow the procedure set out in par. (a) of the subsection and, should the convicted person not enter forthwith into the recognizance, constrain it to apply par. (b) and impose a sentence of seven days' imprisonment. The effect of this, it was contended, was to empower the prosecution to determine whether, in addition to the imposition of a fine, a further penalty by way of imprisonment should be imposed. I agree that pars. (a) and (b) of sub-s. (2) cannot operate unless the prosecution has first requested the court to follow the procedure set out in par. (a) and that the making of such a request exposes the convicted person to the risk of imprisonment should he not enter into the recognizance to which the paragraphs refer, but that does not mean that the subsection purports to confer judicial power upon the prosecution. What it does is to specify an event which, if it occurs, will bring into operation par. (a) and that, in turn, may subject the convicted person to the risk of imprisonment under par. (b), but this does not lead to the conclusion that the prosecution, in deciding whether to make the request and - if it decides to do so - in making it, is exercising judicial power. To hold that it is doing so would, it seems to me, run counter to the reasoning to be found in the judgments in Fraser Henleins Pty. Ltd. v. Cody (1945) 70 CLR, at pp 119-120, per Latham CJ (at p67)

5. The second sebmission made on behalf of the applicant was that the provisions of sub-s. (2) constrain the court to take certain action if requested to do so by the prosecution and that it is not competent for the Parliament so to provide because to do so would constitute an interference by the legislature with the judicial functions of a court. It was conceded that the Parliament could validly make a law which would require a court to impose a particular penalty for an offence leaving it no discretion in the matter of punishment, but it was said that it is beyond power for it to provide that that particular penalty shall be imposed only if the prosecution requests that that be done. There is, in my opinion, no substance in the submission. (at p67)

6. Finally it was submitted that the subsection is beyond power because, if valid, it would delegate to a person, described as "the prosecution", not being a Minister of the Crown and who may be in no way connected with the Parliament or the Executive, the power to decide whether or not to invoke the provisions of an Act which, if invoked, would compel a court to act in a particular fashion. Here again I think it unnecessary to say more than that I am unable to accept the submission. (at p67)

7. I would therefore dismiss this application with costs. (at p67)

WALSH J. This is an application under s. 40 of the Judiciary Act to remove into this Court a cause pending in a magistrate's court, in which the applicant was convicted of an offence against s. 49 (1) of the National Service Act 1951-1968 (Cth). The application is made because the applicant seeks to challenge the validity of that part of s. 49 (2) which sets out in pars. (a) and (b) thereof a course of proceedings to be followed by the court "if the prosecution so requests". (at p67)

2. It could not be disputed, and was not disputed, that the Parliament may make a valid law by which no discretion is given to the court as to the punishment of a person convicted of an offence. The Parliament may itself specify what sentence is to be imposed. When an Act requires a court, upon an offence being proved, to pass a mandatory sentence this does not involve any unconstitutional intrusion by the legislature into the field of judicial power. The relevant exercise of judicial power, when there is a prosecution for an offence against a law of the Commonwealth, consists of the application of the law by the court, according to the terms of the law. If the Act provides for a mandatory sentence, the only power of sentencing which the court has in that case is the power to impose that sentence. (at p68)

3. If the Parliament may fix unconditionally a fixed sentence for a specified offence, I am not aware of any principle which would preclude it from providing that there shall be a fixed sentence for a particular offence when some stated condition is satisfied, e.g., the condition that the person convicted had been previously convicted of a similar offence. Counsel for the applicant conceded that the Parliament may fix conditionally an automatic penalty, but he contended that in the present case the particular condition stated in s. 49 (2) in the words "if the prosecution so requests" is of such a kind that that provision is invalid ; if those words had been omitted then it would have been valid. It is to be observed that if those words were omitted, the provision would be one by which the court would be bound, when a person was convicted of an offence against s. 49 (1), to ask him whether he was willing to enter into a recognizance of the kind described and then if he did not enter into it the court would be bound to sentence him in respect of the offence against s. 49 (1) to imprisonment for seven days. (at p68)

4. If it be accepted, as I think it must, that a provision by which the legislature issued those directions to the court would be valid, it is then necessary to ask whether there is any reason why they become invalid, if qualified by the condition that the directions are to be carried out only if the prosecution so requests. The applicant puts forward three reasons for saying that, in that case, they become invalid. (at p68)

