The Queen v Law & Ors [2006] NTSC 84

PARTIES: THE QUEEN

v

BRYAN JOSEPH LAW
JAMES JOSEPH DOWLING
ADELE MARGARET GOLDIE
DONNA MAREE MULHEARN

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: 20529976, 20529975, 20529995 and 20529991

DELIVERED: 12 October 2006

HEARING DATES: 3 October 2006

JUDGMENT OF: THOMAS J

CATCHWORDS:

CRIMINAL LAW – VOIR DIRE – QUESTION OF LAW – INTERPRETATION--general rules of construction of instruments – where words can be read into legislation to make statute intelligible – application dismissed.

Defence (Special Undertakings) Act 1952 (Cth), s 8.

R v Young (1999) 46 NSWLR 681 applied.

REPRESENTATION:
Counsel:
Crown: H Dembo
Defendants: R Orr
Solicitors:
Crown: Commonwealth Director of Public Prosecutions
Defendants: Northern Territory Legal Aid Commission

Judgment category classification: C
Judgment ID Number: tho200614
Number of pages: 11
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Law & Ors [2006] NTSC 84
Nos. 20529991, 20529976, 20529975, 20529995

BETWEEN:

THE QUEEN

AND:

BRYAN JOSEPH LAW
JAMES JOSEPH DOWLING
ADELE MARGARET GOLDIE
DONNA MAREE MULHEARN

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 12 October 2006)

[1] This is an application on behalf of the defendants, heard on the voir dire, pursuant to s 26L of the Evidence Act. The application was heard by the Court on 3 October 2006. On 12 October 2006 I gave my ruling on the application and advised the parties I would publish reasons at a later time. I now set out the reasons for the ruling.


[2] The preliminary question of law for determination from the Court is whether, on the totality of the evidence that the Crown has particularised as evidence upon which it proposes to rely, the Crown can establish, as a matter of law, that the area on which each of the defendants are alleged to have committed offences under the Defence (Special Undertakings) Act 1952 (Cth), was a “prohibited area”, under s 8 of the Act, at the time the offences were allegedly committed.


[3] Each of the defendants has been charged, inter alia, with one or more offences relating to a “prohibited area” under the Act.
· Brian Law has been charged with one count of entering a prohibited area contrary to s 9(1);
· Donna Mulhearn has been charged with one count of entering a prohibited area contrary to s 9(1) and one count of using a camera in a prohibited area contrary to s 17(1);
· Adele Goldie has been charged with one count of entering a prohibited area contrary to s 9(1) and one count of using a camera in a prohibited area contrary to s 17(1); and
· James Dowling has been charged with one count of entering a prohibited area contrary to s 9(1) and one count of using a camera in a prohibited area contrary to s 17(1).


[4] Each of the defendants were also charged with offences of intentionally damaging property, contrary to s 29(1) of the Crimes Act 1914 (Cth).


[5] Each of the offences is an indictable offence under the Defence (Special Undertakings) Act. The offence of entering a "prohibited area" is punishable by a maximum penalty of imprisonment for seven years. The offence of using a camera in a "prohibited area" is punishable by a maximum penalty of imprisonment for two years.


[6] The relevant legislation is s 6, s 7 and s 8 of the Defence (Special Undertakings) Act which I set out hereunder:

“6 Special defence undertakings
A work or undertaking which:

(a) is being carried out, or is to be carried out, whether within or without Australia, for or in relation to the defence of Australia, or in part for or in relation to the defence of Australia and in part for or in relation to the defence of some other part of the Queen’s dominions or of some other country associated with Australia in resisting or preparing to resist international aggression; and
(b) is declared by the Minister, by notice in the Gazette, to be a special defence undertaking;
is a special defence undertaking for the purposes of this Act.
7 Prohibited areas


(1) A place (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) used or occupied for the purposes of a special defence undertaking is a prohibited area for the purposes of this Act.
(2) Subsection (1) does not apply to:

(a) a railway, tramway, roadway, wharf, pier or jetty, or a work or structure which is part of or connected with a means of transport by land, water or air;
(b) the area on which is erected or situated a searchlight, lighthouse, buoy or other navigational aid;
(c) a public building, fire station, aerodrome, air station or runway for aircraft;
(d) a signal, telegraph, telephone, radar or wireless station or office; or
(e) a place used for gas, water or electricity works or other works for purposes of a public character;
unless it is used or occupied exclusively for the purposes of a special defence undertaking.
8 Minister may declare prohibited areas
If it is necessary for the purposes of the defence of the Commonwealth so to do, the Minister may, by notice published in the Gazette, declare an area of land or water or an area of land and water (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) to be, for the purposes of this Act, a prohibited area.


