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Sunday, June 30, 2013
Saturday, June 29, 2013
TRUSTEES, EXECUTORS & AGENCY CO LTD v COMMISSIONER OF LAND TAX [1915] HCA 35; (1915) 20 CLR 21 (21 MAY 1915)
HIGH COURT OF AUSTRALIA
The Trustees, Executors and Agency Company Limited and Others Appellants; and The Commissioner of Land Tax Respondent.H C of A
21 May 1915
Griffith C.J., Isaacs, Higgins, Gavan Duffy and Rich JJ.
Weigall K.C. and Davis, for the appellants.
Starke (with him Mann), for the respondent.
The following judgments were read:—
May 21
Griffith C.J.
This appeal, which is brought from an assessment of land tax made as of 30th June 1910, raises two questions: (1) as to the applicability of a provision which under the Principal Act stood as a proviso to sec. 25 but has since been repealed, and (2) as to the competency of the Commissioner to amend assessments of land tax and the effect of amendments so made.
The appellants are the trustees of the will of Charles Campbell, who died on 13th September 1905. By his will he devised certain pastoral properties comprising the lands in question to trustees, upon trust, so far as material to the present case, to carry on the pastoral business until the expiration of twenty-one years from his death, and to stand possessed of the net annual income for such of seven of his children (named) as should be living at the expiration of such annual period (a term defined in the will) during which it should have arisen, and such of the children of any of the seven who should then be dead as should be living at the expiration of the annual period, and after the expiration of the period of twenty-one years upon trust to convert, and divide the proceeds, after making certain payments, equally amongst such of the seven children as should then be living and such of the children of any deceased child as should then be living, such children taking their parent's share.
By sec. 25 of the Land Tax Assessment Act owners of freehold estate less than the fee simple are to be deemed to be the owners of the fee simple, but by the proviso already mentioned tenants for life of the land without power of sale under the will of a testator who had died before 1st July 1910 were entitled to certain privileges in the assessment of the unimproved value of the land as against them. An extended meaning was given to the term "tenant for life," which, however, is not material to the present case.
On 3rd June 1911 the appellants furnished to the Commissioner their return of the land already mentioned, as land held by them on 30th June 1910. They had desired as representing their beneficiaries to claim the benefit of the proviso to sec. 25, but, on being informed by the Commissioner that in his opinion they could not do so, they made up the return on the basis of the full unimproved value of the land as held in fee simple. The total value as so returned was £256,746 subject to admitted deductions of £35,802, leaving a taxable balance of £220,944, upon which the land tax payable was £4,742 6s. 10d. The Commissioner accepted this valuation, and made his assessment accordingly.
The notice of assessment was dated 17th June 1911, and the amount of £4,742 6s. 10d. was paid by the appellants on the 20th of that month.
Shortly afterwards it was discovered that other land of the testator of the value of £10,612 had been inadvertently omitted from the appellants' return of 3rd June, and on 12th August the Commissioner gave them notice of amended assessment, by which the taxable value was increased to £231,556, upon which the land tax payable was £5,007 12s. 10d. The additional land tax due on the amended assessment, amounting to £265 6s., was paid by the appellants on 16th November 1911.
On 6th February 1913 the Commissioner sent to the appellants a further notice, dated 3rd February, of amended assessment, by which the taxable value of the appellants' land was reduced from £231,556 to £158,525. The notice set out upon its face that the unimproved value of the land now in question had been reduced by £81,491 by valuing the interests of the seven beneficiaries as life interests instead of as freehold interests, while additions amounting to £8,460 were made in respect of the value of other lands of the testator. The result of the amendment was that the land tax payable upon the assessment as amended was £3,137 5s. 10d. only. The notice also set out that there was a balance of £1,870 7s. overpaid by the appellants. By a letter of 6th February 1913 the Commissioner called the attention of the appellants to the alterations, and invited a claim for refundment of the balance, less a sum of £152 18s. 10d. already credited to them by the Commission from another source.
On 10th April 1913 the Commissioner sent to the appellants a further notice, dated 4th April, of amended assessment (which he explained by a letter of the former date to have been founded upon departmental valuations of the land). The assessment as thus amended assessed the taxable value of the land at £165,677, upon which the land tax payable was £3,316 1s. 10d. After allowing for the alterations, the balance repayable to the appellants was £1,691 11s., less the amount already credited from another source. The appellants applied for a refund of this amount, and on 23rd May it was repaid to them.
By a notice dated 11th July 1913 the Commissioner notified to the appellants that the assessment had been further amended on the basis that they were not entitled to the benefit of the proviso to sec. 25, and that the taxable value of the land was now assessed at £250,211, upon which the land tax payable was £5,429 8s. 2d., leaving, after giving credit for the £3,316 1s. 10d., the amount payable upon the assessment as last previously amended, a balance of £2,113 7s., which the appellants were required to pay.
The present appeal is from the assessment as last amended. The appellants contend that the assessment so amended is invalid, and further that the basis on which it is made is erroneous on the ground that the seven children are tenants for life. It will be convenient to deal with the latter point first.
In my opinion the seven children of the testator are not tenants for life of any estate in the land. At most they are holders of equitable life interests in a term of twenty-one years, which is not a freehold. The circumstance that if they survive that period they may acquire an absolute interest does not enlarge their present interest into a tenancy for life in the land. I am therefore of opinion that the Commissioner was right in denying to the appellants the benefit of the proviso to sec. 25.
The ground on which the appellants contend that the last assessment is invalid is that the Commissioner was precluded by his amended assessments of 3rd February 1913 and 4th April 1913 (reducing the previous assessments on the grounds stated), followed by a repayment of the sum which, on the basis of those assessments, had been overpaid by the appellants, from again amending the assessment on 11th July.
Sec. 20 of the Land Tax Assessment Act provides that: "(1) The Commissioner may at any time make all such alterations in or additions to any assessment as he thinks necessary in order to ensure its completeness and accuracy, notwithstanding that land tax may have been paid in respect of the land included in the assessment: Provided that every alteration or addition which has the effect of imposing any fresh liability, or increasing any existing liability, shall be notified to the taxpayer affected, and, unless made with his consent, shall be subject to appeal. (2) For the purposes of this section the Commissioner may, inter alia, (a) place on or remove from an assessment the name of any person, or the particulars or valuation of any land, or (b) increase or reduce the assessed value of any land."
There is nothing in the language of this section to suggest that the power to alter or add to an assessment cannot be exercised more than once. If any doubt could arise on the point it is, in my opinion, removed by sec. 33 of the Acts Interpretation Act 1901, which provides that—"(1) Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires."
The suggested limitation of the power of the Commissioner must therefore be sought for elsewhere. The appellants contend that it is to be found in secs. 59 and 60 of the Act, either alone or in conjunction with the doctrine that money paid under a mistake of law cannot be recovered back, and that no amendment of an assessment which would have the effect of such a recovery can be made.
By sec. 15 of the Act taxpayers are required to furnish annual returns of lands owned by them with their value. Sec. 18 requires the Commissioner from these returns and valuations and other sources to cause assessments to be made for the purpose of ascertaining the amount upon which land tax shall be levied. I have already read sec. 20. Sec. 21 deals with two specific cases. The first is the case of an assessment made by the Commissioner upon the taxpayer's return without obtaining any independent valuation. In that case, if from valuations made or obtained by him or other information in his possession the Commissioner finds that the assessment ought to have been for a greater amount, he may alter the assessment as from its original date, but the power must be exercised within two years from the date of first assessment. The amendment of 4th April 1913 was such a case. The second case is the omission of land from the original assessment, which error may be corrected if discovered "at any time thereafter." The amendment of 12th August 1911 was such a case.
In the case now before us the first assessment was made upon the taxpayer's return without any independent valuation obtained by the Commissioner, but the amendment, so far as it is complained of, although it was made after the expiration of two years from the date of the first assessment, was not an alteration of the original assessment made upon the basis of valuations made or obtained by the Commissioner, but a mere reverting to the valuation made upon the appellants' return. It does not, therefore, fall within the limitation of two years.
By sec. 23 the production of the assessment (by which I understand the record of it in the Commissioner's books) is conclusive evidence that the amount and all the particulars of the assessment, which certainly include the taxable value, are correct, except in proceedings on appeal against it. The only questions which can be raised on appeal are that the appellant is not liable for the tax or any part of it or that the assessment is excessive, i.e., in amount (sec. 44). This excess may arise from too great a value being given to the land, which is a matter of fact (although it may involve a matter of law as to the proper basis of valuation), or from omission to allow some deduction allowed by the Act from the gross value.
By sec. 24 the Commissioner is required to cause notice of the assessment to be given to the taxpayer. By sec. 49 land tax for each year is due and payable on a date appointed by the Governor-General by notice in the Gazette. By sec. 51 it is to be deemed when it becomes due and payable to be a debt due to the King on behalf of the Commonwealth, and by sec. 54 no Statute of Limitations at any time in force is to bar or affect any action or remedy for its recovery.
Secs. 59 and 60 are as follows:—
59.
If within three years after any land tax has been paid, it is discovered that too little in amount has been paid, the taxpayer liable for the tax shall forthwith pay the deficiency ...60.
If within three years after any land tax has been paid, it is discovered that too much in amount has been paid, whether by reason of duplicate taxation or otherwise, the Commissioner upon being satisfied thereof shall order the excess to be returned to the taxpayer entitled thereto.
It is contended that it is a necessary implication from these two sections that the amount of land tax must be finally adjusted and fixed within three years after any land tax has been paid, i.e., within three years after the first payment made upon the original assessment. On the other hand, it is contended that these sections relate merely to matters of account on the footing of an existing assessment, as, for instance, if an amount has been paid twice over in respect of the same land under assessments against different taxpayers or groups of taxpayers, which is spoken of as "duplicate," and elsewhere in the Act as "double," taxation, or if a mistake has been made in arithmetical calculations, and has nothing to do with the question of what is the amount due under the assessment in force for the time being, which, under sec. 23, is, except in proceedings on appeal against it, conclusive evidence that the amount of the assessment is correct..
It may be that these sections do suggest that the framers of them had in their mind the idea that there should be some definite period allowed for the final adjustment of the amount of tax payable by the taxpayer, and there may, no doubt, be great hardship when, as in the present case, a large sum has been returned to trustees and distributed among the beneficiaries. This, however, is a matter for the consideration of the Legislature. I do not think that these arguments are sufficient to justify the Court in holding that the power conferred on the Commissioner by sec. 20 to make at any time all such alterations to an assessment as he thinks necessary are cut down or qualified by secs. 59 and 60. In my opinion those sections relate only to matters of account and payment.
It follows, in my opinion, that the amendment of 3rd February 1913 was a valid alteration of the original assessment, and is conclusive as to the taxable value of the land of which the appellants were the owners on 30th June 1910. There is no question as to the amount of land tax payable in respect of land of that taxable value. The only question, therefore, that can arise is whether it has been paid, which is not a question that can be raised by appeal from the assessment.