5. The first reason advanced was that the provision purports to give to "the prosecution" a function which is or involves the exercise of judicial power. The argument is that Parliament has not determined the penalty which the convicted person is to incur. It has enacted that he is liable to a fine of an amount within a stated range. Then it has purported to give to the prosecutor the power to decide whether or not the person convicted is to be exposed in respect of the offence he has committed to a further liability or penalty. If the prosecutor decides that this should be done, the court has no discretion but is constrained to act in a way which imposes that further liability or penalty upon the convicted person, whereas a negative decision by the prosecutor would leave him free from it. It was argued that this means that, in substance, if not in form, the prosecutor is given power to make a decision which affects rights and imposes a punishment and that this is of the nature of judicial power. (at p69)

6. If the prosecutor were given power to impose punishment for the offence, no doubt that would be a purported grant to the prosecutor of judicial power. But this is not the effect of the provision. The effect of it is that Parliament has decreed what penalty is to be imposed upon the convicted person, if certain conditions are fulfilled. The circumstance that the fulfilment or non-fulfilment of a condition depends upon the volition of the prosecutor does not mean that to him is entrusted the power of sentencing the convicted person for the offence. Parliament has chosen to make part of the consequence of conviction of an offence under s. 49 (1) dependent upon an administrative act or decision of a person who is in control of the prosecution. In my opinion there is no constitutional reason why the Parliament may not, if it chooses to do so, make such an enactment. In Ex parte Coorey (1944) 45 SR (NSW) 287 the Supreme Court of New South Wales considered arguments that a provision in the Black Marketing Act 1942 (Cth), by which power was given to the Attorney-General to decide after advice from a committee that prosecutions be instituted under that Act in respect of acts which were also offences against the National Security Regulations, was invalid because it involved the exercise of judicial power otherwise that by a court. These arguments did not prevail. They were accepted by Jordan C.J. but the majority of the court upheld the validity of the provision. Subsequently, in Fraser Henleins Pty. Ltd. v. Cody [1945] HCA 49; (1945) 70 CLR 100, this Court held that the view of the majority was correct. In my opinion there was better scope in that case than there is in the present case for the argument against validity. The Black Marketing Act did not (in general) create new offences but dealt with matters which were offences independently of that Act and, in the view of Jordan C.J. (1944) 45 SR (NSW), at p 300 , it left the existing penalties generally operative, but purported to authorize the Attorney-General in particular cases chosen by him to dictate to a court that in the event of conviction at least a minimum penalty should be imposed, although no such minimum was generally operative. In the present case s. 49 creates the offence and provides the penalties for it. This argument should be rejected. (at p70)

7. The second argument on behalf of the applicant was that the provision constitutes such an interference with the processes of the court as to violate the principle of the separation of powers embodied in the Constitution. In my opinion this proposition is clearly untenable. As I have indicated earlier, there are no relevant processes of the court in which the court would, but for the inclusion in the provision of the condition, have a freedom of action which the inclusion of the condition denies to it. The function which the court has is to deal with the case before it in accordance with s. 49. It must decide whether the offence created by that section has been committed, and if it decides that it has, it must then apply the provisions of s. 49 (2). (at p70)

8. A third reason assigned for the conclusion that the words "if the prosecution so requests" renders the provision invalid is that this is an attempt to delegate legislative power to the prosecution. But the person making such a request is not making a law. He is acting in accordance with a law already made by the Parliament. If, as a result of the request being made and of its being followed by the fulfilment of the conditions upon which the court is required to sentence the convicted person to imprisonment for seven days, he is so sentenced, that sentence is imposed not in accordance with a law made by the prosecutor, but in accordance with a law made by the Parliament, which has enacted that in the specified circumstances he shall be so sentenced. (at p70)

9. In my opinion the application should be refused. (at p70)

GIBBS J. In my opinion, there is no substance in the challenge to the validity of s. 49 (2) of the National Service Act 1951-1968 (Cth). I cannot usefully add to the reasons for this conclusion given by other members of the Court whose judgments I have had the advantage of reading. (at p70)

2. The application should be refused. (at p70)

ORDER

Application refused.