[7] The Act establishes an offence for entering a "prohibited area" without the necessary permits. A penalty of seven years imprisonment is provided as a maximum penalty.


[8] On 9 November 1967, the relevant area was declared a "prohibited area" by Notice in the Commonwealth of Australia Gazette No. 96. It reads as follows:
“IN pursuance of the powers conferred on me by section eight of the Defence (Special Undertakings) Act 1952-1966, I, Allen Fairhall, Minister of State for Defence, being satisfied that it is necessary for the defence of the Commonwealth to do so, hereby declare the area of land described in the Schedule hereunder to be a prohibited area for the purposes of that Act.


The Schedule
All that piece or parcel of land in the Northern Territory of Australia containing an area of 4398 acres and 20 perches more or less being Northern Territory Portions 930, 931, 932 and 1072 and being described as follows:
Commencing at a point bearing 179 degrees 30 minutes 15 seconds 2896.6 links; 179 degrees 25 minutes 30 seconds 4451.9 links from the most westerly north western corner of Northern Territory Portion 469; thence by lines bearing 73 degrees 58 minutes 30 seconds 8342.2 links; 179 degrees 59 minutes 30 seconds 13001.8 links; 186 degrees 57 minutes 3808 links; 270 degrees 30 seconds 6351.6 links; 232 degrees 41 minutes 200 links; 268 degrees 25 minutes 30 seconds 1039.5 links; 0 degrees 150 links; 270 degrees 1 minutes 16951.1 links; 261 degrees 4 minutes 30 seconds 6479.3 links; 0 degrees 30 seconds 12844.4 links; 78 degrees 32 minutes 30 seconds 5000 links; 84 degrees 11 minutes 12104.8 links; 94 degrees 2 minutes 4000 links; 73 degrees 59 minutes 2510.7 links to the point of commencement.
Dated this second day of November 1967.”


[9] It is not in dispute that the area the subject of the offences is as set out in the schedule. Pursuant to s 153 of the Evidence Act (Cth) the Commonwealth of Australia Gazette No. 96 9 November 1967 is admissible.


[10] The argument for the defence is that the evidence relied on by the Crown to establish that it is a "prohibited area" pursuant to s 8 of the Defence (Special Undertakings) Act does not satisfy the first precondition of the Act which is:


“If it is necessary for the purposes of the defence of the Commonwealth so to do, the Minister may, by notice published in the Gazette, declare an area of land or water or an area of land and water (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) to be, for the purposes of this Act, a prohibited area.”


[11] Counsel for the defence Ms Orr submits there is no objective evidence that it was “necessary for the purposes of the defence of the Commonwealth”. It is the defence position that the Minister’s subjective assessment i.e. that he was satisfied that it was necessary for the defence of the Commonwealth was not sufficient to establish the first precondition under s 8.


[12] Ms Orr submits that the first condition is framed in plain and unambiguous terms that reflect an objective fact that must be present before the relevant declaration can be made. On behalf of the defendants it is argued that s 8 makes no reference to any subjective test of satisfaction. It is submitted this is significant because other sections of the Act e.g. s 26 and s 31 do provide for the test of subjective satisfaction.


[13] It is the argument for the defence that there was a deliberate decision on the part of the Legislature to render the first precondition an objective fact that was amenable to judicial review.


[14] On the submissions for the defence, any construction of s 8 that permits the Minister’s subjective satisfaction to establish the first precondition is not only contrary to the plain words of s 8 but impermissibly requires a Court “to read additional words into s 8 being ‘Where the Minister is satisfied that it is necessary for the purposes of the defence of the Commonwealth …’”.


[15] Counsel for the defence refers to the decision of Spigelman J in R v Young (1999) 46 NSWLR 681 at 686:


“[5] The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what Parliament meant by the words it used, not to determine what Parliament intended to say: see Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236G; [1978] 1 All ER 948 at 952; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613G and 645C-D; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459.


[6] In order to construe the words actually used by Parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used. Judicial statements which appear to have been prepared to countenance something more than this, should be so understood.


[7] The most frequently cited formulations are:


"… It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do". Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey; and
“... we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself." Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 at 445, per Lord Loreburn LC.
To similar effect is the following formulation:


"Additional words ought not to be read into a statute unless they are required in order to make the provision intelligible." Wills v Bowley [1983] 1 AC 57 at 78B.


[8] The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the court, must remain capable of characterisation as a process of construction of the words actually used.”


[16] It is part of the defence argument that there are good reasons why the additional words should not be read into s 8. It is not necessary:

1) to make s 8 intelligible; or
2) in light of the use of the subjective satisfaction test elsewhere in the Act, to remedy any situation of legislative inadvertence.