To sum up the matter, it may be thus stated. The amount of land tax payable is determined by the existing assessment, which may, subject to the limitations of sec. 21, be altered from time to time, either by way of increase or diminution. Whatever amount appears by an existing assessment to be the land tax payable is, until paid, a debt due by the taxpayer to the Crown. If he has not paid so much, he is bound to pay the deficiency; if he has paid more, he is entitled to a refundment of the excess (subject to the limitation, if any, imposed by sec. 60), and so on toties quoties. When the refundment was made to the appellants it would have been unjust, as the facts then were, to have retained the amount. After the refundment the matter stood as if the larger assessment had not been made, and the excess had not been paid. But, when the new assessment was altered and the taxable value assessed at a larger amount, it was the duty of the Commissioner to demand the greater sum which became payable under it. There is, therefore, no question of a mistake of law at the time when the refundment was made. The Commissioner might or might not have made a mistake in law—I think, as I have said, that he did—in reducing the original assessment, and, if he did, the refundment would have been an indirect consequence of that mistake, but that is quite a different thing from saying that the refundment was made under a mistake of law. The Commissioner thought that, the assessment being as it was, he was bound to make the refundment. In forming that opinion he made no mistake, either of law or fact. The doctrine appealed to has therefore no application to the case.
For these reasons I am of opinion that the assessment complained of was validly made, and was made upon a correct basis.
The first and second questions should be answered accordingly.
The point sought to be raised by the third question is not one that can be raised upon appeal from the assessment, although it has incidentally become necessary to express an opinion upon it.
Isaacs J.
Sec. 20 of the Land Tax Assessment Act is general in its terms and unambiguous. Unless cut down by some other portion of the Act, its language entitles the Commissioner to an answer to the first question in the affirmative, that is to say that he had the right to amend the assessment as in Exhibit K showing a liability of £5,429.
The circumstances of the case are outside sec. 21, so that that section may be disregarded.
The main contention for the appellants was rested on sec. 60, the argument being that as £1,691 was returned under the powers of that section in February 1913, as being in excess of what was owing for land tax, the Commissioner was precluded from doing anything inconsistent with his determination that £3,316 was the maximum amount payable for land tax for that year.
The section says nothing on that subject, and it is difficult to suggest why, even if the repayment had been made under that section, estoppel should arise from an act that, so far from causing prejudice, conferred a decided benefit.
If the argument be correct, that sec. 60 once acted upon concludes the liability of the taxpayer for that year, then sec. 59 must have the same effect. And if the supposed discovery, say, within a week of the payment of land tax, that the taxpayer had paid a pound too little, followed by his payment of that pound closes that year's liability for ever, it would be impossible for the Commissioner on really discovering an overpayment of £100 to return it under sec. 60. Alternatively, said learned counsel, sec. 60 closes up the year's liability so far as existing material is concerned, that is, without a new valuation or the addition of other land. But the same difficulty might occur even upon existing material, and through an error in computation, and such an unjust position cannot be supposed without distinct words to support it.
The argument for the appellants cannot be adequately dealt with unless the true import of secs. 59 and 60 and their relation to sec. 20 and other sections be considered.
Shortly stated, the view I take is that secs. 59 and 60 are adjustment sections only. Clerical and accountancy errors, not perceived before payment, may be set right within three years after payment, the taxpayer, if he alleges overpayment from such a cause, being bound to satisfy the Commissioner that it is so. But the accuracy of the basic fact of the value of the land as it appears in the assessment, is assumed for the purposes of those sections; no contention challenging that basic fact is a ground for acting under them. The following considerations lead me to that conclusion.
The land tax itself is imposed by Act No. 21 of 1910, at rates therein set out and based on "the taxable value." That is the central point. The "taxable value" is not an arbitrary value but is a real business value, subject to certain exceptional cases and requires a process of ascertainment. This is provided for by the Assessment Act. Sec. 11 of that Act defines "taxable value" broadly speaking as the unimproved value of the land, less £5,000 in the case of non-absentees. Sec. 18 requires the Commissioner to make assessments "for the purpose of ascertaining the amount upon which land tax shall be levied"—that is to say, for the purpose of ascertaining the taxable value.
It is important to note that the words of that section are "upon which," not "for which"; in other words, the assessment is to determine the value of the land, and not the sum which the taxpayer is to pay to the Crown for land tax. The amount of tax payable is to be computed according to the formula given by the Land Tax Act 1910; and except for statutory provisions, such as those against double taxation, is merely mechanical.
To arrive at the taxable value involves considerations of a complex nature. Some are fixed, namely, the statutory regulations, such, for instance, as are contained in sec. 25; others are variable, and dependent on the actual circumstances. The latter are dependent at last on the opinion and sound judgment of the Commissioner, and his assessment is, as a whole, subject to revision by the Court. But, subject to that revision, his assessment fixes "the taxable value," and until that is done no one can tell what amount is payable for land tax to the Crown.
Sec. 51 says "Land tax shall be deemed when it becomes due or is payable to be a debt due to the King," and "any land tax unpaid" may be sued for and recovered by the Commissioner. That section is of the first importance in determining this case.
In one sense the land tax is a liability as from 1st July in each year (Land Tax Act, sec. 5). It is charged on land as owned at noon on the previous day (Assessment Act, sec. 12). It is due and payable on such date as the Governor-General appoints by notice in the Gazette (ib., sec. 49); and additional tax is the penalty for not paying the tax within thirty days after it has become due, subject to certain powers of remission. Therefore it is true that "land tax" becomes a debt on the day so appointed, whenever that may be.
But what is meant by the expression "land tax" in sec. 49? It seems to me the term "land tax" in this system of taxation has two somewhat different meanings, according to the Act it is found in. In the Land Tax Act itself it means simply the liability to pay at the rate mentioned on the taxable value of land. In the Assessment Act it means something further. Sec. 3 of the interpretation section defines "land tax" as "the land tax imposed as such by any Act, as assessed under this Act." Assessment is a necessary condition to the liability becoming a "debt." It necessarily follows that the term "land tax" in sec. 49 means the tax as assessed, and that the amount of the debt depends entirely upon the state of the assessment at the given moment. It also follows that when sec. 51 speaks of "land tax unpaid" it means "unpaid" on the footing of the assessment as it then exists. Sec. 54, in negativing limitation for the "recovery of land tax," necessarily assumes an assessment justifying the claim, because without that no recovery is possible—no one can tell how much is to be recovered.
Sec. 20 is couched in the most general terms. In itself it contains no limit to the power therein given to the Commissioner to alter and amend an assessment as often and as radically as he thinks necessary to make it complete and accurate. And he may do it, "notwithstanding that land tax may have been paid."
Sec. 21 already mentioned enacts certain limitations for certain cases, which do not concern the present case; but secs. 59 and 60, whether acted on or not, do not, on a proper reading, place any limitation whatever on the comprehensive language of sec. 20. The effect of those two sections may, perhaps, be better appreciated by remembering that a taxpayer, on receiving an assessment, may either pay or not pay the tax. If he does not pay, it is clear that those sections do not affect the Commissioner's power of amending the assessment, and there is no other that does. And, further, sec. 54 clearly applies with undiminished force to his obligation to pay. If he does pay, he of course pays, and the Commissioner equally of course receives payment, on the footing that the amount paid is the true amount properly calculated upon the taxable value.
The amount so paid may be—(1) too much in amount if the calculation had been correct, (2) too little on the same assumption, or (3) perfectly accurate on that assumption.
It is clear that in the last case as already stated, there is nothing in either sec. 59 or sec. 60 to affect the power of the Commissioner to amend his assessment. So that if no tax at all is paid, or if the true amount based on the assessment is paid, there is undiminished authority to alter the assessment. What is there in the other two cases to lead to a different result? The phrase in secs. 59 and 60 "after any land tax has been paid" means, I think, after payment of land tax has been made as payment in full on the basis of an existing assessment. If on that basis the actual amount paid is too little, yet, being received as correct, was probably regarded by the Legislature as sufficient to be an intended compliance with the provisions of sec. 49 and to relieve from the penal consequences of sec. 50. But a new statutory obligation was imposed by sec. 59 to "forthwith pay the deficiency" when it is discovered that a deficiency exists. And conversely by sec. 60, if the amount actually paid prove to be too much on the same basis, there is a statutory obligation on the Commissioner to order the excess to be returned when he discovers, or is satisfied, that an excess exists. But that exhausts those sections. As in the other two cases mentioned, these two cases rest upon the foundation of the "taxable value" remaining unaltered; and in no way constitute or work any admission by the Commissioner on the one hand, or the taxpayer on the other, that the power of alteration of the taxable value is to cease, should the facts require it. I refer to the taxpayer as well as the Commissioner, because payment of a supposed deficiency under sec. 59 might be followed by the discovery of a gross error of valuation against the taxpayer, which could only be corrected by amending the assessment. Assuming, therefore, the repayment could be taken to have been lawfully made under the powers given by sec. 60, the Commissioner's powers of alteration would not be affected.
The repayment, however, in my opinion, cannot be lawfully referred to sec. 60, because it was not made as the result of any adjustment while retaining the same taxable value. We have nothing to say to the authority under which it was repaid, except to exclude it from sec. 60, which does not relate to such a case.
The first question, therefore, should be answered in the affirmative.
The second question should be answered in the affirmative. At no moment of time could it be said that the beneficiaries were tenants for life of the land. During the twenty-one years they had a right to receive the income until their death, when a similar right passed to their children. After the twenty-one years the right is, not to the income as such, but to the corpus, and not as tenant for life.
The third question does not, strictly speaking, arise in such a case as the present, though it is and always has been the substantial contention between the parties, this procedure being thought by them open to determine it.
The Court, however, has jurisdiction to answer the question as between these parties in another form of proceeding, and both of them desire the Court's opinion. In addition, it is important to the administration of a great public department to know the views of the Court in the matter. In these circumstances it is desirable to express them, not as a technical adjudication, but as a guide to what the Court would be prepared to decide formally. There is at any given moment but one assessment by the Commissioner, and that is conclusive (sec. 23) as to amount, except on appeals. Being conclusive as to amount, the rest follows.
It is subject to correction by the Commissioner, and when altered or added to, the assessment may show a different amount, but it operates ab initio as to the amount of the debt payable, though the date of amendment may be essential when considering liability to penalty under sec. 50. The assessment when amended is conclusive that the amount it shows at a given moment was the true amount as at the taxable date, because that amount is taken for all purposes to be the true value of the land at that date. That is the aim of sec. 20.
The £1,691 was refunded when the assessment was reduced from a sum producing £5,007 to a sum producing £3,316. It was therefore refunded, on the basis that no debt greater than £3,316 ever existed, and by necessary consequence, that no payment of any debt over £3,316 could ever have been demanded or satisfied. In other words, when the Commissioner handed back the sum of £1,691, and the taxpayers received it, they mutually acted on the assumption that it was not to be considered that a debt to that amount had been paid by the sum in question, but that because no such debt had ever been payable or paid the money was always in conscience and in law that of the taxpayer.
When, however, the assessment was finally corrected so as to show a debt of £5,492 as at the original date, when assessed land tax became payable according to the Gazette notice under sec. 49, the whole of that sum was payable except so much as was truly paid in respect of land tax since that date. The only sum so paid and treated as so paid was £3,316; and the taxpayers could not and cannot be heard to say that they had received and retained from the Commissioner £1,691 of public moneys, to which they had no right, because it was money owing and paid by them to the Crown and retainable by the Crown for land tax.
That would be illegal and dishonest, for the Commissioner could have no right to make such a payment. And if they received it on the footing that it was not such money, they cannot now be allowed to aver the direct contrary. Once grant the power to make the alteration in the assessment, and then sec. 60 cannot in any aspect be relied on as justifying the repayment, because no repayment can be made under that section unless it is of money that ought never to have been paid to the Crown.
It must be borne in mind that the Commissioner could never make a valid claim for repayment of the £1,691 as money received to his use. The essence of his position is that that money, when returned to the trustees, was not then, and never at any time could be, held by them to his use. It was theirs when refunded, because, as the assessment at that moment stood, their right to it was conclusive. But since the assessment has been amended, he, ignoring that sum altogether, because its original payment was cancelled and undone, would claim not repayment of that £1,691, but payment of land tax on the footing of a debt of £5,429, and would recognize only the payment of £3,316, which was included in the larger sum, and which had always stood as a liability, and, since payment of £3,316, was a discharged liability pro tanto of the debt of £5,429. The balance is still unpaid.
I am, therefore, of opinion that the trustees are not entitled to credit for the £1,691, or any part of it.
Higgins J.
I concur in the opinion that the first question should be answered in the affirmative. The question assumes that the Commissioner was wrong in February-May 1913 in treating the proviso in sec. 25 as applying to this case, so as to reduce the amount on which land tax should be levied; and that he was right in July 1913 when he treated the proviso as inapplicable. Sec. 20 gives the Commissioner power "at any time" to "make all such alterations in or additions to any assessment as he thinks necessary in order to insure its completeness and accuracy, notwithstanding that land tax may have been paid in respect of the land included in the assessment." There is no express limitation of this power, either as to time, or as to character, or as to grounds of amendment, except the limitation (if it is a limitation) in sec. 21, which does not apply to the circumstances of this case; and as for an implied limitation, I see nothing to support it but conjecture, based chiefly on our view of what the Legislature ought to have enacted. The power is not confined to mistakes of fact as distinguished from mistakes of law. There is, at first sight, a difficulty in reconciling the provisions of secs. 59 and 60 with this power of amendment of assessment. These sections provide, in substance, that if within three years after any land tax is paid it be discovered that too little or too much "in amount" has been paid, the deficiency or the excess shall be paid, but these sections do not relate to amendments of assessment. At present, I am inclined to the view that these latter sections refer to mistakes made in carrying out a given assessment. The assessment shows "the amount on which ... land tax ought to be levied" (sec. 19); and mistakes may be made in the calculation of the land tax payable thereunder, or in the arithmetical process preceding or accompanying the payment in fact made. At all events, we have no right to import into secs. 59 and 60 a limitation of the power of amending the assessment conferred by sec. 20. I recognize the force of the argument that a power to amend the assessment, if unlimited in point of time, may cause grave injustice—for instance, in the case of trustees who, in the meantime, have distributed the trust property among the beneficiaries; and I recognize that the indefinite charge of the land tax on the land may put serious difficulties in the way of sale of the land, notwithstanding the provisoes contained in sec. 56. But if any improvement of the Act has to be made, it must be made by Parliament, not by this Court.
As for the second question—Does the proviso in sec. 25 apply?—I have felt more difficulty than my learned colleagues. This proviso is limited to settlements or wills made before 1st July 1910, and it is designed to mitigate the hardship of the tax in the case of life tenants who have neither the power to sell, nor (generally) the power to put the land to a more productive use. The benefit of this proviso is not confined to the case of one who is strictly tenant for life; it is granted to (amongst others) "a person entitled to the income of land under a trust or direction for payment thereof to him during his own or any other life."
Looking now at the will, we find that the lands (station properties) are to be used for the carrying on of the pastoral business of the testator until the expiration of twenty-one years from his death; and that the income of the business is to be divided amongst such of the seven children as are living at the end of each annual period. (We may ignore, for the present purpose, the contingent gift of the proceeds of the corpus, less certain payments, to such children as are living at the expiration of twenty-one years from the death. There can be no merger, in this case, of the life interest of the child in his contingent interest in the corpus, less certain payments.) If a child die before the expiration of the twenty-one years his interest in the income of the business ceases; his children are substituted. I suppose that the interest of the child would be accurately described as a beneficial interest in the income of the business for a term of years, but defeasible by his death during the term. But, substantially, he has an interest so long as the term lasts and he lives—an interest for life in the term. When one considers the obvious object of the proviso, it is hard to see why Parliament should intend the relaxation of the tax to apply to such a beneficiary; but I have come to the conclusion that he does not come within even the words of the proviso. He is not a tenant for life of land but (at most) a tenant for life of a term; nor is he (under the expanded definition of "tenant for life") entitled to share in the "income of land" for his life. The specific provisions made in the adjoining sections (secs. 26-29) for the cases of leaseholders, &c., are inconsistent with the idea that "land" in sec. 25 can include a term of years in land, can mean anything but the concrete thing—the land itself. "Land" generally includes leasehold interests in land, under sec. 22 of the Acts Interpretation Act 1901; but in this case the contrary intention sufficiently appears, so as to displace the general rule. Moreover, the beneficiary is not entitled to share in the income for his life, or for any period beyond twenty-one years. I may add that it is very doubtful whether a share in the income of this business can be treated as a share in the "income of land" within the meaning of sec. 25. It certainly would not be rents or profits of the land: In re Morewood[1].
My answer to the second question also is in the affirmative.
As for the third question, if we are justified in answering it at all, my answer is No. It is sufficient to say that the sum of £1,619 11s. was not paid to the Commissioner under the assessment as last amended; it was paid, and rightly paid, to the Commissioner under the original assessment; and it was repaid, and rightly repaid, by the Commissioner under the amended assessment of February 1913. The Commissioner afterwards claimed land tax under the assessment as it now stands, re-amended; and there has been no previous payment under this assessment.
Gavan Duffy and Rich JJ.
We have arrived at the same conclusion as the other members of the Court.
We think the beneficiaries were not tenants for life within the meaning of sec. 25 of the Land Tax Assessment Act 1910, and that nothing had happened to prevent the Commissioner from amending his assessment under the provisions of sec. 20 in the way notified by him to the taxpayers on 11th July 1913.
When the amended assessment was made, the day for payment having been appointed by the Governor, a debt of £5,429 8s. 10d. became due and payable by the taxpayers, and in our opinion the sum of £2,113 7s. then claimed on behalf of the Crown was the true and correct balance due and payable after giving credit for all payments in respect of the assessment already made by the taxpayers.
The result is that questions (a) and (b) must be answered in the affirmative and question (c) in the negative.
Questions (a) and (b) answered in the affirmative. Costs of the special case to be costs in the appeal.
Solicitors, for the appellants, Gillott, Moir & Ahern.
Solicitor, for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth.
R v KIDMAN [1915] HCA 58; (1915) 20 CLR 425 (16 SEPTEMBER 1915)
HIGH COURT OF AUSTRALIA
The King against Kidman and Others.
H C of A
16 September 1915
Griffith C.J., Isaacs, Higgins, Gavan Duffy, Powers
and Rich JJ.
E. M. Mitchell, for the accused Kidman.
Barton, for the accused O'Donnell.
Leverrier K.C. and Rolin K.C. (with them Flannery and
Windeyer), for the Crown.
Mitchell, in reply,
Griffith C.J.,
Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ.
Per Curiam. The motions to quash the indictment will be refused. The reasons for
judgment will be given later.
The following judgments were read:—
Sept. 16
Griffith C.J.
The questions raised for decision in this case arise
upon the Act No. 6 of 1915, assented to on 7th May, which enacts (sec. 2) that
any person who conspires with any other person to defraud the Commonwealth
shall be guilty of an indictable offence, and (sec. 3) that the Act shall be
deemed to have been in force from 29th October 1914 (the date of the
commencement of the Crimes Act of that year). The offence charged in the
indictment is alleged to have been committed before that date.
The first question is, in substance, whether the
Parliament of the Commonwealth has power to pass a law by which, after an act,
indifferent in itself—I use the words of Sir W. Blackstone—has been
committed, the person who has committed it is declared to have been guilty of a
crime and made liable to punishment. Such laws, to which the term ex post
facto is properly applicable, are forbidden by the Constitution of the United States of America, and have been deprecated by many writers.
In the case of a Legislature of plenary power, such as
that of the United Kingdom, no question of the validity of such a law can
arise. The question whether a law by which a supreme Legislature imposes penal
consequences for a past act which it considers to have been reprehensible and
deserving of punishment is morally justifiable appertains to a quite different
field of inquiry, analogous to that which comprises the consideration of
parental duties with regard to the chastisement of children. Our present inquiry
is based upon the assumption that the act retrospectively declared to have been
unlawful was not amenable to punishment when committed. For, if it was, very
different considerations will arise, as I shall afterwards show. The answer to
the question must be found in the terms of the Constitution.
The legislative power of the Commonwealth Parliament
is not plenary in the sense that its ambit includes any enactment on any subject
whatever. The scheme of the Constitution was, as pointed out by Lord Haldane L.C.,
delivering the opinion of the Judicial Committee in the case of Attorney-General
for the Commonwealth v. Colonial Sugar Refining Co.[1],
to select certain subjects, thirty-eight in number, which are enumerated in sec. 51, and most of which were already within the ambit of
the legislative power of the federating Colonies, and to confer upon the
Federal Parliament power to legislate with respect to them. These subjects do
not in terms include a power to legislate with respect to the criminal law. On
this point, indeed, the Judicial Committee remarked that "None of them
relate to that general control over the liberty of the subject which must be
shown to be transferred if it is to be regarded as vested in the
Commonwealth." But pl. XXXIX. of sec. 51 declares to be within the legislative power of the
Parliament "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." These words, in the opinion of
the Judicial Committee, do no more than cover matters which are incidents in
the exercise of some actually existing power conferred by Statute or by the
common law[2].
So far, indeed, as they relate to the execution of legislative power, they seem
to be no more than an express statement of what would be implied without them,
since the very notion of law, in the sense of a rule of conduct prescribed by a
superior authority, connotes provisions as to the consequences which are to
follow from its infraction. The imposition of such consequences, commonly
spoken of as sanctions, which are generally in the form of penalties, is in the
strictest sense of the term incidental to the execution of the power to make
the law itself. With regard to matters incidental to the execution of powers
vested in the Executive Government and in the Judicature, the express
provisions of pl. XXXIX. may perhaps be necessary. But the meaning of the term
"incidental" is the same in all cases.
As I understand the meaning of the words of pl.