[17] In addition the defence submit the Court should be loath to read in the additional words because of the presumption against statutory interference with fundamental rights and secondly the penal nature of s 8 and the care Courts should take to ensure the liberty of the subject is not put in jeopardy except where that has been made clear under the legislation.


[18] Finally, the defence submission is that the language used in s 8 is clear and unambiguous and it is consistent and harmonious with the other provisions of the Act and can be intelligibly applied to the subject matter with which it deals. Accordingly, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust – Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305 per Gibbs CJ.


[19] Counsel for the Crown, Mr Dembo QC, concedes that s 8 could have been more clearly enunciated.


[20] It is the Crown submission is that it is the Minister in charge of administering the Act who is the person that the Act intended should make the decision as to whether “it is necessary for the purposes of the defence of the Commonwealth …” under s 8 of the Defence (Special Undertakings) Act.


[21] The Crown refers to the Second Reading Speech of the Defence (Special Undertakings) Bill 1952. The first purpose of the bill was to make provision for the protection of the atomic weapon test that was to be carried out at the Monte Bello Islands off the north west coast of Australia. In addition to this the Second Reading Speech proceeded as follows:


“The bill renders the provisions of the Approved Defence Projects Protection Act 1947 applicable to special defence undertakings. This is proposed in order to remove any doubt whether, as a matter of construction of the definition of ‘approved defence project’ in that act, its provisions may be invoked for the protection of such undertakings. Certain other machinery provisions, to which I need not refer at this stage, are also included in the bill.
The penalties provided for offences are severe. I make no apology for that; but I invite the attention of the House to the provision which requires the consent of the Attorney-General to the institution of any prosecution. This, I suggest, will afford a safeguard against the measure being applied without due consideration. The Government has thought it wise in preparing the measure to make provision for any similar undertakings that may require to be carried out. It is designed so as to cater for such undertakings, whether they are for the defence of Australia alone, or whether, as well as being for our own defence, they are for the defence of another country with which we are associated in preparing to resist international aggression.”


[22] I accept that the Second Reading Speech is of limited assistance in interpreting s 8 of the Act.


[23] In these reasons I am only dealing with the defendants’ arguments with respect to s 8. The Crown have advised they will also be relying on s 6 of the Act. The defence argument in respect of s 6 is a matter to be dealt with at a later time if the defendants seek an opportunity to respond to the Crown’s position with respect to s 6.


[24] It is relevant to note that the Crown have provided a detailed statement of facts to be relied on by the Crown at the trial of the four defendants. It is not necessary to outline those allegations at this time. The Crown case will be that the defendants had ample warning that the subject area was a prohibited area and that their proposed actions could result in charges against them for various breaches of the Act.


[25] Accordingly, the defence submission that there was an interference with the rights being a fundamental right to freedom of movement by the public in a particular area has not been substantiated. Whilst I agree legislation creating a penal statute should be strictly construed the interpretation suggested by the Crown that the section should be read with the following words inserted at the commencement of the provision i.e. “Where the Minister is satisfied that it is necessary for the purposes of the defence of the Commonwealth ….” does not in these circumstances offend that principle.


[26] I am in agreement with the argument advanced for the Crown that it promotes the purpose of the Act and is necessary to make the section intelligible. The Minister must be the person who makes the decision as to whether it is necessary for the purposes of the defence of the Commonwealth etc and accordingly he is the person who must be satisfied that this is so.


[27] To have it otherwise would result in a farcical situation where the Crown would have to call evidence on matters of national defence which presumably the defendants could seek to rebut. The evidence would all be about matters that may be subject to privilege on the grounds of national security. Alternately, the decision to declare land to be a "prohibited area" pursuant to s 8 of the Act, must be based on facts that are peculiarly within the knowledge of the government represented by the Minister administering the Act at the time of making the decision. The decision has to be for the government of the day whom the Minister represents. Such decisions can always be revoked by successive governments or be the subject of lawful protest or possibly administrative review. They are not decisions that can sensibly be made elsewhere.


[28] For these reasons, I agree with the submissions made on behalf of the Crown that s 8 should be read as meaning as follows:


“Where the Minister is satisfied that if it is necessary for the purposes of the defence of the Commonwealth so to do, the Minister may, by notice published in the Gazette, declare an area of land or water or an area of land and water (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a state) to be for the purposes of this Act a prohibited area.”


[29] On the evidence on which the Crown proposes to rely, s 8 of the Defence (Special Undertakings) Act 1952 (Cth) establishes that the subject area of land as set out in the Schedule and known as Pine Gap was a "prohibited area" within the meaning of the Act at the time the offences were allegedly committed.

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