XXXIX., the existence of the power, whether legislative, administrative, or
judicial, must precede the execution of it, and the occasion for the execution
of a power must arise before any matter can be called incidental to its
execution. In a different context the word "incidental" might be
capable of a wider interpretation. Thus, since a house must exist before it is
inhabited, it might be said that the erection of the house is incidental to
inhabiting it, or, since it is incidental to the performance of the functions
of the Post Office that a letter-carrier shall not be obstructed in the
delivery of letters, that an assault upon a letter-carrier committed, say, a
month ago, the effects of which now impede the performance of his work, is a
matter incidental to the execution of his duty as a letter-carrier. I do not so
understand the word.
The phrase "matter incidental to the execution of
a power" imports, in my opinion, some matter attendant upon its present
execution. A past event, therefore, although it may materially affect the
efficiency of the agent in the present execution of a power, cannot, for the
purpose of construing the extent of the power to legislate upon it, be said to
be a matter incidental to its execution.
If it were necessary to assign ex post facto
laws, such as those to which I first adverted, to some definite category, I
think that the true category would be "Control over the liberty of the
subject," as suggested by Lord Haldane, or "Reward and
punishment of citizens who have deserved well or ill of the State."
For these reasons I do not think that power to pass an
ex post facto law is conferred by the power to make laws on matters
incidental to the execution of a power vested in the Parliament or the
Government or Judicature.
In my opinion the power of the Commonwealth Parliament
to enact criminal laws is to be found in pl. XXXIX. and nowhere else, and is a
power to enact them as sanctions to secure the observance of substantive laws
with respect to matters within the legislative, administrative, or judicial
power of the Commonwealth, and in that sense incidental to the execution of such
powers.
I am therefore of opinion that a law which operates
merely as an ex post facto law is not within the power conferred by pl.
XXXIX.
There is another class of laws which have, in a sense,
a retrospective operation, and of which Statutes commonly called Acts of
Indemnity and Acts which impose duties of Customs as from the date on which
they are proposed in Parliament afford familiar instances. Entirely different
considerations are applicable to such laws, and nothing that I have said with
regard to ex post facto laws is intended to apply to them.
I am disposed to think also that laws validating
retrospectively acts of the Executive Government which at the time when they
were done were not authorized by law but were necessary under the rule Salus
populi suprema lex would be within the power. In both those cases the
authority rests upon necessity, which cannot be called in aid of an ex post
facto law.
The next objection formally taken was "that it is
not within the competence of the Commonwealth Parliament to confer upon the
High Court original jurisdiction in respect of offences against the common
law." The objection, as taken, impliedly assumes that the offence charged
in the indictment may be an offence against the common law. Before dealing with
it, I will consider whether the indictment does charge such an offence. This
inquiry raises a large and important question, namely, whether there is any
common law in Australia independent of the common law which forms part of the
law of the several States. It is contended for the respondents that there is no
such law, and American decisions were cited in support of this contention. I
remark, in passing, that the Judicial Committee in the Colonial Sugar
Refining Co.'s Case tacitly assumed[3]
that the powers referred to in pl. XXXIX. of sec. 51 included powers "conferred by Statute or at
common law," but this language should not, I think, be strained as
importing a decision on the point. The principles applicable to the subject
seem to be free from doubt. It is clear law that in the case of British
Colonies acquired by settlement the colonists carry their law with them so far
as it is applicable to the altered conditions. In the case of the eastern
Colonies of Australia this general rule was supplemented by the Act 9 Geo. IV.,
c. 83. The laws so brought to Australia undoubtedly included all the common law
relating to the rights and prerogatives of the Sovereign in his capacity of
head of the Realm and the protection of his officers in enforcing them,
including so much of the common law as imposed loss of life or liberty for
infraction of it. When the several Australian Colonies were erected this law
was not abrogated, but continued in force as law of the respective Colonies
applicable to the Sovereign as their head. It did not, however, become
disintegrated into six separate codes of law, although it became part of an
identical law applicable to six separate political entities. The same
principles apply to laws of the United Kingdom of general application, such as
the Statute of Treasons. In so far as any part of this law was afterwards
repealed in any Colony, it, no doubt, ceased to have effect in that Colony, but
in all other respects it continued as before. When in 1901 the Australian
Commonwealth was formed, this law continued to be the law applicable to the
rights and prerogatives of the Sovereign as head of the States as before,
subject to any such local repeal. But, so far as regards the Sovereign as head
of the Commonwealth, the current which had been temporarily diverted into six
parallel streams coalesced, and in that capacity he succeeded as head of the
Commonwealth to the rights which he had had as head of the Colonies. It is not
necessary to speculate as to what would have been the effect of a positive law
passed in any of the Colonies making it lawful, e.g., to defraud or
conspire to defraud the Colony, for no such law was passed. I entertain no
doubt that it was an offence at common law to conspire to defraud the King as
head of the Realm, that on the settlement of Australia that part of the common
law became part of the law of Australia, that on the establishment of the
several Colonies it became an offence to conspire to defraud the King as head
of the Colony, and that on the establishment of the Commonwealth the same law
made it an offence to conspire to defraud the Sovereign as head of the
Commonwealth. Such a law, or to put it in other words, such a right to
protection, seems, indeed, to be an essential attribute to the notion of
sovereignty. I have, therefore, no difficulty in holding that the indictment in
this case discloses an offence against the common law of Australia.
In my opinion the power conferred by pl. XXXIX.
extends to enacting in the form of a Statute the unwritten law of the
Commonwealth applicable to the execution of its powers. Such a law would in
effect be declaratory only (compare R. v. Munslow[4]),
and any provision contained in it with reference to the Courts in which the
offence was to be prosecuted would be in the nature of a law of procedure. A
law of procedure is always construed as retrospective in its operation without
express words to that effect. I offer no opinion on the question whether if the
Statute imposed a greater punishment than that to which the offender was liable
at common law it would be valid so far as regards the excess.
But for the reasons I have given I am of opinion that
a criminal law which can only operate as an ex post facto law is not
within the power of the Parliament.
I think therefore that the Act No. 6 of 1915 may be
supported as a valid exercise of the power to pass laws incidental to the
execution of the administrative powers of the Commonwealth, and that an offence
against the law declared by it is therefore also an offence against a law made
by Parliament.
The other objections raised on the motion to quash the
indictment related to the competence of this Court to exercise original
jurisdiction in respect of the offence.
The judicial power is a part of the right of
sovereignty. It extends to the administration of justice in respect as well of
violations of the law which entail penal consequences as to infractions of
civil rights. In primitive societies there is no distinction in principle
between criminal and civil actions. In more developed societies the redress of
civil wrongs is in practice required to be sought by the party aggrieved, while
in the case of violations of the law entailing penal consequences the
proceedings are instituted in the name or on behalf of the sovereign authority.
This has been for so long a time the rule in British communities that any
reference in a Statute to judicial power or its exercise must be interpreted by
its light.
The analogy between the two kinds of proceedings is
thus expressed in Chitty on the Common Law (2nd ed., vol. i., p.
841):—"Criminal informations, properly so called, are analogous to
declarations for the redress of a personal injury, except that the latter are
at the suit of a subject for the satisfaction of a private wrong, and the
former are in the name of the King, for the punishment of offences affecting
the interests of the public. They are accusations or complaints for serious
misdemeanors, which, whether they immediately affect the safety of the Crown,
or, in the first instance, encroach more nearly on individual rights, require
to be speedily repressed for the good of society at large."
It is of the essence of judicial proceedings of a
controversial character that there should be a party who seeks to put the
tribunal in motion and a party against whom action is sought to be taken. The
former is spoken of as the person "at whose suit" the proceeding is
taken, and both are spoken of as parties to the proceeding. Bearing this
elementary proposition in mind, I turn to sec. 75 (III.) of the Constitution, which enacts that in all matters in which the
Commonwealth or a person suing or being sued on behalf of the Commonwealth is a
party the High Court shall have original jurisdiction. In my opinion it is a
function of the Executive Government of every sovereign State, and therefore of
the Government of the Commonwealth, to invoke the aid of the judicial power of
the State for any purposes for which it may properly be invoked, which purposes
include the punishment of offences committed against its laws. The mode of
invoking that aid is by a litigious proceeding which is commonly and properly
described in such a context by the word "matter."
It follows in my opinion (1) that the Commonwealth is
entitled to invoke the aid of the judicial power for such a purpose, (2) that
the proceeding in which it is invoked is a matter to which the Commonwealth is
a party, and (3) that the High Court has jurisdiction to entertain it.
Sec. 76 of the Constitution authorizes the Parliament to make laws conferring
original jurisdiction on the High Court in any matter (inter alia)
"(ii.) arising under any laws made by the Parliament." The Judiciary
Act 1915 (No. 4) amends sec. 30 of the Principal Act of 1903 by adding
words conferring jurisdiction on the High Court "in trials of indictable
offences against the laws of the Commonwealth." It is plain that this Act
was passed in intended execution of the power conferred by sec. 76. There was,
indeed, no other power under which it could be passed. So far as the Court
already had jurisdiction under sec. 75 (III.) the new law had no effect either
by way of addition to or diminution of its jurisdiction. It could, therefore,
only have effect as conferring jurisdiction under laws made by the Parliament.
The variation of language between "the laws of the Commonwealth" and
"laws made by the Parliament" certainly does not suggest that the
latter expression was intended to be synonymous with the former. And, having
regard to the sense in which the term "the laws of the Commonwealth"
is used in the Constitution, e.g., in secs. 61 and 120, and the term
"any law of the Commonwealth" in sec. 80, I think it is impossible to contend successfully
that they can be treated as synonymous. The only result would be that the
enactment was unnecessary.
If, however, I am wrong in thinking that the Court has
original jurisdiction in criminal cases under sec. 75 of the Constitution, the Act of 1915 would undoubtedly confer such
jurisdiction in trials of indictments for offences created by laws passed by
the Parliament. In sec. 3 of the Judiciary Act 1915, which stands as
sec. 71A of the Principal Act, and which provides that the Attorney-General may
file an indictment in the High Court for any indictable offence against
"the laws of the Commonwealth" without examination or commitment for
trial, the same terms must have the same meaning, as also in sec. 2 of the High
Court Procedure Act 1915 (No. 5) (standing as sec. 15A of the High Court
Procedure Act 1903-1915), which enacts that the trial by the High Court of
indictable offences against the laws of the Commonwealth shall be by a Justice
with a jury. Whether, therefore, I am right or not in thinking that the Crimes
Act No. 12 of 1914 can be supported as a declaratory Act, I think that the
Act No. 5 of 1915 is applicable to the trial of the present case.
For these reasons I am of opinion that the High Court
has original jurisdiction in respect of the indictment now in question, and
that the motions to quash the indictment should be refused.
Isaacs J.
(1) I am of opinion that the retrospective provisions
of the Act No. 6 of 1915 are within the competence of the Parliament of the
Commonwealth.
The question depends entirely on the meaning of
sub-sec. XXXIX. of sec. 51 of the Constitution. The construction will probably be aided by first
considering what is included in the words "any power vested by this Constitution in the Government of the Commonwealth." Whenever
any such power is given, there is given with it by implication every ancillary
power that is necessary to the existence of the Government, and the proper
exercise of the direct power it is intended to execute. Such ancillary powers
must, in my opinion, be truly "incident" to the main powers, in other
words they must be impliedly included in the grant. That is how I understand
the maxim Quando lex aliquid concedit, concedere videtur et illud, sine quo
res ipsa esse non potest.
In Barton v. Taylor[5]
Lord Selborne, speaking for the Judicial Committee, and referring to the
powers incident to or inherent in the New South Wales Legislative Assembly
(without express grant), said that whatever, in a reasonable sense, was
necessary for the purposes of its existence and the proper exercise of its
functions was impliedly granted by its mere creation. "But," said his
Lordship, "for these purposes, protective and self-defensive powers only,
and not punitive, are necessary." Further on he observed:—"The
principle on which the implied power is given confines it within the limits of
what is required by the assumed necessity."
It will, therefore, be clearly observed that where an
executive body is created, and has among other functions, that of safe-guarding
the revenue and making contracts under which that revenue is to be paid, it has
an inherent right of self-protection, and of defending from invasion by direct
interference the revenue and the actual making of its contracts. A man
attempting to steal Commonwealth treasure may be resisted to death; a man
obstructing any Commonwealth officer in the performance of his duty may be
thrust aside with all the force necessary to enable the officer to perform his
duty.
All this is implied executive power, but punishment,
whether regarded as retribution or as a deterrent, is beyond the scope of the
executive power. That is, it is not incidental to it, or to its execution, in
the sense which would include it by implication in the grant of power. The
Executive cannot change or add to the law; it can only execute it; and any
change of or addition to law is not incidental when we are speaking of a
non-legislative power. But it cannot be maintained that the same considerations
apply to the Legislature under sub-sec. XXXIX. If we were to say that nothing
is within the range of its power under that sub-section but what is incidental
to the power exercised by the Executive, the power would mean nothing. The
legislative power must extent further than the limits of mere incidents implied
by law. It must have, and by concession it has, power to attach punishment to
conduct not already punishable. It may say that any attempted invasion by force
on the field of Commonwealth executive powers may not only be resisted and
prevented, but also punished. Punishment connotes, from what has already been
said, something quite unnecessary to the existence or exercise of the executive
functions. But it is nevertheless for legislative purposes within the term
"matters incidental to the execution" of the executive power.
Punishment is an ordinary means employed by Legislatures to guard and assist
the executive power. For the future execution of the power, it is admitted to
be appropriate, and within the power granted by sub-sec. XXXIX. But why within
that power? Simply because, as Lord Selborne says in Barton v. Taylor[6],
"express powers given by the Constitution Act are not limited by the principles of common law
applicable to those inherent powers which must be implied (without express
grant) from mere necessity, according to the maxim Quando lex aliquid concedit,
concedere videtur et illud, sine quo res ipsa esse non potest." That is,
it becomes a mere matter of interpretation of the actual words used, and in
that sense the power is an independent power of legislation as high as any of
the preceding thirty-eight in sec. 51. I, therefore, do not agree that it adds
nothing to the Parliamentary power which would not be implied if it were
omitted.
But if it includes the power to punish future acts
which are calculated to obstruct, hinder or embarrass the Executive, why not
past acts also of the same nature? I think the Legislature may punish past
interference or attempted interference with the Executive. Once there is in
active operation some Commonwealth power, any interference or attempted
interference is per se unlawful. It is contrary to the Constitution or the laws of the Commonwealth, the execution of
which is vested in the Crown by sec. 61 of the Constitution. The Executive may have repelled it, but after
difficulty; and no State can deal with the matter, nor could the Commonwealth
be supposed to be dependent on the State for the vindication of an insult or
impediment to the Commonwealth; and it is not the habit of the Imperial
Parliament to intervene in such a case. Must the outrage go unpunished? In my
view, at the moment it occurs, the Commonwealth being entitled to freedom from
molestation, the matter is one incidental to the execution of the Commonwealth
power; it does not cease to have that character when completed and past. And
being of that character, it would in my opinion be cognizable by the Parliament
under sub-sec. XXXIX. No doubt such a law would be an ex post facto law,
in the sense that certain punishment was attached to the act. But it would not
be ex post facto converting a lawful act into an unlawful act, even if
that circumstance is material. No act that is a breach of the law at the time
it is done, is innocent. It may be that the law has not then affixed penal
consequences to it; but that does not affect the quality of the act itself.
Consequently, such a law as is supposed, though ex post facto in
relation to the public treatment of the man who has already offended, is not
necessarily unjust, and is certainly confined to a "matter incidental to
the execution" of a power.
Such a Statute is the English Trading with the
Enemy Act 1914, followed by the Commonwealth Act on the same subject, but
utterly unsustainable retrospectively unless the Parliament has power to pass ex
post facto laws with reference to the limited subject matters under its
control, where it thinks the occasion so grave as to demand such measures.
There is no prohibition in the Australian Constitution against passing ex post facto laws, as there
is in the American Constitution, both as to the States and the United States. The
prohibition to the United States apparently assumes that Congress would
otherwise have had the power. Therefore, in my opinion, no distinction can be
validly drawn between ex post facto laws—regarding them as
criminal only—and any other kind of retroactive laws. A retroactive law, that
is, a retrospective law in the true sense, is one which "provides that as
at a past date the law shall be taken to have been that which it was not"
(per Buckley L.J. in West v. Gwynne[7]).
That does not include an Act which only alters existing rights as from the date
of the Act.
It is obvious that if an ex post facto Act is
invalid because it is ex post facto, it is not because criminal
consequences are attached but because it is retrospective, and the same fate
must, under the Australian Constitution, attend an Act which attaches civil consequences. Nor
can any distinction be founded on the mere difference between making a past
lawful act unlawful, and a past unlawful act lawful. (See Young v. Adams[8].)
The question cannot, therefore, turn on whether a Statute is ex post facto
or not, but whether the subject dealt with—either retrospectively or
prospectively—is a subject within the description contained in sub-sec. XXXIX.
Now, punishment is a deterrent, and in the recent case
of R. v. Kupfer[9]—a
case under the Trading with the Enemy Act 1914—Lord Reading C.J.
said:—"The object of the punishment is to prevent trading with the enemy;
to deter persons who might be tempted for the sake of gain to engage in
operations detrimental to the interests of this realm" &c. So long
only as the ex post facto law deals with matters which were, when they
arose, incidental to the execution of a power, and therefore of the same
character and quality as if they had arisen since the passing of the Act, I can
see no reason why the same consideration of deterrent punishment is not
applicable to the past act as to the future. The only distinction that exists
between the two is that in the one case there was not the fear of
punishment when the act was done, and in the other there is. The knowledge of
wrongful conduct is the same in both. But the Parliament's powers are not
confined to creating fear of punishment by threatening as to future acts, but
extend to dealing with the conduct, which in its opinion deserves it, and so
conveying the same warning and fear as a plenary Legislature within the ambit
assigned to it.
I consequently answer the first question in the
affirmative.
(2)
As to the second question, except for whatever crimes, if any, arise
through contravention of the Constitution, and are not
included in sec. 75 (III.), and except for whatever
crimes are cognizable under the admiralty and maritime jurisdiction, this
question should strictly speaking be answered in the negative.
But the fourth question should be considered with it.
Taking the subject matter of the two questions together, the position, in my
opinion, stands thus. Sec. 75 (III.) declares that "In all matters in which
the Commonwealth ... is a party the High Court shall have original
jurisdiction." "Matters" include all justiciable causes of suit,
whether civil or criminal. Prosecutions for crimes are always at the suit of
the Crown. (See Halsbury's Laws of England, vol. ix., p. 233, and
Short & Mellor's Crown Practice, p. 2.) The rule of law that the
King cannot himself give judgment even in his own Court of King's Bench is, as Coke
says (4 Inst., 71), because he cannot be judge in his own cause. The
learned writer adds: "his own cause" includes "all pleas of the
Crown; as all manner of treasons, felonies, and other pleas of the Crown which
ex congruo are aptly called propriæ causæ regis, because they are placita
coronæ regis."
The third sub-section of sec. 75 therefore includes matters as to which the King in
right of his Commonwealth complains of some breach of public law to which a
penal consequence is attached. That breach of public law is not confined to
Statute law. It is an offence at common law to obstruct the execution of an Act
of Parliament (per Ashurst J. in R. v. Smith[10]).
It has been urged, however, that an offence at common
law is not a Commonwealth offence—that is, it is not an offence against the
King in right of his Commonwealth, but against the King in right of his State
in the place where the offence was committed. It is inconceivable that the
Commonwealth—which, within its own sphere of power, is supreme—can be left
dependent for the effective exercise of its functions upon the permissive
action of any State or all of them. The Commonwealth carries with it—except where
expressly prohibited—all necessary powers to protect itself and punish those
who endeavour to obstruct it. The common law of England was brought to
Australia by the first settlers, and remains, as the heritage of all who dwell
upon the soil of this continent, in full force and operation, except so far as
it has in any portion of the land been modified by a competent Legislature. For
State purposes and jurisdiction State laws may provide differently. But they
cannot restrict the operation of the Constitution, and whatever it implies is the law of Australia, as
much as if it were expressly so written. The necessary implication of
unrestrictable right to perform its functions as a sovereign power—because in
law it is the King who acts—carries with it the corollary that obstruction to
the King in the exercise of his Commonwealth powers is, at common law, an
offence with reference to the Constitution, and not with reference to any State law or the State
Constitution. It is entirely outside the domain of the States. It
was forcibly stated by Miller J., when delivering the opinion of the
Court in Neagle's Case[11],
that "there is a peace of the United States." So here, there is a
peace of the Commonwealth, not because there is a special common law of the
Commonwealth, but because the common law of Australia recognizes the peace of
the King in relation to his Commonwealth, by virtue of the Constitution, just as it recognizes the peace of the King in
relation to each separate State. The idea was well expressed in the Western
Union Telegraph Co. Case[12]
in these words:—"There is no body of federal common law separate and
distinct from the common law existing in the several States in the sense that
there is a body of Statute law enacted by Congress separate and distinct from
the body of Statute law enacted by the several States. But it is an entirely
different thing to hold that there is no common law in force generally
throughout the United States; and that the countless multitude of inter-State
commercial transactions are subject to no rules and burdened by no restrictions
other than those expressed in the Statutes of Congress." Mutatis
mutandis, those words are applicable to Australia. Parke B. said, in
his observations on the codification of the criminal law, "the rules of
the common law have the incalculable advantage of being capable of application
to new combinations of circumstances perpetually occurring" (see Brailsford's
Case[13]).
If, then, by the common law, as applied to the new
fact or combination, in this case the sovereignty created by the Constitution Act, which the King exercises by new representatives in right of the new
Commonwealth, it appears that any person in Australia has obstructed or taken
any step towards obstructing His Majesty, the Commonwealth, as representing the
King in that sovereignty, has a justiciable matter of complaint—a matter
capable of judicial solution, according to a settled legal standard. It becomes
then a question of curial jurisdiction to entertain that matter. Sec. 75 (III.)
says that the High Court of Australia shall have original jurisdiction in all
matters wherein the Commonwealth is a party, and, therefore, in such a matter
as I have predicated. All that remains is to see whether in a given case the
Commonwealth is properly represented. Unless some competent law alters the
common law the King in such a cause is properly represented by his
Attorney-General—which, of course, means the Attorney-General of the
Commonwealth. In Ex parte Crawshay v. Langley[14]
Blackburn J. says "in a matter of an offence against the State, the
proper officer to prosecute is the Attorney-General."
Certain requirements as to preliminary inquiry and
commitment for trial, have been prescribed by sec. 68 of the Judiciary Act
1903-1914, but only as regards offences "against the laws of the
Commonwealth." The more recent Act No. 4 of 1915, however, by sec. 71A
expressly provides that an indictment may be filed by the Attorney-General in
the High Court without such examination or commitment where there is charged an
indictable offence "against the laws of the Commonwealth." Whatever
that last phrase may mean in one place, it means the same in the other.
All that remains is to inquire whether the charge of a
conspiracy to defraud the Commonwealth is the charge of an offence of the
necessary nature. First, it is established law that the agreement to do an act
itself is, in itself, an overt act in advancement of the intention to do the
ultimate act agreed upon: Mulcahy v. The Queen[15];
Quinn v. Leathem[16],
and R. v. Brailsford[17].
Then, as to defrauding the Commonwealth: "To defraud," says Buckley
L.J. in In re London and Globe Finance Corporation[18],
"is to deprive by deceit: it is by deceit to induce a man to act to his
injury. More tersely it may be put, that to deceive is by falsehood to induce a
state of mind; ... to defraud is by deceit to induce a course of action."
If the Act complained of is one which tends to produce a public mischief, it is
an offence against the criminal law: R. v. Brailsford[19],
and the cases there cited.
In the result the chain is complete: (1) jurisdiction
in the Court to entertain a charge of crime at common law against the
Commonwealth; (2) power in the Attorney-General to represent the Commonwealth;
(3) power to indict without the preliminary examination; (4) the requisite
character of the charge. To this should be added (5) that the charge is not
limited in form to the Statute, and therefore will apply to both the Statute
and the common law.
I ought to notice the suggestion that the enactment in
the form of a declaratory Statute of what is the common law might be regarded
as statutory law of the Commonwealth. I do not think so any more than if the
Commonwealth were to pass in the same way a declaratory Act embodying an
Imperial Statute. "The law," would owe nothing of its force to
Commonwealth enactment. There is no power that can be pointed to in the Constitution enabling the Parliament to enact the common law as
such, or to modify the common law as such. What authority it possesses in this
respect must arise out of some power contained in the Constitution. If in form enacting a punishment for a common law
offence the punishment is declared to be less than that at common law, the Act
could be taken as controlling the Courts as to the extent of punishment they
could validly impose. It would be a fetter on the power of the Court's
discretion as to the sentence that could be passed. That might well be
allowable, and to that extent be true law. But otherwise I think a mere
declaration of the common law is of no inherent force however convenient it
might be for purposes of reference. If, for instance, it incorrectly
represented the common law, it would have to be disregarded, unless, of course,
it proved to be the valid exercise of some specific power, express or implied.
For the reasons I have given, I agree that the motion
to quash the indictment ought to be refused.
Higgins J.
These questions are reserved, I understand, under sec.
18 of the Judiciary Act 1903-1915, as sec. 72 does not apply to the
case. It has been assumed, rightly or wrongly, that sec. 18 applies to criminal
as well as to civil cases.
The first question is as to the competence of the
Australian Parliament to make the provisions of the Crimes Act 1915 (No. 6 of 1915) retrospective. By sec. 2 it is
enacted (by way of amendment of the Crimes Act 1914) that any person who conspires with any other person
"to defraud the Commonwealth" shall be guilty of an indictable
offence; the penalty attached being imprisonment for three years or less. By sec. 3 it is enacted "This Act shall be deemed to have
been in force from the date of the commencement of the Crimes Act 1914" (29th October 1914). There is, therefore, no
doubt as to the intention of the Parliament to make a conspiracy to defraud the
Commonwealth between 29th October 1914 and 7th May 1915 (the date of the
commencement of the Crimes Act 1915) an indictable offence. There is no doubt that the
Act of 1915 was meant to be retrospective; and therefore the numerous cases
which lay down the principle of construction against retrospective or retroactive
operation are inapplicable. If the Act were an Act of the British Parliament
with its plenary powers, the principle of construction must yield to the
clearly expressed intention of the Legislature. But the question as to the
power of the Federal Parliament—a Parliament which has no power to legislate
except as to specified subjects—to legislate retrospectively, remains. For the
purpose of the question I may assume—without in any way deciding the
point—that, apart from the Act No. 6, a conspiracy to defraud the Commonwealth
does not constitute a criminal offence within the State law or otherwise.
Now, there is not in our Constitution, as there is in the British North America Act
(sec. 91), any power to make laws as to "the criminal law." But our Constitution confers on the Federal Parliament power to make laws
for the peace, order and good government of the Commonwealth "with respect
to" a number of subjects specified; including (at the end of the list)
"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." The chief part of the argument
has been addressed to this last placitum; but I am by no means prepared to
admit that, apart from it, Parliament has no power to make disobedience to any
of its laws an offence punishable criminally. A power to make laws "with
respect to" a given subject—say, "taxation"—is very wide in scope.
It appears to me to be wider even than a "power to levy and collect
taxes," as in the United States Constitution. Under the latter phrase there is more room for the
contention that the Act in question must be aimed more directly at the object,
taxation; and it was therefore expedient to add the "necessary and
proper" clause—the power "to make all laws which shall be necessary
and proper for carrying into execution the foregoing powers." Under a power
to make laws "with respect to" taxation, on the other hand, one would
infer that the law in question may be aimed at the things necessarily attendant
on taxation, as well as at taxation itself. Yet it is evident from the language
of Marshall C.J. in M'Culloch v. Maryland[20],
that he was prepared to hold, even independently of the "necessary and
proper" clause, that Congress had power to incorporate a bank as a means whereby
the powers to levy and collect taxes, to borrow money, to regulate commerce, to
declare and conduct a war, to raise and support armies, could be more
effectively exercised; as a means whereby the revenue of the United States
could be more conveniently collected and disbursed. It is not for us to say
whether this conclusion was warranted. Even if we adopt a much less liberal
construction of the powers conferred, it seems clear that a power to make laws
"with respect to" taxation must enable Parliament to make false
returns for purposes of taxation punishable by penalty or otherwise. So too an
Act making a conspiracy to defraud the Commonwealth a criminal offence may
fairly be treated as an Act made "with respect to" each and all of
the subjects of legislation mentioned in the first thirty-eight placita of sec.
51; for a fraud on the Commonwealth affects its finances, and to cripple the
finances tends to cripple, more or less, the exercise of all the legislative
powers, and the execution of all the laws.
But pl. XXXIX. of sec. 51 seems to me to put beyond
doubt the power of the Parliament to make laws as to frauds on the Commonwealth
and for punishment of those who have been guilty of such frauds or have
conspired to commit them. It gives to the Parliament power to legislate with
respect to "matters incidental to the execution of any power vested by
this Constitution in the Parliament ... or in the Government of the
Commonwealth ..." The Government of the Commonwealth is the
Governor-General acting with the advice of his Executive Council; and his power
"extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth" (secs. 61,
62). The Government has to receive the revenue and pay the expenditure of the
Commonwealth (secs. 81-83, &c.). Frauds on the Commonwealth, and the
punishment of such frauds, as well as protection from such frauds, are, in my
opinion, "matters incidental to the execution" of the powers vested
by the Constitution in the Government of the Commonwealth, as well as
those vested in the Parliament; and it follows that Parliament may make laws
making such frauds punishable as crimes.
It is urged, however, that past frauds, and past
conspiracies to defraud, and the punishment thereof, are not "matters
incidental to the execution of any power vested" in the Government;
because they do not help the future execution of such powers. The word
"future" is not used; pl. XXXIX. is irrespective of the time of
execution, whether past, present or future. No doubt a provision making
criminal and punishable future acts would have more direct tendency to prevent
such acts than a provision as to past acts; but whatever may be the excellence
of the utilitarian theory of punishment, the Federal Parliament is not bound to
adopt that theory. Parliament may prefer to follow St. Paul (Romans, ix.,
4), St. Thomas Aquinas, and many others, instead of Bentham and Mill. To carry
out its powers under the Constitution, the Government must have money and property; and to
legislate so as to make criminal and punishable any frauds which reduce that
money or property, is to "make laws with respect to matters incidental to
the execution" of the powers "vested by this Constitution in the Government" as well as of the powers
vested in the Parliament. If the frauds, and conspiracies to defraud, which are
incidental to the administration of the government, as well as to all big
financial undertakings, have not been criminal and punishable before,
Parliament can make them criminal and punishable—whether they were committed
before, or are committed after, Parliament legislates on the subject.
We have not been referred to any words in the Constitution which point to any limitation of the plenary powers
of the Federal Parliament so long as the Parliament keeps within the ambit of
the subjects of legislation specifically assigned to it. The British
Parliament, admittedly, has power to make its laws retroactive; and I know of
no instance in which a Legislature created by the British Parliament has been
held to have overstepped its powers by making legislation retroactive. There
are plenty of passages that can be cited showing the inexpediency, and the
injustice, in most cases, of legislating for the past, of interfering with
vested rights, and of making acts unlawful which were lawful when done; but
these passages do not raise any doubt as to the power of the Legislature to
pass retroactive legislation, if it see fit. The maxim runs: Nova
constitutio futuris formam imponere debet, non præteritis. The word used is
"debet," not "potest." This is the British system, whether
it be right or wrong. It is not the system of the French Code; for, even in
civil matters, it is provided "la loi ne dispose que pour l'avenir; elle
n'a point d'effet retroactif" (Code Civil, 2). The British
Parliament, by Acts of attainder and otherwise, has made crimes of acts after
the acts were committed, and men have been executed for the crimes; and—unless
the contrary be provided in the Constitution—a subordinate Legislature of the British Empire has,
unless the Constitution provide to the contrary, similar power to make its
Statutes retroactive. The general position is stated by the Judicial Committee
of the Privy Council in a case arising as to the validity of an Act passed by
the Legislature of the Province of Ontario thus:—"When the British North
America Act enacted that there should be a Legislature for Ontario, and that
its Legislative Assembly should have exclusive power to make laws for the
Province and for provincial purposes in relation to the matters enumerated in
sec. 92, it conferred powers not in any sense to be exercised by delegation
from or as agents of the Imperial Parliament, but authority as plenary and as
ample within the limits prescribed by sec. 92 as the Imperial Parliament in the
plenitude of its power possessed and could bestow" (Hodge v. Reg[21]).
It is to be noticed that these words were used with reference to a provincial
Legislature—a Legislature of limited, specified powers. The residuary powers of
legislation are committed by the British North America Act to the
Parliament of Canada; so that it cannot be said that this unqualified language
is inapplicable to the Parliament of Australia, which also has only limited,
specified powers. The power of a provincial Legislature to make retroactive
legislation is actually exemplified in a case from the province of Quebec— L'Union
St. Jacques de Montreal v. Belisle[22].
In that case, it was held by the Privy Council that the provincial legislation
was valid although it reduced liabilities under existing contracts. It was not
a case of bankruptcy—the debtor was not a bankrupt; and the power to make laws
as to bankruptcy was vested in the Dominion Parliament, not in the provincial
Legislatures.
Much stress has been laid, however, on the argument
that to make a man punishable for acts already committed, for joining in a
conspiracy to defraud the Commonwealth before the Act made it a crime, is not
conducive to the protection of the Commonwealth Treasury. Even if the word used
were "conducive" and not "incidental," it is by no means
clear to me that the enactment, making such a conspiracy before the Act
punishable as an indictable offence, is not, or cannot be, a law with respect
to matters conducive to the execution of the powers vested by the Constitution in the Parliament and in the Government. Why may not
punishment for a conspiracy to defraud before the Act operate possibly as a
deterrent against further frauds? Moreover, by making the conspiracy to defraud
before the Act an indictable offence, the provision for search warrants becomes
applicable. Any justice of the peace, suspecting on reasonable grounds that
there is in some house anything with respect to which an indictable offence has
been, or is suspected on reasonable grounds to have been committed, or anything
that on reasonable grounds is believed to be intended for use in committing any
such offence, may authorize a constable to enter the house and seize any such
thing (sec. 10). The provision now impugned may lead to the recovery of money
or goods fraudulently obtained, or to the seizure of things intended to be
fraudulently used; or it may lead to men being put under lock and key who have
special knowledge of the workings of the departments and who have already
conspired to defraud them. But the word actually used is
"incidental," not "conducive"; and Parliament may legislate
with respect to any matter "incidental" to the execution of any power
of the Government. "Conducive" looks to some future result;
incidental has no connotation of time. Expenses are "incidental" to
the execution of the powers of the Commonwealth as to naval and military
defence; they can hardly be said to be conducive to it. In the Standard
Dictionary "incidental" is explained as meaning "occurring
in the course of or coming as the result or an adjunct of something else;
concomitant; as incidental expenses."
It is clear that pl. XXXIX. of sec. 51 was not meant
to limit, it was meant to increase, the powers of Parliament to make laws; and
there is not one word, from first to last, to indicate an intention to withhold
from the Federal Parliament the same absolute discretion as the British
Parliament itself has, with regard to past events as well as present and
future—provided that the Federal Parliament confine itself to the specified
subjects and matters incidental to the execution of the legislative executive
and judicial powers. It is admitted that the Parliament has power to make
retroactive laws as to specified subjects of legislation, such, e.g., as
"naturalization"; and it would need a violent straining of the wide
words of the power to make laws for incidental matters if we were to read into
them a prohibition of retroactive laws designed for the enforcement of the
substantive laws. If we did so, we should be adding to the Constitution, without express words, the prohibition of ex post
facto laws which is expressly contained in the American Constitution, and omitted from ours.
I am of opinion that the first question should be
answered in the affirmative. If this question be so answered it becomes
unnecessary to answer the other question. I do not like to commit myself
prematurely to any dogma with regard to what is called the "common law of
the Commonwealth"; but I concur with the Chief Justice in thinking that the
cases in the United States Courts which reject the existence of a common law of
the United States, are—to say the least—inapplicable to our Constitution.
Gavan Duffy and Rich JJ.
The Chief Justice has referred for the consideration
of this Court certain questions touching the validity of an indictment. It
appears to have been assumed that this could be done, and was done, under the
provisions of sec. 18 of the Judiciary Act 1903, but no argument was addressed to us as to the
meaning and effect of that section. Nothing that we say must be thought to
indicate an opinion as to whether it applies to a Justice sitting in the
conduct of a criminal trial, as we feel ourselves at liberty to advise the
Chief Justice as he requests without determining that point.
The first question is as follows:—Whether the Act No.
6 of 1915, so far as its provisions are retrospective, is within the competence
of the Commonwealth Parliament.
Sec. 2 of that Act adds conspiracy to defraud the
Commonwealth to the conspiracies already punishable under sec. 86 of the Crimes Act 1914, and sec. 3 enacts that the whole Act shall be deemed to have
been in force from the date of the commencement of the Crimes Act 1914. It was conceded in argument by defendant's counsel
that the Commonwealth cannot be defrauded except when exercising one or more of
its functions and so executing a power or powers mentioned in sec. 51 (XXXIX.) of the Constitution. They also conceded that sec. 2 of the Crimes Act 1915 was a valid exercise of the right to legislate with
respect to matters incidental to the execution of such powers. We have some
doubt as to whether too much has not been conceded. In our opinion much may be
said for the view that the words "incidental to the execution of any
power" &c., which are designed to permit the Commonwealth Parliament
to legislate for the purpose of facilitating the execution of Commonwealth
powers, are incapable of being extended to cover an enactment making acts
criminal, not because their effect is to defraud the Commonwealth, but merely
because their object is to do so. The question has not been argued, and in
deference to the concession of counsel and to the opinion entertained by our
brother Judges, we shall not pursue it further. The argument addressed to us by
defendants' counsel may be presented thus. First it was said that what they
called ex post facto legislation, that is to say, legislation making
criminal an act which was not so at the time of its performance, is not
authorized by the Constitution, and the enormity of such legislation was dwelt on as
a reason against finding an authority for it by any implication or under any
general words. Nothing, it was said, but express unambiguous words could
justify us in upholding its validity. We are not disposed to go this length.
The Commonwealth Parliament has plenary power to legislate with respect to any
subject matter assigned to it. It is for the Crown to show that the provisions
of sec. 3 of the Crimes Act 1915 are within such a subject matter, and it is enough if
on a fair exposition of the Constitution they appear to be so.
Next it was said that in the phrase "incidental
to the execution of any power" &c., in sec. 51 (XXXIX.) of the Constitution, the word "incidental" means conducive or
helpful, and the word "execution" means future execution, the result
being that in order to bring sec. 3 of the Crimes Act 1915 within the provisions of sec. 51 (XXXIX.) of the Constitution it must be shown to be helpful, "after the
passing of the Crimes Act 1915," to the execution of some such power. A
provision for the future punishment of a crime completed before the passing of
the Crimes Act 1915, it was said, could not at the time the Act was
passed or after that time affect, and therefore could not be conducive to, the
execution of any power whether before or after the passing of the Act; and even
if it could be incidental though not conducive to the execution of a power in
the past, it could not be incidental in any sense to its execution after the passing
of the Act.
In our opinion there is no ground for these
contentions. The word "incidental" does not mean helpful or
conducive. That which is merely consequential on the execution of a power may
be incidental to its execution though it is not helpful or conducive to it; and
"execution" means execution at any time during the existence of the
power. The test as to whether the subject matter of an enactment is incidental
to the execution of a power is not whether it can affect the future execution
of such power, but whether it is or has at any time been so related to the
execution of the power for the time being as to be incidental to it. When a
power comes into existence there must also be in existence matters incidental
to the execution, and other matters may from time to time become incidental to
it. All such matters are subject to the legislative power of the Commonwealth
by virtue of sec. 51 (XXXIX.) of the Constitution; their character is fixed and remains. As time passes
they may cease to be incidental to the further execution of the power, but they
never cease to be incidental to its execution as a whole.
If it were necessary to do so, we should be prepared
to decide that the provisions of sec. 3 of the Crimes Act 1915 satisfy the test proposed by defendants' counsel.
They say that it is necessary for the validity of that section that it should
be capable of conducing to the execution of some power after the passing of
that Act. We think it is capable of doing so. It is true that the conduct
sought to be punished by sec. 3—the conspiracy—so far as it is completed,
cannot be induced or prevented or in any other way affected by the proposed
punishment, but it is not the conspiracy but the object to be obtained by the
conspiracy, the defrauding of the Commonwealth, that interferes with the
execution of the power and makes the punishment of the conspiracy a matter
incidental to that execution. In the case of a conspiracy before the passing of
the Act to defraud the Commonwealth after the passing of the Act, the power to
punish the conspirators may prevent the defrauding of the Commonwealth after
the passing of the Act; in any case Parliament may think and rightly think that
punishment of offences committed before the passing of the Act would be likely
to deter persons from obstructing the execution of powers in the future. If we
take the collection of Customs duties by way of a concrete example of the
execution of a power, might not Parliament reasonably think that the most effective
means to prevent the perpetration of frauds in the course of such collection,
and so protect and facilitate the execution of the power, would be not merely
to provide for the punishment of those who offended in the future but to
actually punish offenders in the past? If so, Parliament would be at liberty to
adopt those means.
We answer question 1 in the affirmative, and our
affirmative answer renders it unnecessary to answer any of the other questions
referred to us.
Powers J.
On 13th May 1915 an indictment was filed in this Court
by the Attorney-General of the Commonwealth. The offence charged in the
indictment is that the parties accused "did at Sydney," &c.,
"between 29th October 1914 and 8th May 1915 conspire among themselves and
with divers other persons to defraud the Commonwealth of Australia of divers
and large sums of money by procuring that the Commonwealth of Australia should
pay excessive prices for the supply of goods for the use of His Majesty's armed
forces raised by the Commonwealth of Australia."
On 21st June 1915 the indictment came on before the
learned Chief Justice for trial. On being arraigned some of the defendants, by
their counsel, moved to quash the indictment upon certain grounds. The Chief
Justice reserved all questions arising upon the motion for the consideration of
the Full Court, and adjourned the trial.
Five questions were submitted for the consideration of
this Court, of which the following are copies:—[His Honor here read the
questions set out in the special case.]
I do not think it is necessary to decide, at present,
under what authority the questions were submitted to this Court; we are
justified in answering them.
The substantial question raised in this case is an
exceedingly important one, namely, whether the Parliament of the Commonwealth
has power to pass what is generally called an ex post facto law—that is
to say, a law by which, after an act has been committed which was not
punishable by any Commonwealth Statute at the time it was committed, the person
who committed it is declared to have been guilty of a crime and to be held
liable to punishment.
The charge against the accused was made under sec. 86
of the Act No. 12 of 1914 (Crimes Act 1914) as amended by Act No. 6 of 1915 (Crimes Act 1915). The amendment made by sec. 2 of Act No. 6 of 1915
was to add par. (e) to sec. 86 of Act No. 12 of 1914.
Sec. 86 now reads:—"Any person who conspires with
any other person ... (e) to defraud the Commonwealth shall be guilty of an
indictable offence."
Sec. 3 of the Act No. 6 of 1915 reads:—"This Act
shall be deemed to have been in force from the date of the commencement of the Crimes Act 1914."
The Act No. 6 of 1915 was assented to on 7th May 1915.
The accused contended that sec. 3 of the Act No. 6 of
1915, declaring that the Act should be deemed to have been in force from the
date of the commencement of the Crimes Act 1914 (namely 29th October 1914), was ultra vires
because the Commonwealth had no power to pass ex post facto laws such as
have been referred to. It was not contended that Parliament could not pass
retroactive laws such as indemnity Acts or Acts validating past collections of
duties of Customs, and similar laws.
The offence charged in the indictment is alleged to
have been committed after the passing of the Crimes Act of 1914, but before the passing of the Act No. 6 of 1915. The United States Constitution forbids the passing of ex post facto laws. Our
Constitution does not contain such a prohibition, and it does not
give express power to pass such laws. Such laws are very properly generally
deprecated, but the Parliament of Great Britain since the declaration of war
has thought fit to exercise its undoubted plenary powers to pass ex post
facto laws for the defence of the Realm, however objectionable such laws
are.
As there is no express power given in the Constitution to Parliament to pass such laws, the power must be
found in the Constitution; that is, the power must be necessary for effectually
carrying into effect the powers vested in Parliament, or incidental to some
express power given by the Constitution, or incidental to the execution of any power vested
by the Constitution in the Government of the Commonwealth, or in the
Federal Judicature, or in any department or officer of the Commonwealth.
In the case referred to during the argument, Attorney-General
for the Commonwealth v. Colonial Sugar Refining Co.[23],
the Judicial Committee did state that "none of them" (pl. I. to pl.
XXXVIII. inclusive) "relate to that general control over the liberty of
the subject which must be shown to be transferred if it is to be regarded as
vested in the Commonwealth." I do not, however, find in that judgment
anything to indicate that the Judicial Committee had any doubt about the
control of the Commonwealth Parliament over the liberty of the subject, so far
as it had power to legislate with respect to the thirty-eight subject matters
set out in sec. 51, or with respect to the matters set out in pl.
XXXIX., above referred to; nor do I find anything in that judgment inconsistent
with the judgment of the Judicial Committee in Hodge v. The Queen[24],
where Sir Barnes Peacock, in delivering the judgment of the Privy
Council, said:—"It appears to their Lordships, however, that the objection
thus raised by the appellants is founded on an entire misconception of the true
character and position of the provincial Legislatures. They are in no sense
delegates of or acting under any mandate from the Imperial Parliament. When the
British North America Act enacted that there should be a Legislature for
Ontario, and that its Legislative Assembly should have exclusive authority to
make laws for the Province and for provincial purposes in relation to the
matters enumerated in sec. 92, it conferred powers not in any sense to be
exercised by delegation from or as agents of the Imperial Parliament, but
authority as plenary and as ample within the limits prescribed by sec. 92 as
the Imperial Parliament in the plenitude of its power possessed and could
bestow. Within these limits of subjects and area the local Legislature is
supreme, and has the same authority as the Imperial Parliament ..."
Those remarks referred to a Constitution with limited specified powers. The same remarks apply
to our Constitution. It may, I think, therefore be taken for granted that
there is full plenary power in the Commonwealth Parliament to pass legislation
with respect to the matters referred to in sec. 51, and that the Parliament has control over the liberty
of the subject so far as is necessary to efficiently carry out any of the
powers vested in it, or so far as is incidental to the execution of any
power vested in it by the Constitution, or vested in the Government of the Commonwealth,
or in the Federal Judicature, or in any department or officer of the
Commonwealth (pl. XXXIX.), and so far as to prevent any interference with the
exercise of any of the powers vested in the Government, &c.
I think it must also be admitted that, if there is not
any power to pass ex post facto laws in respect of all the subject
matters referred to in sec. 51, there is no power to do so with respect to any of
them.
Sec. 51 gives power to the Commonwealth Parliament (inter
alia) "to make laws for the peace, order, and good government of the
Commonwealth with respect to the naval and military defence of the Commonwealth
and of the several States, and the control of the forces to execute and
maintain the laws of the Commonwealth." The war at present raging has, I
think, proved beyond question that it was necessary for the defence of the
Empire to pass ex post facto laws, and the British Parliament passed
such laws. The war has also proved, I think, that it was necessary, for the proper
defence of the Commonwealth during the present war, and during any
future war—apart from pl. XXXIX.—that Parliament should have the power to
pass ex post facto laws to prevent assistance being given to the enemy.
I do not find anything in the Constitution—an instrument of government—to lead me to hold that
the Commonwealth Parliament, entrusted with the defence of the Commonwealth, is
so impotent a body that aliens, neutrals or Australian subjects may defy His
Majesty's Imperial Proclamation, and the Governor-General's Proclamation, upon
the declaration of war, and openly commit breaches of a "Trading with the
Enemy Proclamation," without any possibility of punishment by a Commonwealth
Statute; and that only those breaches which are committed after a Commonwealth
Act has been assented to are punishable in Australia, especially as Parliament
may not be sitting at the time war is declared.
I personally think it is not only incidental to the
defence of the Commonwealth, but also absolutely necessary for the proper
defence of the Commonwealth, that the Commonwealth should have the power to
punish by ex post facto laws any persons who, in Australia, defy His
Majesty's Proclamation or the Governor-General's Proclamation, even if the
Proclamation forbids acts that are not, at the time the Proclamation is
published, acts punishable by common law or State laws, if the acts interfere
with the exercise of any power vested in Parliament or in the Government of the
Commonwealth, and that can only be done by the people knowing that the
Commonwealth Parliament has power to pass ex post facto laws.
The power appears to me to have been exercised in
England solely as incidental to the execution of the power to defend the Realm
and for the purpose of defence. See the Imperial Proclamations and the Imperial
Acts.
If the Commonwealth Parliament has power in time of
war to pass ex post facto laws to prevent interference with the
efficient defence of the Commonwealth, it has power to do so at any time. What
laws it passes (if passed with respect to a matter as to which the Commonwealth
has power to make laws) it is for Parliament, not this Court, to say. If it has
power to pass ex post facto laws for the naval and military defence of
the Commonwealth, it has power to pass ex post facto laws incidental to
the execution of any power vested by the Constitution in the Government of the Commonwealth, or in any
department or officer of the Commonwealth.
It is undoubted that power has been vested in the
Government of the Commonwealth to obtain and protect its public funds, so
necessary for the execution of all the powers vested in it. The law in
question—No. 6 of 1915—remains in force only during the war. Parliament has
evidently thought it necessary to pass ex post facto legislation to
prevent those frauds upon the public revenue which, unfortunately, are
frequently committed against Governments in time of war.
The particular fraud charged in this case is in
connection with goods supplied to His Majesty's armed forces in Australia
during the war.
It was admitted that sec. 86 of the Crimes Act (as amended by the Act No. 6 of 1915, clauses 1 and
2) is intra vires; that is, that the Parliament had power to deal with
the subject matter in question, and to punish persons who defraud the
Commonwealth after the Act is passed—that is, it can punish frauds on the
Commonwealth in future; but it is contended that it cannot punish frauds on the
Commonwealth, however serious, committed before the criminal law is assented
to. It is also admitted that a State can pass ex post facto laws with
respect to any matters not vested in the Commonwealth by the Constitution.
If the Commonwealth Parliament has power to pass laws
"with respect to" the subject matter, and the powers granted
by the Constitution are as plenary and ample within the limits prescribed
by sec. 51 as the Imperial Parliament, in the plenitude of its
power, could bestow, and Parliament has within those limits the same authority
as the Imperial Parliament (see Hodge v. The Queen[25]),
I do not see how it can be properly contended that the power to pass ex post
facto laws is not included in the plenary power.
The Commonwealth Parliament, I hold, has power to pass
ex post facto laws when it makes a law with respect to any of the
thirty-eight subjects referred to in sec. 51 or with respect to the "matters incidental"
previously referred to in pl. XXXIX., provided the laws are necessary for the
efficient control of the subject matter or are incidental to the execution of
the vested powers.
The power to pass ex post facto laws may be
based on two grounds:—(1) That the power is necessary as a deterrent to prevent
injury to the Commonwealth in the future for want of legislation in times of
emergency or danger. The ex post facto laws for defence are a fitting
example of this power. (2) That the plenary power to legislate on any subject
matter within the power of Parliament, or to prevent interference, exists from
the time the power is exercised.
The power to pass sec. 86 of the Crimes Act in its present form in October 1914 is admitted,
because it was incidental to the power vested in the Government of the
Commonwealth—it was as incidental in May 1915 as it was in October 1914. As it
was incidental to the power in and since October 1914, the Parliament has
plenary power to pass ex post facto laws with respect to any
interference or trespass on the power since October 1914.
Every other sovereign Parliament in the British Empire
(including all Australian State Parliaments) has, so far as I know, the power
to pass ex post facto laws. In the United States Constitution it was thought necessary to prohibit Congress from
passing ex post facto laws, and I think such an amendment of the Constitution necessary in our Constitution if it is intended to prevent the Commonwealth Parliament
from exercising the plenary power it at present has within the limits of sec. 51, to pass such laws.
The answer to the first question should be Yes.
It was admitted that if the first question is answered
in the affirmative it is not necessary to consider questions 2, 3 and 4. It is
not therefore necessary to decide whether this Court has original jurisdiction
to try criminal offences under sec. 75 (III.) of the Constitution or under the common law of the Commonwealth or of the
State, or whether the Commonwealth is a party to a trial on indictment within
the meaning of the word "party" in sec. 75 (III.) of the Constitution.
As to question 5: the Act No. 4 of 1915 (Judiciary
Act 1915) confers on the High Court original jurisdiction to try indictable
offences against the laws of the Commonwealth; and an indictable offence
against a law of the Commonwealth is charged in the indictment in question.
For these reasons, I am of opinion that the motion to
quash the indictment should be refused.
First question answered in the affirmative.
Solicitor, for the Crown, Gordon H. Castle, Crown
Solicitor for the Commonwealth.
Solicitors, for the accused, Mark Mitchell &
Forsyth; Dowling, Taylor & Macdonald; P. M. Sanders.
[2]
(1914) A.C., at p. 256; 17 C.L.R., at p. 655.
[4]
(1895) 1 Q.B., 758.
[5]
11 App. Cas., 197, at p. 203.
[6]
11 App. Cas., 197, at p. 207.
[7]
(1911) 2 Ch., 1, at p. 12.
[9]
(1915) 2 K.B., 321, at p. 340.
[10]
2 Doug., 441, at p. 445.
[13]
(1905) 2 K.B., 730, at p. 739.
[17]
(1905) 2 K.B., 730, at 746.
[18]
(1903) 1 Ch., 728, at p. 732.
[19]
(1905) 2 K.B., 730, at p. 745.
[21]
9 App. Cas., 117, at p. 132.
[22]
L.R. 6 P.C., 31.
[24]
9 App. Cas., 117, at p. 132.
[25]
9 App. Cas., 117.
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